Precision Castings Co., Inc.

In the Matter Of PRECISION CASTINGS COMP2 NY, INC. and NATIONAL ASSOCIATION OF DIE CASTING WORKERS, REGION No . 5, AFFILI- ATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-1951.-Decided August 12, 1940 Jurisdiction : casting manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives; strike for recognition; contract no bar to, where prior to execution Company had notice of petitioner's claim of repre- sentation and of charges filed alleging a violation of Section 8 (2) with respect to the contracting union and where said contract was executed after the petition was filed without proof that contracting union represented a majority; tempo- rary laid-off employees whose work is seasonal eligible to vote, employees accused of committing acts of violence and others of having been convicted of violating a temporary restraining order as to picketing, eligible to vote; request of intervening union that it did not desire its name to appear upon the bal- lot in the event an election is held, granted; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees, excluding watchmen. truck driver, timekeepers, clerical employees, working supervisors, and any employees occupying higher supervisory positions. Mr. Lowell Goerlieh, Mr. Edward Lamb, and Mr. Edward Cheyfitz, of Toledo, Ohio, for the C. I. 0. Horan & Bell, by Mr. R. S. Horan, of Cleveland, Ohio, for the Association. Stanley & Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio, for the Company. Mr. Leonard Lindquist, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 6, 1940, National Association of Die Casting Workers, Region No. 5, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., filed with the Regional Director for the Eighth Region (Cleveland, Ohio), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Precision Castings Company, Inc., Lakewood, Ohio, herein called the Company, and requesting an investigation and certification 26 N. L. R. B. No. 52 528 PRECISION CASTINGS COMPANY, INC. 529 of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 9, 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 July 9, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the C. I. 0. and The Precision Employees Association, herein called the Associa- tion. Pursuant to the notice, a hearing was held at Cleveland, Ohio, from July 12 through July 18, 1940, before Max W. Johnstone, the Trial Examiner duly designated by the Board. At the hearing, the Association, claiming to represent employees directly affected by the investigation, moved that it be allowed to intervene. This motion was granted by the Trial Examiner. The Company, the C. I. 0., and the Association were represented by counsel, 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. During the course of the hearing the Trial Examiner made several 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. During the hearing, the Association filed written "charges" with the Trial Examiner that by threats and other acts of intimidation engaged in while the hearing was in progress, the C. I. 0. discouraged certain employees from testifying as witnesses for the Association. Upon request of the Association, the Trial Examiner granted sub- poenas for the employees against whom the alleged acts of intimida- tion were directed to appear as witnesses, and after certain of the subpoenaed employees had testified as to this matter, the C. I. 0. moved that the "charges" by the Association be dismissed. It appears clearly that two of the C. I. 0. representatives made threats and disparaging remarks to certain of the witnesses, and that this improper conduct was condoned by counsel for the C. I. 0. While we regard the actions of the C. I. 0. representatives, herein com- plained of, as without excuse or justification, there is no showing that the Association was thereby prejudiced in presenting its side of the case. In view of the serious necessity for a determination of representatives, discussed below, we therefore are of the opinion that we should proceed to a determination of the merits of this case irre- spective of the improper conduct of the C. I. 0. representatives. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 31, 1940, the C. I. 0., the Association, and the Company filed briefs which we have considered. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board, August 1, 1940, at Washington, D. C. The C. I. 0., the Association, and the Company appeared by counsel; all participated in the hearing. