Marlin-Rockwell Corp.

National Labor Relations Board - Board Decisions

Feb 11, 1938

5 N.L.R.B. 206 (N.L.R.B. 1938)

Jr, the Matter of MARLIN-ROCKWELL CORPORATION and LOCAL No.
338, UNITED AUTOMOBILE WORKERS OF AMERICA
Case No. R-340.-Decided February 11, 1938
Ball Bearings Manufacturing Industry-Invest',gation of Representatives:
controversy concerning representation of employees : refusal by employer to recog-
nize and bargain with petitioning union-Unit Appropriate for Collective Bargain-
mg. all employees, including set-up men and laboratory men; eligibility for
membership in only organization among employees ; community of interest-
Election Ordered
Mr. Peter J. Crotty, Mr. Edward D. Flaherty, and Mr. Gerhard
Van Arkel, for the Board.
Slee, O'Brian, Hellings & Ulsh, by Mr. Dana B. Hellings, of
Buffalo, N. Y., for the Company.
Mi'. Daniel B. Shortal, of Buffalo, N. Y., for the Union.
Mr. A. Bruce Hunt, Jr., of counsel to the Board.
DECISION
AN D
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 5, 1937, International Union United Automobile Work-
ers of America, Local No. 338,1 herein called the Union, filed with the
Regional Director for the Third Region (Buffalo, New York) a peti-
tion alleging that a question affecting commerce had arisen concerning
the representation of employees of Marlin-Rockwell Corporation,
Jamestown, New York, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On September 24, 193 7 , the Union filed an amended petition.
On September 21, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
'Although the petition was signed "International Union United Automobile Workers of
America By : George S. Wilson", it is clear from the record that the proceedings through-
out were on behalf of the Local, rather than the International Union.
206
DECISIONS AND ORDERS 207
On September 28, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
upon the Union . Pursuant to the notice and to an amended notice of
hearing duly served upon the Company , a hearing was held on Octo-
ber 18 and 19, 1937, at Jamestown , New York, before Charles E.
Persons, the Trial Examiner duly designated by the Board. Although
the record in this case does not show that a copy of the amended
notice was served upon the Union , it appeared at the hearing. The
Board, the Company, and the Union were represented by counsel and
participated in the hearing . Full opportunity to be heard , to exam-
ine and to cross-examine witnesses , and to introduce evidence bearing
on the issues was afforded all parties . During the course of the
hearing the Trial Examiner made several rulings on motions and on
objections to the admission of evidence . The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial er-
rors were committed . The rulings are hereby affirmed.
On October 14, 1937, counsel for the Company filed with the Board
a motion for a subpena duces tecun , the purpose of which was to
enable said counsel to obtain "all books of record , membership lists,
membership records, books of account , financial records, minute
books, by-laws , and correspondence " of the Union . On October 16,
1937, the Board denied the motion . At the hearing , the motion was
renewed, and the same is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY 2
The Company, a Delaware corporation, has its principal office and
place of business in Jamestown, New York. The Company manufac-
tures and sells ball bearings, for which purpose it maintains two
plants, one at Jamestown, New York, and the other at Plainville,
Connecticut. We are here concerned only with the Jamestown plant,
at which the Company normally employs in excess of 450 persons.
During the year 1936, approximately 2700 tons of raw materials,
principally steel tube, bar stock, forging, strip steel, steel balls, and
ball stock, valued at approximately $675,800 were shipped to the
Jamestown plant, approximately 90 per cent of the shipments being
made from Ohio, Pennsylvania, Connecticut, and Illinois.
During the year 1936, the Company manufactured at its James-
town plant approximately 1634 tons of ball bearings, valued at about
$2,600,000. Approximately 75 per cent of the ball bearings were
The facts set forth in this section are obtained partly from the testimony at the
hearing, but principally from a stipulation entered into by counsel for all parties to this
proceeding, filed as Board Exhibit No. 2,
208 NATIONAL LABOR RELATIONS BOARD
shipped outside of the State of New York, principally to customers
in Ohio, Pennsylvania, Missouri, Wisconsin, Michigan, Connecticut,
and Illinois. The main customers of the Company are automobile
manufacturing concerns, which purchase approximately 60 per cent
of the Company's products.
The Company employs 17 salesmen, who travel throughout the
United States and solicit orders which are sent to the Jamestown
plant to be filled. The Company advertises in the American Ma-
chinist and other mechanical magazines of nation-wide circulation.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile Workers of America is a
labor organization affiliated with the Committee for Industrial Or-
ganization. Local No. 338 apparently admits to its membership all
production and maintenance employees of the Company, excluding
those employees in clerical, supervisory, executive, and sales posi-
tions.
III. THE QUESTION CONCERNING REPRESENTATION
On July 26, 1937, a committee representing the Union called upon
officials of the Company and endeavored to obtain recognition of
the Union as the bargaining representative of the production and
maintenance employees of the Company. At this time no concrete
evidence of membership in the Union was offered to officials of the
Company and recognition was refused. On or about September 3,
1937, after the consent election discussed in Section VI below, the
Union again endeavored to obtain such recognition from the Com-
pany and again was refused. The position of the Company is that
the Union has never proved that it represents a majority of the pro-
duction and maintenance employees.
• We find that a question has arisen concerning representation of
the employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
In the amended petition filed on September 24, 1937, the Union
alleges that all "employees except those in supervisory, clerical, execu-
DECISIONS AND ORDERS 209
Live, or sales positions" constitute an appropriate bargaining unit.
At the hearing, the Union asked that set-up men, apprentices, labora-
tory workers, and two employees by the names of Burr and Williams
also be excluded from the unit.
Normally, the duties of the set-up men, numbering approximately
30, are to "set-up" the machines which are operated by the production
employees. The set-up men are paid on an hourly basis, whereas the
production employees are paid on a piece-work basis. The set-up
