Food Machinery Corp.

In the Matter of. FOOD MACHINERY CORPORATION, AMPHIBIAN TRACTOR DIVISION and INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS , WELDERS AND HELPERS OF AMERICA, AFFILIATED WITH THE A. F. OF L. Case No. R-3045.-Decided October 29, 1941 Jurisdiction : amphibian tractor manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union contract; closed-shop contract with an organization allegedly defunct and members of which changed affiliation to petitioner, no bar to ; employees on pay roll of Company preceding its removal of operations to determine eligibility ; election necessary. Unit, Appropriate for Collective Bargaining : employees in agreed stated classi- fications. Mr. Ray C. Brown and Mr. R. W. Shackle ford, of Tampa, Fla., and Mr. H. L. Austin and Mr. Courtney Campbell, of Dunedin, Fla., for the Company. Mr. T. M. Tillis, of Lakeland, Fla., and Mr. Charles A. Lawson, of Dunedin, Fla., for the Boilermakers. . Mr. Ralph S. Clifford, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 4, 1941, International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, affiliated with the A. F. of L., herein called the Boilermakers, filed a petition with the Regional Director for the Fifteenth Region (New Orleans, La.) alleg- ing that a question affecting commerce had arisen concerning the rep- resentation of employees of Food Machinery Corporation, Amphibian Tractor Division, Dunedin, Florida,' herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. i The record discloses that the Company is being moved from Dunedin , Florida, to Lake- land, Florida , and that the business office of the Company is now in Lakeland , Florida. 36 N. L. R. B., No. 98. 491 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 449, herein called the Act. On September 11, 1941, 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 Rela- tions 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 September 15, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Boil- ermakers, and upon Amphibian Tractor Workers, herein called the Independent, with which the Company had a contract, dated April 1, 1941, covering employees directly affected by the investigation.' Pursu- ant to notice, a hearing was held on September 24, 1941, at Tampa, Florida, before J. Michael Early, the Trial Examiner, duly designated by the Chief Trial Examiner. The Company and the Boilermakers were represented and participated in the hearing. The Independent did not appear. 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 Ex- aminer made several 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. The Company filed a brief on October 6, 1941, which the Board has duly considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Food Machinery Company, Amphibian Tractor Division; a Delaware corporation, is engaged in the construction of amphibian tractors for delivery to the United States Navy. The situs of the Company's. operations here involved is now in the process of being moved from Dunedin, Florida, to Lakeland, Florida. The chief prod- ucts bought and used by the Company are steel sheets, plates, struc- turals, bars, International combustion engines, right-angle gear drives, transmissions, roller bearings, track chains, radiators, blowers, drive pinions, and sprockets, all of which are shipped to the Company's plant from States outside the State of Florida. The gross receipts of the Company for the twelve months ending March 31, 1942, are estimated 2 The Company includes the Barngrover and Cutler Divisions, San Jose , California, The Peerless Pump Division , Canton , Ohio , the Riverside Division, Riverside , California, the Texas Division , Harligan, Texas, the Florida Citrus Division , Dunedin , Florida, John Bean Company Division , Lansing, Michigan , Sprague Sells Division , Hoopston , Illinois, and the Amphibian Tractor Division, Dunedin, Florida. Only the Amphibian Tractor Division is involved in this proceeding. FOOD MACHINERY CORPORATION 493 at approximately $5,000,000, covering two contracts with the Navy De- partment of the United States Government , Washington, D. C., to whom the finished products are delivered. II. THE ORGANIZATION INVOLVED International Brotherhood of Boilermakers , Iron Shipbuilders, Welders and Helpers of America, affiliated with the A. F. of L., is a labor organization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On July 23, 1941, the Boilermakers, by letter, notified the Company that it represented 75 per cent of the Company's employees and re- quested bargaining rights or an arrangement for a consent election. On July 30, 1941, the Company, by letter, advised the Boilermakers that the Company was in no position to agree to a consent election, be- cause of an existing contract with the Independent. This contract was executed April 1, 1941, effective to April 1, 1942, and is a closed-shop contract. On August 20, 1941, at a regular meeting of the Independent, a mo- tion was made that the members of the Independent go over in a body to the Boilermakers. On August 21, 1941, at a special meeting called for that purpose, the members of the Independent voted on the motion by secret ballot. Eighty-eight votes were cast for the motion, 63 were cast against it, and one member did not vote. The official minutes of the meeting, a photostatic copy of which was introduced into evidence, contain the results of the election and indicate that the motion as passed provided that the ballots should be turned over to the Boilermakers, to hold for reference purposes for a period of 60 days. The record in- dicates that all the books and funds of the Independent were turned over to the Boilermakers. On August 27, 1941, the president of the Independent, by letter, notified the Company that the motion had been adopted by the Independent at the special meeting. No meetings have been. held and there have been no attempts to bargain by the Independ- ent.since.August 21, 1941. The last president of the Independent•testi- fied, when asked about the status of the organization: "It's null and void at the present time. It was voted: out." He also testified, that. he believes that a majority of the Independent members have become members of the Boilermakers. None of this testimony was denied. There is no evidence in the record that any of the employees who were members of the Independent prior to August 21, 1941, have questioned the action taken by the membership of that organization or shown any desire to continue it as an existing labor organization. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of these circumstances, we find that the contract between the. Company and the Independent constitutes no bar to a determination .of representatives at this time. Evidence introduced at the hearing discloses that the Boilermakers represent a substantial number of employees in the unit hereinafter found to be appropriate.' 