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, a New York corporation with factories located at Fayettesville and Syracuse, New York, and Lakewood, Ohio, is engaged in the manufacture and, sale of castings. The principal raw materials used by the Company are aluminum and zinc, approximately all of which are obtained from sources outside the States of New York and Ohio. During 1939 the Company shipped finished products from its plants in the amount of $850,000, approximately 30 per cent of which represented shipments into States other than New York and Ohio. II. THE ORGANIZATIONS INVOLVED National Association of Die Casting Workers, Region No. ' 5, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company at its Lakewood, Ohio, plant. The Precision Employees Association is, a labor organization ad- mitting to membership all factory employees of the Company, exclud- ing foremen having the power to hire, discharge, or otherwise discipline, at its Lakewood, Ohio, plant. III. THE QUESTION CONCERNING REPRESENTATION About November 1, 1939, the C. I. 0., which had been organizing the Company's employees at its Lakewood plant since the spring of 1939, requested the Company to recognize it as exclusive bargaining agent,, and on November 7 it filed a petition for investigation and certification under Section 9- (c) of the Act. The Association began organizing the Company's employees at its Lakewood plant in Novem- ber 1939, and during the same month also requested that the Company recognize it as exclusive bargaining agent. At a conference held between the Company, the C. I. 0., and the Board's agents on November 18, 1939, the Company suggested that a consent election be held with both unions on the ballot. The C. I. 0., however, would not agree to such an election since it already had filed charges with the Board, alleging that the Company had dominated and interfered with the formation and administration of, and contributed support to, the Association in violation of Section 8 (2) of the Act. PRECISION CASTINGS COMPANY, INC., 531 Another conference between the C. I. 0., the Company, and the agents of the Board was held on November 22, 1939, and at that time the Company was willing to agree to an election with only the C. I. O. on the ballot, providing that the election, would be held on November 25, and that the Association also would consent thereto. The C: I. O., refused to agree on the November 25 date and demanded that the election be held on December 4. The parties failed to reach an agree- ment as to a date on which the election might be held, and the negotia- tions as to the consent election ended when the Company refused to issue a neutrality notice to its employees. On November 25 the Company negotiated a draft contract with the Association, recognizing it as,exclusive bargaining agent and providing, among other things, for increased wages, regulations of hours, and seniority rules.' The contract thereafter was signed by 128 employees, constituting a majority, and then was executed by the Company. Such signatures of the 128 employees constituted the only proof of employee adherence to the Association that was submitted to the Company. The contract is dated November 25, 1939, and is to remain,in effect for 1 year,' subject to a renewal clause. The C. I. O. withdrew its petition of November 7 in the latter part of 1939, and upon charges that it had filed with the Board, an amended complaint, dated March 6, 1940, was issued against the Company, alleging violations of Sections 8 (1), (2), and (3) of,the Act. A hearing, as to this matter was held from March 1.1 through April 3, 1940, and at the date of the present proceeding, no intermediate report had been issued. On June 25, 1940, the C. I. O. called a strike at the Company's Lakewood plant, and upon the Company refusing to meet with the C. I. O. for purposes of hearing its demands, one of which was that it be recognized as exclusive bargaining agent, the C. I. O. on July 6 filed its petition herein, requesting an investigation and, certification of representatives. During the strike, which lasted until July 15, when, most of the employees involved applied for reinstatement, the operations of the Company were substantially curtailed. The Company contends that the validity of its contract with the Association, which is in issue in the unfair labor practice hearing above referred to, must first be determined before the instant case may go forward. The Company asserts that many employees who went on strike had signed the contract, one of the clauses of which provides that "An Employee shall lose his seniority . . . (2) If he remains I The evidence considered above concerning events occurring prior to November 25, the date of the con- tract, is for the most part taken from certain testimony and exhibits admitted in the unfair labor practice proceeding of March 11 through April 3, 1940, wherein the same parties here participating were also involved and which testimony and exhibits on being offered by the Company in the present proceeding were rejected by the Trial Examiner. We think this rejected testimony and exhibits are material to a determination of the issues in this proceeding, and they are hereby admitted in evidence 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD away from his work for three days or longer without justifiable cause and without notifying the Employer of his intended absence. (3) If he voluntarily leaves the employ of the employer." The Company does not seriously contend, however, that the employees who signed this contract and thereafter went on strike, are no longer employees of . the Company within the meaning of the Act, which specifically states that "The term `employee' shall include . . . any individual whose work has ceased as a consequence of, or in connection with any current labor dispute." For the following