A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Mar 21, 1955

111 N.L.R.B. 1042 (N.L.R.B. 1955)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees, including plant cleri-
cals,' but excluding office clericals, professional employees, guards, and
supervisors as defined in the Act.
5. Eligibility :
The UAW-CIO contends that all of the laid-off employees at the
Beaufait, Epworth, and Boulevard plants should be permitted to vote
in any election directed. The Employer stated at the hearing that it
intended to recall all laid-off employees at the Beaufait and Epworth
plants by the time that all of its operations were consolidated into a
single operation at the Boulevard plant. As these laid-off employees
have a reasonable expectancy of being recalled in the near future, we
shall, in accordance with Board practice, permit them to vote in the
election 4
The Employer also stated at the hearing that it intended to hire by
the time the consolidation was completed most or all Boulevard plant
employees whom Parker-Wolverine had laid off prior to the Employ-
er's acquisition of the Boulevard plant. As aforesaid, the Employer
in this case is not a successor to Parker-Wolverine and did not assume
any obligations concerning the employment of the latter's employees,
whether in laid-off status or not. Instead, it hired as new employees
upon individual application only those employees then working at
the Boulevard plant. Although the Employer intends to hire the em-
ployees laid off by Parker-Wolverine in the near future, they are not
employees of the Employer until it has actually hired them. We find
that the employees who were in laid-off status at the Boulevard plant
when it was acquired by the Employer are not eligible to participate
in the election unless they are hired and begin work prior to or during
the payroll period immediately preceding the date of the Direction
of Election herein 5
[Text of Direction of Election omitted from publication.]
3 The Employer, UAW-CIO, Local 174, and Local 189 would exclude plant clericals from
the unit However, in accordance with usual Board practice, we shall include them.
Stauffer Chemical Company, 108 NLRB 1037.
4 M & S Morena Corporation, 100 NLRB 1114 at 1115.
5 J. Halpern Company, 108 NLRB 1142.
A. O. SMITH CORPORATION, KANKAKEE WORKS and OFFICE EMPLOYEES
INTERNATIONAL UNION, A. F. L., PETITIONER
A. O. SMITH CORPORATION, KANKAKEE WORKS and OFFICE EMPLOYEES
INTERNATIONAL UNION, A. F. L., PETITIONER . Cases Nos. 13-RC-
4153 and 13-RC-4201. March 01, 1955
Decision, Direction of Election, and Order
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
111 NLRB No. 183.
A. 0. SMITH CORPORATION 1043
Virginia M. McElroy, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3'. In Case No. 13-RC-4153, Petitioner seeks a unit of accountants,
and in Case No. 13-RC-4201, Petitioner seeks a unit of all office and
clerical employees, including accountants. At the hearing and in its
brief, Petitioner urged as its primary position the broader unit, but
if an election is barred in such unit, then as an alternative position, it
would seek to represent the accountants. The Employer and the In-
tervenor, Technical Engineers Association (Ind.), urged that the unit
of accountants is inappropriate and further maintained that an elec-
tion in the broader unit is barred because of a valid existing contract
covering the employees in this unit.
No evidence was presented to warrant a finding that the accountants
are professional employees or that they constitute a separate appro-
priate unit apart from the office employees. Accordingly, we shall
dismiss the petition in Case No. 13-RC-4153 and consider on the
merits the petition for the broader clerical unit in Case No. 13-RC-
4201.
As indicated above, the Employer and the Intervenor contend that
their contract executed in 1953 was automatically renewed and con-
stitutes a bar to an election in the broader unit. In support of their
position, both the Employer and the Intervenor contend that the In-
tervenor's notice of desired changes, relied upon by the Petitioner to
prevent automatic renewal of the contract in the broader unit, ap-
plied to a different contract and not to the clerical employees' contract,
which was therefore automatically renewed. The determination of
this issue requires a consideration of the Employer's bargaining
history.
The record discloses that on November 19, 1954, the date of the
Intervenor's notice of desired changes,' the Intervenor had two collec-
tive-bargaining contracts with the Employer, identical in form and
having the same automatic renewal provision. One of these contracts
covered the unit of clerical employees involved herein,2 and the other
I This notice reads as follows , " In conformity with the terms of the Labor-Management
Relations Act and Article xvIII of our contracts , we hereby notify you that we desire to
effect changes in the contract existing between A 0. Smith Corporation , Kankakee Works
and Technical Engineers Association . We shall be happy to meet and confer with you at
your convenience for the purpose of negotiation on the contract "
2 The bargaining unit covered all employees performing typing, clerking , stenography,
office machine operations , checking and expediting in the following departments . produc-
tion control , general accounting , purchasing, operations control , research and develop-
ment , plant engineering , methods, and tooling and industrial engineering
344056-55-vol 111-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit of technical employees .' The letter or notice of November 19
as set forth above , does not indicate which of the two identical con-
tracts it was intended to cover. However, it appears to us that the'
conduct of the parties leaves little doubt that the letter referred to the
office employee unit. Thus, at the hearing on the petition for techni-
cal employees as noted above, the Intervenor 's failure to appear and
intervene , despite its receipt of the notice of hearing, indicates an
abandonment of its contractual interest in that group . Accordingly,
in view of such abandonment , it would appear that the Intervenor
must have intended its letter of November 19 as applicable to its only
remaining contract with the Employer, namely, the contract covering
the unit of clerical employees.'
