Kawneer Co.

In the Matter Of KAWNEER COMPANY and LOCAL 92, UNITED AUTOMOBILE WORKERS OF AMERICA, A. F. OF L. Case No. B-1779.-Decided April 15, 1940 Metal Architectural Fixtures Industry-Investigation of Representatives: controversy concerning representation of employees: recognition as exclusive bargaining agency requested by labor organization but refused by employer un- til proof should be furnished, through a Board election, of former's right thereto- Unit Appropriate for Collective Bargaining: agreement between employer and labor organization that unit should comprise all hourly and piece-rate produc- tion and maintenance employees and that it should exclude foremen, time clerks, office janitors, time-study men, expediters, and all salaried employees other than watchmen; Company desired in addition to exclude, but Board at request of only labor organization involved includes in the unit assistant foremen or super- visors, 'watchmen, inspectors, firemen, shipping clerks, temporary employees, and employees of receiving department and stockroom (Leiserson, dissenting in part) Inclusion of firemen, receiving and shipping clerks, and truck driver or trueker unjustified since Union did not show that any employees in those groups desired representation by it-Election Ordered Mr. Harry N. Casselman, for the Board. Mr. Charles E. White, of White cP3 White, of Niles, Mich., for the Company. Mr. J. L. Busby, of Detroit, Mich., for the Union. Mr. William Stix, of counsel to the Board. DECISION AND DIRECTION OF- ELECTION STATEMENT OF THE CASE On January 24, 1940, 'Local 92, United Automobile Workers of America, A. F. of L., herein called the Union, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition, and on March 19, 1940, an amended petition, alleging that a question affect- ing commerce had arisen concerning the representation of employees of Kawneer Company, Niles, Michigan, 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 March 16, 1940, the National Labor 22 N L R B.. No. 74. 995 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, ordered the Regional Director to conduct an investigation and provide for an appropriate hearing upon due notice. On March 20, 1940, the Regional Director issued a notice of hearing, dated March 19, 1940, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on March 25, 1940, at Niles, Michigan, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board, the Com, pany, and the Union were represented by counsel and 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. During the course of the hearing, the Trial Examiner ruled on a motion and on objections to the admission of the evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. They are hereby affirmed. Upon the entire record in the, case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kawneer Company, a Michigan corporation, operates its principal plant at Niles, Michigan,' where it is engaged in the manufacture of store fronts, metal windows, metal doors, architectural metal work, and commercial metal moldings and parts. In 1939 the Company at its Niles plant used raw materials-consisting chiefly of aluminum, bronze, copper, brass, and steel-to the value of approximately $1,140,000, of which at least 80 to 85 per cent were obtained from sources outside Michigan. Finished goods to the value of approxi- mately $2,830,000, about 85 per cent of which were sold and distributed to points outside Michigan, were produced by the Company during the same period. At Niles the Company employs 694 persons, includ- ing office employees. II. THE LABOR ORGANIZATION INVOLVED Local 92, United Automobile Workers of America, affiliated with the American Federation of Labor, is a labor organization which ad- 'The Company also operates a plant at Berkeley , California, which is used in part for fabricating but principally as a sales distribution warehouse , and has t« o closed plants- one at Chicago and the other at Chicago Heights , Illinois. KAWNEER COMPANY 997 mits to membership employees of the Company, including supervisory employees who do not have the authority to hire or discharge. III. THE QUESTION CONCERNING REPRESENTATION On November 28, 1939, the Union, claiming to have been designated as collective bargaining representative by a majority of the Company's employees, asked for recognition as exclusive bargaining agent. The Company at that time and at all times thereafter refused to grant such recognition until it should be proven by a Board election that the Union is the exclusive representative of the Company's employees. We find that a question has arisen concerning the representation of the Company's employees. 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the Union have agreed that the unit should comprise all hourly and piece-rate production and maintenance em- ployees and that it should exclude foremen, time clerks,' office jani- tors, time-study men, expediters, and all salaried employees other than watchmen. In addition to the employees upon the propriety of whose exclusion the parties have agreed, the Company seeks to exclude-while, on the other hand, the Union desires to include- assistant foremen or supervisors, watchmen, inspectors, firemen, three shipping clerks, all "temporary" employees, and employees in De-' partment 84 other than Tom Prater, who is a power trucker. We shall discuss separately each of the employee classifications in controversy. Assistant, foremen or supervisors, who lay out the day's work and supervise its performance, number about 20 and are paid by the hour. They can recommend or veto the hiring of employees and can recommend discharges, but persons are hired and employees discharged only by the personnel director or the plant manager. The Company contends that the assistant foremen or supervisors should be excluded since their authority with respect to hiring and 28 K)33-4 1-N of 22--64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharging is similar to that,of the foremen, whom both the Union and the Company desire excluded from the unit. These men, how- ever, differ from