Air Utilities, Inc.

National Labor Relations Board - Board Decisions

Aug 29, 1946

70 N.L.R.B. 887 (N.L.R.B. 1946)

In the Matter of AIR UTILITIES, INC., EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 1411, PETITIONER
In the Matter of AIR UTILITIES, INC., EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE-1411, PETITIONER
In the Matter Of AIR UTILITIES, INC., EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 735, PETITIONER
In the Matter of AIR UTILITIES, INC., EMPLOYER and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 1411, PETITIONER
Cases Nos.. 10-R-1895, 10-R-1881, 10-R-18892, and 1O-R-1891, re-
spectively.-Decided August 99, 1946
Messrs. J. 0. Bass and Judson Harwood, of Nashville, Tenn., for
the Employer.
Mr. Paul Chipman, of Atlanta, Ga. and Mr. John R. Lallemand, of
Nashville, Tenn., for the Petitioners.
Mr. Arthur Christopher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a consolidated hearing in these
cases was held at Murfreesboro, Tennessee, on June 18, 1946, before
Albert D. Maynard, Trial Examiner. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the cases, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Air Utilities, Inc., a Tennessee corporation, operates a plant at
Murfreesboro, Tennessee. where it is presently engaged in the manu-
facture of knitting machines and the fabrication of carbon parts
which are used in the production of atomic energy. During the first
8 months, of 1945, the Employer was engaged solely in carbon fabri-
70N.L.R.B.,No 66
887
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
cation operations. Since that time, the production of carbon products
has been reduced by 75 percent and the Employer has begun the manu-
facture of circular knitting machines to be used in the manufacture of
hosiery. During 1945, a substantial portion of the approximately
$100,000 worth of raw materials used in its carbon fabrication opera-
tions was shipped to its Murfreesboro plant from sources outside the
State of Tennessee. During the salve year, the Employer sold in
excess of $100,000 worth of finished carbon parts to a concern engaged
in interstate commerce. During the period from September 1945 to
June 1946, the Employer purchased approximately $150,000 worth of
raw materials for use in the manufacture of knitting machines, of
which amount about 25 to 50 percent represented shipments to its
plant from points outside the State. At the time of the hearing, how-
ever, the Employer had not as yet commenced the distribution of the
knitting machines.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association o f Machinists, Lodge 1411, and Inter-
national Association of Machinists, Lodge 735, herein called Lodge
1411 and Lodge 735, respectively, are labor organizations claiming to
represent employees of the Employer.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Employer has refused to recognize either Lodge 1411 or Lodge
735 as the exclusive bargaining representative of any of its employees.
At the hearing the Employer asserted that an existing contract between
it and the "We Keep Em Flying Club," herein called the Club, con-
stitutes a bar to this proceeding.
On August 13,1942, the Employer and the Club executed a collective
bargaining contract covering the employees here involved. It pro-
vided for an initial period of one year and for its automatic renewal
from year to year thereafter, unless either party gave notice in writing
at least 30 days before any anniversary date of a desire to modify or
terminate the agreement. The contract was renewed in accordance
with its terms in 1943 and 1944 and again in 1945, after it had been
amended in certain immaterial respects. Thereafter the Club, by
vote of its membership, adopted a motion dissolving itself as of March
27, 1946, and transferring all funds belonging to it, after payment of
debts, to Lodge 1411. The Employer was notified of this action on
March 28, 1946, and a certificate of surrender of the charter of the
Club was filed with the Secretary of State of the State of Tennessee
AIR UTILITIES, INC. 889
on April 18, 1946. On May 3, 1946 and on June 6, 1946, in both
instances more than 30 days before August 13, 1946, the fourth anni-
versary date of the contract, as amended, Lodge 735 and Lodge 1411
filed with the Board their respective petitions.
Inasmuch as the petitions of both unions were filed before the
operative date of the automatic renewal clause of the contract, that
instrument cannot, under well-established principles of the Board,
bar an election at this time.' Moreover, the fact,that the Club has
ceased to function as a representative of the employees of the Em-
ployer and is non-existent, also renders the contract ineffective as a bar
to this proceeding.2
We find that questions affecting commerce have arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
In its three separate petitions, Lodge 1411 seeks to establish three
separate units, the first consisting generally of all production and
maintenance employees, the second comprising all office, clerical and
technical employees, and the third consisting solely of guards. At
the hearing, however, Lodge 1411 expressed its desire to include the
guards in the production and maintenance unit; but stated, in the
alternative, that, if the Board opposes such inclusion, it is prepared
to represent the guards separately in accordance with its original
position. Lodge 735 petitions for a unit composed of all foremen.
