Allis-Chalmers Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 8, 1945

64 N.L.R.B. 750 (N.L.R.B. 1945)

In the Matter of ALLIS-CHALMERS MANUFACTURING COMPANY and
PATTERN MAKERS LEAGUE OF NORTH AMERICA, DISTRICT 1, A. F.
OF L.
Case No. 9-R-1778.-Decided November 8, 19445
Mr. W. J. McGowan, of Milwaukee , Wis., for the Company.
Mr. C. D. Madigan , of Cleveland , Ohio, and Mr. George Lanser,
of St. Bernard, Ohio, for the Pattern Makers.
Mr. Emerson ,Sonnycalb and Mrs. Margaret Sonnycalb, both of
Norwood, Ohio, for the U. E.
Mr. Phillip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Pattern Makers League of North
America, District 1, A. F. of L., herein called the Pattern Makers,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Allis-Chalmers Manufacturing Com-
pany, Norwood , Ohio, herein called the Company, the National Labor
Electrical, Radio & Machine Workers of America, C. I. 0., Local 765,
Shaw, Trial Examiner. The hearing was held at Cincinnati, Ohio,
on July 12 , 1945. The Company , the Pattern Makers, and United
Electrical Radio & Machine Workers of America, C. I. 0., Local 765,
herein called the U. E., appeared and participated . All parties were
afforded full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence bearing on the issues . The U. E.
moved to dismiss the petition . For reasons set forth in Sections III
and IV, infra, the motion is denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded an opportunity to file briefs with
the Board.
64 N L R. B., No. 131.
750
ALLIS-CHALMERS MANUFACTURING COMPANY 751
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Allis-Chalmers Manufacturing Company, a Delaware corporation,
with its principal office and place of business in Milwaukee, Wisconsin,
manufactures machinery at plants located throughout the United
States. Only the Company's Norwood Works, Norwood, Ohio, is
involved in the instant proceeding. During the past 12 months the
Company purchased for the Norwood Works raw materials valued
in excess of $1,000,000, of which approximately 50 percent was shipped
from points outside the State of Ohio. During the same period the
Company's Norwood Works produced finished goods valued at ap-
proximately $10,000,000, all of which was sold to the United States
Government for the use of its armed forces.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Pattern Makers League of North America, District 1, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
United Electrical, Radio & Machine Workers of America, Local 765,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In 1937 an unaffiliated labor organization called The Employees
Association was formed and thereafter bargained collectively for the
Company's Norwood Works production and maintenance employees,
including pattern makers. On August 31, 1942, after an election di-
rected by the Board in which the U. E. and The Employees Associa-
tion participated, the U. E. was certified as the exclusive bargaining
representative of all the Norwood Works production and maintenance
employees, including pattern makers.' Approximately 8 months fol-
lowing the certification the U. E. entered into a collective bargaining
agreement with the Company on April 27, 1943, which provided in
part as follows :
The agreement shall remain in force until April 15, 1944, and
thereafter from year to year unless one party gives notice in
' See Matter of Allis-Chalmers Manufacturing Co., 43 N. L. It. B. 255.
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752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
writing to the other party of at least thirty (30) days prior to
the expiration of the agreement, that it proposes certain changes
therein.
During the latter part of 1943 a dispute arose between the Company
and the U. E. concerning wages and other conditions of employment.
On February 18, 1944, The Employees Association filed a petition with
the Board for an investigation and certification of representatives of
the Norwood Works' production and maintenance employees, includ-
ing pattern makers. The U. E. intervened in this proceeding. Be-
cause of the unsettled matters between them, on March 21, 1944, the
Company and the U. E. extended their 1943 contract as follows :
It is agreed by United Electrical, Radio & Machine Workers
of America, Local 765, C. I. 0., and the Allis-Chalmers Manufac-
turing Company, Norwood Works, that the collective bargaining
agreement between them, effective until April 15, 1944, shall be
extended until the superseding contract is executed.
Predicated upon The Employees Association's petition of Febru-
ary 18, 1944, on May 18 of that year, the Board directed an election
among the Norwood Works production and maintenance employees,
including pattern makers.2 The disputed issues between the Company
and the U. E. were certified to the War Labor Board on June 5, 1944.
Thereafter, on June 19, 1944, having won the election ordered by the
Board, the U. E. was again certified as the exclusive bargaining rep-
resentative of the Norwood Works production and maintenance em-
ployees, including pattern makers.
On January 24, 1945, a partial directive was issued by the Regional
War Labor Board, and on February 7, 1945, the Company appealed to
the National War Labor Board on issues of (1) seniority for supervi-
sory employees; and (2) arbitration. On March 26,1945, the Regional
War Labor Board issued another directive, and on April 13, 1945, the
Union appealed on issues of (1)' wages; and (2) progression schedules.
