R. K. LeBlond Machine Tool Co.

In the Matter of R. K . LEBLOND MACHINE TOOL Co., CINCINNATI ELECTRICAL TOOL CO. and INDEPENDENT EMPLOYEES ORGANIZATION Case No. R-1655.-Decided January 30, 1940 Machine Tool Manufacturing Industry-Investigation of Representatives: question concerning representation of employees : refusal of Companies to bargain with petitioning or rival union until certified by Board ; Statement of Policy issued by Companies, based on negotiations with rival union more than a year after a consent election and more than a year before this Decision , and expressly subject to change by employees or their representatives , no bar to-Unit Appro- priate for Collective Bargaining : production and maintenance employees except certain specified classes, pursuant to stipulation ; hourly paid powerhouse em- ployees and apprentices also included over one union's objection-Representa- tives: eligibility to participate in choice ; current pay roll adopted , to include new employees hired because of business increase due to war orders-Election Ordered Mrs. Mary Telker Iliff, for the Board. Frost d Jacobs, by Mr. Cornelius J. Petzhold, of Cincinnati, Ohio, for the Company. Mr. Joseph A. Roach, of Cincinnati, Ohio, for the Independent. Mr. Julius Holzberg, of Cincinnati, Ohio, for Local No. 1702. Mr. Milton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 20, 1939, Independent Employees Organization, herein called the Independent, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., Cincinnati, Ohio, herein called the Companies, and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 27, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized 19 N. L. R. B., No. 108. 1049 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 30, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Companies, upon the Independent, and upon Local. No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America, herein called Local No. 1702, a labor organization claiming to represent employees di- rectly affected by the investigation. Pursuant to the notice, a hearing was held on December 7, 1939, at Cincinnati, Ohio, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, the Companies, the Independent, and Local No. 1702 were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANIES 1 R. K. LeBlond Machine Tool Co. is a Delaware corporation, having its principal office, place of business, and manufacturing plant in Cincinnati, Ohio. Cincinnati Electrical Tool Co. is an Ohio corpora- tion and, although nominally a separate corporation, is in fact a department of the R. K. LeBlond Machine Tool Co. Both the R. K. LeBlond Machine Tool Co. and the Cincinnati Electrical Tool Co. are engaged in the manufacture, sale, and distribution of machine tools. The principal raw material used by the Companies is steel, of which more than 50 per cent is purchased in States other than the State of Ohio and is shipped to the Cincinnati plant of the Companies in interstate commerce. The sales of the Companies amount to more than $1,000,000 annually, and at least 80 per cent of the finished products of the Companies are shipped in interstate commerce from their Cincinnati plant. The Companies stipulated that they were engaged in interstate commerce within the meaning of the Act. 1 The findings in this section are based upon a stipulation of facts entered into by all the parties. R. K. LEBLOND MACHINE TOOL COMPANY -''' 1051 H. THE ORGANIZATIONS INVOLVED Independent Employees Organization is an unaffiliated labor. or-7 ganization, admitting to membership employees of the Companies. Local No. 1702, Amalgamated Association of Iron, Steel & Tin Workers of North America, is a labor organization affiliated with the Congress of Industrial Organizations, and admits to membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION Shortly before August 20, 1937, an agreement was entered into by the Companies,2 the Independent,3 and Local No. 1702,4 providing for a consent election to be conducted on August 20, 1937, by the Regional Director for the Ninth Region among "all factory employees of the R. K. LeBlond Machine Tool Company plant on an hourly basis, on the pay roll as of August 10, 1937, except office force, foremen, assistant foremen, timekeepers, rate setters, draftsmen, and co-ops .. . [and] anyone having the right to hire and fire," to determine whether they desired to be represented by the Independent or by Local No. 1702 for the purposes of collective bargaining. The election was held on August 20 1937, in accordance with the agreement. A total of 441 employees were eligible to vote. Of this number, 261 voted for Local No. 1702 and 159 voted for the Inde- pendent, while 7 ballots were blank and 4 were challenged, and 10 eligible persons refrained from voting. The Companies thereafter dealt with Local No. 1702 as the exclu- sive representative designated by a majority of the employees; and on September 11, 1937, issued a pamphlet entitled "Statement of Policy,'' 5 which stated that "after negotiations, an understanding has been reached which is hereinafter set forth as the statement of policy of this Company," and provided that it was to exclude foremen, assistant foremen, supervisors in charge of any class of labor, watch- men, timekeepers, salaried employees, cooperative student employees, and students employed during their summer vacation, and was to remain in force and effect "until September 22, 1938, and thereafter unless changed as a result of negotiations with employees or repre- sentatives thereof." 2 The agreement was executed on behalf of "The R . K. LeBlond Machine Tool Company" ; no other employer was involved. "The agreement was executed on behalf of "Independent Employees Organization Com- mittee," as the Independent was then known. The agreement was executed on behalf of "Steel Workers Organizing Committee (C. I. 0.)," as Local No . 