New Idea, Inc.

In the Matter Of NEW IDEA, INC., and INTERNATIONAL MOLDERS UNION OF NORTH AMERICA, LOCAL 219, AFFILIATED WITH THE A. F. OF L. Case No. R-1809.-Decided July 10, 1940 Jurisdiction : agricultural equipment manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union; contract with representative which is not a free choice of employees, no bar to; election necessary. In view of the interchange of employees between the foundry and other departments, eligibility to participate in the election afforded to em- ployees who worked the greater portion of their time during the 6-month period immediately preceding the date of the Direction of Election. Although the Company has not complied with Board's decision and order in prior complaint case, since the Union has expressed no desire that the election be postponed until such compliance has been secured, the Board directed the election to be held in accordance with the usual procedure. Unit Appropriate for Collective Bargaining : employees in the foundry exclud- ing foremen, supervisors, timekeepers, and employees who are transferred into the foundry daily for short periods of time to clean up or shift weights. Evidence The Board's findings and orders are cognizable by it and treated as administratively determined unless and until set aside by a court of com- petent jurisdiction. Practice and Procedure : denial by Trial Examiner of company-dominated union's petition to intervene, affirmed -1 Ruling of Trial Examiner, denying Company's motion for continuance pending judicial review by Circuit Court of Appeals of a prior Decision and Order of Board in a complaint case directing Company to disestablish a union found to be company-dominated, affirmed by Board. Mr. Charles F. McErlean, for the Board. Pope & Ballard, by Mr. Henry Seyfarth and Mr. Lee Shaw, of Chicago, Ill., for the Company. Mr. Matthew W. Witczak and Mr. Willis B. McEwan, of Chicago, Ill., and Mr. Matthew Reid, of Kearney, N. J., for the Union. Cusack ct Cusack, by Mr. John F. Cusack, of Chicago, Ill., for the Association. Mr. Daniel J. Harrington, of counsel to the Board. 25 N. L. R. B., No. 33. 265 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 15, 1940, International Molders Union of North Amer- ica, Local 219, herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition, alleging that a question affecting commerce had arisen concerning the representation of employees of New Idea, Inc., a corporation, Sand- wich, Illinois, herein called the Company, and requesting an investi- gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 9 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 Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On April 11 the Regional Director issued a notice of hearing, copies of which, together with copies of the petition, were duly served upon the Company and upon the Union. - On April 13 the Company filed a written motion with the Regional Director, in which it requested that hearing upon the petition be continued generally pending judicial review by an appropriate Circuit Court of Appeals of the United States of the Decision and Order of the Board issued on March 7, 1940, in Matter of New Idea, Inc. and International Association of Machinists, etc., et al., Case No. C-1383; herein called Case No. -1383, especially that portion of the Order directing the Company as the respondent in that case to disestablish Independent Employees Association of New Idea, Inc., a labor organ- ization also party to that case, herein called the Association, as col- lective bargaining representative of the Company's employees. In support of the motion the Company therein stated, in effect, that the history of collective bargaining between the Company and the Asso- ciation, which is alleged to have occurred prior to the motion, would be a material fact, if cognizable by the Board, to a determination herein of the issue concerning the appropriate collective bargaining; unit and that whether such fact is properly cognizable by the Board herein cannot be ascertained until the validity of the above-mentioned 'Matter of New Idea, Inc and International Association of Machinists, affiliated with the American Federation of Labor, and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, affiliated with the American Federation of Labor, and Independent Employees Association of New Idea, Inc, also known as Independent Employees Associa- tion, party to the contract, 21 N. L R B 223. NEW IDEA, INC. 267 order, particularly the portion referred to, has been determined upon judicial review.' On April 18 the Regional Director issued an order denying the motion, copies of which were duly served upon the Com- pany and upon the Union. No exception thereto was taken by the Company.3 At the beginning of the hearing, mentioned below, the Association petitioned for leave to intervene as a necessary party to these proceedings, on the ground, in substance, that pending judicial enforcement of the Order in Case No. C-1383 it had an interest cog- nizable herein, in that these proceedings might have an effect upon its asserted position as the statutory representative of employees of the Company within certain Classifications, including employees whom the Union in its petition claimed to represent; upon its contractual relationship with,the Company under a certain alleged outstanding collective agreement dealing with the working conditions of these employees; and upon the rights of its members under the Act.' The Trial Examiner, at the hearing, denied the petition to intervene. In Case No. C-1383 proceedings were had before the Board under Section 10 (b) and (c) of the Act upon a complaint alleging, in part, that the Company dominated and interfered with the forma- tion and administration of the Association and contributed support to it, in violation of Section 8 (1) and (2), and entered into an illegal contract with the Association in violation of Section 8 (1).6 The Board, the Company, and the Association were parties to that case. In the Decision there issued