Climax Machinery Co.

In the Matter Of CLIMAX MACHINERY COMPANY and METAL POLISH- ERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION, LOCAL UNION No. 171, AFFILIATED WITH THE A. F. L. In the Matter Of CLIMAX MACHINERY COMPANY and INT'L. ASSN. OF MACHINISTS, DIST. NO. 90, AFFILIATED WITH THE A. F. OF L. In the Matter of CLIMAX MACHINERY COMPANY and LOCAL UNION No. 1695 OF THE AMALGAMATED ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA, AFFILIATED WITH THE C. I. O. Cases Nos . R-1935, R-1936, and R-1937, respectively.-Decided August 23, 1940 Jurisdiction : metal products manufacturing industry. Investigation and Certification of Representatives : existence of question: em- ployer refuses to accord recognition to any union unless certification be ob- tained; elections necessary. Employees who do not work in polishing department but who do unskilled polishing work held entitled to vote in polishers" election. Unit Appropriate for Collective Bargaining : industrial or craft unit: other factors evenly balanced determining factor desire of the employees; determination of dependent upon results of election. Mr. William J. Campbell and Mr. R. J. Hennessy, of Indianapolis, Ind., for the Company. Mr. Ray Kelsay and Mr. W. W. Britton, of Cincinnati, Ohio, for the Metal Polishers. Mr. C. F. McDonald, of Fort Wayne, Ind., and Mr. Harry Collier, of Indianapolis, Ind., for the I. A. M. Mr. Cecil E. Allen, of Indianapolis, Ind., for the Amalgamated. Mr. Woodrow J. Sandler, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On April 25, 1940, Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No. 171, affiliated with the A. F: L., herein called the Metal Polishers, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition, alleging that a question affecting commerce had arisen concerning the representa- 26 N. L. R. B., No. 106. 1038 CLIMAX MACHINERY COMPANY 1039 tion of employees of Climax Machinery Company, Indianapolis, 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 May 23 and June 5, 1940, International Association of Machinists District No. 90, affiliated with the A. F. of L., herein called the I. A. M., and Local Union No. 1695 of the Amalgamated Associa- tion of Iron, Steel and Tin Workers of North America, affiliated with the C. I. O.,' herein called the Amalgamated, respectively, filed similar petitions . On June 12 , 1940, the National Labor Relations Board, herein called the Board acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation , authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further ordered that the three cases be consolidated. On June 19 , 1940, the Regional .Director issued a notice of hearing and on June 24, 1940, a notice of postponement of hearing , copies of both of which were duly served upon the parties. Pursuant to notice, a hearing was held on July 8, 1940 , at Indianapolis, Indiana, before Arthur R. Donovan, the Trial Examiner duly designated by the Board. The Company, the Metal Polishers, the I. A. M., and the Amalgamated were represented by their representatives and par- ticipated in the hearing. Full opportunity to be heard , to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties . At the hearing all parties stipu- lated to incorporate in the record the transcript of hearing , exhibits, and the Board's decision in an earlier proceeding involving the Com- pany, the Metal Polishers, and the Amalgamated.' 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. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Climax Machinery Company is an Indiana corporation having its principal office and place of business at Indianapolis , Indiana, where it is engaged in the business of fabricating , manufacturing, and fin- ishing metal products , chiefly meat-slicing machines, self-contained air conditioners, smoking stands , biological refrigerators , and auto- I Matter of Climax Machinery Company and Metal Polishers , Buffers, Platers and helpers , Local Union No. 171, affiliated with the A. F. of L., 14 N. L. R. B. 252. 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matic weighing machines. The Company also does polishing and plating work on order from other companies in Indianapolis. The principal raw materials used by the Company are iron, brass, alumi- num, and steel. The Company annually uses about $300,000 worth of such raw materials, obtaining approximately 80 per cent of them outside the State of Indiana. The Company produces annually fin- ished products valued at between $500,000 and $750,000, of which approximately 90 per cent is shipped to points outside the State of Indiana. II. THE ORGANIZATIONS INVOLVED Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No. 171, is a labor organization, affiliated with the Amer- ican Federation of Labor, admitting to its membership metal polish- ers, buffers, platers, and their helpers employed in Indianapolis, Indiana. Local Union No. 1695 of the Amalgamated Association of Iron, Steel and Tin Workers of North America, is a labor organization affiliated with the Steel Workers Organizing Committee, herein called the S. W. O. C., and with the'Congress of Industrial Organizations. The Amalgamated admits to its membership all production and main- tenance employees of the Company, excluding foremen, employees with power to hire and discharge employees, supervisors, salesmen., office help, draftsmen, technical engineers, watchmen, and "experi- mental and development men." International Association of Machinists, District No. 90, is a labor organization, affiliated with the American Federation of Labor, ad- mitting to its membership all production and maintenance employees of the Company, excluding metal polishers, buffers, and platers, and supervisory and clerical employees. III. THE QUESTION CONCERNING REPRESENTATION The S. W. O. C., on behalf of the Amalgamated, entered into suc- cessive 1-year exclusive collective bargaining contracts with the