reasons, among others, we further conclude that the contract executed between the Company and the Association on November 25, 1939, constitutes no bar to the present proceedings: (1) the contract was entered into after the C. I. 0. had filed a petition for investigation and certification under Section 9 (c) of the Act; (2) prior to the execution of the contract, the Company had notice that the C. I. 0. claimed to have been designated by a majority of the Com- pany's employees as their sole bargaining agent; (3) since the only proof of employee adherence to the Association at the date the con- tract was entered into is the employee signatures to the contract after it had been drawn up, the record does not clearly establish that the Association was the chosen majority representative at that date; and (4) prior to the execution of the contract, the Company had notice that the C. I. 0. had filed charges with the Board alleging that the Company had dominated and interfered with the formation and administration of the Association, and had contributed support to it, in violation of Section 8 (2) of the Act. The C. I. 0. asserts that it represented a majority of the employees in the appropriate unit. There was introduced in evidence a written statement by the Regional Director reporting that the C. I. 0. had submitted to him 164 signed application cards, most of which were dated between August 1939 and July 1940; and that the signatures on 105 of these cards appeared to be genuine and original and were names appearing on the Company's seniority list. The Company normally employs about 180 persons in all at the Lakewood plant. The C. I. 0. also submitted to the Regional Director 81 signed cards for the most part containing duplicate signatures of names appearing on the application cards, wherein the signers thereof disavowed any authorization they may have granted to the Association to represent them for purposes of collective bargaining. The Regional Director also reported that the Association had submitted to him 143 signed authorization cards, none of which were dated, but an Association representative stated that all the cards were signed in the latter part of 1939; that the signatures on these cards appeared to be genuine, original signatures; and that 134 of the 323429-42-vol. 26-37 PRECISION CASTINGS COMPANY, INC. • 533 signatures were names appearing on the Company's seniority list. In addition, the report stated that 56 of the 81 disavowal, cards pre- sented by the C. I. O. bore the names of persons whose signatures,. also appeared on the Association cards. We find that a question has arisen concerning representation, of the 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 At the hearing the C. I. O. contended that all production employees of the Company, excluding supervisors, watchmen, truck driver, timekeepers, and clerical and maintenance employees, constituted a unit appropriate for the purposes of collective bargaining.- .The Association and the Company requested a unit consisting of all hourly and piece-work employees, excluding foremen having power to hire, discharge, or otherwise discipline, or to determine rates of pay. The Company employs approximately 8 maintenance employees at its Lakewood plant. They work largely as millwrights in keeping the plant and machinery in repair, and are paid on an hourly basis, as are several production workers. One of the maintenance workers was admitted to membership in the C. I. 0.; others of them have joined the Association. The Association and the Company desire that the maintenance employees be included in the unit, and the C. I. O. objects to their inclusion largely on the basis that these employees are,"opposed to legitimate trade unionism." In its peti- tion of November 7, 1939, referred to above, the C. I. O. requested that maintenance workers be included in the unit. We shall include maintenance employees in the appropriate unit. The Association and the Company request, and the C. I. O. opposes, the inclusion of John Hembly in the appropriate unit. Hembly measures the dimensions of the finished castings to determine their size. We think that Hembly's work is a part of the production process, and we shall include him in the appropriate unit. - - - - William S. Grant is employed in the stock room. His duties onsist of handing out materials to the employees, and keeping a record of supplies. The Association and the Company request his 323429-42-vol. 26--35 534. DECISIONS OF NATIONAL LABOR RELATIONS BOARD inclusion in the;unit,'andjthe'C.