Food Machinery Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1946

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

In the Matter of FooD MACHINERY CORPORATION and INTERNATIONAL
BROTHERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS AND HELPERS
OF AMERICA, A. F. OF L.
Case No. 10-R-1693.-Decided June 13, 1946
Mr. Ray C. Brown, of Tampa, Fla., for the Company.
Mr. W. A. Calvin, of Silver Springs, Md., for the Boilermakers.
Mr. Kenneth W. Kerr, of Dunedin, Fla., for the Independent.
Mr. Herbert J. Nester, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Brotherhood
of Boilermakers, Iron Ship Builders and Helpers of America, A. F. of L.,
herein called the Boilermakers, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Food
Machinery Corporation, Lakeland, Florida, herein called the Company,
the National Labor Relations Board provided for an appropriate hearing
upon due notice before Samuel G. Zack, Trial Examiner. The hearing
was held at Tampa, Florida, on February 14, 1946. The Company,
the Boilermakers, and Citrus Machinery Workers, herein called the In-
dependent, 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. 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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Food Machinery Corporation , a Delaware corporation , is engaged
in the manufacture, rental and sale of citrus fruit and vegetable proc-
, Local 349, International Molders and Foundry Workers Union of North America, A. F.
of L., was duly served with a copy of the Notice of Hearing. The union failed to enter an
appearance at the hearing and has not participated in the proceedings.
68 N L R. B, No. 85.
600
FOOD MACHINERY CORPORATION 601
essing machinery throughout the United States. The Florida division,
which alone is involved in this proceeding, operates factories at Dunedin
and Lakeland, Florida. During the year 1945 , the Company purchased
raw materials valued in excess of $500,000, 90 percent of which origi-
nated at points outside the State of Florida. Sales and services transacted
by the Company during the same period were valued in excess of
$500,000. Less than 5 percent of the finished products sold or leased
was transported to points outside of the State of Florida.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Boilermakers, Iron Ship Builders and
Helpers of America is a labor organization affiliated with the American
Federation of Labor, admitting to membership employees of the Com-
pany.
Citrus Machinery Workers Union is an unaffiliated labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Boilermakers
as the exclusive bargaining representative of its employees at the Lake-
land plant until the Boilermakers has been certified by the Board in
an appropriate unit.
Since the formation of the Florida division in 1928, the Company
has carried on the manufacture of fruit processing machinery at its
factory in Dunedin, Florida. In the early part of 1940 construction of
a new factory was commenced at Lakeland, Florida. It was the in-
tention of the Company to move its entire facilities to the Lakeland
factory immediately upon its completion. In November of 1940, the
Company entered into a contract with the Navy Department for the
construction of amphibious tractors, and a separate division, identified
as the Tractor division, was formed to carry on wartime production
activities under the Navy contract. The Tractor division thereafter
occupied the newly completed Lakeland factory and the contemplated
transfer of the Dunedin facilities was not effectuated . The Dunedin
plant, however, continued its normal operations in the manufacture of
fruit processing machinery.
On May 26, 1941, the Independent and the Company entered into a
bargaining agreement covering all citrus fruit processing machinery em-
ployees in both its Dunedin and Lakeland factories. Although the Lake-
land factory was not then producing citrus fruit processing machinery.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees were lincluded in the agreement in anticipation of the
Company's moving the Dunedin factory to Lakeland, and there carrying
on all operations in the new factory . On February 1, 1944, the Inde-
pendent and the Company executed a second bargaining agreement
which, in effect, merely revised wage scales previously established, but
which again specifically covered fruit processing machinery employees
at both the Dunedin and Lakeland plants . This contract has been re-
newed pursuant to its terms and is currently existing.
On August 16, 1945, the Navy contract was cancelled by the Gov-
ernment and all war production activities at the Lakeland plant ceased.2
The Company thereupon abolished the Tractor division. Production
of citrus fruit processing machinery has recently been commenced at
the Lakeland plant, but the transfer of the Dunedin employees, in ac-
cordance with the Company's original plan, has been found impossible
because of the Company 's inability to procure housing facilities in Lake-
land.
