Sullivan Machinery Co.

In the Matter of SULLIVAN MACHINERY COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, C.. I. O. Case No. B-2294.-Decided May 12, 1941 Jurisdiction : mining machinery manufacturing industry. Investigation and Certification of Representatives : 'existence of question: pat- tern makers protest their inclusion in plant-wide unit agreed to for consent election, claiming that they constitute a separate appropriate unit ; industrial union and Company, negotiating for contract covering all employees in the plant-wide unit, agreed to exclude pattern makers from the scope of nego- tiations if the Board should rule that they constituted an appropriate unit; individuals who during a strike secured temporary employment elsewhere held eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : election directed among pattern makers to determine whether or not they desire to contstitute a separate unit where among other considerations the pattern makers' craft organization was not notified of the original hearing, was not a party to the agreement for a consent election, and its name did not appear upon the ballot used in the election. Mr. David A. Watts, of Chicago, Ill., for the Company. Mr. Mose Kucela, of Mishawaka, Ind., and Mr. Harland D. Burc/iam, of Michigan City, Ind., for the U. A. W. Air. H. O. Denman, of Elkhart, Ind., for the I. A. M. Mr. Roy E. Rogers, of Hammond, Ind., for the League. Miss Edna Loeb, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 8 and 30, 1941, International Union, United Auto- mobile Workers of America, C. I. 0., herein called the U. A. W., filed with the Acting Regional Director for the Thirteenth Region (Chicago, Illinois), a petition and amended petition alleging that a question affecting commerce-had arisen concerning the representa- tion of employees of Sullivan Machinery Company, Michigan City, Indiana, herein called the Company, at its Michigan City, Indiana, plant, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations 31N.L R. B.. No 125 749 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, 49 Stat. 449, herein called the Act. On January 29 and 30, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sec- tion 3, of the National Labor Relations Board Rules and Regula- tions-Series 2, as amended, ordered an investigation and authorized the Acting Regional Director to conduct it and to provide for an - appropriate hearing upon due notice. On January 30, 1941, the Acting Regional Director issued a notice of hearing,, copies of which were duly served upon the Company, the U. A. W., and International Association of Machinists, herein called the I. A. M., a labor organization claiming to represent em- ployees directly affected by the investigation. Pursuant to the notice, a hearing was held on February 4, 1941, at Michigan City, Indiana, before Robert R. Rissman, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by coun- sel, the U. A. W. and the I. A. M. by representatives, and all participated-in the hearing. During the course of the hearing the parties entered into stipulations regarding all issues and agreed that the Board should certify a bargaining representative upon the results of a consent election to be conducted on February 13, 1941, by the Acting Regional Director, between the U. A. W. and the I.,A. M., among employees in an agreed plant-wide unit. On February 12, 1941, Pattern Makers' League of North America, herein called ' the` League, filed with the' Acting Regional Director written objections to the inclusion of the Company's pattern makers in the plant-wide unit, claiming that they properly constituted a separate unit. On February 13, 1941, the Acting Regional Director conducted an election in accordance with the agreement of the parties at the hear- ing, among employees in the plant-wide unit. On February 21, 1941, the Acting Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, prepared and duly served upon the parties an Election Report, setting forth the results of the balloting as follows : Total number on eligibility list_ ___________________________ Total number of ballots cast_______________________________ Total number of ballots cast for the U. A. W.________________ Total number of ballots cast for the I. A. M._________________ Total number of ballots cast for neither -------------------- Total number of blank ballots_____________________________ Total number of challenged ballots________ ________________ Total number of void ballots_______________________________ 274 256 229 6 20 0 0 1 The'Acting Regional Director reported that none of the five persons. on the Company's pattern-making staff had participated in the elec- SULLIVAN' MACHINERY COMPANY 751 tion, recommended that the Board certify the U. A. W. pursuant to the stipulation at the hearing, and stated that the requested exclusion of the pattern makers was a matter for the Board to decide. By letter dated February 26, 1941, the League filed objections to the Election Report, claiming that the pattern makers had not been afforded an opportunity to participate in the hearing again urging that they properly constituted' a separate unit, and protesting their inclusion in a plant-wide unit. on March 13, 1941, the Acting Regional Director issued and duly served on all the parties a Report on Objections, in which he stated that he had first learned of the League's interest in the proceeding on the day before the scheduled consent election, that the League had 'submitted as proof of its representation among the pattern makers three cards dated February 7, 1941, subsequent to the hearing herein, that the U. A. W. and the Company oppose the exclusion of the pattern makers from the plant-wide unit, and that the I. A. M. favors their exclusion therefrom. On'March'27, 1941, the Board, acting pursuant to Article III, Sec- tion 8, of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued an Order Reopening Record, in which it directed that a further hearing be held upon the issues raised by (lie League's contention with respect to the appropriate bargaining unit. On April 1, 1941, the Acting Regional Director issued and duly served a notice of further hearing. Pursuant to the notice, a further hearing was held on April 9, 1941, at Chicago, Illinois, before Stephen M. Reynolds, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by counsel, the U. A. W., the I. A. M., and the League by representatives, and all participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnessesi and to introduce evidence bearing upon the issues was afforded all parties. