Balcrank, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1946

66 N.L.R.B. 600 (N.L.R.B. 1946)

In the Matter of BALCRANK, INC. and INTERNATIONAL UNION, UNITED
AUTOMOBILE WORKERS OF AMERICA, AFFILIATED WITH THE A. F. of L.
Case No. 9-R-1936.-Decided March 12, 1946
Messrs. James G. Manley and Samuel Assur, of Cincinnati, Ohio,
for the Company.
Mr. Peter G. Noll, of Cincinnati , Ohio, for the UAW-AFL.
Mr. Phillip J. Kennedy, of Cincinnati , Ohio , for the Independent.
Mr. Julius Holzberg , of Cincinnati , Ohio , for the Steelworkers.
Mr. Ray Kelsay , of Cincinnati , Ohio, for the Metal Polishers.
Mr. Arnold Ordman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Union, United Auto-
mobile Workers of America, affiliated with the A. F. of L., herein
called the UAW-AFL, alleging that a question affecting commerce
had arisen concerning the representation of employees of Balcrank,
Inc., Cincinnati, Ohio, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before James A. Shaw, Trial Examiner. The hearing was held at
Cincinnati, Ohio, on November 13, 1945. At the commencement of
the hearing, the Trial Examiner granted motions of Independent
Lubrication Workers, herein called the Independent; United Steel-
workers of America, C. I. 0., herein called the Steelworkers ; and
Metal Polishers, Buffers, Platers and Helpers International Union,
Local No. 68, herein called the Metal Polishers, to intervene. The
Company, the UAW-AFL, the Independent, the Steelworkers, and
the Metal Polishers appeared and participated.' At the hearing the
Company moved to dismiss the petition on the ground that a contract
with the Independent is a bar to this proceeding. The Trial Exam-
iner reserved ruling on this motion. We hereby deny the motion
I United Electrical, Radio and Machine Workers of America, C. I. 0, although served
with Notice of Hearing , did not appear.
66 N. L . R. B., No. 82.
600
BALC$ANK, INC. 601
for reasons stated in Section III, infra.2 All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Ex-
aminer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Balcrank, Inc., an Ohio corporation, has its principal office and
place of business in Cincinnati, Ohio. At the present time the Com-
pany is engaged in the manufacture of machine handles, grease guns,
and lubrication equipment for civilian use. It purchases annually
raw materials of a value in excess of $100,000, of which more than 80
percent comes from points outside the State of Ohio. Its finished
products are valued annually in excess of $500,000, of which more
than 90 percent is shipped to points outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
Independent Lubrication Workers is an unaffiliated labor organiza-
tion, admitting to membership employees of the Company.
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
Metal Polishers, Buffers, Platers and Helpers International Union
is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In 1943, after a consent election held under Board auspices which
the Independent won, the Independent entered into a contract with
2 The Company also moved to dismiss this proceeding , contending that an unfair labor
practice charge filed by the UAW-AFL against the Company was still pending before
the Board . However, the record discloses that a waiver of the right to protest any
election which might be directed herein based on the unfair labor practice charge was
duly filed by the UAW-AFL prior to the hearing. We therefore reject the contention
of the Company.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company. On November 27, 1944, these parties executed another
contract to be effective until November 2, 1945, and automatically
renewable for 1 year thereafter in the event neither party thereto
requested revision of its terms "within sixty days prior" to its ex-
piration date.
On August 28, 1945, the A. F. of L. wrote to the Company request-
ing recognition as the exclusive bargaining representative of the
Company's employees. The Company refused this request. On
September 1, 1945, the UAW-AFL filed the petition in this case.
