C.v.Hill & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1948

76 N.L.R.B. 158 (N.L.R.B. 1948)

In the Matter of C. V. HILL & COMPANY, INC., EMPLOYER ana u 'i-n-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, C. I. 0., PETITIONER
Case No. 4-R-2719.-Decided February 10, 1948
Messrs. Harry F. Weiner, Louis S. Dreisbach, and Earl J. Kressler,
all of Trenton, N. J., for the Employer.
Mr. George F. Kane, of Trenton, N. J., Mr. Lawrence McNally, of
New York City, and Mr. Samuel Rothbard, of Newark, N. J., for the
Petitioner.
Messrs. Donald B. Morton and Charles Dailey, both of Trenton,
N. J., for the Independent.
Mr. Stanley N. Lentz, of Philadelphia, Pa., for I. A. M.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Trenton,
New Jersey, on July 24, 1947, before Sidney Grossman, 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 the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
C. V. Hill & Company, Inc., a New Jersey corporation, is engaged
in the manufacture of refrigerators and refrigeration equipment at
its sole plant, located at Trenton, New Jersey. The Employer an-
nually purchases raw materials, consisting of steel and wood, valued
in excess of $1,000,000, approximately 80 percent of which is shipped
to its plant from points outside the State of New Jersey. The Em-
ployer annually manufactures finished products valued in excess of
$1,000,000, approximately 80 percent of which is shipped to points
outside the State of New Jersey.
76 N. L. R. B., No. 24.
158
C. V. HILL & COMPANY, INC. 159
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization, affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
C. V. Hill Mutual Benefit Society-Refrigerator Workers Union No.
1 (Independent), herein called the Independent, is an unaffiliated
labor organization, claiming to represent employees of the Employer.
International Association of Machinists, herein called the I. A. M.,
is an unaffiliated labor organization, claiming to represent employees
of the Employer.'
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has recognized the Independent as the representa-
tive of its employees in a plant-wide unit since about 1934.1 From
that time until 1941 the Employer and the Independent entered into
verbal agreements. In June 1941 a consent-election agreement was
entered into between United Electrical, Radio & Machine Workers
of America, CIO, herein called the U. E., as petitioner, the Inde-
pendent, and the Employer, but the petition was subsequently with-
drawn and no election was held. Beginning in 1941 the Employer
and the Independent entered into written recognition agreements.
In June 1945 the U. E. again filed a petition. The Board held that
the then current recognition agreement did not constitute a bar be-
cause of the absence of substantive provisions, and an election was
directed in a plant-wide -unit which the parties had stipulated was
appropriate.2 The U. E., however, with Board approval, again with-
drew its petition, and no election was held. On August 5, 1946, the
Employer and the Independent entered into their first written con-
tract containing substantive terms of employment, which provided
that it was to be in effect for 1 year, with a 30-day automatic renewal
clause.
The Petitioner began to organize at the Employer's plant in about
May 1946, and filed a representation petition with the Board in Octo-
ber 1946. This petition was administratively dismissed on the ground
that the August 1946 contract constituted a bar. On June 12, 1947, the
Petitioner informed the Employer in writing of its claim to repre-
sent a majority of the employees in the plant, and on June 13, 1947,
At that time there were about 250 employees in the plant. There are now about 900.
a Matter of C. V Hill ce Compa ny, Inc ., 64 N. L. R. B. 1109.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed its petition herein with the Board. On June 18, 1947, the Em-
ployer replied in writing that it had a contractual relationship with
the Independent which, in its opinion, precluded a determination of
the bargaining representative at that time. On July 21, 1947, the
Employer and the Independent entered into a written contract which
provided that it was to be in effect for 3 years, and expressly super-
seded-the August 1946 contract.3
The Employer and the Independent contend that their current con-
tract constitutes a bar to the present proceeding. That contract was
executed on July 21, 1947, after the filing by the Petitioner on June 13,
1947, of its petition in the instant proceeding. Accordingly, inasmuch
as the filing of the petition preceded the execution of the July 21, 1947,
contract, that instrument cannot, under well-established principles of
the Board, constitute a bar to the proceeding.4
The Employer and the Independent have always negotiated on the
basis of a plant-wide unit, and the Petitioner seeks a plant-wide unit.
There is some dispute, however, between the Employer and the Inde-
pendent on the one hand and the Petitioner on the other as to whether
or not certain categories of employees should be included in such unit.
