Dain Manufacturing Co.

In the Matter of DAIN MANUFACTURING COMPANY and LODGE No. 1465, INTERNATIONAL ASSOCIATION OF MACHINISTS-A. F. OF L. Case No. R-°.125.Decided February 11, 1941 Jurisdiction : agricultural machinery and equipment manufacturing industry. Investigation and Certification of Representatives : existence of question : refusal to accord union recognition ; contracts with individual employees, no bar to ; current pay roll directed to be used although parties agreed to an earlier pay- roll; elections necessary. Unit Appropriate for Collective Bargaining : single or separate units compris- ing: (1) all tool and die makers, machinists, specialists, helpers, apprentices, and tool-crib attendants; and (2) production and maintenance employees excluding office, clerical, and supervisory employees, ,foremen, assistant fore- men,--and watchmen; determination of, dependent upon' elections. Mr. H. W. Pike, of Moline, Ill., for the Company. Mr. P. L. Siemiller and Mr. Paul R. Hutchings, of Washington, D. C., for the I. A. M. Meyers cfi Meyers, by Mr. Ben Meyers, of Chicago, Ill., for the F. E. W. O. C. Mr. Wilbur Dull, of Ottumwa, Iowa, for the Independent. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On April 15 and 26, 1940, respectively, Lodge No. 1465, International Association of Machinists, A. F. of L., herein called the I. A. M., filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Dain Manufacturing Company, Ottumwa, Iowa, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, herein called the Act. On October 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 29 N. L. R: B., No. 93. 526 DA.IN MANUFACTURING - COMPANY '527 emended, ordered an investigation and authorized the Regional Direc- tor to conduct it and to provide for an appropriate hearing upon due notice. On October 22,1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. A. M., Local 117, Farm Equipment Workers Organizing Committee, herein called the F. E. W. O. C., and Independent Farm Implement Workers, herein called the Independent, labor organizations claiming to rep- resent employees directly affected by the investigation. On October 25, 1940, the F. E. W. O. C. filed a motion to intervene in these pro- ceedings with the Regional Director.' On October 29, 1940, the Regional Director issued an order' permitting intervention. Pursu- ant to notice; a hearing was held on October 31, 1940, at Ottumwa, Iowa, before Lee Loevinger, the Trial Examiner duly designated by the Board. The Company, the I. A. M., the F. E. W. O. C., and the Independent were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing, counsel for the In- dependent moved to dismiss the petition, as amended., The Trial Ex- aminer reserved ruling thereon. The motion is hereby denied. During the course of the hearing the Trial Examiner made 'several rulings- on, motions and on objections to' the admission- of evidence. Tlieq Board has reviewed the .rulings of ,the' Trial Examiner 'and finds that no prejudicial errors were committed. The rulings are hereby affirmed with the exception noted in Section III-below. Pursuant to notice duly served upon all the parties, a hearing was held for the purpose of oral argument before the Board on November. 19, 1940, in Washington, D. C. The I. A. M: and the F. E. W. O. C. were represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the 'following : FINDINGS OF FACT I. - THE BUSINESS OF THE COMPANY Dam Manufacturing Company,is an Iowa corporation with its prin- cipal place of business at Ottumwa, Iowa, where it is engaged in the design, manufacture; sale," and" distribution of sweep 'rakes, shock sweeps, hay loaders,, hay stackers, hay presses, kafir headers, pump jacks, and concrete mixers. During the fiscal year ending October 31, 1939, the Company purchased raw materials from sources outside the 1On October 21, 1940, the F. E W 0 C. filed a petition asking for a unit of all em- ployees of the Company. The Regional Director notified it that all the issues would be disposed of in this proceeding, whereupon the F. E W O. C withdrew its petition. ' 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD State of Iowa valued at approximately $500,000. During the same period it sold finished products valued at approximately $1,400,000, of which approximately $1,200,000 worth were shipped to points outside the State of Iowa. The Company admits that it is engaged in inter- state commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Lodge No. 1465, International Association of Machinists , is a labor organization affiliated with the American Federation of Labor. It admits to membership all tool and die makers, machinists , specialists, helpers, apprentices, and tool-crib attendants of the Company. Local 117, Farm Equipment Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organiza- tions. It admits to membership production and maintenance employ- ees of the Company. Independent Farm Implement Workers is an unaffiliated labor or- ganization admitting to membership the same classes of employees of the Company as F. E . W. O. C. III. THE QUESTION CONCERNING REPRESENTATION On April 1, 1940, the I. A. M., claiming to represent a majority of the employees in an alleged