men are among the oldest and most experienced employees and were
at one time machine operators. The record indicates, however, that
notwithstanding certain differences between the set-up men and other
production employees, the interests of the set-up men are closely
associated with those of the other employees. That the Union has
recognized such a community of interests is shown by the fact that
the set-up men are eligible to membership in the Union and some of
them have become members thereof. Indeed, the objection of the
Union to the inclusion of the set-up men in the bargaining unit was
apparently upon the basis of a mistaken impression that such em-
ployees have the authority to hire and fire. We conclude, therefore,
under all the facts that the set-up men should be included in the
bargaining unit.
The apprentices, numbering five or six, are employed under a
contract between the Company, the State Department of Education,
the Jamestown Board of Education, and the guardian of the partic-
ular apprentice. Under the contract, the Company agrees to employ
the apprentice for a maximum period of four years or 8,000 hours
of work at a stipulated rate of pay, which is altered each six months,
and also agrees to instruct the apprentice in the mechanics of his
particular trade. We feel the apprentices should be excluded from
the bargaining unit.
The laboratory men, numbering seven, examine the raw materials
before they are used in production. Although some of them possess
college training, the record indicates that such examination requires
no particular skill or training and that ordinary workers are able to
do the examining. Although the record does not show that the
laboratory men have joined the Union, they are apparently eligible
to its membership. We feel, therefore, that they should be included
in the bargaining unit.
Burr examines shipments which are returned to the Company by its
customers as defective. Williams examines the gauges used by the
machine operators to check the accuracy of the production machines.
The record does not show that either Burr or Williams supervises
the work of any employees. Objection of the Union to the inclusion
of these men within the bargaining unit seems to have been based
on a mistaken impression that they possessed the power to employ
210 NATIONAL LABOR RELATIONS BOARD
or discharge workers or that it was their duty to recommend dis-
charges.- Accordingly , they will be included in the bargaining unit.
The engineers and draftsmen employed by the Company are eligible
to membership in the Federation of Architects , Engineers , Chemists,
and Technicians , and their duties more closely relate them to the
management than to the other workers . They are essentially technical
or clerical employees and will be excluded from the bargaining unit.
We find that all the employees of the Company at its Jamestown,
New York, plant , excluding supervisory , clerical , executive , and sales
employees , engineers, draftsmen , and apprentices , constitute a unit
appropriate for the purposes of collective bargaining and that said
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. TIIE DETERMINATION OF REPRESENTATIVES
On or about August 10, 1937, the Company and the Union agreed to
hold a consent election at the Company 's plant for the purpose of
determining whether the Union represented a majority of the pro-
duction and maintenance employees of the Company. It was agreed
that the election should be held on August 21, 1937, from 11: 30 a. in.
to 3: 30 p. in. and that the election should be conducted under the
direction of a representative of the Board. It was also agreed that
all production and maintenance employees on the Company's pay roll
as of August 14, 1937, exclusive of foremen, engineers, draftsmen,
chief inspectors, three laboratory men, clerical employees, office em-
ployees, salesmen,. and timekeepers, would be eligible to vote at the
election.
The result of the election is shown by the Union 's Exhibit No. 13,
as follows :
Total number eligible to vote___ _________________ 429
Total number ballots counted____________________ 334
Total number of votes in favor of the ' Union ------ 202
Total number of votes against the Union---------- 129
Total number of void ballots--------------------- 3
The Union thus failed by 13 votes to obtain a majority of the em-
ployees eligible to vote, 95 of such employees failing to vote. The
Union claimed at the hearing that all or most of the 95 employees
failed to vote because the polls did not open until 1 p. m. due to the
unavoidable tardiness of the representative of the Board under whose
direction the election was conducted . The record indicates that a
large number of employees who would otherwise have done so failed
to vote on account of delay in the opening of the polls. It should also,
be noted that the employees who were eligible to vote at the consent
election differ somewhat from the employees in the unit which we
DECISIONS AND ORDERS 211
end appropriate for collective bargaining purposes. We are, under
the circumstances, unable to certify representatives on the basis of the
results of the consent election. Nor has the Union proved by other
evidence that it represents a majority of the employees in the appro-
priate unit.
We find, therefore, that the question which has arisen concerning
representation can best be resolved by the holding of an election by
secret ballot. All employees within the appropriate unit on the pay
roll as of September 24, 1937, the date of the amended petition, shall
be eligible to vote.
Upon the basis of the above findings of fact and upon the entire
.record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Marlin-Rockwell Corporation, Jamestown,
New York, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All of the employees of the Company at its Jamestown, New
York, plant, excluding supervisory, clerical, executive, and sales
,employees, engineers, draftsmen, and apprentices, constitute a unit
.appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
'hereby
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purpose of collective bargaining
with Marlin-Rockwell Corporation, Jamestown, New York, an elec-
tion by secret ballot shall be conducted within fifteen (15) 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, Section 9, of said Rules and Regulations, among all the employees
of the Company who were employed at the Jamestown, New York,
plant as shown on the pay roll as of September 24, 1937, excluding
those who have since quit or been discharged for cause and excluding
clerical, supervisory, executive, and sales employees, engineers, drafts-
men, and apprentices, to determine whether or not they desire to be
represented by the United Automobile Workers of America, Local No.
338, for the purposes of collective bargaining.