Mines Equipment Co.

National Labor Relations Board - Board Decisions

Jul 27, 1945

62 N.L.R.B. 1460 (N.L.R.B. 1945)

In the Matter Of MINES EQUIPMENT COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, CIO
Case No. 14-C-1016.-Decided July 27, 1945
Ryburn L. Hackler, for the Board.
Messrs. Daniel Bartlett and John Hanlon, of St. Louis, Mo., for the
respondent.
Mr. Victor Pasche, of St. Louis, Mo., for the Union.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Electrical, Radio & Machine Workers
of America, CIO, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Fourteenth
Region (St. Louis, Missouri), issued its complaint dated January 20,
1945, against Mines Equipment Company, St. Louis, Missouri, herein
called the respondent, alleging that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint, accompanied by notice of hearing, were duly served upon
the respondent and the Union.
With respect to. the unfair labor practices, the complaint alleged in
substance (1) that all employees engaged in Departments 4 and 5 of the
respondent's operations, exclusive of clerical, plant-protection, and super-
visory employees, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act; (2)
that, on August 30, 1944, a majority of the employees in said unit desig-
nated the Union as their representative for the purposes of collective bar-
gaining with the respondent; (3) that, on or about November 10, 1944,
62 N. L. R. B., No 203.
1460
MINES EQUIPMENT COMPANY 1461
the Union requested the respondent through its officers and agents to
bargain collectively with the Union as exclusive representative of all
employees in said unit as to rates of pay, wages, hours of employment, and
other conditions of employment; and (4) that, on or about November
10, 1944, and at all times thereafter, the respondent refused and con-
tinues to refuse to bargain collectively with. the Union as the exclusive
representative of all employees in said unit. On January 30, 1945, the
respondent filed an answer in which it denied the material allegations of
the complaint.
Thereafter, the respondent, the Union, and the Board's Attorney
entered into a stipulation in substance waiving hearing and providing
that, in lieu thereof, the record in the instant proceeding should consist
of the stipulation and the entire record and briefs in a Board representa-
tion proceeding entitled "In the Matter of Mines Equipment Company
and United Electrical, Radio and Machine Workers of America," Case
No. 14-R-919. The stipulation further provided that, upon the record so
made, without further hearing on the complaint in the instant proceeding,
an Intermediate Report by the Trial Examiner might be issued and filed
or, in lieu thereof, the Board might issue Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order.
On February 16, 1945, the Board, acting pursuant to Article II, Sec-
tion 36 (a), of National Labor Relations Board Rules and Regulations
-Series 3, as amended, ordered that the proceeding be transferred to
and continued before it for the issuance of proposed findings. On June
5, 1945, the Board issued its Proposed Findings of Fact, Proposed Conclu-
sions of Law, and Proposed Order, and on June 20, 1945, the respondent
filed exceptions thereto.
The Board has considered the exceptions to the Proposed-Findings of
Fact, Proposed Conclusions of Law, and Proposed Order, the briefs filed
in\Case No. 14-R-919, and the entire record in the case, and insofar as
the exceptions are inconsistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Mines Equipment Company, a Missouri corporation, is engaged at
its plant in St. Louis, Missouri, in the manufacture, sale, and distribution
of electrical connectors, instrument lights, and cable vulcanizers. During
the calendar year 1943, it purchased raw materials consisting of rubber,
brass, copper, steel, and aluminum valued at approximately $3,000,000 of
which 85 percent was shipped to it from points outside the State of
Missouri. During the calendar year 1943, the respondent manufactured
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finished products valued at approximately $8,000,000, of which 90 percent
was sold and transported to points outside the State of Missouri.
11. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
1. The appropriate unit
On May 31, 1944, in Case No. 14-R-919, referred to above, the Board
issued a Decision and Direction of Election,' directing that an election be
conducted among all employees of the respondent at its Kingshighway
plant, exclusive of clerical, supervisory, and plant-protection employees.
