Consolidated Vultee Aircraft Corp.

National Labor Relations Board - Board Decisions

Oct 22, 1945

64 N.L.R.B. 400 (N.L.R.B. 1945)

In the Matter of CONSOL IDATED VULTEE AIRCRAFT CORPORATION and
INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE 776,
A. F. L.
Case No. 16-R-1181?.-Decided October -02,1945
Messrs. Harry Harris and Il'. S. Lindsey, of Fort Worth, Tex., for
the Company.
Messrs. J. D. Smith and L. C. Mulholland, of Fort Worth, Tex.,
for the Union.
Mr. Gilberto Ramirez, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon an amended petition duly filed by International Association
of Machinists, District Lodge 776, A. F. L., herein called the Union,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Consolidated Vultee Aircraft Corpora-
tion (Fort Worth Division), Fort Worth, Texas, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Glenn L. Moller, Trial Exam-
iner. The hearing was held at Fort Worth, Texas, on Julie 22, 1945.
The Company and the Union 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, alleging
that because of reductions in personnel the Union did not then repre-
sent a majority or a substantial number of the employees in the pro-
posed unit. The Trial Examiner reserved ruling for the Board on the
Company's motion. For reasons discussed in Section III, 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.
1 The Company also moved to postpone the hearing for the same reason advanced in its
motion to dismiss the petition . The Trial Examiner properly denied this motion.
64 N L. R. B., No 73
400
CONSOLIDATED VULTEE AIRCRAFT CORPORATION 401
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE COMPANY
Consolidated Vultee Aircraft Corporation, a Delaware corporation,
operates a plant at Fort Worth, Texas, known as the Fort Worth
Division, at which it is engaged in the manufacture of airplanes. The
Fort Worth Division uses annually raw materials valued in excess of
$500,000, of which more than 50 percent is shipped from points out-
side the State of Texas. It produces annually airplanes valued in
excess of $1,000,000, substantially all of which are transported to
points outside the State of Texas.
The Company admits that, as at its Fort Worth Division, it is
engaged in commerce within the meaning of the National Labor
Relations Act.
II. TIIE ORGANIZATION INVOLVED
International Association of Machinists, District Lodge 776,
A. F. L., is a labor organization admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of certain of its employees until
the Union has been certified by the Board in an appropriate unit
comprised of these employees.
A statement of a Field Examiner, introduced into evidence at the
hearing, indicates that about the middle of May 1945, the Union
represented a substantial number of employees in the unit hereinafter
found appropriate .2
At the hearing and in its brief the Company moved for a dismissal
of the petition contending in effect, that no question concerning
representation existed on June 22, 1945, the date of the hearing, be-
cause it was "probable" that the Union did not then represent either
a majority or a substantial number of employees in the unit petitioned
for. In support of its position the Company urged that it had there-
tofore, because of production cut-backs, reduced by 50 percent its
personnel throughout the plant, including employees in the categories
covered by the petition; and, also, that further reductions affecting
these categories were anticipated.
2 The Field Examiner reported that the Union submitted 184 authorization cards, 106 of
which bore names appearing on the Company ' s pay roll and that the pay roll contained
the names of 311 employees in the proposed unit. This pay roll apparently covered a
period during the first half of May 1945.
670417-46-vol 64-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are unable to agree with the Company's position. The Board
requires a petitioning union to submit prima facie evidence of repre-
sentation among the employees in the appropriate unit for the sole
purpose of determining whether the petitioner has sufficient interest
to justify setting in motion the Board's investigatory machinery. This
requirement is merely an administrative safeguard to insure against
frivolous use of the Board's processes. The Field Examiner's report
shows that the petitioner adduced such prima facie evidence. We
perceive no impelling reason for requiring the Union to show a con-
tinued substantial interest to the date of the hearing.3 In any event,
there is nothing in the record that vitiates the showing of interest
made by the Union 4 Thus, even if the unit petitioned for has con-
tracted, there is no basis for assuming that those who did not sign
authorization cards were not discharged in the same proportion as
those who did.'
We shall rely upon the showing of interest in the proposed unit
which the Union made at the time its authorization cards were received
and checked by the Board's Field Examiner.e We find that a question
affecting commerce has arisen concerning the representation of em-
ployees of the Company, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
As a result of Board-directed elections in prior representation pro-
ceedings, the Union has been certified as collective bargaining represen-
tative of the Company's production and maintenance employees and
the timekeepers at the plant here involved.7 The Union now seeks
a unit of all tool planners, tool designers, and tool liaison employees,
not performing manual work," at the Company's Fort Worth, Division,
8 Matter of Sunset Motor Lines , 59 N L R. B. 1434.
4 A Company representative testified that on or about May 25, 1945 , about 50 percent of
the employees , including tool planners , tool designers , and tool liaison men, which are the
job classifications included in the proposed unit, Mere discharged; but no evidence was
introduced by the Company showing the changes caused by the alleged reductions among
these three categories . However, in an affidavit dated July 2, 1945, and attached to its
brief, the Company states that 119 employees from among these categories had been dis-
charged since January 1, 1945, of whom 72 had been discharged since May 28, 1945.
Somewhat contrary testimony was given by a tool planner, called as a witness by the
Union, who stated that no tool planners had been laid off and that tool liaison men were
not discharged but were transferred to tool planning.
In its brief the Company urges as an additional ground for dismissing the petition the
failure of the Union to present proof at the healing of the number of employees in each
category involved in the unit and of the total number in such unit we hereby reject this
contention since the union is not under a burden of introducing such evidence
Matter of If. P. Moller, Inc, 56 N L R. B. 16.
Matter of Consolidated Aircraft Corporation, Certification of Representatives Issued by
the Board on March 10, 1943; Matter of Consolidated Vultee Aircraft Corporation, Cer-