Com- pany on May 14, 1937, May 14, 1938, and May 24, 1939. The last contract expired on May 24, 1940, and no new contract was thereafter entered into. The Metal Polishers, the Amalgamated, and the I. A. M., which, as is set forth more fully in, Section V, infra, each contend for a different unit as' that which is appropriate for the purposes of col- lective bargaining, stipulated at the hearing, without objection by the Company, that "a question concerning representation has arisen affecting commerce within the meaning of the National Labor Rela- tions Act, in that the Climax Machinery Company will not recognize' any union as the sole representative of its employees until said union, CLIMAX MACHINERY COMPANY 1041 or unions, have been certified by the National Labor Relations Board as the proper representative." The Company's superintendent testi- fied that the Company will bargain collectively with any union that is certified by the Board. 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 three unions, agreeing as to the exclusion of supervisory and clerical employees, each contend for a different unit for the purposes of collective bargaining. The Amalgamated desires a unit of the Company's production and maintenance employees, of whom there are 106. The I. A. M. desires a unit consisting of production and maintenance employees, exclusive of metal polishers, buffers, platers, and their helpers. The Metal Polishers desires a unit consisting of the metal polishers, buffers, platers, and their helpers, of whom there are 23. At the hearing there was introduced in evidence a statement of the Regional Director concerning the unions' claims of authorization for the purpose of representation. According to his statement, the Metal Polishers had submitted to him evidence showing that it repre- sents 15 employees in the unit claimed by it to be appropriate; the I. A. M. submitted such evidence as to 30 employees in the unit claimed by it to be appropriate; and the Amalgamated submitted such evi- dence as to 57 of the employees in the unit claimed by it to be appro- priate. The Metal Polishers represented the Company's polishers and buffers as their collective bargaining agent from 1913 to 1930.2 Dur- ing that period the Metal Polishers had no written agreement with the Company but merely presented grievances to the superintendent of the plant. In 1930, however, the polishers and buffers appear to 9 According to Walter Arable , one of the Company's metal polishers and buffers , the "platers and platers helpers didn't belong to our organization as a body, at that time , in those years." In April 1939 the Metal Polishers sought certification by the Board as the collective bargaining representative of the Company's polishers and buffers . The Board dismissed the petition on the ground that the unit sought to be established was not appropriate . Matter of Climax Machinery Company and Metal Polishers, Buffers, Platers and Helpers, Local Union No. 171, affiliated with the A . F. of L., 14 N. L. R. B. 252. 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have allowed their memberships in the Metal Polishers to lapse. Early in 1937 the Amalgamated procured the memberships of a majority of the Company's production and maintenance employees and beginning in May 1937 entered into the three successive contracts with the Company described above in Section III. These contracts covered all the employees,' and under them the metal polishers, buff- ers, platers, and their helpers, together with the other employees of the Company, obtained a 10-per cent wage increase and vacations with pay. It is contended by the Metal Polishers that metal polishing, buffing, and plating are highly skilled occupations and that therefore successful collective bargaining for those engaged in that occupation can be conducted only by polishers, buffers, or platers. The Amal- gamated sought to meet this contention by showing that on one occasion the Amalgamated's grievance committee had presented a grievance to the Company on behalf of polishers and had permitted the polishers to accompany it to the conference and argue in their own behalf. The polishing and plating departments are located in the basement of the plant, apart from the other departments. There the metal polishers, buffers, platers, and their helpers, in addition to the work they do on metal products manufactured by the Company, for which they are paid at regular hourly rates, work at piece rates on outside "jobs" contracted for by the Company. Such jobs represent 60 per cent of the Company's polishing and plating work. The respondent bases its charge for such outside jobs upon its cost and bargains as to the piece rates it will pay on each such job with a committee of metal polishers.4 Seniority at the Company's plant is departmental, and the Company allows the polishers to determine among themselves the question of division of work and of lay-offs when business is slack. While the Company's superintendent at first testified that the polish- ing and plating departments could function independently of the other departments in the plant, he later testified, as did the president of the Company, that labor difficulties in the polishing and plating departments would interfere with the Company's regular course of production and hinder operations in the other departments of the plant. Since it appears from the foregoing that the metal polishers, buffers, platers, and their helpers could satisfactorily function either as a separate unit or as part of the larger industrial unit, the determining factor as to what constitutes the appropriate unit for the purposes of c With certain exceptions not here material. 