1702 was then known. The designation of a third company , "The LeBlond Aircraft Engine Corporation," not otherwise identified , appeared in this Statement of Policy in addition to the two Companies hereinbefore described. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In November 1938 the Companies again negotiated with Local No. 1702, and on December 20, 1938, issued a second "Statement of Policy," 6 which stated that Local No. 1702, "after negotiations, has reached an agreement with the Company, the terms and conditions of which are hereinafter set forth as the Statement of Policy of this Company," and provided that it should exclude apprentices in addi- tion to the other employees excluded in the previous Statement of Policy, and should "remain in force and effect until October 15, 1939, and thereafter unless changed as a result of negotiations with employees or representatives thereof." On September 18, 1939, the Independent sent a letter to the Com- panies, claiming that it hied replaced Local No. 1702 as the repre- sentative of a majority of the shop employees, and requesting a conference for the purposes of collective bargaining. The Companies thereafter refused to grant the request until the Independent was certified by the Board. On October 18, 1939, Local No. 1702 re- quested the Companies to bargain with it, and the Companies refused because of the Independent's claim to represent a majority of the employees. Local No. 1702 urges that no question concerning representation existed at the time of the hearing because of the Statement of Policy of December 20, 1938, entered into after the consent election of August 20, 1937, and providing in part that it was to remain in effect until October 15, 1939, and thereafter unless changed.' The consent election occurred more than 2 years prior to the filing of the petition in this proceeding, and the second Statement of Policy had been in effect for almost a year when such petition was filed. We, therefore, find this contention without merit.8 We find that a question has arisen concerning the representation of employees of the Companies. 1V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Companies described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and 6 Only the two Companies hereinbefore described were mentioned in this Statement of Policy. T The Companies and the Independent agreed that neither the consent election nor the second Statement of Policy operated to bar a determination of representatives by the Board in this proceeding. 8 See Matter , o f F. D. Booth & Company, et al. and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491 ; Matter of H. Margolin & Co., Inc. and Int'l Ladies Handbag, Pocketbook & Novelty Workers' Union, 9 N. L. R. B. 852. R. K. LEBLOND ^IIAGHINE TOOL OOMPANY 1053 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT All parties stipulated that the unit appropriate for the purposes of collective bargaining should include all the production and main- tenance employees of the Companies at the Cincinnati plant, exclusive of foremen, assistant foremen, supervisors, in charge of any class of labor, timekeepers, salaried employees, cooperative students, student summer employees, office employees, rate setters, and draftsmen. We see no reason to depart from the stipulated unit. The parties fur- ther stipulated that no agreement could be reached by the Independ- ent and Local No. 1702 as to whether three classes of employees should be included in the unit: (1) watchmen, (2) powerhouse employees, and (3) apprentices.9 We shall consider these three dis- puted classifications seriatim. Watchmen. Although the Independent originally claimed at the hearing that the watchmen, of whom there are three, should be included in the unit, it was subsequently established that they have been paid on a salary basis since October 1938. The Independent thereupon agreed with the contention of Local No. 1702 that they should be excluded from the unit. Moreover, the stipulation of the parties, hereinabove mentioned, provides that the unit should 0xclude salaried employees. The watchmen will therefore be excluded from the unit. Powerhouse employees. There are 12 powerhouse employees. Local No. 1702 claims that they should be excluded from the unit,'° while the Independent desires their inclusion. Three of these power- house employees are salaried, and are thus excluded from the unit under the terms of the stipulation. The other nine are paid on an hourly basis. Although the powerhouse is 150 feet away from the shop where the other production and maintenance employees work, the 9 hourly paid powerhouse employees did not work exclusively in the powerhouse, but go to the shop on maintenance work with vary- ing degrees of frequency. The electricians, for example, although classified as powerhouse employees, spend most of their time in and around the shop, while certain other powerhouse employees must often visit the shop to see that the steam connections are operating properly. The powerhouse supplies the shop exclusively, and there appears to be no functional difference between the powerhouse em- 9 The Companies took no position on any of the three disputed classifications. 10 The record is not clear whether Local No. 1702 urged - the exclusion from the unit of all powerhouse employees , or only of those on salary. