Moulton Ladder Manufacturing Co.

,In the Matter Of MOULTON LADDER MANUFACTURING COMPANY and UNITED FURNITURE WORKERS OF AMERICA, LOCAL•136-B (C. I. 0.) Case No. R-1970.-Decided August 31, 1940 Jurisdiction : ladder, clothes dryer, and rigging manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord recognition to union ; dispute as to appropriate unit; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including shipping employees, blacksmiths, watchmen, engineers,. and yardmen, and excluding executives, supervisory, clerical, salesmen, truck- drivers, and Worcester Division employees. Mr. George A. McLaughlin, of Boston, Mass., for the Company. Mr. Michael Tyson, of Boston, Mass., for the Union. Mr. Sidney L. Davis, of counsel- to the Board. DECISION AND DIRECTION OF ELECTION - STATEMENT OF THE CASE On June 19, 1940, United Furniture Workers of America, Local 136-B (C. I. 0.), herein called the Union, filed with the Regional Director for the First Region (Boston, Massachusetts) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Moulton Ladder Manufacturing Company, herein called the Company, at its plant at Somerville, Massachusetts, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On July 18, 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 Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On July 24, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. 27 N. L. R. B., No. 7. 40 MOULTON LADDER MANUFACTURING COMPANY 41 Pursuant to notice, a hearing was held on July 31, 1940, at Boston, Massachusetts, before Edward Schneider, the Trial Examiner duly designated by the Board. , The Company was represented by counsel, and the Union by its representative. 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. At the hearing the Trial Examiner granted, without ob- jection, a motion of the Union to amend its petition with respect to its claim concerning the appropriate unit. This ruling is hereby affirmed. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the ad- mission 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. After the hearing, the Company sub- mitted a brief which the Board has considered. Upon the.entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Moulton Ladder Manufacturing Company, a Massachusetts cor- poration with its principal office and plant in Somerville, Massa- chusetts, is engaged in the manufacture, sale, and distribution of ladders, ladder products, clothes dryers, casters, and rigging. It has a small branch at Worcester, Massachusetts, and an affiliate in New York City. The present proceeding involves only the employees at the Somer- ville plant and Worcester branch. In 1939 the Company purchased materials and supplies in,the amount of $185,000, 94 per cent of which were purchased and received from sources outside the State of Massachusetts. The total amount of finished products during that year was $384,000, of which 57 per cent were shipped to places outside the State of, Massachusetts. As of the date of the hearing the Company employed about 79 employees. II. THE ORGANIZATION INVOLVED United Furniture Workers of America, Local 136-B (C. I. 0.), is a labor organization affiliated with the United Furniture Workers of America, which is in turn affiliated with the Congress of Indus- trial Organizations. It admits to membership all production and maintenance employees within the proposed unit at the Company's plant at Somerville, Massachusetts. 42 DECISIONS OF NATIONAL. LABOR ' RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On or about June 15, 1940, the Union, requested recognition from the Company as bargaining representative for the employees within the proposed unit. The Company contested the claim of the Union concerning the appropriateness of the proposed unit, and also refused to recognize it until the Union had proved that it represented a ma- jority of the employees. At the hearing evidence was introduced showing that the Union represented a substantial number of em- ployees of the Company. We find that a question has arisen 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 commerce and the free flow of commerce. V. THE APPROPRIATE UNIT . The Union contends that the appropriate bargaining unit consists of all production and maintenance employees of the. Company at the Somerville plant, including shipping employees, blacksmiths, watchmen, engineers, and yardmen, but excluding executives, super- visory, clerical, salesmen,, truckdrivers, and. Worcester- Division em- ployees. The Company contends that the clerical, tr'uckd'rivers, and Worcester Division employees should be included within the unit. The ' Union states that its jurisdiction is limited to plants in the area of Greater Boston, Massachusetts, and that Worcester, Massa- chusetts, is outside of this area. ' The Worcester Division is a sales and repair branch, with three employees, Ruth Proctor, Frank Fox, and F. La Forest. All of these employees reside within the vicinity of Worcester and are not" interchanged with the employees at the main' plant at Somerville, Massachusetts: The Union claims that Frank