Lincoln Engineering Co.

In the Matter of LINCOLN ENGINEERING COMPANY and TOOL & DIE MAKERS LODGE 688 OF THE 4INTERNATIONAL ASSOCIATION OF MA- CHINISTS, DISTRICT No. 9 In the Matter of LINCOLN ENGINEERING COMPANY and PROGRESSIVE LODGE 41 OR THE INTERNATIONAL ASSOCIATION OF MACHINISTS, Dis- nucr No. 9 In the Matter of LINCOLN ENGINEERING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 691 Cases Nos. R-1882 to R-1884 inclusive.Decided, July 29, 1940 Jurisdiction : lubricating equipment manufacturing industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit ; conflicting claims of rival representatives ; em- ployer refuses to grant recognition to either union and requests that certi- fication be obtained ; elections necessary. Unit Appropriate for Collective Bargaining : industrial or several craft units: other factors. evenly balanced determining factor desire of the employees; determination of dependent upon elections. Line leaders and group leaders having no authority to hire or discharge but who occupy minor supervisory positions included in craft unit at request of unions involved. - Watchmen excluded from industrial unit where unions disagree as to exclusion, since they have interests and perform functions differing from those of other employees. Mr. David F. Crossen, of St. Louis, Mo., for the Company. Bartley d Mayfield, by Mr. Waldo C. Mayfield, of St. Louis, Mo., and Mr. Paul Hutchings of Washington, D. C., for Lodge 41 and Lodge 688. - Judge Fred J. Ho ff meister of St. Louis, Mo., for the Association. Mr. Delmond Garst, of St. Louis, Mo., and Mr. J. ' N. Tucker, of, Detroit, Mich.,' for the U. A. W. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 10 1940, Tool & Die Makers Lodge 688 of the International Association of Machinists, District No. 9, herein called Lodge 688,1 1 Erroneously designated in the petition as "Local" 688. 25 N. L. R. B., No. 110. 1083 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed with the Regional Director for the Fourteenth Region (St. Louis, Missouri) a petition alleging that a question affecting commerce'=had` arisen concerning the representation of employees of Lincoln Engi- neering Company, St. Louis, Missouri, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Natl6nal'Labor Relations Act, 49 Stat. 449, herein called the Act. On May 13 and 17, 1940, respectively, a similar petition and amended petition were filed by Progressive Lodge 41 of the International Association of Machinists, District No. 9, herein called Lodge 412 On May 29, 1940, a similar petition was also filed by International Union, United Automobile Workers of America, Local No. 691, herein called the U. A. W. On June 1, 1940, 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, and acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the aforesaid three cases be consolidated. - On June 4, 1940, the Regional Director issued- a notice of hearing, copies of which were duly served upon the Company, upon the U. A. W., upon Lodge 41, upon Lodge 688, and upon Lincoln Employes Benefit Association, herein called the Association, a labor organization claiming to represent employees directly affected by the investigation .3 Pursuant to the notice, a hearing was held on June 10, 1940, at St. Louis, Missouri, before L. N. D. Wells, Jr., the Trial Examiner duly designated by the Board. The Company, the U. A. W., Lodge 41, Lodge 688, and the Association, were represented by counsel, partici- pated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. In the course of the hearing the Trial Examiner made various 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. Pursuant to notice, a hearing was held before the Board on July, 9, 1940, at Washington, D. C., for the purpose of oral argument. The Company, Lodge 688, Lodge 41, and the U. A. W., were repre- sented by counsel and participated in the argument. The Company, Lodge 688, and Lodge 41 also filed briefs which the Board has considered. 8 Erroneously designated in the petition as "Local" 41. 8 At the opening of the hearing the Association filed a motion for leave to intervene. The Trial Examiner accepted the motion in evidence. LINCOLN ENGINEERING COMPANY 1085 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Lincoln Engineering Company, a Missouri corporation, has its principal office and place of business at St. Louis, Missouri, where it is engaged in the manufacture, production, sale, and distribution of lubricating equipment. It also operates a manufacturing plant at Detroit, Michigan. For the period from September 1939 to Feb- ruary 1940, inclusive, the total purchases of raw materials by the respondent for use at its St. Louis plant, the only one involved in this proceeding, amounted ' to $211,758.51, of which 54 per cent were shipped to it from States other than Missouri. During the same period, the respondent's sales of products manufactured at its St. Louis plant totaled $888,672.32, of which approximately 96 per cent were shipped to points outside the State of Missouri. The respondent .,employs approximately 242 production and maintenance employees at its St. Louis plant. II. THE ORGANIZATIONS INVOLVED Tool & Die Makers Lodge 688 of the International Association of Machinists, District No. 9, affiliated with the American Federation of Labor, is a labor organization admitting to membership the tool and die workers and apprentices employed by the Company. Progressive Lodge 41 of the International Association of Ma- chinists, District No. 9, affiliated with the American Federation of Labor, is a labor organization admitting to membership machinists, machine hands, helpers, and apprentices employed by the Company. International Union, United Automobile Workers of America, Local No. 691, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership all produc- tion and maintenance employees of the Company. Lincoln Employes Benefit Association is