Mergenthaler Linotype Co.

National Labor Relations Board - Board Decisions

Nov 4, 1948

80 N.L.R.B. 132 (N.L.R.B. 1948)

In the Matter of MERGENTHALER LINOTYPE COMPANY, EMPLOYER and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, PETITIONER
In the Matter Of MERGENTHALER LINOTYPE COMPANY, EMPLOYER and
LOCAL NO. 3, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
A. F. OF L., PETITIONER
Cases Nos. 19-RC-472 and 2-RC-1281, respectively.-Decided
November 4,1948
DECISION
AND
DIRECTION OF ELECTIONS
-Upon petitions duly filed, a consolidated hearing' in this case was
- held at New York City, on May 20 and 21, 1948, before Chester L.
-Migden, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
During the course of the hearing and at its close, the Intervenor
moved to dismiss the petitions on the ground, among others, that the
amended Act is unconstitutional in that it violates the 1st, 5th, and 9th
Amendments of the Constitution. The motion to dismiss, referred
to the Board by the hearing officer, is denied as to this contention as
the constitutionality of the amended Act will be presumed in the
absence of contrary court decisions,2 and is denied as to the other
grounds for reasons hereinafter stated.
* Chairman Herzog and Members Reynolds and Murdock.
1 Cases Nos . 2-RC-272 and 2-RC-281 were consolidated pursuant to an order of the Re-
gional Director for the Second Region. The Amalgamated Machine, Instrument & Metal
Workers, Local 475, United-Electrical , Radio, & Machine Workers of America , CIO, herein-
after referred to as Intervenor , was allowed to intervene at the hearing without objection.
z See Rite -Form Corset Company, Inc.,l75 N. L. R. B. 174.
80 N. L . R. B., No. §0.
132
ME!IGENTHALER LINOTYPE COMPANY 133
Upon the entire record in this case , the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Employer stipulated and we find that it is engaged in com-
merce within the meaning of the National Labor Relations Act.3
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, UAW-CIO, hereinafter referred to
as UAW, the Petitioner in Case No. 2-RC-272, is a labor organization
affiliated with the Congress of Industrial Organizations, claiming to
represent employees of the Employer.
Local No. 3, International Brotherhood of Electrical Workers, A. F.
of L., hereinafter referred to as IBEW, the Petitioner in Case No.
2-RC-281, is a labor organization affiliated with the American Fed-
eration of Labor, claiming to represent employees of the Employer.
Amalgamated Machine, Instrument and Metal Workers, Local No.
475, United Electrical, Radio and Machine Workers of America, CIO,
Intervenor herein, is a labor organization affiliated with the Congress
of Industrial Organizations, claiming a contractual interest to repre-
sent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
Local 1222, United Electrical, Radio and Machine Workers of
America, CIO, was certified by the Board as representative of the
employees in the unit now sought by the UAW following an election
held in 1937.4 In 1939, the Intervenor became the successor to Local
1222 and from that time to the present, the Intervenor and the Em-
ployer have maintained collective bargaining agreements. The last
contract was for a period of 1 year and was dated July 19, 1947, with
provision for automatic renewal in the absence of written notice of
termination by either party 30 days prior to the expiration date. On
April 1, 1948, the UAW claimed recognition from the Employer as
3 See Mergenthaler Linotype Company, 3 N L. R B 131 ; and 6 N. L. R B 671.
4 See Mergenthaler Linotype Company , 3 N. L R B 131 In the same proceedings sep.
arate units of metal polishers , platers, and buffers in Department "N" and typographical
employees were established These separate units are not involved in this case and, con-
trary to the contention of the Intervenor , were not entitled to notice of hearing inasmuch
as they have no active interest in these proceedings . United Boat Service Corp., 55
N. L. R. B. 671.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representative of the employees in the unit petitioned for,
and on April 2, 1948, the UAW filed this petition. The IBEW made
a claim for recognition to the Employer on April 5, 1948, as bargain-
ing representative for the maintenance electricians and filed its peti-
tion on the same day. The Employer refused to recognize either of
the Petitioners in the absence of Board certification. Notification of
a desire to terminate the existing contract was sent to the Intervenor
by the Employer on June 10, 1948.
The Intervenor contends that the July 19, 1947, contract is a bar to
these proceedings. As both petitions were filed, and as the Employer's
notice of termination was sent, before the effective date of the auto-
matic renewal clause of the contract, it cannot be a bar to these
proceedings .5
The Intervenor also argues that an election ordered by the Board
in the instant case would affect an outstanding certification within the
meaning of Section 103 of the Labor Management Relations Act of
1947, because its contract with the Employer was entered into prior
to the effective date of the Act. As this contract of July 19, 1947, has
now expired we find no reason to rule upon this contention.