the Board sustained the foregoing alle- gations of the complaint and upon appropriate findings in that respect directed the Company in the Order there issued to withdraw all recognition from and disestablish the Association as a collective bargaining representative of any of its employees and to cease giving effect to any collective labor agreement it had with that organization. That Decision and Order are now in full force and effect. Under these circumstances, the ruling of the Regional Director upon the Company's motion for a continuance and the Trial Examiner's ruling upon the petition of the Association to intervene were correct and we hereby affirm them. We see no reason for withholding adminis- trative action or for acting in these proceedings on the assumption that .the Decision and Order in Case No. C-1383 will not be sustained upon review. The findings in the-Decision in Case No., C-1383 that 8 The motion also referred to a pending application for rehearing in Case No. C-1383, which has since been denied by the Board. The materiality to the issue of appropriate bargaining unit of a history of collective bargaining between an employer and a labor organization it has formed, maintained, or assisted in violation of the Act is considered below. 3 See Article III, Section 4, Article II, Section 16, of National Labor Relations Board Rules and Regulations-Series 2, as amended. 4 The Association's petition also stated that it had petitioned the Board for leave to- in- troduce further evidence in Case No C-1383. The Board has since denied said petition. a21N L R B.223 - 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Association is an illegal labor organization is cognizable by the Board and hereby treated as administratively determined O and binding herein upon the Company and the Association unless and until it is held by a court of competent jurisdiction to be unsupported by evidence, within the meaning of Section 10 (e) of the Act, and the order based thereon is entitled to full recognition herein by the Board as final and operative upon the Company unless and until it is set aside by a court of competent jurisdiction. Inasmuch as the Association is an illegal labor organization under the Act, the history of collective bargaining between it and the Company could have no weight in determining the unit appropriate for purposes of collec- tive bargaining, for such history does not necessarily reflect or estab- lish the true desires of the employees respecting representation. Fur- ther, the Association as an illegal organization and one that the Com- pany could not recognize as a collective bargaining representative without violating the Act, can have no interest in 'or claim to rep- resentation justiciable in these proceedings.7 Its purported rights under the alleged contracts with the Company, and its contractual relationship thereunder cannot be affected by these proceedings, for they are nullities under an order in a`proceeding to which it was a party and which required the Company to cease and desist from giving effect to any agreement with the Association in respect to rates of pay, wages, hours of employment, or other conditions of employment. Pursuant to notice, a hearing was held on April 22 and 23 at Sandwich, Illinois, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel or other representatives and all partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing. on the issues was afforded all the parties. During the course of the hearing (I In Matter of Pacific Greyhound Lines and Brotherhood of Railroad Trainmen, 22 N. L. R B 111 , the Board stated in connection with a similar situation • "The respondent and the intervenor also contend that the Board in the Representation Proceedings could not find that the respondent had previously assisted the Amalgamated and its Division, for the reason that no evidence on that matter was there adduced We believe that the Board in its administration of the Act properly may treat as administratively determined facts which it has found respecting matters in issue in a prior proceeding before the Board to which the interested parties were also parties and afforded an opportunity to be heard " - 7In National Labor Relations Board v The Falk Corporation, 308 U S 453 , enforcing Matter of The Falls Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N L. R . B 654, the Court, in speaking of the Board's action in excluding from the ballot in an election directed by the Board a labor organization that had been found to be company-dominated and which the Company had been ordered to disestablish stated : "In order that 9 (c) [of the Act] might be an effec- tive means of selecting freely chosen representatives for collective bargaining as guaranteed by Section 7, the Board acted within its power in disestablishing Independent so as to bar it from consideration as an employees representative." 8 At the oral argument in the above case, counsel for the Company stated that the con- tract mentioned in Case No. C-1383 or a renewal of such contract was still in effect. NEW IDEA, INC. 269 the Trial Examiner made several rulings on motions and on objec- tions 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. On May 16 oral argument was had before the Board in Wash- ington, D. C. The Company and the Union participated in' the oral argument. - Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY New Idea, Inc., is an Ohio corporation having its principal office in Coldwater, Ohio,,,and having manufacturing plants in Coldwater, Ohio, and Sandwich, Illinois. It maintains warehouses in the States of Pennsylvania, New York, Minnesota, and Nebraska. The present proceeding involves only the plant at Sandwich. The Company is engaged at the Sandwich plant in the manufac- ture and assembly of farm equipment, particularly hay loaders, hay racks, mowers, portable corn elevators, and power corn spellers: During 1938 it there used in the course of manufacture various raw materials, including steel, steel shafting, steel plates, steel