The Employer agrees generally that separate units of office, clerical,
and technical employees and of production and maintenance em-
ployees are appropriate. There is some question, however, with re-
spect to (1) the guards, whom the Employer would exclude from- the
production and maintenance unit; (2) the engineers, whom the Emn-
ployer would include in the production and maintenance unit and
Lodge 1411 would exclude from any unit; (3) the aircraft draftsman,
whom all parties agree to include in the production and maintenance
unit; and (4) the foremen who, the Employer contends, may not form
any appropriate unit. With respect to the latter group, the Em-
ployer, without waiving its argument that a unit of foremen is in-
appropriate, opposes the inclusion of the superintendent of the carbon
department in the requested unit.
We turn now to a discussion of the units and the disputed categories
of employees.
' See Matter of Michigan Producer's Dairy Company, 88 N. L . R. B. 6, and cases cited
therein.
2 See Matter of The Black -Clawson Company, 63 N L. R B. 773.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Production and Maintenance Unit
There has been no bargaining history at the Employer's opera-
tion. The production and maintenance unit, as agreed upon by the
parties, would embrace all rank and file production and-maintenance
employees including leadmen,3 the inspector of carbon parts, knit-
ter, paint department employee, and the receiving and shipping
clerk. While the parties would also include the aircraft draftsman,
there is, as noted above, some question as to the propriety of his in.
clusion; there is, in addition, a dispute as to the guards and engineers.
The aircraft draftsman: Although this employee works in the
plant within close proximity to the production employees, his work
is purely of a technical nature, and appears to be indistinguishable
from that of the other draftsmen whom the parties agree to include in
the office, clerical, and technical unit. Accordingly, inasmuch as
this employee has a closer community of interest with the office,
clerical and technical employees than with the production and main-
tenance employees, we shall include the aircraft draftsman in the of-
fice, clerical, and technical unit.
Guards: The Employer employs four guards at its plant. As
stated above, Lodge 1411 desires the inclusion of these guards in
the production and maintenance unit, whereas the Employer is op-
posed•on the ground that they lack a community of interest with the
production and maintenance employees. The guards are neither
militarized, deputized, nor uniformed. Their duties relate solely
to the preservation of Employer property and it does not appear that
they perform any monitorial functions. Accordingly, inasmuch as
the duties of the guards are custodial in nature, we shall, in keeping
with our usual practice in such cases,4 include them in the unit of
production and maintenance employees.
Engineers: There are six employees in this classification. Lodge
1411 urges their exclusion from any unit on the ground that they
are professional employees whose interests are closely allied with
management, whereas the Employer would include them in the. pro-
duction and maintenance unit. None of these employees performs
managerial functions. Their duties consist primarily of work in gen-
eral designing. At the present time one engineer is devoting his entire
working time to the development of a special machine. Five engineers
are college trained and, of these, one has a college degree in engineer-
ing. It is clear from the foregoing that the engineers lack a com-
munity of interest with the production and maintenance employees.
It is likewise apparent that their interests, problems and duties _are
substantially different from those of the office, clerical and technical
J The record reveals that leadmen are not supervisory employees within the customary
definition of that term.
° See Matter of United States Gypsum Company, 66 N. L. R. B. 619.
AIR UTILITIES, INC. 891
employees. We shall, therefore, exclude the engineers from any unit
sought herein.
The Office, Clerical and Technnical Unit
The office, clerical, and technical unit as agreed upon by the parties
would embrace all rank and file office, clerical, and technical employ-
ees, including draftsmen, blueprint machine operators, the first aid
worker and trainee in drafting. As found above, this unit will also
include the aircraft draftsman, contrary to the position of any of the
parties herein.
The Unit of Foremen
The Employer contends that a unit of foremen would not be ap-
propriate because its foremen are not employees within the meaning
of the Act.
For the reasons stated by us in the L. A. Young case 5 and following
cases,6 we find, contrary to the contention of the Employer, that its
foremen are "employees" within the meaning of the Act and that, as
employees, they are entitled under Section 9 (b) of the Act to be
placed in some appropriate unit.
Lodge 735 seeks a unit of all production and maintenance foremen,
i. e., those employed in, its machine production, carbon, and material
control departments. It would include in this group the night super-
intendent of the machine production department and the supervisors
of the material control and precision tool departments. Apart from
the superintendent of the carbon department concerning whom the
parties are in dispute, all these employees have substantially the same
authority over their subordinates, have similar powers, duties, and
responsibilities and comprise the lowest level in the plant hierarchy
having supervisory powers. Accordingly, in view of the foregoing,
we are persuaded that these employees constitute a homogeneous group
which may function together for collective bargaining purposes.
