Montgomery Ward & Co., Inc.

In the Matter of HUMMER MANUFACTURING COMPANY BRANCH OF MONTGOMERY WARD & CO., INCORPORATED and INTERNATIONAL ASSOCIATION OF MACHINISTS , LODGE No. 628, A. F. OF L. Case No. R-1896.-Decided August 2, 1940 Jurisdiction : dairy equipment manufacturing industry. Investigation and Certification of Representatives : existence of question. refusal to accord recognition to union; request that certification be obtained; election necessary. Company, when laying off employees because of slack business or for reasons other than extiemc incompetence, makes no notation in its records of whether such employees will be recalled - Directed, in view, of Company policy of restoring seniority rights and other privileges to employees recalled within 60 days, that employees laid off for a period not exceeding 60 days before issuance of Direction of Election be eligible to vote. Unit Appropriate for Collective Bargaining : hourly paid production and mainte- nance employees and the employees of the experimental department excluding office employees, watchmen, and supervisors other than group leaders engaged primarily in production work. "Group leaders," engaged in production work 90 per cent of the time, and paid a small additional compensation for time spent in supervision, included in production unit Weekly paid experimental department employees, interchangeable with regular production employees, included in unit composed of hourly paid production and maintenance employees. Mr. Walker Smith and 211r. J. A. Lind, of Chicago, Ill., for the Company. Mr. J. T. Farr, of Springfield, Ill., for the Union. Mr. Bonnell Phillips, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 13, 1940, International Association of Machinists, Lodge No. 628, A. F. of L., herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition, and on May 24, 1940, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of em- 26 N L R. B, No. 2. 27 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees of Hummer Manufacturing Company Branch of Montgomery Ward & Co., Incorporated, Chicago, Illinois, herein called the Com- pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 17, 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 the Regional Director to conduct an investigation and to provide for an appropriate hearing upon due notice.' On May 23, 1940, the Regional Director issued a notice of hearing, and on June 3, 1940, an order postponing the hearing, copies of which were duly served upon the Company and the Union. Pursuant to the order of postponement, a hearing was held on June 17, 1940, at Chicago, Illinois, before Robert Rissman, the Trial Examiner duly designated by the Board. The Company and the Union were repre- sented at 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 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. At the close of the hearing the Company moved for the dismissal of the petition. This motion was referred by the Trial Examiner to the Board. For reasons appearing below, the motion is hereby denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Montgomery Ward & Co., Incorporated, an Illinois corporation with principal offices at Chicago, Illinois, in addition to its large mail order and retail business, operates a branch factory known as Hummer Manufacturing Company at Springfield, Illinois. This proceeding concerns exclusively the representation of employees at the Hummer Manufacturing Company, herein called Hummer, at which the Com-. pony designs and manufactures cream separators, pumps, air com- pressors, hammer mills, milk bottle caps, and shovels, and engages in the repair and servicing of electric refrigerators. For the year I The copy of the Board's order of investigation submitted in evidence contains a typographical error ordering the Regional Director for the Third Region to conduct the investigation and to provide for a hear- ing Actually, as was intended, the investigation has been conducted to this point by the Regional Director for the Thirteenth Region. The Board's order is hereby amended, nunc pro tunc , to read "the Regional Director for the Thirteenth Region " HUMMER MANUFACTURING COMPANY 29 beginning February 1, 1939, and ending January 31, 1940, the Com- pany purchased raw materials for Hummer valued at $1,154,529.91, of which approximately 25 per cent were purchased and received from points outside the State of Illinois . During the same period the Com- pany's sales of goods manufactured at Hummer amounted to $2,006,559.53 , of which between 85 and 90 per cent were sold and shipped to points outside the State of Illinois. As of June 14, 1940, the Company employed 371 employees at its Hummer branch. H. THE LABOR ORGANIZATION INVOLVED International Association of Machinists , Lodge No. 628 is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION During the months of January, February , and March 1940, the Union, claiming to have been designated as collective bargaining agent by a majority of Hummer's hourly paid production and main- tenance employees, requested that it be recognized as the exclusive bargaining agent for such employees . The Company refused to extend it such recognition unless the Union was certified by the Board as the representative of employees in an appropriate unit. The Union submitted to the Board's Regional Director a number of signed applications for -membership in the Union . By comparison with a company pay roll carrying the names of 308 employees the Regional Director determined , in the course of the duly authorized investigation, that 129" of the applications bore the signatures of employees of the Company. We find that a question has risen concerning the 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 contends that an appropriate unit for the purposes of collective bargaining among the employees of Hummer consists of all hourly paid production and maintenance employees of Hummer, 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding supervisors, office employees, and- watchmen. The Com- pany takes the position, as stated by its counsel, "that all of the employees at the Hummer Manufacturing Company should be the unit." - We are of the opinion that the unit urged by the Company cannot be considered appropriate for the purposes of collective bargaining under the circumstances of this case. The employees of Hummer who are engaged primarily in supervisory work, and Hummer's office employees, are disitnguished by the character of their duties and train- ing from production and maintenance workers. The Union admits to membership and desires to represent only production and maintenance employees. Consequently we shall exclude