Westinghouse Electric & Manufacturing Co.

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM- PANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 804, (A. F. OF L.) Case No. B-3286.-Decided January 17, 19449d Jurisdiction : naval ordnance manufacturing industry; plant owned by the United States Navy Department, and operated on its behalf by the Company under a lease agreement. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition until certified by the Board ; conflicting claims of rival representatives ; organization which made no showing of representation , but which based its - claim of interest on contracts with the Company covering employees at its other plants , not accorded place on ballot ; immediate election ordered notwithstanding stipulation that Board might certify petitioner on the basis of evidence in the record and despite one of the union's objections that no election should be held and petition should be dismissed because plant is operating with less than one fourth of its antici- pated staff ; since expansion of plant is anticipated in a comparatively short time Board will entertain a new petition if filed less than one year from any certification in this proceeding, should it be satisfied under circumstances then showing, that a question concerning representation exists. - Unit Appropriate for Collective Bargaining : all production and maintenance employees , including instructors, but excluding supervisory, clerical, and powerhouse employees , watchmen , guards, and draftsmen ; agreement as to ; outside truck drivers excluded notwithstanding contention of the Company that it has been its policy to include them in similar units at its other plants, where they are under the jurisdiction of a craft union'of their own, and their eligibility to join the petitioner is questionable. Mr. Harry L. Lodish, for the Board. Mr. William E. Miller, of Pittsburgh, Pa., for the Company. Mr. Paul R. Hutchings, of, Washington, D. C., and Mr. Walter C. Summers, of Louisville, Ohio, for the I. A. M. Mr. Arthur L. Garfield, of Dayton, Ohio, and Mr. Fred Haug, of Sharon, Pa., for the U. E. R. M. Mr. Robert R. Hendricks, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 29, 1941, International Association of Machinists, Local 804, (A. F. of L.) herein called the I. A. M., filed with the Regional 38 N. L. R. B., No. 81. 404 WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 405 Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees at the naval ordnance plant, Canton, Ohio, operated' by Westinghouse Electric & Manufacturing Company, Pittsburgh, Pennsylvania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 6, 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 Relations 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 November 6, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. A. M., and United Electrical, Radio & Machine Workers of Amer- ica, affiliated with the C. I. , 0., herein called the U. E. R. M., a labor organization claiming an interest in this proceeding. Pursuant to notice, a hearing was held on November 12, 1941, at Canton, Ohio, before Joseph L. Hektoen, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the I. A. M., and the U. E. R. M. were represented and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. ^ At the hearing the I. A. M. moved that the U. E. R. M. be_ precluded from participating in this proceeding on the ground that it had offered no evidence tending to show that it represented a substantial number of employees in the Canton plant. The Trial -Examiner reserved ruling on the motion. For reasons stated below, we shall not permit the U. E. R. M. to appear on the ballot in the election hereinafter directed.2 . During the course of the hearing,, the Trial Examiner made various rulings on other 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 com- mitted. The rulings are hereby affirmed. Briefs filed by the I. A. M. and the U. E. R. M have' been considered by the Board. With the leave of the Board and pursuant to notice, a hearing for the purpose of oral argument was field before the Board, in Washington, D. C., on December 2, 1941. The I. A. M. and the U., E. R. M. appeared and participated in the hearing; the Company appeared but did not participate. The Company was incorrectly described in the notice of hearing herein as owning and operating the Canton plant Testimony presented at the hearing shows that the Canton plant is owned by the' United States Navy Department and operated , under a lease agree- ment, by the Company. The notice of hearing is hereby amended to conform with the proof adduced at the hearing. 2 See Section VI, infra. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' Upon the entire record in the case, the Board makes the following FINDINGS OF FACT I., THE BUSINESS OF THE COMPANY Westinghouse Electric & Manufacturing Company, a Pennsylvania corporation, is engaged in the manufacture of naval ordnance at Canton, 'Ohio. While the, Canton 'plant, including all tools and equipment, is owned by the United 'States Navy. Department, it is operated•by the Company for, and on behalf of, the Navy Department under a' lease agreement. More than 50 percent of the raw materials used by the plant in' the manufacture of naval ordnance is obtained from -without the State of Ohio. All the finished products of the plant are sold to the United States-Navy Department and shipped to points outside the State of Ohio. II. THE ORGANIZATIONS INVOLVED International Association of Machinists, Local 804, is a' labor or- ganization affiliated with the. American Federation of Labor. It admits to membership employees of the Company. United Electrical, Radio & Machine Workers of America, is a labor organization affiliated with the Congress of Industrial Organi- zations. It admits to membership employees of the Company. III.' THE QUESTION CONCERNING REPRESENTATION ':On several occasions preceding the date of hearing herein, the I.-A. -, M. requested, recognition from the Company as the exclusive bargaining 'representative of the employees at the Canton plant in the unit claimed by'it to be appropriate.3 The Company, although it has evinced willingness to consent to an election or to certification based on' a comparison of 'signatures on I. A. M. authorization cards with, Company records, has refused to recognize the petitioning union until such time as it is certified-by the Board. 