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 Boilermakers and the Company agreed at the hearing that the employees included in theMassifications listed in Board Exhibit 5,5 except the time-study man, who is listed as a storekeeper, constitute an appropriate unit.6 The unit agreed upon is substantially the same unit as that estab- lished by the contract between the Company and the Independent, and we see no reason to depart from the agreement of the parties. We therefore find that all employees of the Company included. in the classification listed in Board Exhibit 5, except the time-study than who is listed as a storekeeper, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organi- 3 The Company's contention appears to be that , regardless of the dissolution of the Independent, the Board is without the authority to determine representatives until the contract expires inasmuch as both the Company and its employees are bound to abide by its terms and since some of the employees who acquired "legal rights" under the contract Have not waived those rights by joining the Boilermakers . In finding the contract is not a bar to a present determination of representatives we do not pass upon the status of the contract or upon the substantive rights of the parties thereunder . See Matter of National Tea Company and Progressive Grocery and Warehouse Workers Union, Local No. 1, 35 N. L. R. B ., No. 70 ; Matter of Sound Timber Company and International Woodworkers of America,, Local 67 and 75, 8 N. L. R. B. 844. ' The Trial Examiner reported that the Boilermakers submitted 114 cards signed during July. August, and September 1941, 107 of which bear signatures which correspond with names of employees appearing on the Company's August 13 , 1941, pay roll , and of these 107 cards, 1 card contains the name of an employee who would not be included in the unit contended for by the Boilermakers. 5 See Appendix for complete list of classifications contained in Board Exhibit 5. 6 Board Exhibit 5 does not include any employees classified as supervisors , watchmen, guards, janitors , draftsmen , and clerical employees , and the record clearly indicates that the parties desire the exclusion of all such employees from the unit. FOOD MACHINERY CORPORATION 495 zation and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. At the hearing the Boilermakers took the position that eligibility to vote should be determined by the pay -roll period for the week before the Company started moving its plant from Dunedin, Florida, to Lakeland, Florida, and that September 1, 1941 , would be a satisfactory date. The Company takes the position that eligibility to vote should be determined by the pay roll at the time of the election, but including employees who have been laid off and have not accepted employment elsewhere. The Company in moving its plant from Dunedin, Florida , to Lake- land, Florida, intends to transfer to its new plant all its employees who are competent and have performed their duties in a workmanlike manner and who have been acceptable employees . The Company rep- resentative also indicated that the number of employees transferred to the new plant would depend upon whether or not the employees are willing to make the change, and that the total number of workers employed in the new location would be less than in the old location because of the modern equipment and the new factory. Under all the circumstances we find that those eligible to vote shall be employees in the appropriate unit who were employed during the Company's regular pay -roll period ending nearest September 1, 1941, and our Direction of Election will so , provide, subject to such other 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 : CONCLUSIONS OF LAW 1. A question affecting .commerce has arisen concerning the rep- resentation of employees of Food Machinery Corporation, Dunedin, Florida, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company included in the classifications listed in Board's Exhibit 5, except the time-study man who is listed as. a storekeeper , and excluding supervisors , watchmen, guards, jani- tors, and clerical employees, constitute a unit appropriate' for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTION By virtue of and pursuant to the authority vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations 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 Food Machinery Corporation, Amphibian Tractor Division, Dunedin, Florida, 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, under the direction and supervision of the Regional Director for the Fifteenth Region, acting in this matter as agent for the National Labor Relations Board, among all employees of the Com- pany, included in the classifications in Board Exhibit • 5,' . except the time-study man, who is listed as a storekeeper, who were employed during the Company's regular pay-roll period ending nearest Sep- tember 1, 1941, including employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service of the United States, or temporarily laid off, but ex- cluding employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Interna- tional Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, affiliated with the American Federation of Labor. APPENDIX BOARD EXHIBIT 5 Rates Welders : per hour Combination or special welders------------------------------------ $1.00 General Welders, Oxy. & Arc--------------------------------------- .90 Apprentice Welders----------------------------------------------- .60 Welders Helpers--------------------------------------------------- .50 Sheet Metal Workers : Loftsman and Template Makers----------------------------------- .90 Sheet Metal Workers, 1st Class------------------------------------- .90 Sheet Metal Workers, 2nd Class------------------------------------- .65 Tool Makers & Machinists : Dies and Precision workers----------------------------------------- 1.00 Machinists, all around--------------------------------------------- .90 Machinists, semi-skilled-------------------------------------------- . 65 Machinists helpers------------------------------------------------ . 60 7 See Appendix for classifications of employees listed in Board Exhibit 5. FOOD MACHINERY CORPORATION 497 Rates Electricians : per hour First Class------------------------------------------------------- $0.90 Second Class----------------------------------------------------- . .70 Helpers----------------------------------------------------------- .50 Cranemen------------------------------------------------------------- . 60 Blacksmith : Blacksmith------------------------------------------------------- .80 Helpers ---------------------------------------------------------- .55 Painters : Brush & Spray--------------------------------------------------- .90 Helper------------------------------------------------------------ .50 Carpenters: Carpenter--------------------------------------------------------- .90 Helpers ---------------------------------------------------------- .50 Storekeepers: Tool Room Attendants ---------------------------------------------- .60 Stock Chaser----------------------------------------------------- .70 Time Study------------------------------------------------------- .80 Stock & Receiving Clerk------------------------------------------ .65 Helpers----------------------------------------------------------- .50 Assemblers : Motor Propulsion-------------------------------------------------- .75 Assemblers, 2nd Class--------------------------------------------- .60 Helpers----------------------------------------------------------- ,. 50 Labor ------------------------------------- --------------------------- .50 Millwright ------------------------------------------------------------ .80 Inspector------------------------------------------------------------- .80 Rope Splicer-=-------------------------------------------------------- .80' Motor Lift Operator--------------------------------------------------- . 55 433118-42--vol. 36--33