Hughes Tool Co.

National Labor Relations Board - Board Decisions

Jul 9, 1946

69 N.L.R.B. 294 (N.L.R.B. 1946)

In the Matter of HUGHES TOOL COMPANY and INDEPENDENT METAL.
WORKERS UNION, LOCALS 1 AND 2, CUA
Case No. 16-R-1489.-Decided July 9, 19^G
Andrews, Kurth, Campbell, and Bradley, by Messrs. F. L. Arulreu's
and R. F. Burns, and Mr. Thomas M. Mobley, all of Houston, Tex.,
for the Company.
Messrs. Torn M. Davis, T. B. Everitt, David J. Butler, and J. F.
Moseley, all of Houston, Tex., for the Independent.
Combs and Dixie, by Messrs. W. A. Combs and Chris J. Dixie: and
Messrs. Frank A. Harvesty, Howard 7'. Curtiss, Charles E. Smith. 7'.
D. Walker, F. T. Henry, E. M. Martin, and L. C. Dearman, all of
Houston, Tex., for the CIO.
Mr. C. L. Mulholland, of Dallas, Tex., for the Council.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Independent Metal Workers Union,
Locals 1 and 2, CUA, herein collectively called the Independent,
alleging that a question affecting commerce had arisen conceniiug
the representation of employees of Hughes Tool Company, Houton,
Texas, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Earl Saunders, Trial Examiner. The hearing was held at Houston,
Texas, on May 3, 1946. The Company; the Independent; United
Steelworkers of America, Locals 1742 and 24:17, CIO. herein col-
lectively called the CIO; and International Association of Machinists
and Houston Metal Trades Council, herein collectively called the Coun-
cil, appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. At the hearing both the CIO
and the Council moved to dismiss the petition on various grounds. For
reasons discussed in Section III, infra, the notions are hereby denied.
69 N. L. R B., No. 36.
294
HUGHES TOOL COMPANY 295
The CIO's request for oral argument is also denied. The Trial Exam-
iner's rulings made 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
Hughes Tool Company, a Deleware corporation, is engaged
at Houston, Texas, in the manufacture, sale, and distribution of
specialized oil well drilling equipment. During 1945, the raw ma-
terials purchased and used by the Company at its Houston plant ex-
ceeded $1,000,000 in value, approximately 75 percent of which was
received from points outside the State of Texas. During the same
period the Company sold finished products exceeding $1,000,000 in
value, approximately 75 percent of which was shipped to points out-
side the State of Texas.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
It. THE ORGANIZATIONS INVOLVED
Independent Metal Workers Union, Locals 1 and 2, affiliated with
the Confederated Unions of America, are labor organizations ad-
mitting to membership employees of the Company.
United Steelworkers of America, Locals 1741 and 2457, affiliated
with the Congress of Industrial Organizations, are labor organiza-
tions admitting to membership employees of the Company.
International Association of Machinists; and Houston Metal
Trades Council, affiliated with the American Federation of Labor, are
labor organizations admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Independent
as the exclusive bargaining representative of certain of its employees,
until the Independent has been certified by the Board in an appro-
priate unit.
In 1941 the Independent was certified by the Board as bargaining
Iepresentative of the Company's production and maintenance
I The CIO contends that the Independent discriminates against its Negro members and,
therefore , is not qualified under the Act to represent the Company's employees . We reject
this contention , however , because the record in no way indicates that the Independent will
not accord equal representation to its Negro members if it is certified by the Board as
collective bargaining agent
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
workers.2 And in December 1942 the CIO was similarly designated
as the bargaining agent of substantially the same group of employee.
Pursuant to the 1942 certification, the CIO and the Company enterea
into a 1 year agreement on April 8, 1943, which provided, inter alia,
that the CIO might take the disputed issue of maintenance of mein-
bership before the War Labor Board for resolution. This issue,
and apparently a number of others which were not mentioned in the
contract, were shortly thereafter certified to the War Labor Board.
In February 1944 the War Labor Board directed only that the con-
tracting parties incorporate a maintenance-of-membership clause into
their agreement. The Company's refusal to comply resulted in a
brief strike, folloil 'ng which, in September 1914, the Army assumed
control of the Company's plant 4 In November 1944 the War Labor
Board issued a final directive, eliminating the provision relative to
maintenance of membership, but requiring a prospective compulsory
check-off of dues of employees who were members of the CIO as of
October 7, 1943. There was compliance with this directive.