the foremen, first, in that all but one of the latter 2 are salaried employees, and secondly, in that they do not exercise the same degree of authority as the foremen. While both the fore- men and the assistant foremen or supervisors have authority to recommend that, persons be hired or discharged, it is through the foremen that the latter's recommendations are communicated. to the personnel director or the plant manager. Moreover, representatives of the Company, as well as of the Union, testified that the assistant foremen or supervisors are, in substance, "gang leaders." Inspectors: The Company employs from 20 to 25 inspectors who examine the products made by other employees and have the au- thority, if a machine is producing defective articles, to shut it down until the chief inspector, alone or in conjunction with the plant manager, has approved the resumption of its operation. The in- spectors, however, who are hourly paid, do not employ or discharge workers and there is no evidence that they exercise disciplinary powers or make reports upon the work of employees which serve as the basis for disciplinary action. The Company contends, never- theless, that they "represent the management in an effort to satisfy customers' demands for quality." Watchmen: The Company employs on a salary basis a head watch- man and three regular watchmen whose duty it is to patrol the property at night and on Saturdays, Sundays, and holidays in order to prevent theft and fire: _ • Firemen: Three regular and two substitute firemen are charged ,with maintaining the Company's electric- and steam-power supply and with the upkeep of the fire-extinguishing system. They are all hourly paid employees. Shipping Clerks: In the shipping -department-which includes a foreman, 2 supervisors, 26 packers, and a truck driver-there are 3 clerks.- These men, all of whom 'are paid by the hour, are Roy Wagar, who is a billing clerk and who in the absence of the fore- men takes charge,of the shipping 'and box departments;, Lawrence Schrader, who assists Wagar in his duties as billing clerk and at times works as a packer; 3 and DeVerne Asmus, the loading super- visor, who checks outgoing material after it has been packed and, when no loading is being done, has "other responsibility." Department 84, all of the employees of which are hourly paid, comprises the receiving room, the stockroom, and the window and 2 There are 19 foremen 8 Schrader is described as a packer on an abstract of the Company's pay roll NNInch was introduced in evidence. KAWNEER COMPANY 999 door stockroom. In the first of these divisions there- are, in addi- tion to the power trucker mentioned above, an assistant foreman,4 three hand truckers, and two clerks. The duties of the hand truck- ers, who unload railway cars and automobile trucks, do not differ from those of the power trucker upon whose inclusion in the unit the parties' are agreed. The truckers or other employees weigh the incoming shipments and the_. receiving-room, clerks -cheek them against the shippers' invoices. The Company contends that, because of their checking and weighing duties, these employees represent the management. The stockroom comprises an assistant foreman,' a flat-bench super- visor, four flat workers, three slitters, a welder, and two stock clerks. The slitters-and presumably the flat workers and the welder-pre- pare stock for the various production departments in accordance with requisitions. The stock clerks fill requisitions for material, which they sometimes deliver, "check out" the requisitions, and "keep up the inventory." Similar-work in cutting raw material to specifications, as well as the filling of requisitions, is performed by two sawyers who, in addition to an assistant foreman,' constitute the personnel of the window and door stockroom. "Temporary employees": The Company classifies as "temporary" 63 hourly paid employees who perform the same operations as other hourly workers but who have not served a 6 months' probationary period. Customarily 85 per cent of such employees prove satisfac- tory, and, unless employment is curtailed, are retained after the termination of their probation, which comprises a longer time than is necessary for them to learn the jobs to which they are assigned. It is the Company's practice in making lay-offs to retain those tem- porary employees who have the longest service records, provided that their -work has been satisfactory. Furthermore, satisfactory tem- porary employees who have been laid off are hired in preference to new employees and, upon reinstatement, receive wages which include such pay increases as were granted them during -their prior employ- ment.' Witnesses for the Union, asserted , that,, more. than half of the temporary employees belong to' that organization:" The duties of employees in the above categories are such that they might with propriety either be included in or-excluded from a pro- duction and maintenance unit. At the request of the only labor .organization involved, however, it has been our practice to include 4 This employee is designated as foreman on an abstract of the Company's pay roll which was introduced in evidence, but it is apparent from the entire record that he is an assistant .foreman. 5 See footnote 4, supra 6 See footnote 4, supra. 7Approximately 9 of the 63 temporary employees had previously, worked for the Company. 