^I. 0., whileyobjecting to his inclusion; offers no substantial reason to support its, contention.). We 'think' it clear that the nature of the work performed by Grant does not result in his having any interests or problems different from ordinary, production or maintenance workers. We shall include Grant' in the appropriate unit. , . • 41 . , Clyde Luke, employed in the shipping room in packing castings and keeping a record of shipments, is desired to be included in the' unit by the Company and the Association, and the C. I. 0. does not oppose his inclusion. We shall include Luke in the appropriate unit. The C. I. 0. further asserts that A. W.. Warren, Harry Kirk, and Joseph Farbarik, Sr., employed as watchmen;. Clarence Decker, , employed as an outside truck driver; Genevieve Rose •Horlak and Arthur Seith, employed as timekeepers,' Mary, Sliwa,, essentially a timekeeper employed in compiling production returns, for the-pay;-roll records; and Jack Combs, Joseph Farbarik, Jr., Ted Kaput, Joseph Toczek, Nelson Stephan, George Searle, Walter Lewicki, Julian Barry, and John Beltz, employed as working supervisors,' should be excluded from the unit, while the Association and the Company desire their inclusion . As, to the employees classified as working supervisors, A. D. Weigolt, the plant superintendent, testified,, We have a number of employees which act in the capacity of supervisors part time, to the extent that they will hand out work' to that particular group in any one department and keep track of production and also instruct the particular group ' in any operation in the department, and in general act as ' assistant'' foremen in that capacity and put in the balance of -the time on, production labor. I ' . . . - Weigolt continued, "they (the working supervisors) have the right to'f suggest increases in wages," and "they would be in a position to know,' whether the work was done 'right." Mary Sliwa, secretary of the Association, described several of these working supervisors as being in "charge" of various departments. ' Where one union in a case such as this desires ;to 'exclude employees ' of the above classifications from a unit composed of production 'and maintenance employees and another does not, it has been the practice' of the Board to exclude them, unless some special reason `appears' for their inclusion.' No such reason appears in the record as to the em ployees listed in the above paragraph. We shall exclude them'from'• the appropriate unit. 2 During the strike, several of these working supervisors signed cards applying for membership ; in, the C I. 0. Subsequently, however, the C I 0 decided that these employees were not eligible for member- ship, and action was taken to remove their cards from its files. 1 3 Watchmen excluded Matter of The Peoples Gas Light and Coke Company and Chicago By-Product Coke Company and United Mine Workers of America, District 50, Affiliated with the Congress of Industrial Organi- (Footnote 3 continued on following page.) i. PRECISION, CASTINGS COMPANY, INC. 535 John Biss; , vice president, of, the C. I. 0., testified that he had re- ceived reports that Molley Wessel, employed in the filing department, had ,been promoted to forelady in place of Mary Mulqueen, and it was contended, therefore, that Wessel should be excluded from the unit. Weigolt, however, testified that Wessel had not taken over the duties of, Forelady Mulqueen, and that the latter had merely decided not to report to work during the period of the strike. • We, therefore, shall include Wessel in the unit. In view of the circumstances noted above, existing at the time that the Company and the Association entered into their contract of No- vemberi25, 1939, we can give no weight to the contention of the Asso- ciation., and the Company that, the unit fixed in that contract should control our -determination of the unit in the present proceedings. We find that all production and maintenance employees of the Company at its Lakewood plant, excluding watchmen, truck driver, timekeepers, clerical employees, working supervisors, and any em- ployees occupying higher supervisory positions, constitute a unit appropriate for '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 will otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Ini Section III, above, we have noted the conflicting claims of the two labor organizations as to majority representation in the appro- priate unit: We find that the question concerning representation which has arisen can best be'resolved by an election by secret ballot, and we shall'direct the holding of such an election. At the hearing, the C: I. 0. asserted that if an election was to be held, eligibility to.vote should be determined by the pay roll of June 22, 1940, the last pay-roll period previous to the strike. The Associa- tion and the Company did not oppose adoption of this date. At the time 'of the:hearing the plant had not resumed normal operations, although picketing had been. discontinued and most of the striking employees had applied for reinstatement. We shall adopt the pay- (Footnote 3 -Continued from previous page ) zations, 15 N L. R B 1024; Matter of Plankington Packing Company and Packing House Workers Organizing Committee on Behalf of Local 681 of the United Packing House Workers of America , 5 N L R. B. 813 Truck drivers exeluded •,Matter of Payne Furnace and Supply Co., Inc and Stove Mounters International Union of North America Local A o. 98, AFL, 21 N L. R B. 797; Matter of Blue Diamond Corporation , Ltd. and Inter- national Longshoremen 's and Warehousemen 's Union, Local 1-26, 18 N. L. R. B 730 Timekeepers excluded Matter of American Radiator Company (Bond Plant and Terminal Plant) and Amalgamated Association of Iron, Steel & Tin Workers, Lodges 1199 and 1629, 7 N. L. R B 452, Matter of Atlantic Basin Iron Works and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 13, 5 N. L. R. B 402. Super- visors excluded : Matter of Jones Lumber Company and Lumber and Sawmill Workers Union , Local No. £877, chartered by United Brotherhood of Carpenters and Joiners of America, Affiliated with the American Federa- lion of Labor, 12 N. L. R B 209 , Matter of Alabama By-Produts Corporation, Coke Oven Division and District 60, United Mine Workers of America (C. 1. 