4 During the existence of its contracts with the S. W. 0. C., the respondent bargained with the polishers as to job piece rates, but not as to day rates. CLIMAX MACHINERY COMPANY 1043 collective bargaining is the desire of the employees themselves.' We will, therefore, direct separate elections among the following groups of employees, excluding supervisory and.clerical employees, to deter- mine their desires: (a) All production and maintenance employees employed by the Company, excluding metal polishers, buffers, platers, and their helpers, to determine whether they desire to be represented by the I. A. M., or by the Amalgamated, for the purposes of collective bargaining, or by neither; (b) All the metal polishers, buffers, platers, and their helpers em- ployed by the Company, to determine whether they desire to be represented by the Metal Polishers, or by the Amalgamated, for the purposes of collective bargaining, or by neither. We shall certify the union, if any, designated by a majority of the employees within each election unit as the exclusive representative thereof. If the Amalgamated should will both elections, we shall certify it as the exclusive representative of both election units com- bined. The Metal Polishers claim that Carl Bruhn and John Proffitt are within the unit it contends for. Although Bruhn and Proffitt do not work in the polishing department, they are listed on the Company's pay roll as polishers,- they do rough polishing work, and one of them is a member of the Metal Polishers. None of the other parties has ob- jected to the contention of the Metal Polishers as to Bruhn and Proffitt. We find that Bruhn and Proffitt should be permitted to participate in the election with the employees in group (b) above. VI. THE DETERMINATION OF REPRESENTATIVES The question concerning representation will be resolved by the elec- tions referred to in Section V above. At the hearing the unions agreed that eligibility to vote in the elec- tion should be determined by reference to the Company's pay roll. of "on or about May 24, 1940." They further agreed that "any parties who are out on account of sickness or who are laid off should also be entitled to vote." We see no reason for not adopting our usual rule and shall accordingly direct that the employees eligible to vote in the elections will be those who were employed by the Company during the pay-roll period immediately preceding the date of our Direction of Elections, including employees who did not work during such pay- roll period because they were ill or on vacation, and those who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. ' See Matter of The Globe Machine and Stamping Co . and Metal Polishers Union, Local No. 3, et at ., 3 N. L• R. B. 294, and subsequent cases. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 representa- tion of employees of Climax Machinery Company, Indianapolis, In- diana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. DIRECTION OF ELECTIONS 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Climax Machinery Company, Indianapolis , Indiana, elections 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 Eleventh 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 those employees of Climax Machinery Company who fall within the groups described below who were employed by the Company during the pay-roll period immediately preceding the date of this Direction , including employees who did not work during such pay-roll period because they were ill or on vacation , and those who were then or have since been temporarily laid off, but excluding super- visory and clerical employees and those who have since quit or been discharged for cause: (a) All production and maintenance employees, excluding metal polishers , buffers, platers , and their helpers, to determine whether they desire to be represented by International Association of Machinists, District No. 90, affiliated with the A. F. of L., or by Local Union No. 1695 of the Amalgamated Association of Iron, Steel and Tin Workers of North America., affiliated with the C. I. 0., for the purposes of collective bargaining , or by neither; (b) All the metal polishers , buffers, platers , and their helpers, to determine whether they desire to be represented by Metal Polishers, Buffers, Platers and Helpers International Union, Local Union No. 171, affiliated with the A . F. of L., or'by Local Union No. 1695 of the Amalgamated Association of Iron, Steel and Tin Workers of North America , affiliated with the C . I. 0., for the purposes of collec- tive bargaining , or by neither. CLIMAX MACHINERY COMPANY. 1045 Mn. EDWIN S. SMITH, dissenting: I believe that a separate unit of metal polishers, buffers, platers, and helpers is inappropriate in this case. There had been no organization of any kind in the plant since 1930. In 1937 the Amalgamated suc- ceeded in organizing a majority of the employees and obtained three successive exclusive bargaining contracts in May 1937, 1938, and 1939,.in which the Amalgamated was recognized as exclusive bargain- ing representative on an industrial basis. Under these contracts the metal polishers, along with other employees, received an increase in wages. It was not until March or April 1939 that the Metal Polishers undertook to organize the polishers, buffers, platers, and their helpers in a separate unit. Under these circumstances, for the reasons ex- pressed by me in my dissenting opinion in the Allis-Chalmers' case, and for the reasons expressed in the majority opinions in the American Can 7 and Milton Bradley 8 cases, I think the Board should hold that the industrial unit which has formed the bases of collective bargaining since 1937 is the appropriate bargaining unit. 6 Matter of Allis- Chalmers Manufacturing Company and International Union, United Automobile Workers of America , Local No. 248, 4 N . L. R. B. 159, 175. 7 Matter of American Can Co. and Engineers Local No . 30, Firemen & Oilers Local No. 56, et at., 13 N. L. R. B. 1252. 8 Matter of Milton Bradley Company and International Printing Pressmen and Assistants Union of North America (A. F. L.), 15 N. L. R . B. 938. 323429-42-vol. 26-67