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and other maintenance employees whose work is confined entirely to the shop. Moreover, it does not appear that the power- house employees have any other means of representation available to them. The nine hourly paid powerhouse employees were not excluded either in the agreement for the consent election of August 20, 1937, nor in the subsequent Statements of Policy. We shall include in the unit the hourly paid powerhouse employees, but the three salaried powerhouse employees will be excluded therefrom, pur- suant to the stipulation. Apprentices. Apprentices were not employed by the Companies in 1937, nor in 1938 until about the month of November. At that time the Companies discussed with Local No. 1702 the question of train- ing apprentices, and an understanding was reached with respect thereto." An apprentice first serves a probationary period of 3 months, and, upon satisfactorily completing it, executes an appren- ticeship contract with the Companies for a period of 3 or 4 years. At the time of the hearing, the Companies employed 21 apprentices; of whom 11 were serving the probationary period, and 10 had passed their probationary period and had executed apprenticeship contracts with the Companies. Both classes of apprentices work with the other employees in the shop and, although paid at a lesser rate, are subject to the same physical working conditions. We shall therefore include all apprentices in the unit.12 We find that all production and maintenance employees of the Companies, including hourly paid powerhouse employees and ap- prentices, but excluding watchmen, salaried powerhouse employees, foremen, assistant foremen, supervisors in charge of any class of labor, timekeepers, salaried employees, cooperative students, student summer employees, office employees, rate setters, and draftsmen con- stitute a unit appropriate for the purposes of collective bargaining, and that such a unit will insure to the employees of the Companies the full benefit of their right to self-organization and to collective bargaining, and will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The parties stipulated that both the Independent and Local No. 1702 claim to represent a majority of the employees, and that the question concerning representation can be resolved only by an elec- 11 However, apprentices were specifically excluded from the operation of the second State- ment of Policy. . 12 See Matter of Standard Hat Company and United Hatters, Cap & Millinery Workers International Union, etc., 17 N. L. R. B. 883, where we said that, although the Union desired to exclude apprentices , "since they are production workers, and the United offered no valid reason for their exclusion , they will be included in the unit." E. K. LEBLOND . MACHINE TOOL COMPANY 1055 tion. Local No. 1702 requested that in any election a pay roll for the first week of August 1939 be used as the basis for determining employee eligibility to vote, on the grounds that such pay roll re- flected the Companies' normal working force and that employees hired since that date were temporary. Since the first week of August 1939 the Companies have experienced a considerable increase in their business, due mainly to war orders. At the time of the hearing they had increased the number of non-supervisory employees by about 25 per cent, or 113 employees. However, Richard E. LeBlond, the president of one of the Companies and the vice president of the other, testified that he had no reason to anticipate that the business level would fall off in the near future; and that the Companies had no classification of employees known as temporary employees, but hired only regular employees. In such circumstances, we find that employees hired since the first week of August 1939 are entitled to participate in the determination of representatives for the purposes of collective bargaining. We shall direct an election among all the production and main- tenance employees of the Companies, in the unit hereinbefore found appropriate, whose names appear upon the pay roll of the Companies immediately preceding the date of this Direction of Election, includ- ing any employees who did not work during the said pay-roll period because they were ill or on vacation, and those who were then or have since been temporarily laid off, but excluding those who have since quit or been, discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., Cincinnati, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. Independent Employees Organization and Local No. 1702, Amal- gamated Association of Iron, Steel & Tin Workers of North America are labor organizations, within the meaning of Section 2 (5) of the Act. . 3. All production and maintenance employees of the said Com- panies, including hourly paid powerhouse employees and apprentices, but excluding watchmen, salaried powerhouse employees, foremen, assistant foremen, supervisors in charge of any class of labor, time- keepers, salaried employees, cooperative students, student summer employees, office employees, rate setters, and draftsmen, constitute 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit appropriate for the purposes of collective bargaining , within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National La- bor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., Cincinnati, Ohio, an election by secret ballot shall be conducted as early as possible but not later than thirty (30)* days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Ninth Region, acting in this mat- ter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all the production and maintenance employees of R. K. LeBlond Machine Tool Co. and Cincinnati Electrical Tool Co., whose names appear upon the pay roll of either or both of the Companies immediately preceding the date of this Direction of Election, including hourly paid powerhouse employees and apprentices, and also including any employees who did not work during the said pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding watchmen, salaried powerhouse employees, foremen, assistant foremen, supervisors in charge of any class of labor, timekeepers, salaried employees, coopera- tive students, student summer employees, office employees, rate setters, and draftsmen, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Inde- pendent Employees Organization, or by Local No. 1702, Amalgam- ated Association of Iron, Steel & Tin Workers of North America, or by neither, for the purposes of collective bargaining.