The Everite Pump & Manufacturing Co., Inc.

In the Matter of THE EVERITE PUMP & MANUFACTURING COMPANY, INCORPORATED and UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA ( C. I. 0.) Case No. R-1778.-Decided April 20, 1911.0 Pump and Water System Manufacturing Industry-Investigation of Representa- tives: controversy concerning representation of employees : refusal of employer to recognize union until certified by the Board-Unit Appropriate for Collective Bargaining : stipulated ; all production and maintenance employees , excluding executive, supervisory, and clerical employees-Employee Status: employees discharged in connection with reorganization of production methods and not since reinstated , and to whom the Company would give no preference for reem- ployment over others not former employees , held not employees under Section 2 (3)-Representatives : eligibility to participate in choice : discharged em- ployees ineligible to vote-Election Ordered Mr. Samuel G. Zack and Mr. Jack Davis, for the Board. Zimmerman, Meyers & Kready, by Mr. S. R. Zimmerman, of Lancaster, Pa., for the Company. Mr. Harry Block and Mr. Carl Bersing, of Philadelphia, Pa., for the Union. Mr. Richard Johnston, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 28, 1939, United Electrical, Radio & Machine Work- ers of America,' herein called the Union, filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Everite Pump & Manufacturing Company,2 Incorporated, Lancaster, Pennsylvania, 'Incorrectly designated in the petition,as United Electrical Radio & Machine Workers of North America . It was stipulated and agreed between the parties at the hearing that the correct name of the Union is United Electrical , Radio & Machine Workers of America, and that the formal papers should be amended accordingly Z Incorrectly designated in the petition and other formal papers as Everrite Pump Manu- facturing Co., Inc. It was stipulated and agreed between the parties at the hearing that, the correct name of the Company is The Everite Pump & Manufacturing Company, Incor- porated, and that all formal papers should be amended accordingly 22 N. L. R. B., No. 97. 1133 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Company, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 7, 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. On March 11, 1940, 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 March 13, 1940, and again on March 15, 1940, the Regional Director issued notices of post- ponement of hearing, copies of which were duly served upon the Com- pany and the Union. Pursuant to the notice of postponement of hear- ing, a hearing was held on March 26, 1940, at Lancaster, Pennsylvania, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union appeared and were represented by counsel. All parties participated in the hearing and were- afforded- full opportunity, to be, heard,, to examine, and, cross„ examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner made several rulings on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Everite Pump & Manufacturing Company, Incorporated, is a corporation, having its. place of business at Lancaster, Pennsylvania. It is engaged in the manufacture, sale, and distribution of pumps-and, water systems, including shallow-well pumps, deep-well pumps, sump pumps, and circulators. In 1939 the Company delivered, and in the course of its business it regularly delivers, approximately 70 per cent of its finished products from Lancaster to persons located in all States of the United States. The Company regularly uses, in the course of production at Lancaster, electric and gasoline motors; castings; switches; accessories of brass, steel, and iron; and kindred products, approximately 50 per cent of which are acquired in and received from California,' Connecticut, Illinois, 'Indiana;L'Maryland; Massachusetts,t Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania. Rhode Island, and Wisconsin. THE EVERITE PUMP & MANUFACTURING COMPANY 1135 II. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In December 1939 the Union wrote to the president of the Company informing him that a majority of the Company's employees had au- thorized the Union to represent them for collective bargaining and requesting that the Company bargain collectively with the Union. The Company refused to bargain collectively unless and until the Union was certified by the Board as the statutory representative. 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company, the Union, and counsel for the Board stipulated and,agreed at the hearing that all -production and maintenance em- ployees of the Company, exclusive of executive, supervisory, and clerical employees, constitute a unit appropriate for the purposes of collectigekbargaining: We see no reason for not, finding this unit to be appropriate. Accordingly, we find that all production and maintenance employees of the Company, exclusive of executive, su- pervisory, and clerical employees, 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 From a 'report of the Regional Director introduced in evidence it appears that a substantial number of the respondent's employees 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the unit above found to be appropriate are members of the Union and have designated it their representative for purposes of collective bargaining in respect to wages, rates of pay, hours of serv- ice, and other working conditions. Both the Company and the Union desire that an election be held to resolve the question con- cerning representation. However, there is a dispute between these parties as to whether seven named individuals would be eligible to vote in such an election '3 should one be directed by the Board. On January 12, 1940, subsequent to the filing of the petition, the Company dismissed nine employees in connection with a reorgan- ization of its production methods. Two of these persons have since been reinstated or recalled to work by the Company, and one new employee has been hired. The dispute concerns the remaining seven who have not been reinstated. The Union contends that these should be eligible to vote in the event of an election, and the Company argues to the contrary. The record shows that prior to the time the nine employees were dismissed, the Company, in accordance with the proposal of its newly hired plant-production manager, initiated a practice of discharging employees for whom work was not avail- able, rather than laying them off or furloughing them as in preced- ing years, and in the event necessity for increased employment arose, of according employees so discharged no preference or advantage as regards employment not granted any other applicant for hire. This policy was and still is in force,' and the dismissals mentioned were in pursuance of this policy. Under these circumstances, we find that on and after January 12, 1940, the seven employees in question ceased being employees, within the meaning of Section 2 (3) of the Act. We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by hold- ing an election by secret ballot among employees in the unit we have found appropriate to determine their desires with regard to repre- sentation. We accordingly shall direct that an election be held among all employees within such unit, subject to such limitations as may be stated in the Direction of Election. The seven discharged employees' are not eligible to vote in the election, and their ballots shall not be taken. 3 Their names are : Charles Gebbart, Alvin Harkins, Robert Hartman, Raymond Lockard, Chester Rote, Harry Sipe, and Charles Stauffer. 4 The evidence does not disclose such matters as whether the Company maintains work or personnel records of the employees whom it discharges, for use in connection with employment, or whether it notifies such persons of available positions. Cf. Matter of American Cyanamid Co. and United Phosphate Workers' Union No. 22036, A. F. L., 19 N L R. B. 1026. 5 See footnote 3, supra. THE EVERITE PUMP & MANUFACTURING COMPANY 1137 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 The Everite Pump & Manufacturing Company, Incorporated, Lancaster, Pennsylvania, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, exclusive of executive, supervisory, and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) 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 Re- lations 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 The Everite Pump & Manufacturing Company, Incorporated, Lancaster, Pennsylvania, an election by secret ballot shall be con- ducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and super- vision of the Regional Director for the Fourth 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 all production and maintenance employees 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 such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding executive, supervisory, and clerical employees, and all employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Electrical, Radio & Machine Workers of America, affili- ated with the Congress of Industrial Organizations, for the purposes of collective bargaining.