Lakey Foundry and Machine Co.

In the Matter of LAKEY FOUNDRY AND MACHINE COMPANY and PAT- TERN MAKERS ASSOCIATION OF MUSKEGON, IN AFFILIATION WITH THE PATTERN MAKERS LEAGUE OF NORTH AMERICA Case No. R-2778.-Decided August 21, 1941 Jurisdiction : casting manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition because of subsisting contract with other labor organization ; extension of contract with rival organization after notice of representation and unit claims of petitioning craft organization, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : election directed among pattern makers and pattern makers' apprentices excluding non-working supervisors and apprentices who have not served a year'of their apprenticeship to deter- mine whether or not they desire to constitute a separate unit. Mr. Joseph T. Riley, of Muskegon, Mich., for the Company. Mr. A. K. Karlson, of East Lansing, Mich., for the Pattern Makers. Mr. Maurice Sugar, by Mr. N. L. Smokier, " of Detroit, Mich., and Mr. Leonard Woodcock, of Muskegon, Mich., for the U. A. W. Mr. William T. Little, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 18, 1941, Pattern Makers Association of Muskegon, in affiliation with the Pattern Makers League of North America,' herein called the Pattern Makers, filed with the Regional Director for the - Seventh Region (Detroit, Michigan) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Lakey Foundry and Machine -Company, Muskegon, Michigan, 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 June 20, 1941, the National Labor Relations Board, herein called i The petition was originally filed in the name of Pattern Makers Association of Muske- gon. At the hearing the petition and all'formal papers were amended to designate the petitioner as appears above. 34 N. L. R. B., No. 84. 677 451209-42-vol 34-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regu- lations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July, 11, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Pattern Makers, and Local 403, International Union, United Automobile Workers of America, affiliated with the C. I. 0., herein called the U. A. W., a labor organization claiming to represent employees d i- rectly affected by the investigation. Pursuant to notice, a hearing was held on July 18, 1941, before Earl R. Cross, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The U. A. W. appeared at the hearing and intervened. All parties were repre- sented by counsel or official representatives and participated in the hearing. Full opportunity to be heard, to examine and cross-exarz- ine witnesses, and to introduce evidence bearing on the ' issues was afforded all parties. 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 confirmed. At the hearing the U. A. W. moved to dismiss the petition of the Pattern Makers on the ground That the unit set forth therein was not appropriate. The motion is hereby denied. On August 1, 1941, the U. A. W. submitted a brief which has been duly considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Lakey Foundry and Machine Company, a Michigan corporation having its principal office and place of business at Muskegon, Mich- igan, is engaged in the manufacture of castings. During the year ending October 31, 1940, the Company purchased raw materials valued at approximately $1,287,000, about 50 per cent of which came from sources outside the State, and sold finished products valued at approximately $3,320,245, approximately 40 per cent of which was shipped to points outside the State. H. THE ORGANIZATIONS INVOLVED Pattern Makers Association of Muskegon, in affiliation with the Pattern Makers League of North America, is a labor organization LAKEY FOUNDRY & MACHINE COMPANY 679 affiliated with the American Federation of Labor, admitting to membership employees of the Company. Local 403, International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In June 1940, the Company and the U. A. W. entered into a 1-year exclusive bargaining contract covering the factory employees of the Company, including the pattern makers. This contract by its terms did not become effective until July 1, 1940. On April 7 and 11 and May 27, 1941, the Pattern Makers notified the Company that it represented a majority of the pattern makers in its employ and requested a collective bargaining conference. The Company refused on the ground that its contract with the U. A. W. prevented it from recognizing the Pattern Makers. In its letter of May 27, 1941, the Pattern Makers specifically informed the Company that it had filed a petition with the Board. On July 1, 1941, the Company and the U. A. W. entered into a' 1-year exclusive recognition contract which included the pattern makers. The Company and the U. A. W. assert that the contract entered into on July 1, 1941, constitutes a bar to the present pro- ceeding. We have repeatedly held, however, that a contract executed after an employer has notice that a rival labor organization claims to represent a majority of his employees is no bar to an election 2 Accordingly, we find the contention of they Company and the U. A. W. to be without merit. A statement of the Regional Director introduced in evidence at the hearing shows that the Pattern Makers represent a substantial number of employees in the unit claimed by it to be appropriates 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 2 See, for example, Matter of Monroe' Calculating Machine Company and United Electra cat, Radio & Machine Workers of America, Local No. 431, affiliated with the Congress of Industrial Organizations , 29 N. L. R. B 653. 