E. L. Bruce Co.

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1354 (N.L.R.B. 1947)

In the Matter of E. L. BRUCE COMPANY, EiIPLOY1m 1 and INTERNA-
TIONAL WOODWORKERS or AMERICA, CIO, PETITIONER
Case No. 15M-R-77.-Decided August 21, 1947
Mr. Hamilton E. Little , of Memphis , Tenn ., for the Employer.
Messrs . Jerome A. Cooper , of Birmingham , Ala., and John L.
Hawkins , of Atlanta , Ga., for the Petitioner.
Messrs. Fred G. Koenig, Sr., and J . C. Barrett, both of Birmingham,
Ala., and Messrs . Weaver P. Freeman, of Louisville , Ky., and W. 7'.
Yount , of Memphis , Tenn., for the Carpenters.
Mr. L. M. Fagan , of Memphis , Tenn., for the Machinists.
Mr. Irving D. Rosenman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Memphis,
Tennessee, on June 30, 1947, before Roy O . Hoffman, hearing officer.
United Brotherhood of Carpenters and Joiners of America, and its
Local Unions Nos. 2723, 2598, 2639, 2840, 2940, 2943, 2964, and 3124,
herein called the Carpenters, and the International Association of
Machinists, herein called the Machinists, by separate motions moved
to intervene in the proceeding. Both motions were granted, the for-
mer without objection, and the latter, over the objections of the Em-
ployer, the Petitioner and the Carpenters. At the hearing, the Em-
ployer moved either to dismiss the petition, or to postpone the hearing,
until the labor organizations, involved herein, comply with all the
requirements of the National Labor Relations Act, as amended. The
hearing officer denied the motion for postponement on the ground that
the changes in the Act with respect to representation proceedings do
not become effective until the latter part of August 1947.2 The Em-
ployer's alternative motion to dismiss the petition is hereby denied
for the same reason. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
The naive of the Eniployei appears herein as amended at the hearing
2 A fur ther motion to postpone the healing was made by the Carpenters and the Employer
on the ground that they did not have sufficient time to study the Act, as amended This
motion was also denied by the heaping officer on the same ground as stated above.
74 N. L R. B., No 227.
1354
E. L. BRUCE COMPANY 1355
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
E. L. Bruce Company, a Delaware corporation, with its principal
office and place of business in Memphis, Tennessee, is engaged in the
manufacture of hardwood flooring, furniture dimension, finished fur-
niture, floor maintenance and cleansing products, and terminix. It
operates nine plants, with one plant in each of the following cities:
Memphis and Nashville, Tennessee; Little Rock, Arkansas; Cairo,
Illinois; Reed City, Michigan; Bruce, Laurel, and Columbus, Misssis-
sippi; and Bohgee, Alabama. During a 12-month period, the Em-
ployer purchases raw materials for use at its plants valued at over
1 million dollars, of which 90 percent represents shipments to these
nine plants from points outside their respective States. During a
similar period, the Employer manufactures products valued at over
1 million dollars, of which 90 percent represents shipments by these
plants to points outside their respective States.
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.?
The United Brotherhood of Carpenters and Joiners of America,
and its Local Unions Nos. 2523, 2598, 2639, 2846, 2940, 2943, 2964, and
3124, herein called the Carpenters, is a labor organization affiliated
with the American Federation of Labor, claiming to represent em-
ployees of the Employer.
The International Association of Machinists, herein called the
Machinists, is a labor organization, claiming to represent employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer and the Carpenters have been in collective bargain-
ing relationship since 1939. In that year, the Carpenters was recog-
nized as the bargaining representative of the production and main-
tenance employees in the Little Rock plant on the basis of an informal
5 The Petitioner has waived its rights to object to any election held in the instant pro-
ceeding on the basis of any of the acts alleged by it as unfair labor practices at the Little
Rock plant of the Employer in Case No 15-C-]045.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-check,4 and a contract covering these employees was entered
into on May 1, 1939. Thereafter, over a period of 2 years the Car-
penters was recognized for similar employees on a plant by plant basis
at the following six plants of the Employer: Memphis, Nashville,
Cairo, Reed City, Bruce, and Laurel. Similarly, contracts were
entered into for each plant. A master union-shop agreement, cover-
ing the above seven 5 plants of the Employer, was entered into on
July 18, 1942, and was either automatically renewed or renewed with
amendments each year thereafter, up to and including 1946. The
1946 contract, which renewed the then existing relationship between
the parties, was entered into on June 8 of that year, and provided
for an initial period ending May 31, 1947, and for its automatic
renewal thereafter unless notice to "change, amend or terminate shall
be given by either party thirty days prior to May 31, 1947, or any
year following."
In December 1946, the Carpenters and the Employer entered into
two additional contracts covering, respectively, the employees in the
newly acquired Columbus and Boligee plants. The terminal date of
both these contracts was May 31, 1947, the same as the 1946 master
contract covering the original seven plants.
