Kingston Products Corp.

In the Matter of KINGSTON PRODUCTS CORPORATION and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFFILIATED WITH THE A. F. OF L. In the Matter of KINGSTON PRODUCTS CORPORATION and THE METAL POLISHERS, BUFFERS, PLATERS & HELPERS INT'L UNION, LOCAL No. 24, AFFILIATED WITH THE A. F. OF L. Cases Nos. R-1912 and R-1913.-Decided July 31, 1940 Jurisdiction : steel and electrical parts and assemblies manufacturing industry Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; existing contract expressly subject to Board action ; election necessary. Two unions -disclaiming interest in, and third union which produced no evidence of membership in, the craft unit found appropriate, excluded from ballot. Unit Appropriate for Collective Bargaining : industrial or craft : other factors evenly balanced determining factor desire of employees ; election directed among the polishers, platers, and helpers in the polishing and plating depart- ment excluding foremen. Radio-assembly department employees not an appropriate unit where such employees are intermingled, and have a bargaining history in common with employees in other departments of plant. Practice and Procedure : petition filed by one of the unions dismissed where no appropriate unit within scope of petition. Mr. Colonel C. Sawyer, for the Board. McClure & Shenk, by Mr. George B. Shenk, of Kokomo, Ind., for the Company. Mr. Francis O'Rourke, of Indianapolis, Ind., and Mr. James C. Reilly, of Marion, Ind., for the I. B. E. W. Mr. Ray Kelsay, of Cincinnati, Ohio, for the Metal Polishers. Mr. Karl Heaton, of Anderson, Ind., for the U. A. W. A. Mr. James Robb, of Indianapolis, Ind., for the S. W. O. C. and the Amalgamated. Mrs. Augusta Spaulding, of counsel to the Board. 25 N. L R. B., No. 120. 1158 .. :KINGSTON PRODUCTS CORPORATION 1159 DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE On April 11, 1940, International Brotherhood of Electrical Work- ers, herein called the I. B. E. W., filed with the Regional, Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging ('hat a question affecting commerce had arisen concerning represenl a- tion of employees of Kingston Products Corporation,- Kokomo, Indiana, herein called the Company, 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 April 17, 1940, ' The Metal Polishers, Buffers, Platers & , Helpers Int'l Union, Local, No. 24, herein' called the' Metal Polishers, filed a similar petition. , On April 26,1940; the I. B. E. W.` flied an amended petition. On May 11, 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 Regulations-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. It further ordered that, pursuant to Article III, Section 10 (c) (2), of said Rules and Regu- lations, the two cases be consolidated. • ' `; - • On May 15, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. B. E. W., and the Metal Polishers, and upon Steel Workers Organizing Com- mittee, herein called the S. W. O. C., 'a labor organization claiming to represent employees directly affected by the investigation.' On May, 20, 1940, at the request of the petitioning, unions, the Regional Director ordered that the hearing be postponed-until further notice. On May 25, 1940, the S. W. O. C. filed a motion to intervene on be- half of Amalgamated Association ' of Iron', Steel & Tin' Workers of North America, Local 1312, herein called the Amalgamated; alleging that a bargaining contract between the Company and the Amalgam- ated was in force and effect concerning employees of the Company. On June 3, 1940, the Regional Director issued 'an order granting the intervention of the Amalgamated and'a notice of hearing, copies of which were duly served upon' the parties. On' June 6, 1940, the i Service of notice of hearing was also made upon International Association of Machinists and Hugh Gormley, Regional Director, American Federation ' of Labor: Neither of these appeared at the hearing 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director issued a notice reassigning the date for hearing, copies of which were duly served on the parties. On June 8, 1940, United Automobile Workers of America, affiliated with the American Federation of Labor, herein called the U. A. W. A., filed a motion to intervene, alleging that it represented a substantial number of employees of the Company directly affected by the investigation. Pursuant to notice, a hearing was held on June 18, 19, and 20, 1940, at Kokomo, Indiana, before Edward Grandison Smith, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel, the unions by their several repre- sentatives, and all participated 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 parties. At the com- mnencement of the hearing and again at the conclusion of the hearing the S. W. O. C. moved to dismiss the entire proceeding on the ground that no question affecting representation had arisen con- cerning employees of the Company. The Trial Examiner did not rule upon this motion. For the reasons set forth in Section IV be- low the motion is-hereby denied. The Trial Exazriiner granted the motion to intervene previously filed by the U. A. W. A. During the course of the hearing the Trial Examiner made several rulings upon other motions and upon objections to the admissibility of evidence. 