an unaffiliated labor or- ganization, admitting to its membership all employees of the Com- pany, except office and supervisory employees. III. THE QUESTIONS CONCERNING REPRESENTATION The U. A. W. began to organize the employees of the Company in August 1939, and Lodge 688, Lodge 41, and the Association, in April 1940. On May 3, 1940, Lodge 688 requested the Company to recog- nize it as the exclusive bargaining representative for all the tool and die workers employed in the toolroom. On or about May 17, 1940, Lodge 41 sought similar recognition as representative for all 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the machinists, machine hands, helpers, and apprentices, employed, in the machine shop, the fitting department, and the experimental department. The Company refused to grant recognition to either union until it had been certified by the Board. On April 22 and May 28, 1940, respectively, the U. A. W. asked the Company for recognition as the bargaining agent for all the maintenance and production employees in the plant. The Company thereupon granted partial recognition to the U. A. W. and, pend- ing a decision by the Board on the petitions previously filed by Lodge 688 and Lodge 41, entered into bargaining negotiations with the U. A. W. as the representative of all the production' and main- tenance employees except the machinists and the tool and die makers. We find' that questions have arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We' find that the' questions concerning representation which have arisen, occurring in connection with the operations of the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS The U. A. W. contends that all the production and maintenance employees of the Company, excluding supervisory employees with authority to hire and discharge, office employees, and watchmen, constitute a ' unit appropriate for the purposes of collective bar- gaining. The Association likewise contends that a plant-wide in- dustrial unit is appropriate, but maintains that watchmen should be included therein. Lodge 41 asserts that the machinists, machine hands, helpers, and' apprentices, employed in the machine shop, fit- ting department, and experimental department, constitute a sepa- rate unit appropriate for,collective bargaining purposes. Lodge 688 claims that the tool and die makers and apprentices employed in the toolroom should be considered as a separate bargaining unit. The Company is substantially in accord with the contentions of the U. A. W. and the Association. The tool and die makers are a separate and well-established craft which requires the serving of a 4-year apprenticeship. Evidence was introduced showing that the toolroom is separate and apart from the production division of the plant, that the toolroom employees are engaged solely in maintenance work, and that there is little, if any, LINCOLN ENGINEERING COMPANY 1087 interchangeability in personnel between the toolroom and the other production units. The machinists likewise form a definite and recog- nized craft. The evidence shows that the great majority of the employees in the, machine shop, the fitting department, and the experimental department, are engaged in production work requiring skill and training in the machinists' trade. Both Lodge 688 and Lodge 41 are craft organizations. On the other hand, evidence was introduced to show the integrated character of the plant and the appropriateness of an industrial unit including both the tool and die makers and the machinists. The record discloses no prior history of collective bargaining with the Company in respect to this plant. Under these circumstances we are of the opinion that the tool and die makers and the machinists, respectively, might properly constitute separate bargaining units, or they might function as part of 'a single industrial unit. In this situation we will follow our previous rulings in similar situations, that the determining factor is the desire of the employees themselves.' As stated in Section VI, infra, the determina- tion of their desires can best be made in elections which we shall direct. On the results of these elections will depend our definition of the Ap- propriate unit or units herein. There remains for consideration the ascertainment of the specific composition of the above-named units. Lodge 688 requested that Harry Peters, a salaried toolroom em- ployee, be included within the tool and die unit. Although it appears that Peters is employed on a salary basis,5 he occupies no position of authority in the toolroom and performs the same type of work as the other tool and die workers. We shall therefore include him within the tool and die group. ' Lodge 41 would include within the machinists' unit Alexander J. Pawlowicz, classified on the pay roll as "Laborer," Bernard Klaesner, classified as "Inspecto"r,'.' and all employees classified as "Set-up men." Pawlowicz's duties consist of supplying steel to the machinists in the machine shop, and he is more properly classified as a machinist's helper. Klaesner is the only inspector in the machine shop and an experienced machinist. The set-up men are finished machinists em- ployed in the machine shop to set and prepare machines for operation: Inasmuch as it appears that all of the foregoing employees perform work of the type which is within the recognized jurisdiction of the machinists', trade, we shall include them within the machinists' group. 4 Matter of Globe Machine and Stamping Co and Metal Polishers Union Local No. 3, International Association of Machinists, District No. 5$, Federal Labor Union 18788, and United Automobile Workers of America, 3 N. L R B 294, and subsequent cases 5 The evidence shows that Peters was formerly a salaried supervisory employee in the machine shop, and that apparently for this reason was permitted to retain his monthly wage rate when transferred to the toolroom. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lodge-41 desired to -exclude from the machinists' unit-Harold-R.- Sauer, classified on-the-pay roll as "Shop Dispatcher," Max Kubisiak and John H. Allen, classified as "Laborers," Nicholas W. Proost, classified as "Tool Crib Boy," and Albert Anslyn, classified as "Bench Assembler." All are classified on the pay roll as machine-shop em- ployees. The evidence shows that Sauer does not operate a machine or perform other machinist's work, Kubisiak is a floor sweeper, Allen performs general cleaning and trucking work, and Proost is assigned to clerical duties which are more closely connected with the office than with the machine shop. Anslyn's duties are the same as those of the other bench assemblers employed in the Bench Assembly Depart- ment. The foregoing employees do not perform Work pertaining to the machinists' trade and we shall exclude them from the ma- chinists' group. Neither Lodge 688 nor Lodge 41 requested the exclusion or in- clusion of supervisory employees. However, in accordance with our usual practice, we shall exclude supervisory employees from the units which these labor organizations claim to be appropriate. The U. A. W. and the Association would include within the appropriate unit line leaders and group leaders who occupy minor supervisory positions and have no authority to hire or discharge.° Applying our usual rule, we shall include line readers _ and group leaders within the unit.? While both the U. A. W. and the Association requested the ex- clusion of certain named foremen, their position as to the inclusion or exclusion of foremen generally is not clear from the record.8 We shall follow our usual practice and shall exclude all foremen from the unit.9 The U. A. W. and the Association desire to exclude from the unit Nicholas W. Proost, tool crib boy in the machine shop whose duties as we have above stated are largely of a clerical nature, and Clar- ence H. Stockton, classified on the pay roll* as "Office Clerk" in the Floor Assembly Department. Since their work is shown to be simi- 6 within this category are John H. Gibbs, classified on the pay roll as "supervisor" in the Stores & Handling Department, and Herman P Menge, classified as "Spray Painter and Supervisor" in the Painting Department, whose inclusion was specifi- cally requested by the U. A. W. and the Association. 7 See Matter of Todd-Johnson Dry Docks, Inc. and Industrial Union of Marine and Shipbuilding Workers of America, Local No 29, 18 N. L R B . 973, and cases cited therein. s The U. A. W. desired specifically to exclude Walter Kleinigger, night foreman in the Sheet Metal Department , and John R. Graef, Inspection Department foreman. While the Association would includ e Kleinigger, it introduced no evidence to show wherein his duties differed from those of other foremen. We shall exclude him from the unit. u See Matter of Locke Insulator Corporation and Congress of Industrial Organizations, 13 N. L. R. B. 615 ; Matter of Todd-Johnson Dry Docks Inc. and Industrial Union of Marine and Shipbuilding Workers of America , Local No. 29, 18 N L R. B 973 LINCOLN ENGINEERING COMPANY 1089 lar and closely related to that of the office employees, we shall exclude them from the industrial group. The U. A. W. desires the exclusion of watchmen from the industrial unit because of the confidential nature of their employment, while the Association desires their inclusion. Because watchmen have interests and perform functions differing from those of other em- ployees, we have excluded them from the appropriate unit in pre- vious cases involving a similar dispute as to their inclusion.1e For the same reasons we shall exclude them from the unit herein. We shall, therefore, order elections among the employees of the Company at its St. Louis plant within the groups described below : (a) The tool and die makers and apprentices employed in the- toolroom, excluding supervisory employees, to determine whether they desire to be represented by Lodge 688, the U. A. W., or the Association, for the purposes of collective bargaining, or by none of the three labor organizations ; (b) The machinists, machine hands, helpers, and apprentices, employed in the machine shop, the fitting department, and the experi- mental department, excluding supervisory employees, to determine whether they desire to be represented by Lodge 41, the U. A. W., or the Association, for the purposes of collective bargaining or by none of the three labor organizations; (c) All the remaining production and maintenance employees of the Company, excluding supervisory employees having authority to hire and discharge, foremen, office employees, and watchmen, but including linemen and group leaders, to determine whether they desire to be represented by the U. A. W. or the Association for the purposes of collective bargaining, or by neither. As before stated, there will be no final determination of the appro- priate unit or units pending the results of the elections. If a major- ity of the" tool and die makers cast their votes for the U. A. W. and/or the Association, the tool and die makers shall be included with- in the industrial unit and their votes shall then be counted for the determination of the representative as between the U. A. W. and the Association, along with the other votes cast by the employees who are already found to be included in the industrial unit. In the event, however, that a majority of the tool and die employees cast 11) Matter of Allied Laboratories, Inc., (Pitman-Moore Division) and Indianapolis Spe- cialty Union #465, affiliated with the International Printing Pressmen and Assistants' Union affiliated with AFL, 23 N L R. B 184; Matter of Elliott Bay Mill Company and Plywood & Veneer Workers Union Local #26, C 1 0 ef liat,.,, and Plywood it Veneer Workers Union, Local 2618, chartered by the United Brotherhood of Carpenters c& Joiners of America, affiliated with the•American Federation of Labor, 21 N L R. B. 564; Matter of Todd-Johnson Dry Docks Inc and International Union of Marine and Shlpbnaldinq Workers of America , Nocal No . 