On April 3, 1947, after considerable negotiations between the Em-
ployer and the Carpenters, a master collective bargaining agreement,
covering the production and maintenance employees at all nine plants
of the Employer, was reduced to writing and signed by the Employer,
and mailed to the Carpenters, at its request, to enable the Carpenters
to "go over it and if it was 0. K., we would sign it." On the same date,
the Employer received a telegram from the Petitioner requesting
recognition as the exclusive bargaining representative of the employees
in seven of its nine plants.6 On April 5, the Carpenters signed the
agreement which was made retroactive to April 2. The contract pro-
vided for an initial period ending April 13, 1949, and for its automatic
renewal thereafter unless notice to "change, amend or terminate shall
be given by either party thirty days prior to April 13, 1949, or any
year following." On April 7 the instant petition was filed.
The Employer and the Carpenters urge the 1947 contract as a bar
to this proceeding, and stress in this connection that the contract was
entered into in good faith. The Employer further contends that the
1946 contract is also a bar. We find no merit in either contention.
4 The unit consisted of all hourly employees, including watchmen, but excluding office
and clerical employees, plant guards, department heads, foremen, and all other super-
visory employees
5 These seven plants comprised all the plants of the Employer at that time The Colum-
bus and Boligee plants were not acquired by the Employ ei until 1946
Representation of the employees in the Columbus and Boligee plants was not requested.
The request melated to the employees covered by the 1946 master agreement.
E. L. BRUCE COMPANY 1357
Thus, as to the 1946 contract, it is clear that, by negotiating for a new
contract, the parties effected a termination of that contract, thereby
rendering it ineffective as a bar to a current election .7 And as to the
1947 contract, inasmuch as it was not fully executed as of the time of
the Petitioner's claim, which was followed within 4 clays by the instant
petition,s it cannot, under well established principles, operate as a bar
to an election.1 Accordingly, we find that no obstacle exists to a present
determination of representatives io
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
lv. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Employer, the Petitioner, and the Carpenters generally agree
that the appropriate unit should consist of all production and main-
tenance employees in the nine plants of the Employer, including
watchmen, but excluding plant guards, office and clerical employees,
and all supervisory employees. The Machinists, over the objection of
the other parties, contends that all machinists, machinists' helpers,
and machinists' apprentices of the ii i ne plants should be excluded from
the multiple nine-plant unit and should constitute a separate appro-
priate bargaining unit.h1
Operation at the Employer's 9 plants are closely interrelated. Thus,
its sawmills at its facilities in Boligee, Alabama; Bruce, Laurel, and
T Matter of American Norit Company, Inc, 66 N L R. B 1308; Matter of Monomac
Spurning Company, 66 N L. R B 1180
" At the heal ing the Petitioner amended the petition to include the employees of the
Columbus and Boligee plants Inasmuch as this amendment involves only approximately
100 employees, and the unit petitioned for is in excess of 2300 employees, the amendment
is not a substantial one, and does not constitute the tiling of a new petition, or affect the
timeliness of the original petition on the contiact bar issue Matter of Ifohlnran Bros &
Sugarman Company, 74 N L R B. 381, Mattci of General Electric X-Ray Corporation,
72 N L R B 124. 5, Matter of Allis-Chatmeis Maiwifactuming Company, 73 N L R B 784
1 Matte of Continental Gin Company, 72 N L R B 1208, Matter of John Moirell it
Co , 69 N L R B 1446 , Matter of Union Manufacturing Company, 69 N L R B 640,
Hatter of Mac's Equipment Company, 72 N. L. R B 583, Matter of General Electric X-Ray
Co? poration, 67 N L R B 997
10 The Employer further contends that an agreement executed in 1942 between the
Employer and the Carpenters is still in effect, and is also a bar to this proceeding The
agreement, however, which was read into the record is one page in length, and is very
indefinite in nature It apparently provides only for the exclusive employment of mem-
bers of the Carpenters in construction work, and includes a no-strike provision Moreover,
the instrument is undated, lacks the substantive terms of a collective bargaining agree-
ment, is indeterminate in duiation, and has admittedly been in effect for over 5 years.
It is clear, and we find, that the instrument cannot bar this proceeding. Matter of Soap
Powder Works, Inc, 69 N L. R B 1367, Matter of The Rainbow Lithographing Company,
69 N L R B 1383, Matter of LaFollette Shirt Company, 65 N. L R B. 952, Matter of
C P ]till & Company, Inc, 64 N L R B 1109
11 The Machinists, in its brief, takes the alternative position that three separate units of
machinists would also be appropriate , viz, one at Little Rock, Arkansas, one at Memphis,
Tennessee, and one of machinists at all the remaining plants of the Employe r.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbus, Mississippi ; and Little Rock, Arkansas, furnish lumber for
their own needs and for the remaining plants. Further, those plants
making furniture dimension ship their products to the Memphis plant
for assembly and finishing. In addition, the main office of the Em-
ployer is at Memphis, Tennessee, from which point an executive presi-
dent and his staff exercise considerable supervision over all operations
at the 9 plants. In this connection it appears that each plant manager
administers his plant pursuant to policies laid clown by the general
office, that all accounting and labor relations problems are handled at
the Memphis office, and that all the approximately 2,300 production
and maintenance employees, involved herein, are hourly paid, have uni-
form wage rates and overtime rates, and enjoy the same employee
privileges and benefits. It would thus appear, front all the foregoing,
that a unit of all production and maintenance employees at all 9 plants
would be feasible for collective bargaining.