sheets, chains, pig iron, sand, paint, lumber, bolts, and nuts, of a value in excess of $475,000, 50 per cent of which were purchased and shipped to the plant from, outside the State of Illinois. In the same, year the Company sold more than $675,000 worth of products manufac- tured at this plant, of which 75 per cent were delivered and shipped from the plant into and through States other than Illinois. The business of the Company at its Sandwich plant is substantially the same at the present time as it was during 1938. About 240 persons are employed at the Sandwich plant. IT. THE ORGANIZATION INVOLVED International Molders Union of North America, Local 219, is a local of International Molders Union of North America, a labor organization affiliated with American Federation of Labor. It admits to membership employees of the Company employed in the foundry at the Sandwich plant. III. THE QUESTION CONCERNING REPRESENTATION In the summer of 1939 International Molders Union of North America, herein called the International, organized the employees in the foundry of the Sandwich plant, and in September of the same year chartered a local, the Union, in which these employees were 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enrolled as members. On November 7, 1939, the International in- formed the Company by letter that the Union had been designated by h majority of the foundry employees at the plant as their col- lective bargaining representative and requested recognition of the Union as the exclusive collective bargaining agency of such em- ployees. The International further submitted a proposed agree- ment with respect to such recognition and requested a conference with the Company concerning the same. In a reply to the Interna- tional's letter and at a conference held thereafter the Company re= fused to recognize the Union as bargaining agency of the foundry employees or.-the ground that the Company had been bargaining with another labor organization on an industrial -unit basis and that any negotiations with a craft organization such as the Union would constitute e breach of an existing collective labor contract ' concerning working conditions of its employees , made by the Company with the other labor organization , and might constitute a violation of the Act. The Company has never granted recognition f o the Union. The existing collective labor contract to which the Company ad- verted was one entered into on September 28, 1938, then in force during either its original term or a renewal thereof. It is the same contract referred to in the Association's petition to intervene in this proceeding. In view of our Order in Case No. C-1383, above-men- tioned, in which we directed the Company to cease giving effect to any collective labor agreement it had with the Association , any con- tract between the Company and that organization can constitute no ground for our not proceeding to an investigation and determination of the question concerning representation of employees of the Company. We find that a question has arisen concerning representation of employees of the Company. IV. 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 Company described in Section I above, has a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 'V. THE APPROPRIATE UNIT The Union claims that all employees, in the foundry of the Sand- wich plant, ' excluding foremen, supervisors , timekeepers, and em- ployees who-are transferred into the foundry daily for short periods NEW IDEA, INC. 271 of time to clean up or shift weights, constitute a unit appropriate for purposes of collective bargaining. The Company opposes this claim and contends that the foundry workers are a constituent part of a large industrial bargaining unit which includes all em- ployees of the plant. In support of its claim the Union states that foundry operations are carried on in two buildings and a small annex in a third building, separated from the working places of other em- ployees, and that the work of foundry employees materially differs from that of other employees in the plant. The Company, on the other hand, contends that operations in the plant are integrated and that there is an almost constant interchange of employees among all departments of the plant. The plant consists of about 30 separate buildings and 15 depart- ments, with about 8 departments devoted to production. Production originates in three primary departments : the forge shop, where steel parts are modelled and other metal parts originate; the wood shop, where wooden parts are fashioned ; and the foundry, where castings are produced. The foundry consists of the foundry proper, where molding is carried on ; the core room, where cores for castings are made; and the cleaning room, where imperfections are removed from castings. The Company considers these divisions of the foundry as three separate departments and has a separate foreman over each. All employees in the plant work the same number of hours and the pay structure for the entire plant is a form of piece-work rate known as the premium system, with some employees in each department being on a daily pay rate: The record shows that there is an interchange of employees between the foundry and other departments of the plant depending on the amount of available work in different departments. Because of the repetitious nature of the work in the foundry and the use of new devices and improvements, the Company is able to transfer employees from other departments to the foundry and in a comparatively short period of time train them to perform the particular tasks to which they are assigned. The Company introduced in evidence the work records of 32 foundry employees, showing transfers of such employees to and from the foundry. A comparison of these work records with a list of foundry employees as of April 1, 1940, containing the names of 44 foundry employees, exclusive of supervisors, discloses that 8 of the employees whose work records were introduced ' in evidence were not employed in the foundry on that date. The