The Intervenor further contends that there is no testimony on the
record of the interest of the UAW ; that the UAW is not the real peti-
tioner in Case No. 2-RC-272, but is merely acting for an allegedly
existing Local 770; and that an offer by the Intervenor to prove that
neither the alleged Local 770 nor the UAW had complied with the
filing requirements of Section 9 (f), (g), and (h) of the amended Act
was wrongfully denied at the hearing by the hearing officer. We find
no merit in these contentions. We have previously ruled that the
determination of whether a petitioner has made a sufficient showing
of interests and whether it has complied with the filing requirements
of the Act are matters of administrative competence and are not
litigable by the parties. There was testimony in the record to the
effect that there was no local of the UAW existing at the plant herein;
there was no showing of the actual existence of the alleged local and
there was no showing of subterfuge or of incapacity to undertake
bargaining on the part of the UAW."
Accordingly, we find that a question affecting commerce exists con-
cerning the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
5 See Southern Advance Bag & Paper Company, Inc., 75 N. L. R. B. 614.
See O . D. Jennings & Company, 68 N. L. R. B. 516.
T See Ozark Dam Constructors , 77 N. L. R. B. 1136.
Cf. United States Gypsum Company , 77 N. L. R. B. 1098.
MERGENTHALER LINOTYPE COMPANY 135
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The UAW seeks a unit composed of all production and maintenance
employees at the Brooklyn factories of the Employer, excluding execu-
tives, foremen, assistant foremen, timekeepers other than departmental
timekeepers, set-up men, employees in the Engineering Department,
the Research and Development Department and Department
"N", employees in classifications represented by the International
Typographical Union, main office and Matrix factory office employees,
and all supervisors as defined in the Act. The IBEW seeks
a unit confined to the electrical maintenance employees. The present
unit, as represented by the Intervenor, is similar to that sought by the
UAW. The Intervenor, the Employer, and the UAW oppose the
separate unit of electrical maintenance employees requested by the
IBEW.
The Employer's plant is divided into four departments known re-
spectively as Production, Maintenance, Tool Room, and Matrix Man-
ufacture. There are approximately 2,300 employees in the unit sought
by the UAW. There are 13 employees engaged in electrical mainte-
nance, excluding the foreman who is a licensed engineer. Of these lat-
ter employees, 6 are classified as Grade A electricians ; 2 as Grade B elec-
tricians; 1 as coil or armature winder; and 4 as helpers.. The coil
winder possesses the highest skill and works on the repair of motors
without supervision. The Grade A electricians work without imme-
diate supervision and must be able to lay out, install, and maintain all
types of complex electrical equipment and controls, as well as to diag-
nose any type of electrical trouble. The Grade B electricians work
under supervision of the foreman and are qualified to do all electrical
work pertaining to maintenance, construction, heat, light, and power.
The helpers obtain tools for the electricians and perform simple opera-
tions which are within the skill of ordinary laborers. There is no
interchange of electricians with the other departments of the Em-
ployer's plant, although the helpers are shifted from one department
to another. When the helpers are assigned to the electricians, how-
-ever, they work exclusively with them. There is no apprenticeship
system at the Employer's factory and the electricians are required to
have attained the requisite skills before employment at the plant.
The machines used by the Employer in the production of its prod-
uct are electrically driven, and the entire factory depends upon elec-
tricity for heat, light, and power. The electricians work throughout
the factory and their work is done under plans and specifications
which must be approved by municipal authorities. They replace and
install motors, making the necessary connections to power lines. Their
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work is exclusively electrical in nature although often performed in
cooperation and conjunction with other employees, and is of a skilled
and dangerous nature commonly known as electrical craft work. The
electricians are, to a large extent, segregated from other employees
insofar as lockers and working quarters are concerned although the
main portion of their time is spent in work done at varying points in
the plant.
The electrical maintenance employees have been included in the
general production and maintenance unit during the entire bargaining
history. It appears that in 1943, the electricians made preliminary
steps to secure separate recognition for bargaining but were advised
by the IBEW to wait until they could secure 100 per cent membership
in the proposed unit. While claims of dissatisfaction with present
grievance procedures were made by the IBEW during the hearing,
there were no instances shown in which such dissatisfaction was more
than tacit. The only other linotype factory in the region has a plant-
wide unit which includes the maintenance electricians.