'A1 statement of the -Regional Attorney introduced into evidence at -the' hearing and a signature check statement,4 prepared by 'the sA.pi•ior•petition requesting an investigation and ceitificat ,on as bargaining representa- tive for all machinists and machine helpers, includ ing instructors and helpers , at the Canton plant; wus filed, with the Regional Director for the Eighth Region by the I.' A. M. on Jul', 28, 1941' , The petition was, dismissed without prejudice by the Board on August 22, 1941, on the ground that it was premature in that the plant was not then in operation On September 24, 1941 , the Board , after further investigation , refused to reconsider its pie- vious action in dismissing the petition stating that subsequent investigation indicated that a,,representative group of., employees were not then working , in the plant . At that, time there « ere,approximately.180 mnachinists , on the pay roll • *-,llade pursuant to, a, stipulation entered into between the I A. M and the Company at the•hearing,,wherein both, parties agreed that_the Board might certify ; upon the, basis of a pay-roll check, the I A M. as the exclusive bargaining representative , of the employees -in WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 407 Regional Attorney after the hearing and made part of the record herein, disclose that the I. A. M. represents a substantial number of employees in the unit alleged as appropriate.6 We find that a question has arisen concerning the representation of employees at the Canton, Ohio, plant, operated by 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. contends that the appropriate unit consists of all pro- duction and maintenance employees, including instructors, but exclud- ing supervisory, clerical, and powerhouse employees, outside truck drivers, watchmen, guards, and draftsmen s The Company agrees that such a unit is appropriate except insofar as it purports to exclude outside truck drivers. There were, as of November 3, 1941, five outside truck drivers employed by the Company at the Canton plant. The Company wants the outside truck drivers included in the unit because "it is common policy . . . in other plants" of the Company to include them in the bargaining unit. The I. A. M. seeks their exclusion from the unit on the ground that "the truck drivers have a union 7 in Canton for truck drivers who are far better able to speak for them than any other craft would be." . In view of the fact that the outside truck drivers are under the jurisdiction of their own craft organization and since their eligibility to join the I. A. M. is questionable, we shall therefore exclude them from the unit. the Canton plant. For reasons hereinafter stated , we believe that the question concerning representation , which we hereinafter find to have arisen , can best be resolved by the hold- ing of an election by secret ballot. s The Regional Attorney 's statement in the record shows that the I. A. M. presented 291 authorization-for-representation cards bearing apparently genuine signatures ; that 263 of the names contained thereon appeared on the Company 's list of employees of November 3, 1941 ; that all the cards bore dates subsequent to July 1 , 1941. The Regional Attorney's signature check statement , dated November 13, 1941, and as supplemented on November 19, 1941, states that the I. A. M. submitted 296 authorization -for-representation cards; that 259 of the cards contained the original and valid signatures of employees listed on the Company's records and within. the claimed unit. There were, as of November 3, 1941, approximately 450 employees in the unit alleged as appropriate. B The unit claimed by the U. E. R. M. (all hourly rated employees except supervisors) is substantially the same as that claimed by the I. A. M. 7 A. F. of L. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all production and maintenance employees, including instructors, but excluding supervisory, clerical, • and powerhouse em- ployees, outside truck drivers, watchmen, guards, and draftsmen, con- stitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees at the Canton, Ohio, ordnance plant operated by the Company, the full benefit of their right to self- organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES It was disclosed at the hearing that the Canton plant is in the process of expanding. Actual production did not begin until on or about July 1, 1941. At the date of the hearing, approximately 30 per- cent of the machine tools had been installed and the number of pro- duction and maintenance employees in the plant had increased from 43 on July 27, 1941, to 454 on November 3, 1941. As nearly as could be approximated, the plant expansion program (conditioned upon Navy demands and the materials and machine tools available) calls for approximately 75 new employees per month for the following 3 months, and then for 100 men per month until a peak of 2,000 produc- tion and maintenance employees is reached. The U. E. R. M. contends that the petition herein should be dis- missed and no election be directed on the ground that a certification at the present time-when the plant is operating with less than a fourth of its anticipated full staff-would be premature in that the large number of workers who are expected to be employed within the next year will have no voice in the choice of their representative. As previously noted, a prior petition requesting an investigation and certification as the bargaining representative for the employees at the Canton plant, filed by the I. A. M. on July 28,,1941, was dismissed by the Board on the ground that it was premature, and on September 24, 1941, reconsideration of the dismissal was refused by the Board on the ground that subsequent investigation 'had indicated that a repre- sentative group of employees was not then working in the plant.,, It now appears, however, that the plant is in actual production and that there is, in addition, a substantial number of employees, presently on the pay roll, comprising numerous categories of employees which the Company will maintain at the Canton plant. We do not believe that the large number of employees now working at the Canton plant should be deprived, simply because the Company intends to expand its working staff, of their right, at the present time, to bargain col- lectively with the Company as_ provided in the Act. We shall, accord- ingly, proceed with an immediate determination of representatives. 