tification of Representatives issued by the Board on March 9, 1945
8 The Company employs a few designers who perform manual work . These employees
are now included in the unit of production and maintenance employees . Matter of Con-
solidated Vultee Aircraft Corporation, 61 N. L. R. B. 869. Tool planners and tool liaison
men perform no manual work. I .
CONSOLIDATED VULTEE AIRCRAFT CORPORATION 403
excluding foremen, assistant foremen, confidential clerks, and super-
visory employees. The classifications sought herein comprise all the
remaining non-supervisory and non-confidential classifications in the
tooling department not presently represented by the Union. The Com-
pany opposes the establishment of such a unit on the grounds that (1)
these employees perform highly skilled professional services and do
no manual work, and (2) a little over 4 months prior to the filing of
the first amended petition in the instant case, the Union had petitioned
the Board for a unit of tool planners and tool proofers but the petition
has been dismissed.)
The tool planners, tool designers, and tool liaison men are highly
skilled employees engaged, respectively, in the planning of tooling
needs, the designing of tools, and the investigation of tooling prob-
lems. They do no manual work.10 Each of these categories of em-
ployees comprises a subdivision of the tooling department. At the
head of each subdivision is a project engineer. All these employees are,
however, under the general supervision of the chief tool engineer, who
is the head of the tooling department. Their respective jobs require
interrelated technical skills and knowledge. All are paid on an hourly
basis and work in the same plant area 11
These employees perform an essential part of the Company's pro-
ductive process. Although the fact that they do technical or pro-
fessional work may be a reason for excluding them from a unit
consisting of production and maintenance employees,12 it cannot op-
erate to prevent their inclusion in an appropriate unit." Nor does
the dismissal of the Union's petition of October 31, 1944, for a unit
consisting of tool planners and tool proofers have any relevancy to
the determination of the appropriate unit in the instant case. There
is no rule or policy of this Board which precludes the inclusion in a
unit of a given classification of employees merely because of the ad-
ministration dismissal within the preceding year of a petition which
included that classification. %
Under all the circumstances, we find that the tool planners, tool
designers, and tool liaison employees of the Company, not performing
manual work, constitute an homogeneous group and 'may function
9 On October 31, 1944, the Union filed a petition in Case No 16-R-1113, for a unit con-
sisting of these two categories. No hearing was held on this petition, which was dismissed
administratively.
w See footnote 8, supra.
11 This area is called the factory office. In addition to working in this area, a tool liaison
man is required to go through the plant, and possibly, to the engineering department in
the general offices
13 See Matter of Consolidated Vultee Aircraft Corporation, 61 N L It. B. 869, where tool
liaison employees were not included in the unit of production and maintenance employees
of the plant here involved because of the technical nature of their work. See also Matter
of Lockheed Aircraft Corporation, 58 N. L. R. B. 1188
13 Matter of Lockheed Aircraft Corporation, 58 N. L. R. B. 1188; Matter of General Elec-
trio Company, 57 N L R B 81.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
together for collective bargaining purposes. Accordingly, we find
that all tool planners, tool designers, and tool liaison employees of
the Company, not performing manual work, excluding foremen, as-
sistant foremen, confidential clerks, 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, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Company impliedly contends that no election should be held
at the present time because of impending changes in the unit. It
relies in part on the testimony of a company official that approxi-
mately 10,000 employees, practically 50 percent of the total coin-
plement, had been dismissed between January 19, 1945, and the date
of the hearing,'' and that 6,000 additional employees might be dis-
missed by the end of December 1945, at the rate of 1,000 per month.
Significantly, however, he did not know of any projected reduction
among tool planners, tool designers, and tool liaison men, and stated
that the Company would continue to use these categories of employees.
Also, no statistical account was given at the hearing of changes in
their number during the preceding months.15
The record is barren of any evidence that the Company has taken
steps to close the plant or to liquidate the tooling department, and
it does not appear that the employees in the appropriate unit will
be engaged in a totally different type of work. At best, the Coin-
pany's evidence would indicate that there may be a further reduction
in the number of employees in the unit; we have held that a mere
reduction in the number of employees in a unit is not in and of itself
sufficient reason for dismissing a petition or postponing an election;16
clearly, there has been no material change in the unit herein petitioned
for, and none is expected, which would justify the postponement of
an election. 17 We hold, therefore, that the policies of the Act will
best be effectuated by conducting an election forthwith.
Accordingly, we shall direct that the question concerning repre-
sentation which has arisen be resolved by an election by secret ballot
among the 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.
14 The original petition was docketed January 22 , 1945, and the first amended petition
was docketed May 11, 1945.
15 See footnote 4, supra
le Matter of Bernard Shapiro and Monroe Shapiro , partners, d/a/b Reliable Nut Com-
pany , 63 N L . It. B 357.
17 Cf. Matter of Armour & Company , 62 N. L. R. B. 1194.
CONSOLIDATED VULTEE AIRCRAFT CORPORATION
DIRECTION OF ELECTION
405
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 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain represen-
tatives for the purposes of collective bargaining with Consolidated
Vultee Aircraft Corporation (Fort Worth Division), Fort Worth,
Texas, an election by secret ballot shall be conducted as early as possi-
ble, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director
for the Sixteenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Sections 10
and 11, of said Rules and Regulations, among the 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 any 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
or not they desire to be represented by International Association
of Machinists, District Lodge 776, A. F. L., for the purposes of
collective bargaining.
MR. GERARD D. RETLLY took no part in the consideration of the
above Decision and Direction of Election.