Fox is, a supervisor. Although the Company contends that this employee does not-have the power to make recommenda- tions with respect to hiring or discharging, it admits that he is responsible for \work done by the other two employees at Worces- ter in that if they do not perform their work properly he is obligated MOULTON LADDER MANUFACTURING COMPANY 43 to report it to the vice president of the Company. We find that Frank Fox is a supervisory employee. Ruth Proctor is employed as a 'clerk. F. La Forest works three-fourths of his time as a truck- 'driver. Since we are excluding clerical and supervisory employees and truckdrivers, we shall exclude from the appropriate unit the above=named employees of the Worcester Division. The truckdrivers are subject to the jurisdiction of another labor organi`zatiou. Since the Union desires their exclusion we shall ex- clude them from the unit' We see no reason for departing from our previous decisions excluding clerical employees from units of production and maintenance employees. We find that the production and maintenance employees, includ- ing shipping employees, blacksmiths, watchmen, engineers, and yard- men, and excluding executives, supervisory, clerical, salesmen, truckdrivers, and Worcester Division employees, constitute a unit appropriate for the purposes of collective bargaining. VI. THE DETERMINATION OF REPRESENTATIVES Both the Union and the Company requested that an election be held to determine the question concerning representation. We find that the question which has arisen concerning the, representation of em- ployees of the Company can best be resolved 'by the holding of an elec- tion. by secret ballot. We shall use as the date for determining eligi- bility of employees to vote the pay-roll date immediately preceding the 'date of this Direction of Election. 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 Moulton Ladder Manufacturing Company, Somerville, Massachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees, including shipping employees, blacksmiths, watchmen, engineers, and yardmen, and 'ex- cluding executives, supervisory, clerical, salesmen, truckdrivers, and Worcester Division employees, constitute a unit appropriate, for the purposes of collective bargaining. 1 Truckdrivers have often been excluded by the Board from units of production and maintenance employees.. Matter of Inland Steel Co and Steel Workers Organizing Com- mittee, 9 N. L. R B. 783 ; Matter of Century Biscuit Company and United Bakery Workers, 9 N. L R. B ., 1257; Matter of Seymour Packing Company and Amnalgannated Meat Cutters and Butcher Workmen of North America , Local No. 176, 12 N. L R. B. 1098. 44 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD 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 Relations 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Moulton Ladder Manufacturing Company, Somer- ville, Massachusetts, 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 super- vision of the Regional Director for the First 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 the production and maintenance employees of the Company, including shipping employees, blacksmiths, watchmen, engineers, and yardmen who were employed during the pay-roll period immediately preced- ing the date of this Direction of Election, and also including those employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding executives, supervisory and clerical employees, salesmen, truckdrivers, and Worcester Division employees, and any who have since quit or been discharged for cause, to determine whether or not such employees desire to be represented by United. Furniture Workers of America, Local 136-B (C. I. 0.) for the purposes of collective bargaining. SAME TITLE] Investigation and Certification of Representatives Wherein an election directed by the Board, the Company and the union agree that a challenged ballot should not be counted, but there is a dispute as to whether or, not such ballot was cast by an ineligible voter, the issue involved is whether or not such voter was eligible to vote within the eligibility requirements set forth in the Direction of Election, and if he was eligible, his vote must be counted irrespective of the desires of the parties. SUPPLEMENTAL DECISION AND DIRECTION November 6, 1940 On August 31, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceedings. Pursuant to the Direction of Election, an MOULTON LADDER MANUFACTURING ' COMPANY 45) election by secret ballots was conducted on September 20, 1940, under the direction and supervision of the Regional Director for the First Region (Boston, Massachusetts). On September 21, 1940, the Re- gional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Report. As to the balloting and its results, the Regional Director reported as follows : Total.number of voters eligible------------------------------ 63 Total votes cast-------------------------------------------- 62 Total number of ballots marked "YES"----------------------- 31 Total number of ballots masked "NO"------------------------ 31 Total number of blank