Kane & Roach, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1944

58 N.L.R.B. 1656 (N.L.R.B. 1944)

In the Matter of KANE & ROACH, INC. and LOCAL #381, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, A. F. L.
Case No.' 33-R-8i1.Decided October 31, 1944
Fraser Brothers, by ?fr. Henry' S. Fraser, of Syracuse, N. Y., for
the Company.
Mr. Harry I. Smith, of Buffalo, N. Y., and Mr. Clark H. Goodrich,
of Seneca Falls, N. Y., for the Union.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
a AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local #381, International Associa-
tion of Machinists, A. F. L., herein called the Union, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Kane & Roach, Iiic.,' Syracuse, New York, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Milton A. Nixon,
Trial Examiner. Said hearing was held at Syracuse, New York, on
October 3, 1944. The Company and the Union appeared and par-
ticipated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the close of the hearing, the Company moved
to dismiss the petition. The Trial Examiner referred the motion to
the Board for determination. For reasons hereinafter appearing, 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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Kane & Roach, Inc., is a New York corporation engaged in the
manufacture of straightening, forming, and bending machines at its
1 Name as amended at the hearing.
58 N L R. B., No. 299.
1656
KANE & ROACH, INC. 1657
plant in Syracuse, New York. During 1943, the Company used at
its said plant raw materials valued in excess of $100,000, of which
more than 10 percent represents shipments from points outside the
State of New York. During the same period, its products finished
at its said plant, excluded $300,000 in value, of which more than 50
percent was shipped to points outside that State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Local #381, International Association of Machinists, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that, on or about August 20, 1944, the Union
notified the Company that it represented a majority of the Company's
production and maintenance employees and requested recognition as
their exclusive bargaining representative, and that the Company re-
fused to recognize the Union until it has been certified by the Board
in an appropriate unit.
A statement of a Board Field Examiner, introduced into evidence
at the hearing, indicates that the Union represents a substantial num-
ber of employees in the unit hereinafter found appropriate.'
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
Both parties are in agreement that the -appropriate unit should
comprise all the Company's production and maintenance employees,
excluding dispatchers, nurses, timekeepers, pattern makers, draftsmen,
engineering department employees, clerical employees,' supervisors,
2 The Field Examiner reported that the Union submitted 54 application cards, and that
the alleged appropriate unit contained approximately 70 employees.
The Company moves for dismissal of the petition on the ground that no competent
proof was presented establishing that the Union was designated by the Company's em-
ployees as their representative It argues that the Field Examiner's report, which was
received in evidence over its objection , is merely hearsay and not the best evidence , and that
the Company was deprived of its right to cross-examine the Field Examiner and inspect
the application cards in violation of the Fifth Amendment to the Constitution. These
are the same arguments advanced by the Company's counsel in behalf of the employer in
Matter of Seneca Falls Machine Company , 58 N. L It. B 1413, which we found to be
without merit . For the reasons contained in Matter of Seneca Falls Machine Company,
we likewise reject the Compan}'s contentions in the instant proceeding
3 The parties define clerical employees as those employees whose work is essentially
clerical whether 'orfornied in the office or factory.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen, the chief inspector, and all other supervisory personnel.
However, they are in dispute with respect to the inspector, whom the
Union would include and the Company would exclude.
At the present time, the Company employs one inspector whose
inspection bench is in a specified section of the plant. Essentially,
it is his duty to check against blueprints products completed or in
the process of manufacture in the grinding and lathe departments.
Concededly, he has no power to reject work, although his recommen-
dations are accorded weight by his superiors. If, in his opinion, a
product does not conform to blueprint specifications, the inspector
reports it to the foreman of the department where the work was done.
Should the foreman disagree with him and apparently refuse to have
the purported error corrected, the inspector may discuss the matter
with the general foreman. The inspector works the same hours as
other employees in the factory and, like them, receives an hourly rate
of pay which, on 'the average, may be slightly higher than that re-
ceived by such other employees. In view of the facts that the inspec-
tor's function is an integral part of the production process, and he
does not possess any inclicia of authority which would bring him within
our customary definition of supervisory employees, we shall include
him 4
It appears that, in connection with a pending reorganization, the
Company intends by next month to employ a chief inspector and two
assistant inspectors. The parties stipulated to the exclusion of the
chief inspector as supervisory, but are in dispute with respect to the
assistant inspectors, whose duties, according to the record, will sub-
stantially correspond to those of the present inspector. Accordingly,
we shall include the assistant inspectors.
We find that all the Company's production and maintenance em-
ployees, including the inspector and assistant inspectors, but excluding
dispatchers, nurses, timekeepers, pattern makers, draftsmen, engineer-
ing department employees, clerical employees, supervisors, foremen,
the chief inspector, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employes, or effectively recommend such action, consti-
tute 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 employ-
ees in the appropriate unit who were employed during the pay-roll
s lfatte• of Westinghouse Electric cC Manufacturing Company, 45 N. L. R. B. 826.
D
`KANE & ROACH, INC. 1659,
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
The Company requests that its employees now on military leave be
permitted to vote by mail. For the reasons stated in the Mine Safety,
Appliance Co. case,' we shall direct that only persons in the armed
forces who present themselves at the polls may vote in the election.
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 Kane & Roach,
Inc., Syracuse, New York, 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 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 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 the
said pay-roll period because they were ill or on vacation or tempo-
rarily 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 repre-
sented by Local #381, International Association of Machinists, Amer-
ican Federation of Labor ,6 for the purposes of collective bargaining.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.
5 Matter of Mine Safety Appliance Co., Gallery Plant, Gallery, Pa, 55 N L R B 1190;
See also Matter of Seneca ]Falls Machine Company, 58 N L R B 1413
Petitioner requests that its name be designated on the ballot as it appears in the
Direction of Election.