However, as noted above, the Machinists would establish a separate
unit of the Employer's machinists. The Employer has 11 employees
in this classification, 12 4 are employed at the Memphis plant, 4 in the
Little Rock plant, and 1 each at 3 of the other plants. The Memphis
and Little Rock plants each has a machine shop, physically segregated
from other plant departments. Each of the machine shops is under
the supervision of a machinist foreman, and the machinists therein
perform the functions typical of the machinists craft. They are en-
gaged in designing and building machines and their parts. The
lathes, planes, milling machines and other equipment with which they
work are solely the tools of a machinist. In addition the record shows
that there is no interchange of machinist employees. and production
and maintenance employees at any of the plants.
The bargaining history affecting these operations reveals, as already
noted, that the Machinists have, since 1939, been embraced within the
existing units, whether plant-wide or multi-plant-wide. However,
most of the machinists have maintained their membership throughout
the entire period in the Machinists, and although they also became
members of the Carpenters in 1943, such membership was required un-
der the terms of the union shop agreements between the Employer and
the Carpenters dating back to 194213 We note also that, despite the
existing contractual relationship between the Employer and the Car-
penters, the Employer has, at times, looked to the Machinists when
hiring additional employees for its machine shops. '
12 There v,ere no machinists' helpers or machinists' apprentices in any of the Employer's
nine plants at the time of the hearing
13 Despite the provision of the union shop clause in the 1942 agreement, the machinists
resisted joining the Carpenters until'1943
E. L. BRUCE COMPANY 1359
It is apparent from all the foregoing that the employees requested
by the Machinists comprise a true craft group of the type which we
have frequently established.14 In the absence of any collective bar-
gaining history, the unit requested by the Machinists would therefore
be found appropriate as a matter of course 15 Although we are here
confronted with a bargaining history on a more comprehensive basis,
we are pursuaded, in view of the facts outlined above, that it is not
sufficient, in-and of itself, to deny the employees in the craft group
the opportunity of deciding at the present time whether they desire
either to be represented as a part of the nine plant Employer-wide
production and maintenance unit, or to bargain as a separate craft unit
on an Employer-wide basis. And this is particularly true in view of
the added fact that these employees have never previously had an op-
portunity to vote on this issue.
Under all these circumstances , we shall direct a self-determination
election among the employees sought by the Machinists, and another
election in the residual unit of production and maintenance employees.
And in accordance with the foregoing, we shall make no final determi-
nation at this time with respect to the appropriate unit or units. Our
determination will depend, in part, upon the results in these separate
elections. -
There remains for consideration the disposition to be made of guards
and watchmen. The Employer has 7 guards, all at its Memphis
plant. They are uniformed, and the parties all agree, and we find,
that their duties are of such a nature that they should be excluded from
the production and maintenance group. As to the 17 watchmen at
the remaining plants, whom the parties would include in the unit, the
record shows that they guard the plant against fire, theft and tres-
passing, and perform plant protection duties. We shall also exclude
them from the production and' maintenance voting group.
Accordingly, we shall direct elections among the employees at the
nine plants of the Employer in the following voting groups: 11
1. All machinists, machinists' helpers, and machinists' apprentices,
excluding all supervisory employees.
2. All remaining production and maintenance employees excluding
watchmen, plant guards, office and clerical employees, and all super-
visory employees17
14 Matter of Weber Showcase d Fixture Co , Inc , 67 N L R B 456
Matter of Sanvpsel Time Control, Inc, 74 N L R B. 611, and Matter of The
Beach Company, 72 N. L R. B 510, and Matter of The Basttan-Blessrng Company, 65
N L R B 1023
10 The Cat penters opposed the holding of a current election on the ground that to do so
might interfere with production. We find this contention to be lacking in merit
17 The parties agree , and we find , that this includes the following professional employees,
the Head Chemist , the Assistant Chemist, and the Forester
75 5420-4S-vol 74 87
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTIONS 18
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with E. L. Bruce Company, Memphis,
Tennessee, 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 Direc-
tor for the Fifteenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, 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
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 :
(a) Whether the Employees in voting group (1) desire to be repre-
sented by International Association of Machinists, or by International
Woodworkers of America, C. I. 0., or by United Brotherhood of
Carpenters and Joiners of America, and its Local Unions Nos. 2523,
2598, 2639, 2846, 2940, 2943, 2964, and 3124, for the purposes of collec-
tive bargaining, or by none, and
(b) Whether the employees in voting group (2) desire to be rep-
resented by International Woodworkers of America, C. I. 0., or by
United Brotherhood of Carpenters and Joiners of America, and its
Local Unions, Nos. 2523, 2598, 2639, 2846, 2940, 2943, 2964, and 3124,
for the purposes of collective bargaining, or by neither.
CHAIRMAN HERZOC took no part in the consideration of the above
Decision and Direction of Elections.
18 Any participant in the election herein may, upon its prompt request to, and approval
thereof 6y, the Regional Director, have its name removed from the ballot.