No final directive has yet been issued by the National War Labor Board
on either of these appeals, and no contract has been executed between
the Company and the U. E. to supersede the 1943 contract, as provided
by the 1944 extension agreement.
On March 22, 1945, after having orally informed the Company that
it represented a majority of the Norwood Works pattern makers, the
Pattern Makers filed the petition herein.
The U. E. contends that the 1943 contract forecloses a current de-
termination of representatives. It is clear, however, that the 1943
contract, as extended by the 1944 agreement, is one of indefinite dura-
tion and cannot serve to bar the instant proceeding.3
2 Matter of Allis-Chalmers Manufacturing Company, 56 N. L. R. B. 675.
8 See Matter of General Electric Company, 48 N. L. R. B. 1044.
ALLIS-CHALMERS MANUFACTURING COMPANY 753
Inferentially, the U. E. also asserts that because it was certified by
the Board on June 19, 1944., as the collective bargaining representative
of the Norwood Works production and maintenance employees, in-
cluding pattern makers, and certain disputed issues between it and the
Company are now pending before the War Labor Board, under the
principle enunciated in Matter of Allis-Chalmers Manufacturing
Company, 50 N. L. R. B. 306, a dismissal of the petition is warranted.
Although the Board has held in the past that a measure of protection
should be afforded newly recognized or newly certified unions which,
without fault, are forced into long inactivity because they take advan-
tage of the peaceful means of settling disputes provided by the Gov-
ernment and are thus deprived of an opportunity to show their effec-
tiveness as bargaining agents, we are of the opinion that in the instant
case the U. E. is not such a newly recognized or newly certified union
entitled to immunity from a reinvestigation of its status.
Initially, the U. E. became the certified bargaining representative
of the Norwood Works employees as far back as 1942. Thereafter,
it completed its first bargaining program by entering into a 1-year
collective agreement with the Company in 1943. Only towards the
latter part of 1943 did a controversy arise between the contracting
parties, and it was not until June 5, 1944, that proceedings were insti-
tuted before the War Labor Board. We conclude from these facts
that the U. E. has enjoyed ample opportunity since its initial certifi-
cation to demonstrate its effectiveness as a bargaining agent, and that
a current determination of representatives is justified.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Pattern Makers represents
a substantial number of employees in the unit it alleges to be
appropriate ,4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
1V. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Pattern Makers seeks to represent a unit comprising "all wood
and metal pattern makers and pattern makers' apprentices, except for
all supervisors . . ." The Company takes no position with respect
to the issue of the appropriate unit, but the U. E. opposes the estab-
lishment of the unit sought on the ground that past collective bargain-
* The Field Examiner reported that the Pattern Makers submitted 7 authorization cards,
of which 5 were dated between March 1939 and March 1945, and 2 were undated The
Field Examiner further reported that there were approximately 11 employees in the unit
alleged to be appropriate by the Pattern Makers.
The U E. relies upon its contract with the Company as evidence of its interest in this
proceeding.
670417-46-vol 64-49
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754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing has been successfully conducted with the Company on the basis
of a plant-wide unit, including pattern makers.
The Company's Norwood Works pattern shop is located in a build-
ing, which is physically separated from the Company's other buildings
and departments. There, the Company employs approximately 11
pattern makers who are under separate supervision, performing exclu-
sively all the Company's pattern making operations. They are paid
an hourly rate higher than the employees working in other depart-
ments. Since the record is clear that these pattern makers form a
cohesive and distinct craft group for the purpose of collective bargain-
ing, the only other factor to be considered is the history of collective
bargaining.
Frbm 1937 until 1942 The Employees Association engaged in collec-
tive bargaining for the Norwood Works production and maintenance
employees on a plant-wide basis, including pattern makers. And
from 1942 until the present the U. E. has been the collective bargain-
ing agent of all the Norwood Works production and maintenance
employees, including pattern makers.
It appears, however, that throughout these periods, pattern makers
have been members of the Pattern Makers. As a general practice the
pattern makers never used the grievance machinery established by
either The Employees Association or the U. E., preferring to present
their grievances individually to their foreman. Moreover, on May 18,
1944, after an organizational drive to enroll all those pattern makers
who were not its members, the Pattern Makers filed a petition with
the Board for an investigation and certification of representatives.