'Che 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; BUSYNESS OF „TIIE COMPANY Kingston Products Company was incorporated in Indiana in 1927. It has its office and principal place of business in Kokomo, Indiana. It owns and controls three subsidiaries : Kingston Radio Company, Inc., Kokomo, Indiana; H. A. Douglas Manufacturing Co., Bronson, Michigan ; and Kingston Detroit Company, Detroit, Michigan. At its Kokomo plant, which is the only plant involved in this pro- ,,,,, ceeding, the Company.is engaged. in the manufacture of steel and electrical parts alid assemblies. The major`it of, -its business •i5 de- rived from large distributors, for whom the merchandise is manufac- tured according to specifications and design, and is placed on the mar- ket under the label or trade-mark of the distributors. In addition the Company does business with automobile and tractor manufactur- ers on a contract basis. KINGSTON PRODUCTS CORPORATION 1161' The raw materials used in the manufacture of steel and electrical parts and assemblies consist chiefly of sheet steel , radio cabinets, tubes, electric motors, forgings, and grey-iron castings. During 1939 50 per cent of these raw materials, valued at approximately $1,000,000, were purchased outside Indiana by the Company. During the same period 90 per cent of the output of the Kokomo plant, which amounted to approximately $2,000,000, was transported from Indiana to other States and foreign countries . The Company admits that it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers is a labor organi- zation affiliated with the American Federation of Labor. The Metal Polishers, Buffers, Platers & Helpers Int'l Union, Local No. 24, is a labor organization affiliated with the American Federation of Labor. United Automobile Workers of America is a labor organization affiliated with the American Federation of Labor. Steel Workers Organizing Committee is a labor organization affili- ated with the Congress of Industrial Organizations . It organizes employees in the steel industry and acts as -bargaining agent for such employees and their local unions. Amalgamated Association of Iron, Steel & Tin Workers of North America, Local 1312, is a labor organization affiliated with the Con- gress of Industrial Organizations. These labor organizations admit to membership employees of the Company. III. THE APPROPRIATE UNIT The I. B. E. W. contends that all employees in the radio-assembly department during peak season, excluding supervisory and clerical employees, constitute an appropriate bargaining unit. The Metal Polishers contends that platers, polishers, and helpers in the plating and polishing department, excluding foremen, constitute an appro- priate unit. The U. A. W. A. contends that all production and main- tenance employees of the Company, excluding employees in radio assembly at peak season, platers, polishers, and helpers in the plating and polishing department, and clerical and supervisory employees, constitute an appropriate unit. The S. W. O. C., on the other hand, contends that all production and maintenance employees, excluding foremen, watchmen, and sal- aried employees, constitute the appropriate unit and that the fore- going units requested by the other organizations are inappropriate: The Company has taken no position with respect to.the bargaining 'unit. 1162 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD The Company has a normal season, a slack season, and a peak season during each year. The Company employs about 340, 270, and 500 persons, respectively, for these seasons. The Company's radio-assem- bly work is largely responsible for the peak employment. There is no stable, distinguishable group of radio-assembly em- ployees. Products other than radios are assembled in the so-called radio-assembly department. Employees are regularly transferred from, and to, thi's department, according to the Company's business requirements. Laid-off employees are reinstated according to plant, not departmental, seniority.2 The Company employs about 10 polishers, platers, and helpers in a separate department known as the, polishing and plating depart- ment. The platers and polishers are a skilled group. Their helpers do not generally work with other employees. They are regular em- ployees and not so subject to changing employment seasons. The general plant seniority system of lay-off has not been applied to work- ers within this department. Transfer of employees to and from this department is not customary. It does not appear that the Company employs any buffers. In 1934 the Company dealt with the Meta] Polishers for its mem- bers employed in the plating and polishing department of the plant, granting an increase in wages as a result of those negotiations. Since that time it has complied with a verbal agreement to recognize em- ployees of that department as a bargaining unit separate from other production employees. Conferences and adjustments between the Company and a committee from the plating and polishing depart- ment have continued coexistent with, and independent of, the growing contractual relations between the Company and the S. W. 0. C. begun in 1937. In April 1937 the S. W. 0. C. entered into a bargaining contract with the Company for members of the Amalgamated. Before the S. W. 0. C. submitted this contract to the Company, it was read, dis- cussed and approved at a mass meeting called by the S. W. 0. C., which all employees of the Company were invited to attend. Each succeeding year a new contract was entered into following this pro- cedures The Company extended to all its employees the benefits accruing to members of the Amalgamated, posting notices to that effect, along with provisions of the contract, on plant bulletin boards. Upon the entire record, it appears that the employees in the polish- ing and plating department might'properly be considered either as 2 A depaitment seniority system, adopted in 1937 at the request of the Amalgamated, was abandoned in 1938 because unsatisfactory to the employees as a whole' 8In view of the petitions filed in this proceeding no new contract was entered into in April 1940 The provisions of the contract of April 1939 were extended pending the determination of this