There remains for consideration the disposition to be made of the
superintendent of the carbon department.
Superintendent of the carbon department: The Employer contends
that this employee, Eph Lytle, should not be included in the unit of
foremen on the grounds that he occupies a higher level in the hierarchy
of supervision than the foremen and that his duties make him part of
"top" management. This employee, unlike the night superintendent
of the machine production department whose position is akin to that of
a foreman, has complete charge of the carbon fabricating operations
E Matter of L A Young Spring & Wire Corporation, 85 N. L. R. B. 298. See , also, Mat-
ter of Packa,d Motor Car Company, 61 N L. R. B. 4, 64 N. L. R. B 1212, enf'd 157 F. (2d)
80 (C C A. 6), deeded August 12, 1946, 18 LRR 2268
e Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L.
It. B. 997; and Matter of Kaiser Cargo, Inc., 67 N. L. R. B. 1027.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is directly responsible to the plant manager. His position is com-
parable to that of the superintendent of the machine production de-
partment, whom Lodge 7 35 does not seek to represent. He has the
power effectively to recommend changes in the status of the foremen
and other employees who work under his supervision. He also repre-
sents the Employer in the second stage of the grievance procedure,
whereas foremen act for the Employer in the initial stage. In addi-
tion to having over-all direction of the carbon department, he deter-
mines the prices submitted by the Employer in its bids for work affect-
Ing his department. Accordingly, inasmuch as the superintendent of
the machine production department is not sought by Lodge 735 and in
view of the facts detailed above, we shall exclude the superintendent
of the carbon department as well as the superintendent of the machine
production department, from the unit of foremen.
In accordance with our foregoing conclusions, we find that the.fol-
lowing groups of employees at the Murfreesboro plant of the Employer
constitute separate units appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act :
(1) All production and maintenance employees including the in-
Spector of carbon parts, knitter, receiving and shipping clerk, paint
department employee, leadmen, and guards but excluding engineers,
executives, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action.
(2) All office, clerical, and technical employees including draftsmen,
the aircraft draftsman and trainee in drafting, but excluding engineers,
executives, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action. r
(3) All foremen, including the supervisors of the material control
and of the precision tool departments, and the night superintendent of
the machine production department, but excluding the superintendents
of the carbon and of the machine production departments and all
supervisory employees above the rank of foreman.
V. THE DETERMINATION OF REPRESENTATIVES
The Employer opposes the holding of elections at this time for
the asserted reason that,it does not have a full staff of employees.
The record discloses in this connection that, at the time of the hearing,
the Employer's pay roll listed approximately 175 employees in the
units found appropriate in Section IV, supra, or about half of the
anticipated full complement of approximately 350 employees which
the Employer expects to attain within 90 days of the hearing date.
It shows further that the 175 employees are representative in skills
of the total working force which may ultimately be employed and are
AIR UTILITIES, INC. 893
actively engaged in regular production. In addition, it is clear that,
by the time this Direction of Elections issues, the estimated 90 days
within which a full complement is to be attained, will have virtually
elapsed. Accordingly, inasmuch as the Employer's pay roll at the
time of the hearing had expanded to about 50 percent of the antici-
pated total complement of employees and has, in all likelihood, at-
tained since then a much greater percentage of the anticipated total,
and because those now employed are representative in skills and duties,
we are of the opinion that elections at this time will accurately and
conclusively reflect the wishes of the employees.7
We shall, therefore, direct that the questions concerning represen-
tation which have arisen be resolved by separate elections by secret
ballot, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Air Utilities, Inc., Murfrees-
boro, Tennessee, separate elections 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 Tenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of National Labor Relations Board Rules and Regulations-
Series 3, as amended among the employees in the units referred to in
Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the elections, to determine (a) whether or not the
employees in units (1) and (2) found appropriate in Section IV,
above, desire to be represented in their respective units by Interna-
tional Association of Machinists, Lodge 1411, for the purposes of col-
lective bargaining, and (b) whether or not the employees in the unit
(3) found appropriate in Section IV, above, desire to be represented
by International Association of Machinists, Lodge 735, for the pur-
poses of collective bargaining.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Decision and Direction of Elections.
7 See Matter of Patapsco 'Scrap Corporation, 69 N. L R B. 911; Matter of Hoosier-
Cardinal Corporation, et at., 67 N. L. R. B. 49; Matter of Pioneer Tool and Engineering
Company, 62 N. L. R. B. 1435.