As indicated above, there were no fruit processing machinery em-
ployees at the Lakeland plant when either of the above-mentioned bar-
gaining agreements between the Independent and the Company were
executed , and it is clear that the inclusion of the Lakeland employees
in the agreements was merely an anticipatory measure. Under these
circumstances, we are of the opinion that the current contract cannot
operate as a bar to a present determination of representatives at.the
Lakeland plant .3
A statement of a Board agent , introduced into evidence at the hearing,
indicates that the Boilermakers represents a substantial number of em-
ployees in the unit hereinafter found appropriate .4
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 Boilermakers urges as appropriate a unit consisting of all pro-
duction employees, and all maintenance employees engaged in repair
and maintaining machinery and equipment, at the Company 's Lakeland
' The employees of the Tractor division at the Lakeland plant were covered in a collective
bargaining agreement executed April 3, 1944, between the Company and the Boilermakers
This contract was renewed in accordance with its terms and continued in effect until pro-
duction ceased at the Lakeland plant on August 16, 1945 , when the Navy contract was
cancelled.
3 See Matter of Chase Brass and Copper Co., Inc., 47 N. L. R. B. 298; Matter of The
Prosperity Company, Inc., 55 N. L. R. B. 350.
* The Field Examiner reported that the Boilermakers submitted 82 cards, bearing the names
of 80 employees listed on the Company 's pay roll for the Lakeland plant.
There are approximately 173 employees in the appropriate unit.
FOOD MACHINERY CORPORATION 603
excluding employees in the engineering department, watchmen
and guards, janitors , office clerical employees , superintendents , assistant
superintendents , foremen , and all other supervisory employees. The
Company contends that a two -plant unit is appropriate in view of the
contemplated absorption of the Dunedin plant into the Lakeland plant.
The Independent, for similar reasons, also urges a two-plant unit.
The Dunedin and Lakeland plants are approximately 60 miles apart,
and are under separate supervision . Although some Dunedin employees
have been permanently transferred to Lakeland , there is no present
interchange of employees between the plants. As indicated above, there
has been no past bargaining history involving a two-plant unit . Further,
the contemplated absorption of the Dunedin plant has been retarded
by unforeseen circumstances and it i5 possible to for, -ee 'ts effectuation
in the near future . The Company is presently operating both plants on
a full production basis. In v_ew of the foregoing facts, we are of the
opinion that the employees of the Lakeland plant presently constitute
a separate unit appropriate for the purposes of collective bargaining.5
We find that all production employees , and all maintenance employees
engaged in repairing and maintaining machinery and equipment, at the
Company's Lakeland plant , excluding employees in the engineerig de-
pa*tment, watchmen and guards, janitors, office clerical employees, super-
intendents , assistant superintendents , foremen , and all other supervisory
employees with authority to hire, promote, discharge, discirline, or other-
wise effect changes in the status of employees , or effectively recommend
such action , constitute a unit appropriate 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 the employees in
the appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of the Direction of Election herein, subject
to the limitations and additions set forth in the Direction.
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 Relations 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 representa-
tives for the purposes of collective bargaining with Food Machinery
5 See Matter of De Jur Amsco Corporation, 61 N L R. B. 1054
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation of Lakeland , Florida, 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 Tenth 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 em-
ployees 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
or not they desire to be represented by International Brotherhood of
Boilermakers, Iron Ship Builders and Helpers of America, A. F. L.,6
for the purposes of collective bargaining.
At the hearing the Independent was unable definitely to state whether or not it desired
to participate in an election involving the Lakeland employees only. However , in view of its
interest among employees at the Lakeland plant who have transferred from the Dunedin plant,
we shall accord the Independent a place on the ballot, provided it notifies the Regional
Director of the Tenth Region within five (5 ) days from the date of this Decision and Direction
of Election, of its desire to appear on the ballot.