8 See footnote 3. WESTINGHOUSE' ELECTRIC & MANUFACTURING .COMPANY 409 In one respect, however, we shall, in view of the circumstances herein presented, modify our usual practice. Ordinarily we refuse, for ad- ministrative reasons, to entertain a petition for an investigation and certification of representatives within 1 year after we have issued a certification.° Since the planned expansion of the Canton plant will almost quadruple the number of production and maintenance em- ployees at that plant in a comparatively short time, we shall not, in the event a collective bargaining representative is certified as a result of this proceeding, adhere to our usual 1-year rule. We shall, instead, entertain a new petition for an investigation and certification of representatives at any time following issuance of any certification in this proceeding, provided we are satisfied, under all the circum- stances then shown (including proof that there has been a substantial increase in the number of employees at the Canton plant and that the petitioner represents a-substantial number of employees), that a ques- tion concerning representation affecting commerce has arisen. The U. E. R. M. contends that the petition herein should be dis- extent that its representatives cross-examined witnesses and made statements in the record, introduced no documentary evidence to show that it represented any of the employees at the Canton plant. Its claim of interest in this proceeding is based, primarily, on the ground that it has contractual relations with the Company covering numerous employees at its other plants and that it has an agreement with the Mansfield plant of the Company concerning the transfer of workers therein laid off (due to curtailment of, non-defense manufacturing)' to Company plants engaged in defense work. There is no evidence in the record that the U. E. R. M. has any contract with the Company covering employees in the Canton plant, or with' any plant of the Company providing for the transfer of U. E. R. M. employees to the Canton plant.10 We do not consider that the circumstances above stated establish that the U. E. R. M. has a sufficient interest in this proceeding, in the absence of a showing of representation,h1 to entitle it to be placed on the ballot in the election directed below. ° Cf Matter of Wilson it Co , Inc and International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of, America, Local # 202, affiliated with the A . F of L, 25 N L R B , No 103 ; Matter of Minneapolis-Moline Power Implement Company and International Association of Machinists, Local #3107, by District Lodge 77 (A F of L ), 11, N L R B 920; Matter of Todd-Johnson Dry Docls, Inc and Industrial Union of Marine and Ship- building Workers of America, Local No 29, 10 N L R B 629 10 At the hearing, representatives of the Company's Canton plant testified that transfer of men from the Mansfield plant, where electrical household appliances are manufactured, to Canton , was impractical because the employees at the former plant were not experienced in the type of heavy machine - shop operations being done at Canton . The manager of the Canton plant denied knowledge of any agreement of the Company with the U E R M. concerning the transfer of men from other Company plants to Canton it Cf. Matter of Goodrich Electric Co, Inc, and United Electrical Radio it Machuie Work- ers of America, 30 N L R B 979: Matter of American Enka Corporation and Teirtile Workers Union No 22129, American Federation of Labor, 28 N L R B 423 410 DECISIONS OF^ NATIONAL LABOR RELATIONS BOARD Although the Company and the I. A. M. stipulated that the Board might certify the I.. A. M. as the exclusive representative of the em-,- ployees in • the appropriate unit on the basis of the evidence in the record, we ' believe, under the circumstances herein presented, that the question concerning representation which has arisen. can best be resolved by the holding of an, election by secret ballot. In accordance with , our usual practice, we shall direct that the employees at the Canton, Ohio, plant operated by, the Company eligible,to vote in the election shall be those in the appropriate unit who were employed dur; ing the pay-roll period immediately preceding the date of the Direc- tion of Election herein, subject to the limitations and additions, 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 repre- sentation of the employees' at the Canton, Ohio, plant operated by Westinghouse Electric &-Manufacturing Company, Pittsburgh, Penn- sylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ' 2., All production and maintenance employees of the Company at the Canton', Ohio, plant operated by it, including instructors, but excluding supervisory, clerical, and powerhouse employees, outside truck drivers, watchmen, guards, and draftsmen, constitute 'a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the 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 National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DmECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Westinghouse Electric & Manufacturing Company, Pittsburgh, Pennsylvania, at the Canton, Ohio, plant operated by it, 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 supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III,, Section ' 9, of said Rules and Regulations, among all production and maintenance employees, in- WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 411 eluding instructors, of the Company at the Canton, Ohio, plant oper- ated by it, who were employed 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 or in the active military service or training of the United States, or temporarily laid off, but excluding supervisory, clerical, and powerhouse employees, outside truck drivers, watchmen, guards, and draftsmen, and those employees who have since quit or been dis- charged for cause, to determine whether or not they desire to be represented by International Association of Machinists, Local 804, affiliated with the A. F. of L., for the purposes of collective bargaining.