0 The Regional Director stated that the Pattern Makers had submitted a certified mem- bership roster containing the names of 34 employees who were on the Company 's June 4, 1941, pay roll. There are approximately 42 employees in the unit "claimed by the Pattern Makers to be appropriate. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The Pattern Makers: assert that all pattern makers and pattern makers' apprentices, excluding non-working supervisors and appren- tices who have not served a year of their apprenticeship, constitute an appropriate Unit .4 The UAW insists that such employees should be included within a plant-wide unit consisting of all the factory employees of the Company. The Company employs approximately 1000 employees about 100 of whom are skilled craftsmen represent ing 6 different crafts. There are approximately 42 employees iii the unit claimed by the Pattern Makers. The pattern makers are a well-established and highly skilled craft requiring a lengthy apprenticeship and are more highly paid than the other employees of the Company. They work in a building sepa rate and apart from the ordinary factory employees,5 with' whom they have relatively little contact. Although a large portion of the patterns are used by the Company in its foundry, the Company sells a number of patterns directly to its customers. While the 194U and 1941 plant-wide exclusive recognition contracts entered into by the Company and the UAW included the pattern makers in their scope, there is no showing in the record that the pattern makers were members of the, UAW or in any other manner acquiesced in the unit established in the contract. In other cases coming before us we have observed the seasonal nature of the pattern makers' work and they function performed by the Pattern Makers in obtaining work for its unemployed members.6 In view of all the circumstances in the case, particularly the dis- tinction between the interests of the pattern makers and the other employees of the Company, and the absence of any evidence that the pattern makers acquiesced in the unit established in the contracts of 1940 and 1941, we believe that the question of the appropriate 4 At the hearing the Pattein -Makers did not specifically request the exclusion of non- working supervisors and apprentices who have not served a year of their apprenticeship. However, in view of the testimony of its representative that it did not bargain for non- working supervisors and did not admit to membership apprentices who had not served a year of their apprenticeship, it would seem clear that the Pattern Makers desire such employees excluded from the unit. 5 Six pattern mounters , 3 supervisors , a sweeper, and a stock clerk work in the pattern shop along with the pattern makers 6 See for example Matter of Mullins Manufacturing Corporation and Pattern Makers League of North America (affiliated with the A F. of L ),, 31 N. L. R. B 1532; Matter of Wilips Overland Motors, Inc. and The Pattern Makers League of North America, 15 N. L. R. B. 484. LAKEY FOUNDRY & MACHINE COMPANY 681 unit should be decided by the desires of the pattern makers them- selves. Accordingly we shall direct that an election be held among all pattern makers and pattern makers apprentices employed by the Company, excluding non-working supervisors and apprentices who have not served a year of their apprenticeship, to determine whether they desire.to be represented by the Pattern Makers or by the UAW for the purposes of collective bargaining, or by neither. If a ma- jority of these employees vote for the Pattern Makers, they shall constitute a separate appropriate unit, otherwise the petition shall be dismissed. The Company employs one, supervisor in the pattern shop who works as a pattern maker during slack periods. Unlike the -other pattern makers who are paid on hourly basis, he is a salaried employee. Since his work is predominantly that of a non-working supervisor, he shall not be entitled to vote in the election. VI. THE DETERMINATION OF REPRESENTATIVES We have hereinabove found that the question concerning repre- sentation which has arisen can - best be resolved by an election by secret ballot. At the hearing the parties expressed no preference as to the pay-roll date to be used in determining eligibility to vote. We find that the employees of the Company eligible to vote in the election are those employees who were employed during the pay-roll period immediately preceding the date of this Direction of Election, 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 Lakey Foundry and Machine Company, Muskegon, Michigan, within the meaning of Section 9 (c) and Sec- tion 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 Re- lations 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 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining with Lakey Foundry and Machine Company, Muskegon, Michigan, 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 Direc- tor for the Seventh Region (Detroit, Michigan) acting in this mat- ter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all pattern makers and pattern makers' apprentices who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, or in the active military service or training of the United States, or temporarily laid off, but excluding non-working super- visors, apprentices who have not served 1 year of their apprentice- ship, and those who have since quit or been discharged for cause, to determine whether they desire to be represented by Pattern Mak- ers Association of Muskegon, in affiliation with the Pattern Makers League of North America, or by Local 403 International Union, United Automobile Workers of America, affiliated with the C. I. 0., for the purposes of collective bargaining, or by neither. MR. EDwiN S . SMITH took no part in the consideration of the above Decision and Direction of Election.