The I. A. M. seeks a craft unit composed of tool and die makers, ma-
chinists, and maintenance machinists. The Petitioner does not object
to granting these employees an opportunity to select a craft unit, but
the Employer and the Independent oppose severance of this group.
The parties stipulated at the hearing that a question concerning
representation existed by virtue of the conflicting unit claims.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS; THE DETERMINATION OF REPRESENTATIVES
1. The craft unit
The I. A. M. seeks to represent a unit of 11 employees consisting of 4
tool and die makers and 3 machinists in department 26, and 4 mainte-
nance machinists in department 29. The Employer and the Inde-
pendent, but not the Petitioner, oppose severance of this group.
s Although the Independent has represented the respondent 's employees for about 14
years , it has never been certified by the Board.
4 Matter of Southern Advance Bag & Paper Co , rue, 75 N L R B 614; Matter of
Consolidated Steel Corporation of Texas, 74 N L R B 204 ; Matter of Gordon W. Callender,
et al, d/b/a Kohiman Bros . & Sugarman Company, 74 N. L . R. B 381 , Matter of Eicor,
Inc., 46 N L. R B 1035.
C. V. HILL & COMPANY, INC. 161
It is the function of department 26 to build, repair, and maintain
tools and-dies.5 The maintenance machinists in department 29 repair
machine tools for the entire plant. The work of the machinists in
department 26 and of the maintenance machinists in department 29 is
similar, the chief difference being that the machinists do their work
almost exclusively in their own department, whereas the maintenance
machinists work throughout the plant.6
All the employees whom the I. A. M. seeks to represent are highly
skilled journeymen mechanics who have received extensive apprentice-
ship training, have had at least 4, and in some cases far more, years of
experience in their respective fields, and receive higher rates of pay
than the production employees. Departments 26 and 29 are under
separate immediate supervision. No other employees in the plant
perform the same type of work as that done by these 11 employees.
There'is no interchange with employees in other departments except in
rare instances of emergency.
It is clear from the foregoing facts that the employees in question
forma homogeneous group with kindred interests distinguishable from
those of the production and maintenance employees. Although the
Board's Decision and Direction of Election in the proceeding arising
in 19451 contemplated a plant unit, the -unit determination therein
was based principally upon a stipulation of the parties rather than
upon adjudication of a controversy.' The Board has never expressly
found the craft unit sought herein to be inappropriate .9 These em-
ployees have for a number of years been members of, held office in, and
been represented by, the Independent, and apparently acquiesced in
their inclusion in a plant unit. These employees, however, have never
had an opportunity in a Board election to express their desires as to
separate representation. We have frequently held that tool and die
makers and machinists, with duties similar to those performed by the
G The only other category in this department is an are and gas welder The I A M does
not desire to represent him and the other parties agree he should be included in the plant
unit
6 Although Plant Manager Dreisbach testified that the machinists in department 26 spent
part of their time in productive machine work, he admitted that the type of work they do is
wholly unlike other productive work done in the plant, and is performed in the same general
location where the machinists do their other work
See footnote 2, above.
s See Matter of Johnson City Foundry it Machine Works, Inc, 75 N L R B. 475
Even if the Board had done so, it would not alter the result herein inasmuch as the
Act, as amended, provides in Section 9 (b) that "the Board shall not . . (2) decide that
any craft is inappropriate . on the ground that a different unit has been estab-
lished by a prior Board determination, unless a majority of the employees in the proposed
craft unit vote against separate representation "
The Employer argued against severance of the craft unit on the ground, among others,
that the Labor-Management Relations Act, 1947, had not yet become effective at the time
of the hearing, and stated that if that Act were operative, "We wouldn't have any
argument " The above-quoted prohibition is applicable, however, to the Board's determina-
tion in this proceeding Cf Matter of Prate-Form Corset Company, 75 N. L R B. 174.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees herein concerned, constitute an identifiable skilled craft
group, and there is no indication that such groups, when established
as collective bargaining units, do not function successfully to promote
harmonious labor relations 10 These employees should therefore be
given an opportunity to demonstrate in a Board election whether they
desire separate representation or continued inclusion in a plant unit.
Under these circumstances, we shall direct an election among the
employees in this group, as well as among the employees in the pro-
duction and maintenance group described below, and shall make no
unit determinations pending the outcome of these elections.