At the time of the issuance of the said Decision and Direction of Election,
Departments 4, 5, and 9 of the respondent's operations were located at
the respondent's Kingshighway plant and all other departments of its
operations were located at the respondent's Clayton plant. In its Decision
of May 31, 1944, the Board considered the respondent's contention that
its operations were so centralized that all unskilled employees at both
plants should be represented in a single unit, and found that, for the
reasons advanced by the respondent, unskilled employees at both plants
might well constitute an appropriate unit for bargaining. The Board further
found, however, that only the employees in the unit requested by the
Union were desirous of immediate collective bargaining, and that the
requested unit comprised an identifiable group of employees who might
feasibly be represented, apart from other employees, for the purposes of
collective bargaining. Under these circumstances, the Board found that
a unit confined to that identifiable group was appropriate for immediate
collective bargaining, but expressly provided that its determination of the
appropriate unit would not preclude a reexamination of the issue at a
later stage of employee organization.
On September 9, 1944, following an election which was won by the
Union, the Board certified the Union as the exclusive bargaining repre-
sentative of employees at the Kingshighway plant, exclusive of clerical,
supervisory, and plant-protection employees.
Thereafter, on September 15, 1944, the respondent filed an "Application
for Order to Set Aside Decision and Order of Election and Certificate
of Representation," alleging, inter alia, that, since the issuance of the cer-
tification, the respondent had transferred all its employees at the Kings-
highway plant to the Clayton plant, and that the factors upon which the
1 56 N L. R B 1146
MINES EQUIPMENT COMPANY 1463
Board based its finding of appropriate unit in its Decision and Direction
of Election were no longer present.
On October 11, 1944, a further hearing, pursuant to an order of the
Board, dated September 26, 1944, reopening the record, was held upon
due notice at St. Louis, Missouri, all parties participating. Upon con-
sideration of all the evidence adduced therein, and the record theretofore
made, the Board, on November 2, 1944, issued a Second Supplemental
Decision and Amended Certification of Representatives in which it found
(1) that Departments 5 and 9 of the respondent's operations had been
combined and transferred from the Kingshighway plant to the Clayton
plant; (2) that Department 4 had been retained at the Kingshighway
plant, but was being terminated; (3) that the functions and supervision of
the former Kingshighway employees had not been changed ; and (4) that,
although certain of the factors considered by the Board in its original
unit determination no longer existed, the changes were not of "sufficient
significance to render the employees now comprising Department 5 inap-
propriate as a unit and to deprive them of the right to bargain collectively
in accordance with their desires as expressed while they were located at
the Kingshighway plant." Accordingly, on November 2, 1944, the Board
refused to set aside its certification, but, amending it to fit the changes
in the respondent's organization, certified the Union as the exclusive bar-
gaining representative of all employees engaged in Departments 4 and 5
of the respondent, exclusive of supervisory, clerical, and plant-protection
employees?
Thereafter, on November 13, 1944, the respondent filed with the Board
a "Petition for Further Hearing and for Oral Argument," and'the Board,
on November 18, 1944, upon consideration thereof, denied the petition.
In briefs and other documents filed after issuance of the Board's Deci-
sion and Direction of Election, the respondent has questioned the accuracy
of the findings upon which the Board based its original conclusion that
the employees involved herein. comprise an identifiable group, namely :
(1) that transfers between departments of the respondent's operations are
principally of a permanent nature; (2) that there were "substantially
independent operations" carried on in the Kingshighway plant ; and (3)
that the employees in the Kingshighway plant were "primarily engaged
in assembling and the Clayton plant in fabricating and processing."
Witnesses for the respondent testified that "borrowing" of employees
was a common practice between plants. However, an analysis of the re-
spondent's exhibits, listing all transfers effected for a period of approxi-
mately 5 months preceding the original hearings indicates that an average of
two employees per month N\,ere temporarily transferred, all other transfers
2 Although Department 4 was winding up operations , the Board held that the employees therein
weic entitled to be iepiescuted until the discontinuance of the department.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear to be of a permanent; nature a In our opinion, the extent and char-
acter of the transfers into and out of the unit heretofore found appropri-
ate are insufficient to warrant a finding that the employees comprising
the unit are not an identifiable group.
The Board's finding that "substantially independent operations" were
carried on at the Kingshighway plant was based upon the fact that the
Kingshighway plant' handles a different product from that handled by
any other department and upon the further fact that it has its own super-
vision and is geographically separated from other departments.`
The Board's finding that the Kingshighway plant primarily engaged
in assembling and the Clayton plant in processing and fabricating was
shown to need qualification in the hearing of October 11, 1944, when it
appeared that Department 5 carried on processing as well as assembling
operations, and that other departments at the Clayton plant were likewise
engaged in both types of operations. Despite this fact, it is our opinion that
the unit retains sufficient features of identity to warrant reaffirmation of
our unit determination in our original Decision and Direction of Election,
as thereafter modified.
