Murlin Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 15, 1948

80 N.L.R.B. 309 (N.L.R.B. 1948)

In the Matter Of MrmLIN MANUFACTURING COMPANY, EMPLOYER and
METAL POLISHERS , BUFFERS , PLATERS & HELPERS, INTERNATIONAL
UNION, LOCAL No. 90,1 PETITIONER and INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, LOCAL No. 98, INTERVENOR
Case No. 4-RC-148.-Decided November 15,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. At the hearing, the
Intervenor moved to dismiss the petition on the grounds : (1) that its
contract with the Employer is a bar to an election at this time; and (2)
that the unit sought by the Petitioner is not an appropriate bargain-
ing unit. For reasons hereinafter discussed, the motion is hereby
denied. 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.*
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The Petitioner and the Intervenor are labor organizations claim-
ing to represent employees of the Employer.
3. The question concerning representation :
The Intervenor has been bargaining representative of the employees
of the Employer on a plant-wide basis since 1937. It contends that
its present contract was automatically renewed on May 1, 1948, and
constitutes a bar to an election at this time. The contract between
the Intervenor and the Employer, beginning May 1, 1947, provides
that it shall be automatically renewed on May 1, 1948, unless either
party gives notice in writing of a desire to change its provisions at
1 As amended at the hearing.
* Chairman Herzog and Members Reynolds and Murdock.
80 N. L . R. B., No. 66.
309
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least 60 days before its termination date. Another clause states
that any changes can be made at any time by mutual consent. Both
clauses appear in Article I, Section 2 of the contract. On February
18, 1948, the Intervenor, stating that it was acting under the above
section, notified the Employer in writing of a desire to effect certain
changes in the contract.
On April 21, 1948, the Petitioner notified the Employer of its claim
to representation. On April 26, 1948, it filed its petition in this case.
On the same day, the Intervenor and the Employer executed an
amendment to the contract relating to the changes requested in the let-
ter of February 18. The Intervenor argues that the amendments were
negotiated under the mutual-consent clause and that the contract was
therefore never reopened. The Board has held that the parties to a
contract may effect modifications of substantive provisions during the
contract term, without opening the door to petitions of rival unions,
if the modifications do not operate as a renegotiation of the terminal
provisions of the existing contract.2 Where the requested changes
constitute the first step in the negotiation of a new contract, the oper-
ation of an automatic renewal clause in the existing contract is fore-
stalled and the contract as subsequently renewed by the parties is not
a bar to a petition timely filed.' We find that the Intervenor's letter
of February 18 constituted notice to the Employer of the Intervenor's
desire to reopen and renegotiate the existing contract as provided
generally in Article I, Section 2. The operation of the automatic
renewal clause was thereby forestalled and the contract subsequently
renewed and amended cannot be said to be a bar to the instant
proceeding.
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.
4. The appropriate unit :
The Petitioner seeks a unit of employees employed in the polishing,
plating, and spraying departments of the Employer's plant, including
all polisher-buffers,4 platers, helpers,5 and sprayers, but excluding
shipping and receiving employees, and supervisors. At the hearing
it indicated that it would be willing to narrow the scope of the unit re-
Matter o f S & W Fine Foods, Inc., 74 N. L. R . B. 1316, and cases cited therein
Matter of Stewartstown Furniture Company, 75 N. L. R. B 344; Matter of Limerick
Yarn Mills , 76 N. L It. B 433 . See, also, Matter of Indianapolis Power and Light Com-
pany, 76 N. L. R. B 136, where the parties specifically provided in writing that the con-
tract should be automatically renewed on the date previously agreed upon , but with certain
requested changes effective as of that date. The Board found that the real intent of the
parties was to negotiate a new agreement
4 The polisher-buffers perform interchangeably the duties of polishing and buffing.
5 There are no employees classified as helpers in the departments requested.
MURLIN MANUFACTURING COMPANY 311
quested to conform to the Board's determination, should the Board
decide that any of the above categories might constitute a separate,
appropriate unit. The Petitioner argues, alternatively, that the em-
ployees requested may be considered either as a craft group or as a
clearly indentifiable section of the Employer's plant. Both the
Intervenor and the Employer contend that the established contractual
unit of production and maintenance employees is the only appropriate
unit.