proceeding. KINGSTON PRODUCTS CORPORATION 1163 a separate unit or as part of a broader unit. Under such circum- stances, we apply the principle that the determining factor is the desires of the employees in the polishing and plating department." On this point, the record is inconclusive. We shall, therefore, direct an election among the polishers, platers, and helpers in the polishing and plating department, excluding foremen, to determine whether or not they desire to be represented by the Metal Polishers. If these employees choose the Metal Polishers, they will be designated as an appropriate unit. If they vote against the Metal Polishers, we will find that they do not constitute an appropriate unit. The employees in the radio-assembly department are intermingled with the other production employees and, they have a common bar- gaining history. Under these circumstances, we find inappropriate any unit which segregates the radio-assembly department from all other production departments.5 IV..THE QUESTION CONCERNING REPRESENTATION We have noted that the S. W. O. C. and the Metal Polishers are in conflict as to the' appropriateness of a unit-composed of polishers and platers and their helpers, that the Company has taken no posi- tion with respect to this conflict, and that such unit is appropriate if these employees desire to constitute a separate unit. A statement of the Regional Director introduced into evidence shows that the Metal Polishers appears to have a substantial membership among the employees in this unit. We find that a question has arisen concerning the representation of employees in the polishing'and plating department of the Company. The I. B. E.. W. and,the ,U. A. W. A. desire certification only for the units for which they contend and which we have found inappro- priate. The S. W. O. C. does not seek certification.. Accordingly, we find that no question has arisen concerning the representation of employees of the Company, in departments, other than the polishing and plating department. V. 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 4 Matter of The Globe Machsne and Stamping Co. and Metal Polishers Uiv,on, Local No. 3, et al, 3 N. L. R. B. 294, and subsequent cases. 5Cf. Matter of Delco Radio Division of General Motors Cotporation and International Brotherhood of Electrical Workers, etc , 25 N L. R B 698 , 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees in the polishing and plating department of the Company can best be resolved by an election by secret ballot. We will direct the holding of such "an election. The I. B. E. W. and the U. A. W. A. disclaim , ny interest in the unit contended for by the Metal Polishers. The record does not dis- close that the S. W. O. C. claims any interest in, or any membership for the Amalgamated within, this unit. We shall not provide for the participation of the I. B. E. W., the U. A. W. A., and the Amalgamated in the election which we shall direct. We will direct that those eligible to vote in the election shall be those polishers, platers, and helpers in the polishing and plating department, excluding foremen, who were employed" during the pay- roll period immediately preceding the date of our Direction of Elec- tion, including employees who did not work during that pay-roll period because they were ill or on vacation or 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: CONCLUSION OF LAW A question affecting commerce has arisen concerning the repre- sentation of employees in the polishing and plating department, and in no other department, of Kingston Products, Corporation, Kokomo, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations 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 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 ordered by the Board to ascertain representatives for the purposes of collective bargaining with Kingston Products Corporation , Kokomo, Indiana, an election KINGSTON PRODUCTS CORPORA TION' 1165 by secret ballot shall be conducted as early as possible but not later than thirty (30) clays from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the National, Labor Relations Board, subject to Article III, Section 9, of said Rules and Regulations, among platers, polishers, and helpers in the plating and polishing department, who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during that pay-roll period because they were ill or on vacation or who were then or have since been temporarily laid off, but excluding foremen and those who have since quit or been discharged for cause, to determine whether or not said employees desire to be represented by The Metal Polishers, Buffers, Platers, and Helpers Int'l Union, Local No. 24, for the purposes of collective bargaining. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tion for investigation filed by International Brotherhood of Electrical Workers be, and it hereby is, dismissed. MR. EDWIN S. SMITH, concurring : For the reasons stated in Chairman Madden's opinion I concur in the dismissal of the petition filed by the I. B. E. W. In view of the fact that the Company has dealt separately with the polishing and plating department since 1934, I agree that these em- ployees constitute an„appropriate unit if they so desire and that an election should be held td ascertain their choice in this matter.e MR. WILLIAM M. LEISFRSON took no part in the consideration of the above Decision, Direction of Election and Order. See my concurring opinions in Matter of American Can Co. and Engineers' Local No 30, etc, 13 N. L. R. B. 1252; Matter of Westinghouse Electric & Manufacturing Com- pany, etc,. and Metal Polishers , Buffers, Platers, it helpers International Union, etc, 21 N L. R B 1150 ; and cases cited and referred to therein