0), 13 N. L. R. B. 427. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll period for the week ending June 22 for determining the eligibility to vote. The record discloses that during the summer months the Company's business declines and, consequently, that some of its employees are laid off during that period. There was -introduced in evidence a list of about 40 employees, all of whom had been laid off between April and June 1940, and who had been in the employ of the Company for periods ranging from 4 weeks to 3 years. Weigolt testified that as business increased in the fall, each of these employees would be re- hired on a seniority basis. The C. I. 0. contends that these laid-off employees should not be entitled to vote in any election, while the Company and the Association take the opposite position. Although the work of these laid-off employees is seasonal, it is evident that they have an interest in conditions of employment which might be agreed upon during the year even though not employed at the.particular time the agreements are made.4 That interest entitles them to a voice in the determination of representatives, and we, therefore, shall consider these temporarily laid-off employees as eligible to vote in the. election. Although the Company presented evidence that certain employees had been convicted of violating a temporary restraining order as to, picketing in the Court of Common Pleas, which conviction was being appealed at the date of the hearing, and also accused other employees, none of which had been so convicted, of committing acts of violence,' it did not contend that by reason of-the acts complained of, the em- ployer-employee relationship as to the employees in question thereby had automatically terminated, nor that the employees had been dis- charged. In view of the circumstances, we conclude that none of the employees involved in the acts above mentioned have lost their employee status, and we deem them entitled to participate in the voting. ..We find that those eligible to vote in the election should be employ- ees in the appropriate unit who were employed by the Company during the week ending June 22, 1940, including employees who did not work during such pay-roll period because they were ill, on leave, or on vacation, and employees who were then or shall have since been temporarily laid off, but excluding those who shall have since quit or been discharged for cause. At the hearing the Association advised that if an election was held, it did not desire to have its name appear upon the ballot. Ac- , 4 Cf Matter of National Distillers Products Co and United Distillery Workers of N A, Local No 484, Affili- ated with Committee for Industrial Organization, 5 N L R B 862 s During the bearing the Company requested that subpoenas be issued for two policemen to appear at the hearing and testify as to events occurring on the picket lines during the strike This request was refused by the Trial Examiner on the ground , among others, that picketing had been discontinued We hereby affirm this ruling. PRECISION CASTINGS COMPANY, INC. 537 cordingly, the name of the Association shall be omitted from the ballot. 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 repre- sentation of employees of Precision Castings Company, Inc., Lake- wood, Ohio, within the meaning 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 at its Lakewood, Ohio, plant, excluding watchmen, truck driver, time- keepers, clerical employees, working supervisors, and any employees occupying higher supervisory positions, 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 Rela- tions 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 bargaining with Precision Castings Company, Inc., Lakewood, Ohio, 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 of Election, under the direction and supervision of the Regional Director for the Eighth Region, acting in the 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 of the Company at its Lakewood, Ohio, plant who were employed during the week ending June 22, 1940, including employees who did not work during that period because they were ill, on leave, or on vacation, and employees who were then and shall have since been temporarily laid off, but excluding watchmen, truck driver, timekeepers, clerical employees, working supervisors, and any employees occupying higher supervisory positions, and those who shall have since quit or been discharged for cause, to determine whether or not they desire to be represented by National Association of Die Casting Workers, Region No. 5, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. WM. M. LEISERSON, dissenting: I dissent from the foregoing Decision and Direction of Election.