2. The production and maintenance unit
The Employer and the Independent maintain that the finding of an
appropriate production and maintenance unit should conform with
the unit described in their 1947 contract, which includes "all production
and maintenance employees at the Company's plant in Trenton, New
Jersey, except office employees, foremen and assistant foremen, salaried
factory clerks, salaried inspectors, salaried service mechanics, and
salaried cafeteria employees." The Petitioner agrees with the general
composition of this unit, but, would include therein the salaried non-
supervisory inspector, and would exclude therefrom certain hourly
paid cafeteria employees and the guards.
The Employer's plant consists of about 15 buildings, divided into 35
departments, in which are employed about 900 employees, approxi-
mately 725 of them hourly paid production and maintenance employ-
ees. In charge of these employees are a plant manager, 2 superintend-
ents, and a number of foremen and assistant foremen, all of whom,
pursuant to agreement by the parties, are excluded from the unit.
There is agreement also as to the exclusion of office employees, who
generally work in a separate building under separate supervision ; of
salaried factory clerks, who are part of the pay-roll department under
office supervision although they work, in the shop, where they act as
timekeepers; 11 of salaried inspectors (except the salaried non-super-
visory inspector, discussed below), who have supervisory duties ; of
salaried service mechanics, who service equipment sold to customers,
and who work almost exclusively outside the plant; and of salaried
cafeteria employees, which category has reference to the chef, who
supervises other cafeteria employees. There are a number of employ-
10 See Matter of E L Bruce Company, 74 N L . R B. 1354 , Matter of Armstrong Bros.
Tool Co, 74 N. L R B. 1361
"The parties agree to the inclusion of four hourly paid factory clerks, two of whom
are shipping clerks and two who perform record-keeping functions in their respective de-
partments in connection with the processing operations therein , all of whom work under
factory supervision These clerks will therefore not be excluded.
C. V. HILL & COMPANY , INC. 1E3
ees classified as leaders or leadmen in some departments who have no
supervisory duties or authority , and who, pursuant to agreement by
the parties , are not excluded from the unit . There remain for dis-
position the following categories of employees :
The salaried non-supervisory inspeetor .There are 11 inspectors
in the plant , 10 hourly paid and 1 salaried, all of them responsible to
the salaried foreman inspector . 12 All parties agree to the inclusion
of the hourly paid inspectors , who devote all their time to general pro-
duction inspection , and who may reject work but are not authorized to
make reports with respect to employees whose work they reject.
The salaried inspector earns about $10 per week more than the hourly
paid inspectors , and about $5 per week less than the foreman. He
spends about 50 percent of his time performing the same duties as the
other 10 inspectors , and the balance of his time inspecting and grading
the quality of lumber purchased by the Employer . The Employer
admits that this inspector is not a supervisor , and that his work varies
little from that of the other supervisors , but maintains that he should
be excluded because he grades lumber and reports on this work directly
to management . The Independent agrees with the Employer , but the
Petitioner seeks the inclusion of this inspector . Inasmuch as he has
no supervisory duties , and his inspection work is generally similar to
that of the other inspectors , we shall include him as well as the hourly
paid inspectors in the unit.13
Cafeteria helpers.-The cafeteria is operated under the super-
vision of a, chef, who has two hourly paid cafeteria helpers to assist
in the operation of the cafeteria . The Employer and the Inde-
pendent would include the cafeteria helpers in the- unit but the
Petitioner contends that they should be excluded on the ground that
its experience has demonstrated that it is impractical to include such
employees in a production and maintenance unit. The Petitioner
agrees, however , with the Employer and the Independent as to the
inclusion of an employee classified as a cafeteria helper in depart-
ment 35, who is responsible not to the chef but to the foreman of
his department , and who devotes more than 50 percent of his time
to working as a janitor, the balance of his time being spent dis-
tributing food to employees throughout the plant . All the cafeteria
helpers earn an hourly rate comparable to that of other unskilled
employees in the plant , are subject to the same general working
conditions , and enjoy the same benefits as do other employees. They
have been included by the Employer and the Independent in the
12 The August 1946 contract excluded all inspectors. The July 1947 contract excludes
salaried inspectors.
13 Although most of the employees in the plant unit are hourly paid, the truck drivers,
who are salaried, are included without objection.