remaining 24 such employees had been transferred from different departments to the foundry, some having been transferred at various times from the foundry to other departments and later retransferred to the foundry. The 12 foundry employees whose work records were not introduced 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in evidence have been steadily employed in the foundry without being transferred to other departments. Although operations throughout the plant are integrated, the foundry is a. functionally separable unit devoted solely to the produc- tion of castings. The work in the foundry requires some degree of skill different from that of other departments in the plant. Moreover, although there is an interchange of employees between the foundry and other departments, there is a substantial number of workers perma- nently employed in the foundry. The Union's jurisdiction is confined to "-all workers engaged in the production of castings," both skilled and unskilled. No bona fide labor organization represents any em- ployees in the plant on a plant-wide unit basis. Thus, although a plant-wide industrial unit composed of all the employees in the plant might constitute the most effective bargaining unit, nevertheless, we are satisfied, and find, especially in view of the present state of organ- ization, that the employees in the foundry constitute an appropriate bargaining unit. Unless they are recognized as constituting a separate unit, there may be no collective bargaining agent whatever for these workers in the immediate future. Pursuant to the policy of the Act, we shall render collective bargaining an immediate possibility by designating as appropriate the unit consisting of the foundry employees. Hereinafter we find that employees in the plant who were employed in the foundry the greater portion of their working time during the 6-month period immediately preceding the date of our Direction of Election herein will be eligible to vote in the election which we shall direct. Accordingly, we find that employees of the Company who were employed in the foundry at its Sandwich, Illinois, plant the greater portion of their working time during the 6-month period immediately preceding the issuance of the Direction of Election herein, excluding foremen, supervisors, timekeepers, and employees who are transferred into the foundry daily for short periods of time to clean up or shift weights, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing 29 cards, by which the signers of the cards author- ized the Union to represent them for purposes of collective bargaining; were submitted to the Trial Examiner. An examination of the cards by the Trial Examiner and a comparison of them with the list of foundry workers, above referred to, and with canceled checks NEW IDEA, INC. 273 bearing the signatures of the signers of the cards revealed that 27 of the signatures on the cards appeared authentic and that the names on 2 of the cards did not appear on the list of foundry employees. The carols were not introduced in evidence. Under the circumstances, we find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot among employees in the appropriate unit to determine their desires with regard to representation. Although the Company has not complied with our decision and order in Case No. C-1383, the Union has ex- pressed no desire that the election be postponed until such compliance has been secured. Accordingly, we shall direct that an election by secret ballot be held within thirty (30) days from the date of the Direction of Election, subject to such other limitations as may be stated in the Direction. In view of the interchange of employees between the foundry and other departments of the plant, we feel that eligibility to participate in the election should not be confined to persons working in the foundry at the time of the election. Employees who have been transferred at times to other departments, but who have been employed in the foundry the greater portion of their working time, should not be denied an opportunity to express their desires with regard to repre- sentation. In order to extend the privilege of voting in the election to such employees, we shall direct that those employees in the plant who have been employed in the foundry the greater portion of their working time during the 6-month period immediately preceding the date of our Direction of Election herein shall be eligible to vote in the election. 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 repre- sentation of employees of New Idea, Inc., Sandwich, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. Employees of the Company who were employed in the foundry at its Sandwich, Illinois, plant the greater portion of their working time during the 6-month period immediately preceding the issuance of the Direction of Election herein, excluding foremen, supervisors, timekeepers, and employees who are transferred into the foundry daily for short periods of time to clean up or shift weights, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OYELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with New Idea, Inc., Sandwich , Illinois, 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 Thirteenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among employees of the Company who were employed in the foundry at its Sandwich, Illinois, plant the greater portion of their working time during the 6-month period immediately preceding the issuance of this Direction , including employees who are ill , or on vacation, or temporarily laid off, but excluding foremen, supervisors, timekeepers, employees who are transferred into the foundry daily for short periods of time to clean up or shift weights , and employees who, while per- forming work in that period, have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Molders Union of North America , Local 219 , affiliated with American Federation of Labor, for the purposes of collective bargaining. MR. WILLIA31 M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.