ballots------------------------------- 0 Total number of void ballots--------------------------------- 0 Total number of-challenged ballots-------------------------- 1 The Regional Director also stated in the Report that Moulton Lad- der Manufacturing Company, herein called the Company, and United Furniture Workers of America, Local No. 136-B (C. I. 0.), herein called the Union, had agreed that the challenged ballot was cast by an ineligible voter and therefore should not be considered. On September 23, 1940, the Company filed Objections to the Election Report. It asserted that, although it had agreed with the Union that the challenged ballot should not be counted, it did not agree that such ballot was cast by an ineligible voter.' The same day, the Union filed Objections to the conduct of the ballot and the Election Report. It contended that an officer of the Company accompanied by the Com- pany's attorney remained in the vicinity of the polling place until most of the employees had voted, and that their presence there had influ- enced, coerced, and intimidated the employees who had voted. It also protested the counting of an-adverse ballot which had been marked in the "YES" column of the ballot with the word "NO" written upside down, and contended that such ballot should have been considered void. On October 8, 1940, the Regional Director issued a Supplemental Election Report and a Report on Objections to the conduct of the secret ballot and Election Report, copies of which were duly served upon the parties: In the Supplemental Election Report the Regional Director found that J. Mattson, who cast the challenged ballot, was in the same category as seven other employees who were considered by the Company and the Union as eligible to vote. He therefore found Mattson eligible to vote and recommended that his ballot should be I The issue is whether or not .the employee who cast the challenged ballot was eligible to vote within the eligibility requirements set forth in the Direction of Election If he was eligible, his vote must , be counted , irrespective of the desires of the parties 46 - DECISIONS,OF NATIONAL, LABOR RELATIONS BOARD r;r( counted. No objections to the Supplemental Election Report have been filed by any of the parties. In the Report on Objections the Regional Director reported: (1) Approximately 10 minutes after' the election had begun, and after one-third of the eligible employees had voted, the officer of the Company and the Company's attorney left the vicinity of the polling place at the request of the Board agent, and 'there was no evidence that they conversed with any of the voters dur- ing the course of the balloting; and (2) the ballot which had ,been marked in the "YES" column with 'the word "NO" was considered a "NO" vote by the Board agent without any objections being raised by the parties at the time of the count. The Regional Director recom- mended that-this ballot be considered void. On October 11, 1940, the Company filed objections to the Regional Director's recommendation on the ballot which had been marked in the "YES" column with the word "NO." - We overrule the Regional Director's recommendation contained, in the Report on Objections in regard to the ballot marked in the "YES" column with the word "NO." Since at the time of the counting the Board agent considered this ballot as a "NO" vote without any objet-' tion then being raised by the parties, we sustain the Objections of the Company to the recommendation with respect to such ballot by the Regional-Director in the Report on Objections. We find that the presence of an officer of the Company and the Company's attorney in the vicinity of the polling place, under the circumstances set-forth in' the Report of the Regional Director on Objections, did not influence the result of the election. We also find and conclude, for the reasons indicated by the Regional Director in the Supplemental Election Report, that J. Mattson, the challenged voter, was eligible to vote. Accordingly, we hereby overrule the objections, and each of them, made by the Union-to the conduct of the ballot and the Election Report. Since the result of the election may be affected by the counting of the challenged ballot declared valid, we shall direct that it be counted. DIRECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby ' DIRECTED that, as part of the investigation directed by the Board to ascertain representatives for the purposes of, collective bargaining with Moulton Ladder Manufacturing Company, Somerville,- Miis- sachusetts' the Regional Director for the First Region ,(Boston,; MOULTON LADDER MANUFACTURING COMPANY 47 Massachusetts) shall, pursuant to said Rules and Regulations, and subject to Article III, Section 9, of said Rules and Regulations, within ten (10) days from the date of this Direction open and count the ballot of J. Mattson, and shall thereafter prepare and cause to be served upon,the parties in this case a Second Supplemental Election Report, embodying his findings therein and his recommendations as to the results of the secret ballot. 27 N. L. R. B., No. 7a.