appropriate unit, requested the Company to sign a contract with it. The Company replied that it was operating under individual contracts with its employees and would therefore not recognize the I. A. M. It is apparent that the individual contracts mentioned above do not constitute a bar to a present determination of representatives. The fact that an employee signs an individual contract of employment cannot be held to reflect the desires of such employee regarding rep- resentation and does not constitute any bar to collective bargaining on his behalf.2 A statement of the Regional Director introduced into evidence shows that the I. A. M. represents a substantial number of employees in the unit that it alleges is appropriate.3 The F. E. W. O. C. proffered 75 2 See Matter of'Norman H. Stone, Marvin H. Stone, and Jerome H. Stone, Jr., doing business as J. H. Stone and Sons and International Printing Pressmen and Assistants' Union, Box and Cotton Local ##415, 22 N. L. R. B. 850; Matter , of J. I. Case Company and Pattern Makers League of North America and Pattern Makers Association of Quad Cities and Vicinity, affiliated with the American Federation of Labor, 24 N. L. It. B. 606. 3 The Regional Director's statement shows that 15 men whose names appear on the .'Company's pay roll of May 3, 1940, have signed authorization cards in the I. A. M. Five employees whose names appear on the May 3, 1940, pay roll have signed authorization cards in the Independent . It also appears from the evidence that six employees in the unit urged by the I. A. M. have signed application cards in the F. E. W. 0. C. There are approximately 35 employees in the Unit alleged by the I. A. M. to be appropriate. -DAIN MANUFACTURING -COMPANY 529 applications- allegedly signed by employees in the - unit urged by it. The Trial Examiner refused this offer. We find that the Trial Exam- iner erred in this respect and we will consider the 75 applications as, properly introduced in evidence. 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 I. A. M. urges that a separate unit of all tool and die makers, machinists , specialists, helpers , apprentices, and tool-crib attendants employed by the Company is appropriate. The F. E. W. O. C. con- tends, that all 'production and maintenance employees of the Company, excluding office, clerical, and supervisory employees, foremen, assistant foremen, and watchmen, constitute a unit appropriate for the pur- poses of collective bargaining. The Independent asserts that all pro- duction and maintenance employees of the Company, including watchmen, foremen , and assistant foremen, but excluding clerical and supervisory employees of higher rank - than foremen, constitute an appropriate unit for collective bargaining purposes . The Company took no position with respect to the unit. Machinists. In March 1939, the I. A. M. commenced organizational activities among all the employees of the Company. It was unsuc- cessful in its attempts to organize all the employees , and succeeded only in organizing employees in the unit which it urges at this time to. be appropriate . Many of the employees in the unit urged by the I. A. M. are skilled employees requiring a 4-year apprenticeship, are paid on a straight hourly basis in contrast to a combination hourly and piece-rate basis on which other employees in the plant are paid,, and work in departments of the plant separated from the other em- ployees. Many of the employees in the unit urged ,by the I. A. M. are obliged to purchase their own precision instruments . On_.the other hand, evidence was introduced to show the highly integrated character of the plant and the appropriateness of an industrial unit including the employees claimed by the I. A. M. There has been no history of bar- 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining either by the craft or industrial unions. These employees could thus function-either as a separate unit or as ,part of a single industrial unit. There are approximately 35 employees in the unit urged by the I. A. M., approximately 15 of whom have signed authorization cards for the I. A. M. The F. E. W. O. C. presented six and the Independent five authorization cards signed by employees in this unit. An election will be held among all tool and die makers, machinists, specialists, helpers,, apprentices, and tool-crib-, attendants,, of- the Company, to determine whether they wish to be represented by the I. A. M., by the F. E. W. O. C., by the Independent, or by none of these organizations. On the results of this election will depend the appropriate unit. If these employees select a bargaining representative other than the representative selected by the employees in the plant-wide industrial unit, they will constitute a separate and distinct, appropriate unit. If they choose the same representative as the employees in the plant-wide industrial unit they will be merged into a single unit with such employees. Watchmen. As stated above, the F. E. W. O. C. desires,the exclusion of these workers from the industrial unit, and the Independent their inclusion. In accordance with our usual practice in such circum- stances, we shall exclude the watchmen from the industrial unit.4 Foremen, and