The Company and the Independent contend that the contract is a
bar. However, we have always proceeded to a determination of
representatives when a union has filed a petition or apprised the em-
ployer of its rival claim to representation prior to the operative date
of an automatic renewal clause contained in an existing contract .8
Consequently, there is no bar to a current determination of repre-
sentatives.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the UAW-AFL, represents a substantial num-
ber of employees in the unit it alleges to be appropriate .4
We find that a question affecting commerce has arisen concern-
ing the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF
REPRESENTATIVES
The UAW-AFL seeks a unit embracing all production and main-
tenance employees at the Company 's plant , excluding all supervisory
employees; office clerical employees ; first aid employees ; guards;
timekeepers ; and all metal polishers , buffers, platers, and helpers.
The Metal Polishers asks for a separate unit of all metal polishers,
buffers, platers, and helpers . The Company and the Independent,
however , insist that a unit of all production and maintenance em-
ployees, including the metal polishers , buffers, platers, and helpers,
is appropriate, and the Steelworkers apparently takes the same posi-
tion. Apart from the issue of the establishment of a separate craft
unit, all parties seem to agree that the composition of the unit sought
by the UAW-AFL is proper.
$ See Matter of Portland Lumber Mills, 56 N. L. R. B. 1336; Matter of Craddock-
Terry Shoe Corp., 55 N. L. R B 1406.
' The Field Examiner reported that the UAW-AFL submitted 316 authorization cards
bearing the names of 119 employees listed on the Company's pay roll for the period
ending September 9, 1945, in its claimed appropriate unit of 250 ; the Steelworkers
submitted 54 authorization cards bearing the names of 52 employees listed on the same
pay roll in its claimed appropriate unit of 257 ; the Metal Polishers submitted 5 authori-
zation cards bearing the names of 4 employees in its claimed appropriate unit of T.
The Independent relied upon its contract with the Company as evidence of its repre-
sentation interest in the unit it alleges to be appropriate
BALCRANK, INC. 603
Examination of the history of collective bargaining in this case
reveals that the metal polishers and buffers participated in the 1943
consent election above mentioned , and that they were subsequently
included in the bargaining unit covered by the contracts of 1943 and
1944. To establish them now as a separate bargaining unit, it is
essential that certain prerequisites be met .5 This group must demon-
strate that it is a true craft, that it has maintained its identity
throughout the bargaining history, and that it has protested inclu-
sion in the more comprehensive unit.
The'Company employs seven metal polishers and buffers who work
on various products manufactured by the Company . They work under
separate supervision in a separate department physically segregated
from the rest of the plant. When work is slack in their department,
they have on rare occasions been assigned to the production line, but
no production and maintenance employee has ever been assigned to
the metal polishing department . In addition it cannot be denied that
the metal polishers are highly skilled craftsmen . Metal polishing,
in fact, has repeatedly been recognized by the Board as a highly
skilled craft.,'
Moreover , although the Independent for a period of 2 years has
nominally represented the employees in question , through the Metal
Polishers they have from the beginning of the bargaining history
consistently sought to retain their identity in a separate unit. Imme-
diately after the consent election of 1943, the Metal Polishers wrote to
the Company that it represented these employees , and requested recog-
nition to bargain on their behalf . Upon refusal of the Company to
accede to this request, a petition for certification was filed forthwith,
and was dismissed on the ground that the contract hereinbefore de-
scribed was only in effect a few months and consequently was a bar.
In October 1944, the Metal Polishers filed a second petition , which it
later withdraw because of the then highly fluctuating character of
employment in the unit it sought . All attempts by the Metal Pol-
ishers to bargain for the employees in question were persistently re-
buffed by the Company on the ground that it was not the certified
bargaining representative of such employees.
The record discloses , furthermore , that four of the seven employees
in the metal polishing unit have been members of the Metal Polishers
for from 2 to 15 years. On the other hand , no evidence was forth-
coming that the Independent had actively bargained for the metal
polishers.