The Employer manufactures lamp fixtures in a small plant housed
in a single building. The various production processes occur on one
floor of this building. Machinists fabricate the metal fixture parts
by stamping or casting the raw materials, and the products then
move to other parts of the room for further manufacturing steps,
including polishing, buffing, plating, painting, and other operations.
The assembling, wiring, packing and shipping sections are in the
same room, separated by a light partition. All operations in the plant
are under the supervision of the plant superintendent and plant fore-
man.
The record reveals that the seven polisher-buffers employed in the
polishing department are experienced and highly skilled employees.
Their work consists of operating six different types of grinding wheels
by means of which the rough fixture parts are polished and buffed to
a high shine or a sand finish. All of them have passed a 3-year period
of apprenticeship. The two apprentice platers," whom the Petitioner
seeks to include in the same unit with the polisher-buffers, are en-
gaged in closely related activities. They immerse the metal fixture
parts in a liquid solution for plating with chrome, nickel, or copper
coating. During the slack periods, the apprentice platers are employed
on a rotating basis in the polishing department. The Employer con-
siders this additional experience to be a useful part of their training
as platers because of the integrated nature of the two operations. It
is also the policy of the Employer to transfer experienced polisher-
buffers temporarily to other production duties, when the work load
falls off in the polishing department.
The Board has in the past recognized the craft nature of skilled
polishing and buffing operations and has held that employees engaged
in such duties, together with less experienced platers, may constitute
a separate, appropriate unit.? We do not view the history of collec-
tive bargaining on a broader basis as a controlling factor in this case.
The Employer does not employ a master plater . The work of caring for the tanks and
solution is performed by the plant superintendent , who is experienced in plating duties.
4 Matter of Electric Auto-Lite Company , Kings Mills Division, 76 N. L. it. B. 1189, and
cases cited therein. Cf. Matter of Dover Appliance Company , 76 N. L. it. B. 1131; Matter
of George J. Mayer Company , 77 N. L. it. B. 425.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that the polisher-buffers and apprentice platers
may form a separate unit appropriate for the purposes of collective
bargaining.
The Petitioner also seeks to include three sprayers employed in the
painting department. These employees are engaged exclusively in
painting, spraying and lacquering the lamp fixture parts. Their work
location adjoins that of the polisher-buffers and platers and to some
extent the materials pass back and forth among the three groups. The
record does not reveal the degree of skill required to become a profi-
cient sprayer. The three sprayers have been employed in that capacity
for periods ranging from 6 months to about 3 years. There is no
interchange between the sprayers and the polisher-buffers, and other-
wise there appears to be no particular relation between the duties of
the former and the highly skilled operations of the latter. We shall
therefore exclude the sprayers from the proposed craft unit.
We shall make no final unit determination at this time, but shall be
guided in part by the desires of these employees as expressed in the
election hereinafter directed. If a majority vote for the Petitioner,
they will be taken to have indicated their desire to constitute a sepa-
rate appropriate unit.
We shall direct that an election be held among all polisher-buffers
and apprentice platers employed in the polishing and plating depart-
ments in the Employer's plant, excluding sprayers, shipping and
receiving employees, and all supervisors."
DIRECTION OF ELECTION "
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees described in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
8 A working foreman in the polishing department distributes and inspects the work of
the polisher -buffers and acts as instructor for difficult jobs. It is not clear from the
record whether this working foreman exercises supervisory authority . However , if he is a
supervisor he is excluded from the voting group. If he is not a supervisor, he is included.
9
Any participant in the election directed herein may , upon its prompt request to and
approval thereof by the Regional Director , have its name removed from the ballot.
MURLIN MANUFACTURING COMPANY 313
quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, and also excluding
employees on strike who are not entitled to reinstatement, to determine
whether they desire to be represented, for purposes of collective bar-
gaining, by Metal Polishers, Buffers, Platers & Helpers, International
Union, Local No. 90, or by International Brotherhood of Electrical
Workers, Local No. 98, or by neither.