We have generally held that when employees in a proposed unit are
commonly engaged in craft work of a distinctive nature, such as elec-
tricians, they should be allowed severance from an existing plant-wide
unit according to their wishes as expressed in a self-determination
election.9 However, we have made exception to this rule when there
does not appear to be a true craft involved,10 or when there are highly
integrated operations of a special nature" and there is a history of
collective bargaining on a plant-wide basis.
It is urged in the instant case that the proposed unit of the IBEW
is not composed of employees doing skilled work of a craft nature.
However, with the exception of the four helpers, the job classifications
covering the categories of electricians in the unit indicate that a high
degree of training and skill is required before employment. From
the record it is evident that these employees are continually and ex-
clusively engaged in a work of a dangerous and specialized type.
We commonly include helpers in such units notwithstanding the fact
that they are not skilled. It is also argued that the maintenance elec-
tricians perform their functions in such close coordination with other
maintenance and production employees as to constitute a part of a
highly integrated production system. In the Ford case,l2 we found
See Lockheed Aircraft Corporation , 77 N. L . R. B. 507 ; Hughes Tool Company, 77
N. L. R. B. 1193; Waldorf Paper Products Co, 76 N. L R. B 127.
is See National Carbide Corporation, 77 N. L. R. B. 454 ; Allis-Chalmers Mfg. Co., 77
N. L. R. B. 719.
"See National Tube Company, 76 N L. R. B. 1199; Ford Motor Company ( Maywood
Plant ), 78 N. L. R B 887.
12 Ford Mgtor Company (Maywood Plant), 78 N. L . R. B 887.
MERGENTHALER LINOTYPE COMPANY 137
that the maintenance electricians, therein at issue, were regularly as-
signed to portions of the assembly-line process and that their work
was essentially a part of that process. In National Tube,13 we found
that the bricklayers performed functions that were intimately con-
nected with the steelmaking process itself, and that their work dif-
fered from that of the usual craft maintenance employees whose work
"on any particular piece of production equipment occurs for the most
part at irregular intervals." The record in this case clearly shows that
the maintenance electricians are not regularly assigned to any seg-
ment of the production process, but rather that their job assignments
continually vary as to type, circumstances, and place.14 Inspection
and occasional minor repair of motors installed in the finished product
are a limited and sporadic participation in the production scheme
that does not change the essential character of the maintenance elec-
tricians' over-all job. We conclude, therefore, that the work of the
electricians is not as essentially a part of the assembly line produc-
tion process as in the cited cases.
We find that the electrical maintenance employees, including the
regularly assigned helpers, but excluding the foreman, are an identi-
fiable, skilled, and homogeneous group and may constitute an appropri-
ate unit, if they so desire, notwithstanding their previous inclusion in
a broader unit. However the Board will not make any unit deter-
mination until it has first ascertained the desires of the employees-
involved. If, in the elections hereinafter ordered, the electricians
select the IBEW, they will be taken to have indicated their desire to'
constitute a separate bargaining unit.
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
employees within the voting groups described below :
1. All maintenance electricians at the Employer's Brooklyn factory,
including the regularly assigned helpers, but excluding the foreman
and any other supervisors;
2. All remaining production and maintenance employees at the
Employer's Brooklyn factory excluding executives, foremen, assist-
ant foremen, timekeepers other than departmental timekeepers, set-up
men, employees in the Engineeripn Department, the Research and
Development Department, and De tment "N," employees in classifi-
cations represented by the International Typographical Union, main
office and Matrix factory office employees, guards, watchmen, and all
supervisors as defined in the Act.
13 National Tube Company , 76 N. L. R B. 1199
34 See Hunter Packzng Company , 79 N. L. R. B. 197.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION OF ELECTIONS 15
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Mergenthaler Linotype Com-
pany, Brooklyn, New York, elections by secret ballot shall be con-
ducted as early as possible, but not later than 30 days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Second Region, and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, as amended, among the employees in the voting groups in-
dicated below, who were employed during the pay-roll period imme-
diately 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, but excluding employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the elections, and also excluding em-
ployees on strike who are not entitled to reinstatement :
1. To determine whether the employees in the first voting group
described in Section IV, above, desire to be represented by the Inter-
national Brotherhood of Electrical Workers, A. F. of L., Local Union
No. 3, or by the International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW-CIO, or by
neither.
2. To determine whether or not the employees in the second voting
group described in Section IV, above, desire to be represented by the
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, UAW-CIO.
w As the Intervenor has not complied with the filing requirements of Section 9 (f), (g),
and (h), it will not be placed on the ballot