Consequently , we hold that their inclusion in the contractual unit
6 See Matter of General Electric Company (Lynn River Works and Everett Plant),
58 N L. R B. 57.
6 See Matter of Wadsworth Watch Case Co , 4 N. L. R. B. 487 ; Matter of Zonite
Metal Corporation , 5 N. L. R. B. 509.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not preclude their severance. On the other hand they may con-
tinue to be represented in the more inclusive unit. Accordingly, we
shall not at this time make a determination of the appropriate unit
or units. Such determination will depend, in part, upon the results
of the elections we shall hereinafter direct.
The UAW-AFL requests that the Board depart from its usual
practice concerning eligibility to vote and declare eligible to vote all
production and maintenance employees who had established seniority
and were on the Company's pay-roll list as of June 1, 1945, but whose
employment by the Company has since been terminated? The Com-
pany, the Independent, and the Steelworkers oppose this request,
stating that those individuals were permanently discharged and hence
are ineligible.8
The record reveals that following Pearl Harbor, the Company ex-
panded its business, and in addition to manufacturing its usual prod-
ucts, accepted various war contracts for the manufacture of war
materials. A bank loan was guaranteed by the Government for this
expansion, and large quantities of intricate machinery were loaned
to the Company by the Defense Plant Corporation. In 1943 the
Company reached the peak of its employment ; it had 1,143 workers.
whereas its pre-war complement was only 187. Cancellation of war
contracts following V-E and V-J days dropped its employment suc-
cessively to 637, and then to 238 employees, at which figure it now
stands. At the time of the hearing, the 'Company had returned a
large part of the loaned machinery to the Government and was still
returning the remainder. Every effort was being made to reconvert
the plant to peacetime production. The Company expects to have a
total of approximately 268 to 288 employees when reconversion is
completed. The employees who had been released were for the most
part trained in the operation of certain types of machinery used in
the manufacture of war materials. Normally they would not be em-
ployed by the Company, for the reason that they are not skilled
in the operations required for the Company's peacetime production.
Under the circumstances, it does not appear that the termination of
employment of these workers can be regarded as temporary, and they
shall not be eligible to vote .9
We shall direct that separate elections by secret ballot be held
among the employees in each of the voting groups set forth below,
7 An examination of the Field Examiner 's statement discloses that the UAW-AFL had
reached the peak in its organizational drive as of June 1945 . Also we note that 400
employees have been laid off since that date , almost twice the number on the Company's
pay roll.
8 The Metal Polishers take no decisive stand on this issue.
B Of course , any employees rehired and otherwise eligible , whose names appear on the
pay roll hereinafter designated to determine eligibility to vote, shall be permitted to
participate in the elections.
BALCRANK, INC. 605
who were employed during the pay-roll period immediately preced-
ing the date of the Direction of Elections herein, subject to the limita-
tions and additions set forth in the Direction.
1. All metal polishers, buffers, platers and helpers in the Com-
pany's employ, excluding all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action.10
2. All production and maintenance employees of the Company,
excluding office clerical employees; first aid employees; guards; time-
keepers; metal polishers, buffers, platers, and helpers; and all
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
DIRECTION OF ELECTIONS
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, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain represen-
tatives for the purposes of collective bargaining with Balcrank, Inc.,
Cincinnati, Ohio, 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 Re-
gional 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 groups
of employees indicated below who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during the pay-roll period because they
were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves 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 :
1. The employees in voting group 1, described in Section IV, above,
to determine whether they desire to be represented by Metal Polish-
ers, Buffers, Platers and Helpers International Union, Local 68,
A. F. of L., or by Independent Lubrication Workers, for the purposes
of collective bargaining, or by neither. 0
"The Steelworkers stated that, if a separate election should be ordered for the metal
polishing group, it did not desire to appear on the ballot, Consequently, its name shall
not be placed on the ballot in these elections.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The employees in voting graup 2, described in Section IV, above,
to determine whether they desire to be represented by International
Union, United Automobile Workers of America, affiliated with the
A. F. of L., or by Independent Lubrication Workers, or by United
Steelworkers of America, C. I. 0., for the purposes of collective
bargaining, or by none.