supervisors and office employees from the unit. In accordance with out usual practice when the exclusion of watchmen is desired by a union seeking to represent production and maintenance employees, Hummer's watch- men will also be excluded from the unit. In addition to hourly paid production and maintenance workers, we shall include in the unit certain employees in Hummer's experi- mental department, who are paid on a weekly basis. Such employees, consisting of a machinist and two or more helpers to the chief techni- cian in the experimental department,2 are engaged in routine work for which regular production workers are qualified, and production workers are on occasion transferred to the experimental department for short periods. Some question arose at the hearing concerning the inclusion of certain employees classified by the Company as "group leaders," although the Union did not contest their inclusion. Such employees are considered by the Company as production employees, and are engaged in this work 90 per cent of the time. They are paid a regular hourly wage, and receive a small additional compensation for the time spent in supervision. The distinction between such employees and regular supervisory officials is one which we have frequently recognized, and in accordance with our usual practice in similar cases, we shall include in the unit such group leaders as are primarily engaged in production work 3 We find that all hourly paid production and maintenance employees and the experimental department employees of the Company's Hummer Manufacturing Company Branch, exclusive of office em- ployees, watchmen, and supervisors other than group leaders engaged 2 These employees are named in the record Ernest D McDonough and Louis J Jurgens are classified by the Company as experimental helpers, Frank J Vittel as experimental machinist A third experimental helper, John E Yacup, was laid off at the time of the hearing 3 See Matter of Miller Cereal Mills and Federal Labor Union No 21576 Cereal, Flour, Feed and Grain Ele- vator Workers, A F of L , 22 N L R B 988, matter of Kansas Milling Company and Flour, Feed, Seed, Cereal &Elerator Workers Union, No 20991, A F of L , 15 N L R B 71, Matter of Lidz Brothers, Incorpo- rated and United Wholesale Employees, (Local No -65), 5 N L R B 757, Matter of American Hardware Corporation and United Electrical and Radio Workers of America, 4 N L R B 412. BUMMER -MANUFACTURING COMPANY 31 primarily in production work, constitute a unit appropriate for the purposes of collective bargaining, and that such 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 THE DETERMINATION OF REPRESENTATIVES _ The Union does not seek certification on the basis of evidence adduced at the hearmg. We find that an election by secret ballot is necessary to resolve the question concerning representation The Union requests that those eligible to vote in such election shall be determined on the basis of Hummer's pay roll nearest January 1, 1940. The Company desires the use of a more recent pay roll for the determination of eligibility. We believe that the purposes of the Act will be best effectuated by determining eligibility as of the present date. We shall direct that the employees within the appropriate unit whose names appear on Hummer's pay roll immediately pre- ceding this Decision and Direction of Election, including those who did not work during such pay.-roll period because they were ill or on vacation, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. It is of course necessary to include-also among those eligible to vote, employees who have been temporarily laid off, so that they may have a voice in the selection of representatives who may in the future bargain for them. The record reveals, however, that the Company, upon laying off employees because of slack business or for reasons other than extreme incompetence, makes no notation in its records of whether such employees will be rehired, and does not inform the laid-off employees of their future status with the Company. We must therefore adopt a workable rule for the determination of the eligibility to vote of employees laid off prior to the election which we shall direct. Since the Company observes seniority to some extent it appears that employees recently laid off will be reinstated before those who have been laid off for longer periods. It was testified at the hearing that in the event an employee is rehired within 60 days after his lay-off, the Company "will reinstate his insurance, his benefit, and his continuous service and treat him as an employee who has not left the plant." We shall therefore direct that employees who have been laid off not over 60 clays before the date of the pay roll we have above adopted as a basis for the determination of eligi- bility shall be eligible to vote in the election, and we shall exclude those who have been laid off for a period exceeding 60 days before such date. Upon the basis of the above findings of fact and upon-the entire record in the case, the Board makes the following: 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Hummer Manufacturing Company Branch of Montgomery Ward & Co., Incorporated, Springfield, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All hourly paid production and maintenance employees and the employees of the experimental department of Hummer Manufacturing Company Branch of Montgomery Ward & Co., Incorporated, exclud- ing office employees, watchmen, and supervisors other than group leaders engaged primarily in production work, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the 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 Rela- tions Act, and pursuant to Article Ili, 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 collective bargaining of Hummer Manufacturing Company Branch of Montgomery Ward & Co., Incorporated, 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 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 all hourly paid pro- duction and maintenance employees and the experimental department employees whose names appear upon the Hummer Company's pay roll immediately preceding the date of this Direction, including those who did not work during such pay-roll period because they were ill or on vacation, and those who have been laid off for a period not exceed- ing sixty (60) days prior to the date of such pay roll, but excluding office employees, watchmen, and supervisors other than group leaders engaged primarily in production work, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Association of Machinists, Lodge No. 628, affiliated with the American Federation of Labor, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.