781902-48-vol 76-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract unit. There does not appear to be any union in the plant
which organizes cafeteria helpers exclusively through which these
employees might obtain an opportunity for representation. Under
all these circumstances, we shall include in the plant unit the two
cafeteria helpers who work in the cafeteria 14 -
Guards.-There are five guards in the plant. The Employer and
the Independent would include them in the unit, but the Petitioner
contends that they fall within the prohibition of Section 9 (b) of
the Act, as amended.'-' The guards are hourly paid and are re-
sponsible to the foreman of department 35. They are uniformed and
wear special badges, but are not armed or deputized. They are
stationed at the gate, and their responsibility is confined to the
gate. Although they have no greater responsibility than other em-
ployees to protect the safety of persons on the Employer's property,
they have a duty to prevent unauthorized persons from entering the
plant or from carrying company property out of the plant, and to
report disorderly conduct of employees at the gate. We shall there-
fore exclude the guards.16
Watchmen.-There are three watchmen in the plant, one working
on each of the three shifts. They are hourly paid, are responsible
to the foreman of department 35, wear the same badges as do other
employees, and are not uniformed, armed, or deputized. They patrol
the plant, particularly during the shut-downs between shifts, and
report through an A. D. T. clock system. As plant-protection em-
ployees, they perform the normal duties of such employees, including
the enforcement of rules designed to prevent fire, theft,. or other
damage to the property of the Employer. All the parties agreed to
include these watchmen in the unit.
Prior to the amendment of the Act, the Board readily permitted
non-monitorial watchmen, such as these, to be included in production
and maintenance units when the parties so desired. As stated above,
however, Section 9 (b) (3) now provides:
That the Board shall not . . . decide that any unit is appro-
priate for such purposes if it includes, together with other em-
ployees, any individual employed as a guard to enforce against
employees and other persons rules to protect property of the em-
ployer or to protect the safety of persons on the employer's prem-
ises; but no labor organization shall be certified as the representa-
11 See Matter of The Procter & Gamble Manufacturing Co., 64 N L. R. B . 1555; Matter
of General Cable Corporation, 62 N L. R B 437
15 This section provides that "the Board shall not . . . ( 3) decide that any unit is
appropriate . . . if it includes , together with other employees , any individual employed
as a guard to enforce against employees and other persons rules to protect property of the
employer or to protect the safety of persons on the employer's premises . . .
- 16 Matter of Young Patrol Service, 75 N L R B. 404
C. V. HILL & COMPANY, INC. 165
tive of employees in a bargaining unit of guards if such organiza-
tion admits to membership, or is affiliated directly or indirectly
with an organization which admits to membership, employees
other than guards.
These employees have a duty to protect property of the Employer
against theft, whether by employees or by "other persons" who might
gain access to the plant. They therefore fall within the definition
of the individuals whom the Board is now prohibited from including
in units with other employees. In view of the terms of the declaration
by Congress in Section 9 (b) (3), we have no choice but to disregard
the agreement of the parties as to the watchmen, and exclude them, as
well as the guards, from the production and maintenance unit.
Under all these circumstances, we shall direct an election among the
employees in the group of production and maintenance employees de-
scribed below, as well as in the group sought by the I. A. M. We shall
make no final determination at this time with respect to the appropri-
ate unit or units. Our determination will depend, in part,.upon the
results in these separate elections.
Accordingly, we shall direct elections among the employees at the
Employer's plant in Trenton, New Jersey, in the following voting
groups:
(1) All tool and die makers, machinists, and maintenance machin-
ists, in departments 26 and 29, excluding all supervisory employees;
(2) All production and maintenance employees, including in-
spectors and cafeteria helpers, but excluding office employees, foremen
and assistant foremen, salaried factory clerks, salaried supervisory
inspectors, salaried service mechanics, salaried cafeteria employees,
guards, and watchmen.
DIRECTION OF ELECTIONS 17
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with C. V. Hill & Company, Inc.,
Trenton, New Jersey, 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 Fourth Region, and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the voting groups listed 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
17 Any participant in the elections directed herein may, upon its prompt request to and
approval thereof by the Regional Director, have its name removed from the ballot.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election , and any employees on strike who
are not entitled to reinstatement , to determine
(a) whether the employees in voting group ( 1) desire to be repre-
sented by International Association of Machinists , or by International
Union, United Automobile, Aircraft & Agricultural Implement Work-
ers of America , C. 1. 0., or by C . V. Hill Mutual Benefit Society -Ref rig-
erator Workers Union No. 1 (Independent ), for the purposes of
collective bargaining , or by none, and
(b) whether the employees in voting group (2) desire to be repre-
sented by International Union, United Automobile , Aircraft & Agri-
cultural Implement Workers of America, C. I. 0., or by C. V. Hill
Mutual Benefit Society-Refrigerator Workers Union No. 1 (Inde-
pendent), for 'the purposes of collective bargaining , or by neither.