assistant foremen. The Independent; desires the :in= elusion of these workers and the F. E. W. O. C. their exclusion. With respect to these employees, the record discloses little more than the preference of each of the rival unions. We have normally excluded foremen and assistant foremen from a unit composed of production and maintenance employees where one union desires their exclusion. We shall, accordingly, exclude the foremen and assistant -foremen from the industrial unit. We find that all the production and maintenance employees of the Company, excluding office, clerical, and supervisory employees, fore- men, assistant foremen, and watchmen, may properly constitute a unit appropriate for the purposes of collective bargaining which would insure to the employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise efFec- ,tuate the policies of the Act. As indicated above, tool and die makers, machinists, specialists, helpers, ;apprentices, and[ 'tool-crib attendants may or may not be included within such unit, depending on the results of an election we shall order. We shall, therefore, make no final de- termination of .the appropriate unit or units pending the election to 4 Matter of Armour & Company and Amalgamated. Meat Cutters and Butcher Workmen of North America, Local 235, 10 N. L R B 912. DAIN MANUFACTURING COMPANY 531 be conducted among the tool and die makers, machinists, specialists, helpers, apprentices, and tool-crib attendants. - VI. THE DETERMINATION OF REPRESENTATIVES We have heretofore decided that 'a separate election will be held to determine -the collective bargaining representative for the tool and 'die makers, machinists, specialists, helpers, apprentices, and tool-crib attendants: We find that the question- concerning representation of the employees in the industrial unit can best be resolved by means of an election by secret ballot. The parties agreed that in the event the Board directed an election, eligibility to vote should be determined'by the Company's pay roll of October 26, 1940. However, no reason appears why the pay roll- im- mediately preceding the date of the Direction of Elections herein should not be used for this purpose. We find that the employees eligi- ble to'vote in the elections shall be those employees who are employed during the pay-roll period immediately preceding the date of this Direction of Elections, including 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 then been temporarily laid off, but exclud- ing those who have since quit or been discharged for cause. 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 represen- tation of employees of Dain Manufacturing Company, Ottumwa, Iowa, within the meaning of Section 9 '(c) and Section 2 (6) and (7-) of the National Labor Relations 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 Relations 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 Dain Manufacturing Company, Ottumwa, Iowa, elections by secret ballot shall be conducted as soon 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 Eighteenth Region, 413602-42-vol 29 35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations : 1. Among all tool and die makers, machinists, specialists, helpers, apprentices, and tool-crib attendants of the Company who were em- ployed 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 employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause, to deter mine whether they desire to be represented by Lodge No. 1465, Inter- national Association of Machinists, affiliated with the American Fed- .eration of Labor, by Local 117, Farm Equipment Workers Organizing Committee, affiliated With the Congress of Industrial Organizations, or by Independent Farm Implement Workers, for the purposes of collective bargaining, or by none of said organizations; and 2. Among all production and maintenance employees of the Com- pany who were employed during the pay-roll period immediately pre- ceding the date of this Direction, including 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 office, clerical, and supervisory employees, foremen, as- sistant foremen, watchmen, and employees who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by Local 117, Farm Equipment Workers Organizing Commit- tee, affiliated with the Congress of Industrial Organizations, or by Independent Farm Implement Workers, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting : I see no justification for granting employees in the unit urged by the I. A. M. the privilege of splitting themselves off from the industrial unit in this case. They constitute employees in one of many depart- ments in an integrated plant. There is a complete absence of any bargaining history between the I. A. M. and the Company on behalf of these employees, and the I. A. M. originally sought to organize on - a plant-wide basis. I think the reasons expressed in my dissenting opinions in the Allis-Chalmers 41 and subsequent cases are here appli- cable, and under these circumstances I consider that the unit urged by the F. E. W. O. C. is appropriate and would so hold. 5 Matter of Allis-Chalmers Manufacturing Company and International Union„ United Automobile Workers of America, Local 248, 4 N. L. R B. 159, 175 `