This conclusion is supported by other conduct on the part of the
Intervenor. For instance, it is to be noted that as late as December 19,
1954, proposed changes in the clerical contract were discussed at a
meeting of the Intervenor's clerical unit, and that later, on December
29, in a letter by the Intervenor's public relations director, reference
is made to preparation for the proposed new contract negotiations to,
take place the following month. The Intervenor conceded at the hear-
ing and in its brief that it had intended to open the clerical contract,
but that it was only through an inadvertence that this was not done.
Furthermore, the Intervenor also conceded at the hearing that it was
not until January 4, 1955, when the instant petition was filed that it
first became aware of the inadvertence which had renewed the clerical
contract. It thus appears that the Intervenor utilized the ambiguity
in the November 19 letter as the basis for its claim in this proceeding
that the clerical contract had been renewed. In so doing, it is seizing
upon a technicality for the purpose of vitiating the effect of its own
letter. Under all circumstances, we are persuaded upon the evidence
in the record that the letter of November 19 was intended to open the
contract for the unit of office clerical employees. Accordingly, we
find that the contract is not a bar to the instant proceeding 5
3 The history of the technical unit indicates that on October 1, 1954, the AFL Techni-
cal Engineers filed a petition (Case No. 13-RC-4104) for the technical employees and
that a hearing on that petition was held October 26, 1954. In that proceeding , the Em-
ployer took the position that the contract covering the technical employees would expire
by its own terms on January 25 , 1955 The present Intervenor made no appearance and
did not intervene , although served with a notice of hearing in the proceeding An elec-
tion in the technical unit was directed by the Board on December 6, 1954 Thereafter, on
December 16, 1954, the Intervenor petitioned the Board for a rehearing on the basis of
its unexpired contract and relying upon the letter of November 19, 1954, hereinabove re-
ferred to . The petition for rehearing was denied but the Intervenor was accorded a place
on the ballot if it so requested . The evidence indicates that no such request was made.
The AFL petitioner won the election and was thereafter certified as bargaining repre-
sentative for the technical unit on January 18, 1955
4 We find no merit in the Intervenor's argument that because the November 19 letter
was cited in its petition for rehearing in the technical unit proceeding , described above,
as evidence of its contract interest , that this is a determination by the Board of the con-
tract-bar issue in the clerical unit proceeding involved herein. The contract-bar issue
was not litigated in the technical unit case.
6 See Henry C Grabowsky , trading as Diamond Printing Company , 109 NLRB 112.
TENNESSEE COACH COMPANY 1045
A question affecting commerce exists concerning the representation
of the employees of the Employer in Case No. 13-RC-4201 within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.6
4. The appropriate unit:'
We find that all office and clerical employees including accountants
employed at the Employer's plant at Kankakee, Illinois, excluding all
other employees, professional employees, guards, and all supervisors
as defined in the Act constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
[The Board dismissed the petition in Case No. 13-RC-4153.]
"The Petitioner also contends that the contract in issue is not a bar because the unit
coveied is not appropriate in that a number of clerical employees in certain departments
are excluded We find no necessity for considering this question because, as noted below,
the parties appear to agree that the unit in the instant petition is appropriate and for
the further reason that we have found the contract not a bar on other grounds.
Y The record shows that there is no disagreement between the parties as to the appro-
priate unit
TENNESSEE COACH COMPANY and DIVISION 1490, AMALGAMATED ASSO-
CIATION Or STREET, ELECTRIC RAILWAY AND MOTOR COACH EM-
PLOYEES or AMERICA , AFL.' Case No. 10-CA-1918. March
22,1955
Decision and Order
On September 2, 1954, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent and the
Union filed exceptions to the Intermediate Report and supporting
briefs.'
,The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exception and briefs, and the entire record in this
case and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
1 herein called the Union.
2 The request of the Respondent foi oral argument is denied as the record and the briefs
adequately set forth the position of the parties.
3 The Trial Examiner based his finding of violation of Section 8 (a) (5) of the Act on
the rule set forth in The Baker and Taylor Co, 109 NLRB 245. While that case properly
states the rule, we base our finding on the more recent United States Supreme Court deci-
sion in N. L R B. v. Ray Brooks , 348 U. S 96 , finding it unnecessary to distinguish incoir-
sistent circuit court cases as the Trial Examiner did.
Ill NLRB No. 179