1000 DECISIONS OF NATIONAL' LABOit', RELATIONS BOARD minor supervisors," temporary employees," and-if the unit is essen- tially an industrial one-"fringe" groups comparable to those dis- cussed above.10 Consequently we shall include in the appropriate unit assistant foremen or supervisors, inspectors, watchmen, firemen, shipping clerks, employees of Department 84, and temporary employees. We find that all hourly and ^ piece-rate production and mainte- nance employees of the Company and• the watchmen, including as-' sistant foremen or supervisors, inspectors, firemen, shipping clerks, employees of Department 84, and temporary employees, but exclud- ing foremen, time clerks, office janitors, time-study men, expediters,, and all salaried employees other than watchmen, constitute a unit appropriate for the purposes- of 'coll'ective 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 the Union claimed as members a majority of the employees in the appropriate unit but did not seek to prove such majority claim. We find that the question concerning representa- tion which has arisen can best be resolved by an election, by secret ballot. The 'Company and the Union stipulated that, if the Board or- dered an election herein, all employees within the appropriate unit 8 In the following cases certain classes of supervisory employees were included in the unit although others were excluded • Matter of Kansas Milling Company and Flour, Feed, Seed, Cereal & Elevator Workers Union, No. 20991, 15 N L R. B 71 (working supervisors included , others excluded ) ; Matter of Willys Overland Motors, Inc and International Union, United Automobile Workers of America , Local No 12, 9 N. L. R B 924, 10 N L. R B 160 ( foremen, foreladies , and assistant foremen included ; department heads , division superintendents, and general foremen excluded ) ; Matter of Shell Petroleum Corporation and Oil Workers International Union, Local No 367, 9 N L R B 831 (group of super- visors not exercising major supervisory functions included ; others excluded ) ; Matter of Merrimack Manufacturing Company and American Federation of Labor, at at, 9 N. L R B 173 ( second hands included , other supervisors excluded ) ; Matter of Richmond ffosiery Mills, Spinning Plant and Textile Workers Organizing Committee, 8 N L R B. 1073 ( section men included , other supervisors excluded) 9 See Matter of Southern California Gas Company and Utility Workers Organizinq Com, inittee, Local No. 132, 10 N L R B. 1123 (at the request of only labor organization with substantial membership, temporary employees who were not allowed to remain in employ of company more than 6 months were included in unit ) ; Matter of A Sartorius <f Co, Inc and United Mine Workers of America, District .50, Local 12090, 9 N L R. B . 19. Cf Matter of Iowa Southern Utilities Company and Utility Workers Organizing Committee Local 109' (C I 0 ) et at, 15 N. L R. B 580 (no objection raised by the employer) 1s See Matter of Federal Shipbuilding and Dry Dock Company and Industi ial Union of Mai me S Shipbuilding Waikers of America, Loral No 16, 19 N L R B 313 (watch- men) ; Matter of Illinois Knitting Company and Federal Labor Union No 21025, Affiliated with A. F. of L, 11 N. L. R. B 48 (watchmen and general maintenance man) , Matter of The Kentucky Fire Brick Company and Local No 510, United Brick if Clay Workers of - America, 19 N L R. B 532 (timekeepers and storekeeper included at iegmest of union A where union B took no position). KAWVNEER; COMPANY 1001 who appear on the pay roll for, the period which includes March 15, 1940, should be eligible to, vote. - We shall direct that all em- ployees within the appropriate unit who appear on that pay roll, 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 those employees who have since quit or been discharged for cause, shall be eligible to vote. 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 Kawneer Company, Niles, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All hourly and piece-rate, production and maintenance em- ployees of the Company and the, watchmen,; including assistant foremen or supervisors, inspectors, firemen, shipping clerks, em- ployees of Department 84, and temporary employees, but excluding foremen, time clerks, office janitors, time-study men, expediters, and all salaried employees other 'than watchmen, constitute a unit ap- propriate for the purposes of collective bargaining. DIRECTION Or ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Act, 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 bargain- ing with Kawneer Company, Niles, Michigan, 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, under the direc- tion and supervision of the Regional Director for the Seventh Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all hourly and piece-rate production and main- tenance employees of the Company and watchmen who appear on the pay roll for the period including March 15, 1940, or who did not work during that pay-roll period because they were ill or on vacation or temporarily laid off, including assistant foremen or supervisors, inspectors, firemen, shipping clerks, employees of De- partment 84, and temporary employees, but excluding foremen, time 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerks, office janitors, time-study men, expediters, and all salaried employees other than watchmen, and those persons who have since quit or been discharged for cause, to determine whether or not they wish to be represented for the purposes of collective bargaining by Local 92, United Automobile Workers of America, A. F. of L. MR. WILLIAM, M. LEIsERsoNN dissenting in part : I am in agreement with the Decision and Direction of Election in this case except that I think the inclusion of the firemen, truck driver, and shipping and receiving clerks within the bargaining unit is arbitrary, there being no facts in the record to justify it. The five firemen and the truck driver are eligible to membership in other organizations of the American Federation of Labor, with which the petitioning organization Js also affiliated. Some of the shipping and receiving clerks may also be subject to the jurisdic- tion of another A. F. of L. organization. No showing was made by the petitioning union that any fireman, trucker, or clerk desired representation, by the .petitioner,.-.and, if- the other unions had been notified and had claimed jurisdiction over these employees, then the Board would dismiss the petition on the ground that the question was jurisdictional among A. F. of L. unions. It seems to me in- cumbent on a petitioning union to show that some employees of every class they desire included in a unit have expressed a wish to be represented by the union before the Board is justified in including them within a single bargaining unit.