We have reexamined the entire record in the case and have carefully
considered argument of the respondent expressed in the afore-mentioned
petitions, in briefs filed with the Board, at the hearing, and in the plead-
ings herein. We are not persuaded that we should alter the conclusions
set forth in our previous decisions relating to the instant proceeding. It
has long been the practice of the Board to grant the privileges of the Act
to any group of employees desiring to exercise those privileges, although
that group may appropriately comprise a part of a larger unit, if the group
may feasibly function as an appropriate unit and if other employees in the
larger group have indicated no desire to be represented by a collective
3 An exhibit introduced into evidence at the original hearing herein, as interpreted at the hearing
by the respondent' s assistant chief accountant, Joe E Hamill , indicates that, during the approxi-
mately 5-month period pieceding the hearing, 42 persons, 3 of whom were supervisory employees,
were transferred from the Kingshighway plant to the Clayton plant , and 38 were transferred from
the Clayton plant to the Kingshighway plant; that the transfers to the Kingshighway plant in-
cluded a group of employees placed in various departments of the plant after the department in which
they had worked had been discontinued, and that, although a temporary transfer front 1 plant to the
other and return to the plant of origin would be recorded as 2 transfers, 90 percent of the transfers
recorded concerned different people, people who had been transferred into 1 plant or the other appar-
ently permanently , since they had not been returned , in the 5 -month period , to their place of origin
Another exhdnt,intioduced by the respondent at the original hearing , indicated that, of 141 persons
working in Department 5 in August 1943, 7 had been transferred to departments in the Clayton plant
sometime before October 1943 At the second hearing the respondent introduced an exhibit which
indicated that of the 151 persons who were eligible to vote in the election , according to the pay roll
of August 20, 1944, 7 had been transferred to departments outside the appropriate unit prior to
the hearing on October 11, 1944 . In its brief, the respondent stated that these exhibits do not
reflect "the myriad of temporary day-to- day interdepartment transfers " that are made in its plant.
There is nothing in the record upon which the respondent 's statement can be based
4 Presently Department 5 -
ns Department 5 occupies a complete building of the Clayton plant except for a large aisle used by
Dcpaitments 1 and 2 for packaging
MINES EQUIPMENT COMPANY 1463
bargaining reprsentatlve e It is our opinion that in this way we can best
effectuate the purposes of the Act ; to require organization in what might
be the optimum unit for collective bargaining would indefinitely deprive
persons desiring to be represented by a statutory representative of the
means of collective bargaining.
Accordingly , we find that all the employees engaged in Departments
4 and 5 of the respondent 's operations , excluding all office clerical employ-
ees, guards , watchmen , and supervisory employees-with authority to hire,
promote, discharge , discipline, or otherwise 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.
2. Representation by the Union of a majority
in the appropriate unit
On August 30, 1944, pursuant to a Supplemental Decision and Amended
Direction of Election,' an election was conducted among all employees
of the respondent at its Kingshighway plant, exclusive of clerical, super-
visory, and plant-protection employees. Of approximately 151 eligible
voters, 116 cast valid votes, of which 61 were for the. Union and 55
against. On September 9, 1944, the Board certified the Union as the
statutory representative of the employees in the appropriate unit. In the
subsequent merger, all production and maintenance employeeA at the
Kingshighway plant, with the exception of employees of Department 4,
were transferred in a body and have become Department 5 at the re-
spondent 's Clayton plant. On November 2, 1944, the Board amended
its certification to indicate the changes in the respondent's organizational
structure, as set forth above. We find that since August 30, 1944, the
Union has been the exclusive representative of all the employees in the
appropriate unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of
employment.'
6 See Matter of RCA Communications, Inc, 2 N L R. B 1109; Matter of New Jersey Worsted
Mills, 35 N L. R B 1303; Matter of Indianapolis Water Company, 48 N L R. B 1399, Matte; of
Standard Overall Company, 53 N L R. B. 960; Matter of Ladish Drop Forge Company, 57 N. L.