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence 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 Sullivan Machinery Company is a Massachusetts corporation en- gaged in the manufacture, sale, and distribution of mining machinery, consisting of air compressors, core drills, coal cutters, rock drills, and hoists. The Company maintains a manufacturing plant at Michigan City, Indiana, with which this proceeding is involved, and maintains and operates branch plants, warehouses, and works in 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several other States and foreign countries. For the fiscal year ending December 31, 1940, the Company purchased for use at its Michigan City plant raw materials valued at approximately $1,000,000, ap- proximately 90 per cent of which materials were transported to the plant from sources outside Indiana. For the same period, the ap- proximate sales value of the products of the Michigan City plant was $3,000,000. Approximately 90 per cent of the products sold were transported from the plant to points outside Indiana. H. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, Local 766, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. International Association of Machinists is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. Pattern Makers' League of North America, South Bend Associa- tion, is a labor organization which admits to its membership pattern makers and apprentice pattern makers of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company, the U. A. W.,-and the I. A. M. stipulated that a question had arisen concerning the representation of the Company's employees in the agreed plant-wide unit. Following the election on February 13, 1941, with respect to which the League filed objections, the Company entered into negotiations with the U. A. W. for a contract covering all the employees in the plant-wide unit, including the pattern makers but with the under- standing that they would be excluded from the,scope of negotiations if the Board should rule that they constituted a separate bargaining unit. On March 10, 1941, three employees of the Company submitted to the Company a letter, stating that they were members of the League and that they refused to recognize as binding on them any agreement with any organization other than the League. , From the testimony in the record it appears that the League and the U. A. W. represent a substantial number of the Company's pattern makers.' The I. A. M. claimed no membership among these employees. I On April 1, 1941, the Company employed three pattern makers, an apprentice pattern ,ranker, and a pattern-maker foreman. The League offered testimony that all these em- ployees except the foreman were paid-up members of the League in good standing at the time of the second hearing. The U. A. W. offered testimony that one of these employees was a paid-up member of the U. A. W. In good standing, and that another had agreed to join if-the aforementioned employee joined. SULLIVAN MACHINERY COMPANY 753 We find that a `question has arisen concerning the representation of the Company's employees., 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 At the original hearing the Company, the U. A. W., and the I. A. M. stipulated that all employees of the.Company at its Michigan City, Indiana, plant, including stockroom clerks, excluding office workers and watchmen, who include August Schalton, Arthur Schaeffer, Sherman Covey, and James Livinghouse, and excluding superintendents, assistant superintendents, foremen, instructors, sub- foremen, timekeepers, production-control employees, shipping and receiving clerks, and the seven employees in the contract-drill depart- ment, constituted an appropriate bargaining unit. The League protests the inclusion of the pattern makers in the said unit and claims that they should constitute a separate bargaining unit. The Company and the U. A. W. disagree with the League's position. All the parties at the second hearing agreed that the foreman pattern' maker should be excluded from the pattern unit, if such unit were found to be appropriate. The Company's pattern shop is a separate department having no connection with the Company's manufacturing plant, and the pattern makers have little or no contact with the rest of the Company's employees. In their work the pattern makers use blue-prints pre- pared in the Company's engineering department. The patterns which they make are sent outside the Company for the manufacture of castings, which in turn are used by the Company' in manufacturing. The pattern makers are a well-established and highly skilled craft, requiring 5 years' apprenticeship. The record shows no history of collective bargaining in behalf of the, Company's employees on a craft or a plant-wide basis prior to this proceeding. It appears that the pattern makers were organized by the League in February 1941, and that they had not been rep- resented by any labor organization prior to that time. The League was not notified of the original hearing, was not a party to the 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement for a consent election on February 13, 1941, and its name did not appear upon the ballot used in the election. Under all the circumstances we are of the opinion that the appro- priateness of a separate bargaining unit for the pattern makers should be determined by the desires of the pattern makers themselves.