Clark Bros. Co., Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1946

66 N.L.R.B. 849 (N.L.R.B. 1946)

In the Matter of CLARK BROS. Co., INC. and UNITED AUTOMOBILE.
AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
Case No. 3-R-1099.-Decided March 15, 1946
Messrs. Maurice F. Nanning , Thomas L. Moody, and James A.
Hughes , all of Cleveland , Ohio, for the Company.
Mr. David Diamond and Mr. Peter J. Zanghi , both of Buffalo,
N. Y., for the C. I. O.
Messrs. Paul Nickel and Harry Riding , both of Olean , N. Y., for
the Association.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Automobile, Aircraft & Agri-
cultural Implement Workers of America, CIO, herein called the
C. 1. 0., alleging that a question affecting commerce had arisen con-
cerning the representation ofemployees of Clark Bros. Co., Inc.,
Olean, New York, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Cyril W. O'Gorman, Trial Examiner. The hearing was held
at Olean, New York, on December 20, 1945. The Company, the
C. I. 0., and the Employees Association, Inc., of Clark Bros. Co.,
C. U. A., herein called the Association, 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. At the hearing the Company moved to dismiss the petition
on the grounds that a contract with the Association bars this proceed-
ing, and the limitations in the current Appropriations Act serve to
enjoin further steps in this proceeding. The Trial Examiner reserved
ruling on this motion for the Board. The motion is denied for reasons
set forth in Section III, infra. The Trial Examiner's rulings made
£6 N. L. R. B.. No. 104.
849
688572-48--65
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Clark Bros. Co., a wholly owned affiliate of Dresser Industries,
Inc., is a New York corporation maintaining its principal place of
business at Olean, New York, where it is engaged in the manufacture.
sale, and distribution of gas engines, compressors, and similar
products.
Annual purchases of raw materials by the Company are valued in
excess of $1,000,000, of which approximately 10 percent is obtained
from points located outside the State of New York. Annual sales
of the Company's finished products are valued in excess of $1,000,000,
of which approximately 90 percent is shipped to points located out-
side the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. TITE ORGANIZATIONS INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers
of America is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
Employees Association, Inc., of Clark Bros. Co., Inc., C. U. A., is
a labor organization, admitting to membership employees of the
Company.
IIT. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the C. I. O. as
the exclusive bargaining representative of certain of its employees
until the C. I. O. has been certified by the Board in an appropriate
unit.
As a result of a consent election held in August 1943, in which
both the C. I. O. and the Association participated, the Association
was designated by the Regional Director for the Third Region as
the collective bargaining representative of the employees of the Com-
pany. Thereafter, the Company entered into a contract with the
Association. On December 20, 1944, the C. I. O. filed a petition seek-
ing certification as the collective bargaining representative of the
CLARK BROS . CO., INC. 851
Company's production and maintenance employees, and a consent
election was held on January 19, 1945, in which the C. I. 0., and the
Association participated. Neither union obtained a majority of the
votes cast and a run-off election was held on February 8, 1945. In
this election the Association received a majority vote. However, on
February 12, 1945, the C. I. O. protested the run-off election, and this
Board, sustaining the objections, set aside the run-off election. On
March 13,1945, the C. I. O. notified both the Company and this Board,
by letter, that it desired to withdraw its petition and, on the same
date, filed charges alleging violation of Section 8 (1) of the National
Labor Relations Act.' This letter also indicated that the C. I. O.
did not relinquish its claim of representation, but it would not seek
certification until after adjudication of the pending unfair labor
practice charges.
On March 19, 1945, the Regional Director for the Third Region
approved the C. I. O.'s request for withdrawal of the Petition and
notified the Company that such withdrawal had been granted without
prejudice. On March 22, 1945, the Company notified the Regional
Director that unless the C. I. O. was certified as the collective bargain-
ing representative of its employees within 5 days, it would rely upon
the former certification and enter into a contract with the Association.
The Regional Director, by letter dated March 31, 1945, replied that
any such action taken by the Company would be entirely on its own
responsibility. On April 16, 1945, the Company entered into a con-
tract with the Association for a period of 1 year. On October 5, 1945,
the C. I. O. filed the petition in this proceeding.