R B. 1468
57 N. L. R B 1634.
e In its answer , the respondent denies the allegation in the complaint that the Union represents a
majority of its employees in the unit found appropriate by the Board. The denial is based upon the
assumption that transfers and discharges of employees from the appropriate unit dissipated the
Union' s majority Since nothing in the record identifies the transferees and dischargees as union or
non-union employees , we find no basis for the assumption . We assume , rather, that the majority
status of the Union as reflected in the election of August 30, 1944, continued for a reasonable time
after certification See N L. R. B v. Appalachian Electric Power Company, 140 F. (2d) 217
(C C A- 4), enf'g as mod 47 N. L. R. B. 821 See also Franks Brothers Company v . N L R B.,
321 U S 703.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
The respondent, in its answer, admits that on November 10, 1944, the
Union requested that the respondent bargain with it on behalf of the em-
ployees in the appropriate unit, and that the respondent on that day
refused and still refuses to bargain with the Union.
We find that, on November 10, 1944, and at all times since that date,
the respondent has refused to bargain collectively with the Union as the
exclusive bargaining reprsentative of its employees in the aforesaid appro-
priate unit, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occur-
ring in connection with the operations of the respondent described in
Section I, above, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor
practices affecting commerce, we shall order it to cease and desist there-
from and take certain affirmative action, which we find will effectuate
the policies of the Act.
We have found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in the
aforesaid appropriate unit. We shall order that the respondent bargain
collectively with the Union upon request.
Upon the basis of the foregoing findings of fact and the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. All employees engaged in Department 4 and 5 of the respondent's
operations, excluding all office clerical employees, guards, watchmen, and
supervisory employees with authority to hire, promote, discharge, disci-
pline, or otherwise 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.
3. United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, was on August 30, 1944,
-MINES EQUIPMENT COMPANY 1467
and at all times thereafter has been, the exclusive representative of all the
employees in said appropriate unit for the purposes of collective bargain-
ing, within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Electrical, Radio
& Machine Workers of America, affiliated with the Congress of Industrial
.Organizations, as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the- respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affect-
ing commerce, within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Mines Equipment Company, St. Louis, Missouri, and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Electrical, Radio &
Machine Workers of America, affiliated with the Congress of Industrial
Organizations, as the exclusive representative of employees engaged in
Departments 4 and 5 of its operations, excluding office clerical employees,
guards, watchmen, and supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees or effectively recommend such action ;
(b) Engaging in any like or related acts or conduct, interfering with,
or restraining, or coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or assist United
Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranted in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Electrical, Radio
& Machine Workers of America, affiliated with the Congress of Industrial
Organizations, as the exclusive representative, of all employees engaged
in Departments 4 and 5 of its operations, excluding office clerical employ-
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees, guards, watchmen, and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, in respect to rates of
pay, wages, hours of employment, and other conditions of employment ;
(b) Post at its plants in St. Louis, Missouri, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice, to be fur;
coshed by the Regional Director for the Fourteenth Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places, -including
all places where notices to employees are _custonnarily posted. Reasonable
steps shall be taken by. the respondent to insure that said notices are not
altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Fourteenth Region in writing,
within ten (10) days from the date of this Order, what steps the respond-
ent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Order.
I
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that :
We Will Not refuse to bargain with United Electrical , Radio &
Machine Workers of America , CIO, as the exclusive representative
of our employees in the bargaining unit described herein.
We Will Not engage in any like or related act or conduct inter-
fering with , restraining , or coercing our employees in the exercise
of the right to self-organization , to form labor organizations , to join
or assist United Electrical, Radio & Machine Workers of America,
CIO, or any other labor organization , to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection. All our employees are free to become or remain mem-
bers of this union, or any other labor organization.
We Will Bargain collectively upon request with the above-nanmed
union as the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay , hours of employment
or other conditions of employment , and if an understanding is reached,
embody such understanding in a signed agreement . The bargaining
unit is: All employees engaged in Departments 4 and 5 of Mines
MINES EQUIP1JENT COMPANY 1469
Equipment Company, St. Louis, Missouri, excluding all office clerical
employees, guards, watchmen, and supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees or effectively recommend such action.
MINES EQUIPMENT COMPANY (Entployer)
By
(Representative ) (Title)
Dated
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.