This petition was administratively dismissed.5 In addition, in March
1945, subsequent to the issuance of the March 26, 1945, directive of
the Regional War Labor Board referred to above, all pattern makers
took advantage of an escape provision in the maintenance of mem-
bership clause provided by this directive and resigned from the U. E .6
Also, the pattern makers refused to join in a strike called by the U. E.
in June 1945 and walked through the picket line formed by the
strikers. It further appears from the record that, since March 1944,
the pattern makers have refused to accept any official position in the
U. E.7 and as a result the U. E. was forced to appoint a truck driver,
who hauls materials for the pattern shop, as steward for the pattern
makers' group.
6 Case No. 9-R-1453
Pursuant to the 1943 contract between the Company and the U. E. all employees, as a
condition of employment , were required to be members of the U E in good standing.
7 For almost a year prior to March 1944 , William Kranz, a pattern maker hereinafter
mentioned , was the U . E 's steward for the pattern makers ' group He was not active
in this position, and some time in March 1944 refused to continue to act as steward.
Kranz resigned from the U . E. in March 1945.
ALLIS-CHALMERS MANUFACTURING COMPANY 755
0
In view of the foregoing facts, we are of the opinion that, during
the periods in which The Employees Association and the U. E. acted
as exclusive representatives, the Norwood Works pattern makers did
not by their actions lose their identity as a separate craft group."
We therefore conclude that the pattern makers could function as
a separate unit, or because of the bargaining history, could be included
in the existing comprehensive unit. Accordingly, before making a
final determination with respect to the appropriate unit, we shall as-
certain the desires of the employees themselves as reflected by the
results of an election by secret ballot. We shall direct an election by
secret ballot to be conducted among the employees in the following
group who were employed during the pay-roll period immediately
preceding the date of the Direction of Election-, subject to the limita-
tions and additions set forth therein :
All wood and metal pattern makers and pattern makers' appren-
tices employed by the Company at its Norwood Works, Norwood,.
Ohio, excluding the foreman, the assistant foreman, 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, to determine whether they desire
to be represented by the Pattern Makers or by the U. E.
Upon the results of the election will depend, in part, our determina-
tion of the appropriate unit. If a majority of the employees in this
voting group select the Pattern Makers as their bargaining repre-
sentative, they will be taken to have indicated their desire to constitute
a separate appropriate unit. If, however, a'majority of these em-
ployees choose the U. E., then they will be taken to have, indicated
their desire to remain part, of the established production and mai nte-
nance unit.
There is some dispute as to the voting eligibility of William Kranz,
Floyd Gates, Harry Bickel and Samuel Mesh.
William Kranz: The record shows that this employee was recently
made a group leader to act, in the absence of the regular assistant
foreman, Gillan, as the assistant foreman of the pattern shop. The
Company expects Gillan, who is advanced in years and ill, to retire in
the near future, and it intends to promote Kranz to Gillan's position-
It further appears that Kranz was made a group leader solely for the
purpose of preparing him to occupy the position of assistant foreman
in the pattern shop. While acting as assistant foreman he has the-
authority to recommend effectively the hiring and discharging of
employees. At the time of the hearing Kranz was acting as assistant.
8 See Matter of General Electric Company (Lynn River Works h Everett Plant), 5s
N. L. R B. 57.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman. The Company does not wish to have Kranz participate in
the election, whereas the Pattern Makers contends that he is eligible
to vote. If during the eligibility period Kranz was still acting as
assistant foreman, he shall not be permitted to vote.
Floyd Gates and Harry Bickel: Gates is a pattern maker and Bickel'
is a pattern maker's apprentice. At the ,time of the hearing there
was a possibility that Gates, a school teacher, and Bickel, a student,
might return to school when the fall term started. The Pattern
Makers contends that Fthese employees work on a temporary basis and'
should not be permitted to vote. The Company takes no position with
respect to their voting eligibility. If during the eligibility period
these employees were workng for the Company in the jobs they held
at the time of the hearing, they shall be permitted to vote.
Samuel Mesh: The Company hired this employee as a pattern maker.
However, the record shows that since he was engaged he has done
nothing but carpentry work. The Pattern Makers contends that this
employee should not 'be eligible to vote in the election because he is
not presently engaged in pattern making. The Company takes no
position with respect to his voting eligibility. If this employee was
still engaged in carpentry work during the eligibility period he shall
not be permtted to vote.
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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Allis-Chambers
Manufacturing, Company, Norwood, Ohio, 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 super-
vision of the Regional Director for the Ninth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
.among the employees in the voting group set forth 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 vaca-
tion 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 any who have since quit or been discharged for
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ALLIS-CHALMERS MANUFACTURING COMPANY 757
cause and who have not been rehired or reinstated prior to the date
of the election, to determine whether they desire to be represented by
Pattern Makers League of North America, District No. 1, A. F. of L.,
or by United Electrical, Radio & Machine Workers of America, Local
765, C. I. 0., for the purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.