The Company pleads its contract of April 16, 1945, as a bar to this
proceeding. Apart from all other considerations, we find that the
agreement does not preclude, a current determination of representa-
tives, inasmuch as its anniversary date is less than 2 months from the
present time.2
The Company also contends that the limitations in the Appropria-
tions Act enjoins the present proceeding while the contract between
the Company and the Association is in existence. But the limitations
adverted to by the Company apply solely to complaint cases and not
to representation proceedings.3
A statement of a Board agent. introduced into evidence at the hear-
ing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.'
I The C. I. 0. has since filed a waives of the right to protest any election which might
be directed in this proceeding based on the subject matter of the pending unfair labor
practice charges it brought against the Company (Case No. 3-C-775).
2 See Matter of Flintkote Company, 55 N L. R B 1442
3 See Matter of Joseph Dyson & Sons, Inc, 60 N L R. B. 867.
* The Field Examiner reported that the C I. 0 submitted application cards bearing
the names of 523 employees . The Association relies on its 1945 contract as evidence of
its interest in this proceeding
There are approximately 1,050 employees in the appropriate unit.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
IV. THE APPROPRIATE UNIT
The parties are in general agreement that all production and main-
tenance employees of the Company, including production employees
in the experimental department who are engaged in non-technical
work, but excluding clerical employees in the main office; professional,
experimental, chemical, and research employees; confidential employ-
ees; guards; time-study men; foremen; assistant foremen; and all
other supervisory employees having authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, constitute an appropriate
unit. The C. I. 0. seeks to exclude factory office employees and lead-
men. However, both the Company and the Association seek the in-
clusion of these two categories, with the exception of certain leadmen
who are hereinafter discussed.
Factory clerical employees : There are approximately 60 factory
clerical employees, all of whom work in the factory building, which
is physically separated from the main office and the personnel depart -
ment.
Approximately half of these employees perform their work within
the factory proper. They are, for the most part, shipping clerks,
inventory clerks, stock chasers, and material clerks, and they fre-
quently physically handle the products or material. They are super-
vised by the foremen of the shipping and receiving departments and
are paid on an hourly basis. It is clear that they contribute substan-
tially to the productive process, and we shall, accordingly, include
them within the unit.
The remaining factory clerical employees are located in an office
on the first floor of the factory building. Their duties consist of pay-
roll computation, routine cost work, keeping production records,
compilation of routine statistical information, and similar duties of
a clerical nature. They are supervised by a factory office manager
and are paid on an hourly basis, as contrasted to the weekly salary
paid to main office clericals. Their hours of work, which differ from
those of the main office employees, are the same as those of the workers
in the factory. These employees have been represented by the Associa-
tion since 1941. It is apparent that these factory clericals have
interests more intimately related to those of the production and
maintenance employees, than to those of the main office clerical
workers. Accordingly, we shall include them in the unit.
CLARK BROS . CO., INC. 853
Leadmen: The operations of the Company are departmentalized,
with each department under the supervision of a foreman. Under the
foremen the departments are broken up into groups and these groups
receive their instructions from leadmen. Generally speaking, the
leadmen do not possess supervisory powers. They are paid on an
hourly basis and spend the greater portion of their time performing
manual labor.
In certain departments, however, either because of the large number
of employees in their group or because of long years of service with
the Company, the leadmen are considered by the employees to be
supervisory. Both the Company and the Association have, since
1941, excluded these leadmen from the unit underlying their dealings.
The leadmen concerned are in the electrical maintenance department,
maintenance department rod-gang, subassembly department night
shift, paint department, and the core department day shift. The
record discloses that leadmen in these departments have acted as sub-
stitutes for the foremen in their departments during the foremen's
absence and that in at least one department (core department) the
leadman was required to determine efficiency ratings which are used
in considering wage increases. We shall exclude from the unit these
particular leadmen, but shall include all others.
We find that all production and maintenance employees of the
Company including production employees in the experimental depart-
ment who are engaged in non-technical work; all factory clerical
employees; and leadmen (excepting those specifically excluded); but
excluding main office clerical employees, professional, experimental,
chemical, and research employees; guards; time-study men; leadmen
in the electrical maintenance department, maintenance department
rod-gang, subassembly department night shift, core department day
shift and the paint department ; foremen ; assistant foremen ; and all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series ;, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Clark Bros. Co.,
Inc., Olean, New York, 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 supervision of the Regional
Director for the Third 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 employees in the
unit found appropriate 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 election, to
determine whether they desire to be represented by United Automo-
bile, Aircraft & Agricultural Implement Workers of America, CIO,
or by Employees Association, Inc., of Clark Bros. Co., Inc., C. U. A.,
for the purposes of collective bargaining, or by neither.