29, 1S N L R B 973. 1090 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD their votes for Lodge 688 or for neither the U. A. W., the Association, nor Lodge 688, the tool and die employees shall be excluded from the industrial unit. Likewise, if a majority of the machinists choose the U. A. W. and/or the Association, the machinists shall be included within the industrial unit and their votes counted for the determina- tion of the representative as between the U. A. W. and the Associa- tion, along with the other votes cast by the employees who are already found to be included in the industrial unit. However, should a majority of the machinists cast their votes for Lodge 41 or for neither the U. A. W., the Association, nor Lodge 41, the machinists shall be excluded from the general unit. We shall-certify the union or unions, if any, designated by a majority of the employees within the appropriate unit or units as the exclusive representative there- of.11 VI. THE DETERMINATION OF REPRESENTATIVES Prior to the hearing,, all the labor organizations involved herein submitted to the Regional Director evidence of recent designation as representatives for the purposes of collective bargaining by a sub- stantial number of employees of the Company within the respective units each claims to be appropriate. We find, however, that elections by secret ballot can best resolve the questions concerning repre- sentation. The Company and the Association requested that the pay roll for the period immediately preceding the Direction of Elections be used as the basis for determining eligibility to vote, while the U. A. W., Lodge 688, and Lodge 41, requested that the pay roll for the period ending June 5, 1940, which shows an increase in personnel of 18 employees, be used. Since the increased personnel is considered to be permanent by the Company, there appears to be no reason why, in accordance with our usual practice, the pay roll immediately preced- ing the date of this Direction of Elections should not be used. We shall therefore direct that all employees within the alleged appro- priate units who were employed by.the Company during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to participate in the elections. n See Matter of New York Evening Journal, Inc and Newspaper Guild of New York and American Advertising Associates Union, Federal Local 21627 , 10'N L R B 14; Matter of'Pacifle Gas and Electric Company and United 'Electrical & Radio Workers of America, .3 N. L. R . B. 835. LINCOLN ENGINEERING COMPANY 1091 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSION OF LAW Questions affecting commerce have arisen concerning the repre- sentation of employees of,Lincoln Engineering Company, St. Louis, Missouri, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS By, virtue of and pursuant to the power vested in the, National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat..449, and pursuant to Article III, Section 8, of National Labor Relations Board Rtiles and Regulations-Series 2, as amended, it is hereby DIRECTED that, as-part of the investigation ordered by the Board to' ascertain representatives for the purposes of collective bargaining with Lincoln Engineering Company, St. Louis, Missouri, elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fourteenth 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 those employees who fall within the groups indicated below who were employed by the Company at its St. Louis, Missouri, plant, during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who were then or have since been temporarily laid off, but excluding those who have since- quit or. been discharged for cause: (a) All tool and die makers and apprentices employed in the tool- room, excluding supervisory 'employees, to determine whether or not they desire to be represented by Tool & Die Makers Lodge 688 of the International Association of Machinists, District•No. 9, by Interna- tional Union, United Automobile Workers of America, Local No. 691, or by Lincoln Employes Benefit Association, for the purposes of collective bargaining, or by none of these three labor organizations; (b) All machinists, machine hands, helpers, and apprentices, em- ployed in the machine shop, the fitting department, and the experi- mental department, excluding supervisory employees, to determine whether or not they desire to be represented by Progressive Lodge 41 of the International Association of Machinists, District No. 9, by International Union, United Automobile Workers of America, Local 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 691, or by Lincoln Employes Benefit Association, for the pur- poses of collective bargaining, or by none of these three labor organizations ; (c) All the remaining production and maintenance employees, ex- cluding supervisory employees having authority to hire and dis- charge, foremen, office employees, and watchmen, but including linemen and group leaders, to determine whether they desire to be represented by International Union, United Automobile Workers of America, Local No. 691, or by Lincoln Employes Benefit Association, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMrrH, dissenting : There is an absence of any bargaining history between the machin- ist crafts and the Company in the present case. Under these cir- cumstances, I see no warrant in granting the craft groups the privilege of splitting themselves off from the general body of pro- duction and maintenance workers who are seeking representation on a plant-wide basis. The reasoning in my dissents in the, Allis? Chalmers 12 and subsequent cases is here applicable. 12Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N L R B. 159, 175