In May 1944 the Board issued a Decision and Order in a complaint.
cane initiated by the CIO,5 finding that the Company had violated
Section 8 (5) of the Act by refusing in certain respects to bargain
exclusively with the CIO as the representative of the Company's pro-
duction and maintenance employees, and affirmatively ordering the
Company to treat with the CIO as their sole bargaining agent. In
March 1945 the Fifth Circuit Court of Appeals issued its decree en-
forcing the Board's order in substantial measure.6 There is no
evidence to indicate that the court's decree has not been obeyed.
In November 1944, upon charges filed by the CIO,' the Board issued
a complaint alleging that the Company had violated Section 8 (1) and
(3) of the Act by maintaining a rule prohibiting the solicitation of
union member ship on company time or property and the distribution
of union literature, and by demoting six "supervisors" because of
certain union activities on their part. A hearing was held on this
matter in September 1945, and the Trial Examiner, in his Intermediate
Report issued in March 1946, found that the Company had violated
Section 8 (1) of the Act insofar as its rule prohibited the solicitation
of union membership on company property during non-working time
and that it had also violated Section 8 (3) of the Act by demoting the
six "supervisors"; however, the Trial Examiner further found that
2 See Matter of Hughes Tool Company , 33 N L It . B 1089 ( Decision and Direction of
Election)
3 See Matter of Hughes Tool Company, 45 N. L . It B 821 (Decision and Direction of
Election).
4 Not until August 1945 did the Army relinquish control.
5 See Matter of Hughes Tool Company , 56 N. L. R. B. 981.
6 See Matter of Hughes Tool Company v. N. L R. B , 147 1' (2d) 69 (C. C A. 5)
'Case No 16-C-1158
HUGHES TOOL COMPANY 297
the Company had not interfered with the rights of its employees with
respect to its rule regulating the distribution of union literature. This
case is presently before the Board for decision.
After the hearing before the Trial Examiner, the CIO, in October
1945, filed additional charges with the Board averring that the Com-
pany had contravened Section 8 (3) of the Act by terminating the
employment of Robert O. Nelson. These charges, now pending, are
apparently based upon the Company's allegedly unlawful action in
enforcing against Nelson its rule proscribing solicitation of union
membership.
On January 21, 1946, the CIO called a strike at the Company's
plant, which lasted until April 8, 1946. That day the Company and
the CIO executed a collective agreement. At the time the contract
was drawn, it is clear from the record, the CIO and the Company had
tentatively agreed jointly to request the Board for permission to with-
draw all pending unfair labor practice charges in order to facilitate
the holding of an election by the Board within 6 months of the execu-
tion of the contract. Significantly, the agreement of April 8, 1946,
provides, in part, as follows :
If an election is not held to determine the proper bargaining
agent and if such bargaining agent is not certified by the National
Labor Relations Board within 6 months from the effective date
of this contract, and if, in the opinion of the Company, such
failure to hold an election and certify the proper bargaining
agent is caused in whole or in part by the Union, or if the Union
or any of its members have contributed to such failure, this
contract may be immediately terminated at the election of the
Company by giving of written notice to the Union of its desire
to terminate same . . . . and if another, other than the
present bargaining agent, shall win the election, this contract will
automatically be terminated.
The Independent filed its original petition herein in September
1945, and in April 1946 it filed an amended petition.
At the hearing the CIO urged the dismissal of the Independent's
petition on the grounds, inter alia, that it has an existing contract
with the Company which envisions a period of tranquility for 6
months from April 8, 1946, before an election can be held; that it has
not had an adequate opportunity since its 1942 certification by the
Board to obtain for the employees it represents the benefits of col-
lective bargaining; and that there are pending unfair labor practice
charges against the Company which it filed with the Board. The
Council also sought to dismiss the petition because of the pending
unfair labor practice charges against the Company.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are constrained to disagree with the CIO's construction of the
contract of April 8, 1946. Considering the background against which
it was executed and its specific language, the agreement, we are satis-
fied, does not preclude an election for 6 months following its effective
date. On the contrary, the only valid conclusion which can be
reached is that its terms envisage a speedy redetermination of repre-
sentatives within 6 months of its execution.
Nor, in view of this expressed intention of the contracting parties,
can the CIO be heard to say for any of the reasons it sets forth that
an election should not now be conducted. For, when it bound itself
to the contract, the CIO, we are convinced, waived the right to protest
an immediate determination of representatives predicated upon any
equities it may then have possessed. Moreover, insofar as the CIO
may have encountered any delay in securing for the employees sub-
stantial benefits of collective bargaining because of the proceedings
before the War Labor Board, we note that the final directive issued by
that agency as long ago as November 1944, was given full effect. And
as regards the Company's earlier refusal to bargain in certain re-
spects, there is no evidence of non-compliance with the court's decree,
now more than 1 year old, which in large measure enforced the Board's
order requiring exclusive bargaining with the CIO."