- We shall therefore direct that an election by secret ballot be held among the pattern makers and apprentice pattern makers at the Com- pany's Michigan City plant, excluding the foreman pattern maker, to determine whether they desire to be represented for the purposes of col- lective bargaining by the League, by the U. A. W., or by neither. The I. A. M. stated that it did not desire to participate in such an election. If a majority of the pattern makers should vote for the League, they will have indicated their desire to constitute a separate unit, and we shall find that they constitute such a unit and shall certify the League as the exclusive representative thereof. If a majority vote for the U. A. W., we shall consider that the pattern makers do not desire to form a separate unit and shall include them in the plant-wide unit. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of the Company's pattern makers can best be resolved by the election referred to in Section V above. Due to a strike, the plant was not operating at the time of the second hearing, and the parties therefore agreed that eligibility to vote in an election should be determined by the Company's pay roll of April 3, 1941. The U. A. W. contends, however, that two em- ployees, on the said pay roll, Alexander Viau and Robert, Lippens, have secured employment elsewhere since the commencement. of the strike, that they are no longer employees of the Company, and that they are therefore ineligible to vote in the election. The League contends that they are still employees and offered testimony that the two employees merely secured temporary employment elsewhere until they could return to work for the Company. It appears that these individuals secured their tools from the plant by signing tool release slips but were informed that these slips were not termination slips. Apparently the tool release privilege was granted to strikers gener- ally. Counsel for the Company stated that if the two individuals have not signed termination slips that so far as the Company's rec- 3 See Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, etc, et al , 3 N L. R B 294; Matter of General Electric Company and Pattern Makers' League of North America, A F L, 29 N L R. R 162, Matter of General Electric Company and Pattern Makers League of North America, affiliated with the A F of L, 29 N L R B 1066. SULLIVAN MACHINERY COMPANY 755 ords were concerned, they are still employees as much as any of the strikers. We find that Lippens and Viau are still employees of the Company within the meaning of the Act, and we shall permit them to vote in the election. We shall direct that those eligible to vote in the election shall be all employees in the above pattern makers ' unit who were named on the Company's pay roll of April 3, 1941 , subject to such limitations and additions as are set forth in the Direction. 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 repre- sentation of employees of the Company , within the meaning of Sec- tion 9 (c) and Section 2 -(6) and (7) 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 the National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that; as part of the investigations authorized by the Board to, ascertain representatives for the purposes of collective bargaining - with Sullivan Machinery Company, Michigan City, In- diana, an election by secret ballot 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 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 the Company's' pat- tern makers and apprentice pattern makers at its ' Michigan City, Indiana, plant, whose names appear on the Company 's pay roll of April 3, 1941 , including employees who did not work during such pay-roll period because they were ill, on vacation , in the active mili- tary service or training of the United States , or temporarily laid off, but excluding the foreman pattern maker , and excluding employees who have since quit or been discharged for cause , to determine whether they desire to be represented for the purposes of collective bargaining by Pattern Makers' League of North America, South Bend Asosciation , by International Union, United Automobile Work- ers of America, Local 766, C. I. 0., or by neither. 441843-42-vol. 31-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. EDWIN S. SMITH, dissenting. I dissent from the decision to hold an election among the pattern makers. For the reasons stated,in previous dissents,' I would not permit these employees to set themselves apart in a bargaining unit separate from the plant unit. Moreover, since it appears that the League did not organize or claim to represent the pattern makers until after the first hearing herein, I believe its claim to be untimely and would not permit it to alter the expressed -,vishes of a majority, of all the Company's employees for collective bargaining on a plant- wide basis. $ See my separate opinions in Matter of Allis-Chalmers Manufacturing Company and International Union, etc ., 4 N. L. R. B 159 , 175 ; Matter of American Can Co. and Engi- neers Local No. 80, 13 N. L. R. B. 1252; Matter of Milton Bradley Co. and Int'l Printing Pressman, 15 N. L. R. B. 938.