It is true that the Council, which is not a party to the contract of
April 8, 1946, also contends that no election should be held in the face
of the pending unfair labor practice charges. But in view of the
nature of the charges, the fact that the CIO is the charging union
and not the Council, and the peculiar circumstances present in this
case, we are impelled to reject the Council's contention.
Almost 4 years have elapsed since the Company's employees were
last afforded an opportunity to register their choice of a bargaining
representative. Under all the circumstances we think that they should
now be given this right.
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 agreement that the appropriate unit is substan-
tially the same as that found by the Board in its previous determina-
8 The CIO in its motion to dismiss , further asserted that confusion . passion, and preju-
dice among employees at the Company' s plant , generated by its recent strike, precludes the
probability of a free and fair election at the present time . We find no merit in this asser-
tion Nor do we find merit in the CIO's additional contentions that the petition should be
dismissed because the current contract provides for a job evaluation plan which only the
CIO is competent to administer , and because the Independent did not honor its picket lines
during the strike.
HUGHES TOOL COMPANY 299
tion.9 But the Company and the CIO contend that dispatchers and
timekeepers, classifications created since the Board's last certification,
should be excluded from the unit, whereas the Independent and the
Council would include them.
Dispatchers: There are approximately 75 employees in this classi-
fication, which has been in existence for approximately 1 year. They
are paid a salary and are responsible directly to the manager of pro-
duction control. They lay out the work, determine the type of work
to be performed and estimate the time required for the work, give
directions as to what machines are to be run, study production methods
and make recommendations for productive efficiency. They also
occasionally check with the machine work supervisors to assure prog-
ress of the work according to schedule, make minor arrangements for
reworking scrap materials, and expedite work on specific orders. It
is clear from the record that the dispatchers, of whom many have had
previous education in technical engineering, require specialized train-
ing in production-control methods. They must be familiar with the
technical features of the Company's over-all production activities.
The Company has not been able to promote its rank and file workers
to the position of dispatchers, but has been required to recruit these
employees, for the most part, from the outside. In view of the fore-
going facts, particularly the quasi-technical status of the Company's
dispatchers, we are of the opinion that these employees should not
be included in a unit with the production and maintenance employees.
Thus, we shall exclude the dispatchers from the unit hereinafter found
appropriate.
Thnekeepers: There are approximately 20 employees in this classi-
fication, which has been in existence for approximately 2 months.
They obtain attendance time and production reports from foremen
and dispatchers, and by checking the machines on which the work is
being clone. They transmit their reports to the timekeepers located
in the general office who, in turn, compile a record of these reports so
that production costs can be recorded. In consonance with our gen-
eral practice of not including timekeepers in units of production and
maintenance workers, we shall exclude the Company's timekeepers
front the unit hereinafter found appropriate io
We find that all production and maintenance employees of the Com-
pany at its Houston, Texas, plant, including Class C. colored em-
ployees in the maintenance department, and those assigned to the
general machine shop and inspection department; janitors, janitresses,
and matrons; Class C. colored common laborers working in the forge
B See footnote 3, xupra All parties agree, however, to include non-supervisory garage
employees, who were previously excluded. The classifications of cafeteria employees,
station -wagon drivers and parking -lot girls no longer exist
10 See Matter of Bell Airciaft Corporation (Geoigia Dtu8ion), 54 N L It B 1095
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop and in the heat-treat and foundry shop departments ; employees
classified on the Company 's books as F and E employees ; the colored
employees working in the pattern shop ; shipping-department em-
ployees; material control-department employees ; shop clerks; ma-
chinists , mechanics , helpers, and laborers attached to the engineering
department ; the colored truck drivers in the maintenance department;
and garage employees ; but excluding executives , clerical , office, and
professional employees , dispatchers; timekeepers ; instructors in the
industrial relations department; printing-shop employees ; personnel-
department employees ; sales -department employees , other than those
employed in the shipping department ; accounting -department em-
ployees, other than shop clerks ; day office porters; production -depart-
ment employees ; engineers , draftsmen , chemists , metallurgists, and
clerical employees of the engineering department ; and all supervisory
employees with authority to hire, promote , discharge , discipline, or
otherwise effect changes in the status of employees , or effectively recom-
mend 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 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.
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 Rela-
tions 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 Hughes Tool
Company, Houston, Texas , an election by secret ballot shall be con-
ducted 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 Sixteenth 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
HUGHES TOOL COMPANY 301
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 elec-
tion, to determine whether they desire to be represented by Independent
Metal Workers Union, Locals 1 and 2, CUA; or by United Steel-
workers of America, Locals 1742 and 2457, CIO; or by International
Association of Machinists and Houston Metal Trade Council, for the
purposes of collective bargaining, or by none.