Neville Foundry Co., Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1959

122 N.L.R.B. 1187 (N.L.R.B. 1959)

NEVILLE FOUNDRY COMPANY, INC . 1187
vious 2 or 3 months while the unionization campaign was being waged. He had
had reports from service manager Drumm that the five were "bunching ," and were
off their jobs . Drumm reported to him that Bruels and Larkin had taken the
position that they had hired out as machinists and not as mechanics, and objected
to working on "the line" of general overhaul and repair. He had been told that
Hermes was "passing the buck" to other mechanics.
It was with these things in mind that Cregor sat down on June 28, 1957, and
made his decision as to whom he would keep in his employ on July 1. Those
he would not keep were given 2 weeks severance pay by White Motors and were
given recommendations for use in securing other employment.
Upon the stand , Cregor gave his mental processes used in deciding whom to
employ. Cregor impressed the Trial Examiner as a man of integrity . I accept his
explanation of his reasoning hiring the men he did and find that Cregor was not
motivated by any union animus. He did the only sensible thing a man in his
situation could do-hire men of proven willingness to help out in emergency.
Cregor's controlling reason as stated under oath was: "I knew one thing , that no
company can succeed any greater than the employees want it to succeed. I knew
that every employee of my company would have to be willing to go an extra
mile, they had to be able to do anything in the world to help us make a success.
That was the decision , the prevalent decision , and when I sat down there the
middle of that week I decided on the men I would pick , the men I felt who would
assist me in protecting the investment I had made." Such reasoning does not
constitute illegal motivation.
It will be recommended that the allegation charging Respondent Alamo with
violation of Section 8(a)(3) and (1) be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Alamo White Truck Service, Inc., of San Antonio , Texas, is not engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Lodge 36, International Association of Machinists , AFL-CIO, and General
Drivers and Helpers Local 657, affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(1)(3 ), and (5) of the Act.
[Recommendations omitted from publication.]
Neville Foundry Company, Inc. and Iron, Foundry & Molder
Workers' Union,' Petitioner. Case No. 17-RC-2811. Janu-
ary 30, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Harry Irwig, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
' The name of the Petitioner appears as amended at the hearing.
2 The hearing officer properly excluded testimony bearing on whether or not the
Employer illegally assisted in the formation of the Petitioner. The Board will not
permit the litigation of an 8( a) (2) issue In a representation proceeding. David Max
and Company, 109 NLRB 1308.
122 NLRB No. 138.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
The Petitioner and Intervenor each refuse to stipulate that the
other is a labor organization. Since both have, as one of their
purposes, the representation of employees in collective-bargaining
matters, we find that they are labor organizations within the meaning
of the Act.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit :
The Employer, a Missouri corporation, is engaged in the manu-
facture and distribution of grey iron castings.
The Petitioner seeks a unit of all production and maintenance
employees at the Employer's North Kansas City, Missouri, plant,
excluding office clericals, watchmen, and supervisors as defined in the
Act. The Intervenor stipulated that this would be an appropriate
single-employer unit. However, it contends that, because it has
bargained with the Employer as part of a multiemployer group, only
a multiemployer unit is appropriate. The Employer and Petitioner
argue that the history of bargaining does not establish the existence
of a multiemployer unit.
For perhaps 20 years the Intervenor has bargained collectively
with a group of employers in the foundry industry. Since 1950, a
basic group of employers4 has joined together informally to negotiate
contracts, through the medium of a committee, with the Intervenor.
As a result of these joint bargaining negotiations by the employer
committee, on the one hand, and the Intervenor, on the other, sepa-
rate but identical contracts have been executed by the Intervenor and
the several employers. We find on these facts that a multiemployer
unit did exist, for it does not matter that the employers had no
formal organization,-' nor is it significant that they entered into sepa-
rate contracts,' so long as the employers bargained on a joint basis.
s International Molders & Foundry Workers' Union of North America , Local No. 162,
AFL-CIO, was permitted to intervene on the basis of its recently expired contract with
the Employer.
4 These employers are : Kansas City Flay Press Company , Blue Valley Foundry Com-
pany, National Aluminum & Brass Foundry , Inc., Midland .Metal Mfg . Company , and the
Employer herein . The Larry Lewis Foundry Company participated in the group negotia-
tions until 1952, when it signed a separate contract with the Intervenor during a strike.
It again bargained jointly in 1958, and, in the interim, it signed contracts with the
Intervenor identical to those negotiated by the group . Standard Brass Company and
Prier Brass Company participated in the group bargaining for 1 or 2 years after 1950,
and then dropped out.
5 The Evening News Association , d/b/a Detroit News at at ., 119 NLRB 345.
6 Charles H. Harper and Frank Harper , 117 NLRB 1031, 1032.
NEVILLE FOUNDRY COMPANY, INC. 11.89
The Employer also argues that, even if a multiemployer unit did
exist at one time, it has completely disintegrated so that a single-
employer unit now is appropriate. We find merit to this contention
of the Employer for the reasons hereinafter stated.
The record reveals that in 1958 bargaining negotiations were com-
menced between the Intervenor and a six-member employer group
consisting of Kansas City Hay Press Company, Blue Valley Foun-
dry Company, National Aluminum & Brass Foundry, Inc., Midland
Metal Mfg. Company, Larry Lewis Foundry. Company, and the
Employer herein. The record indicates that the parties may have
reached an impasse. Thereafter, on May 14, the Intervenor struck
the plants of all six employers. The Intervenor has since terminated
this strike against the five other employers and at the time of the
hearing, was continuing its strike only against the instant Employer.
Since meeting with a Federal Conciliator on or about July 1, 1958,
there have-been no negotiations between the joint employer committee
and the Intervenor. Nor have there been any meetings of the six
employers or their representatives for discussion of bargaining
matters.
During the period from July 1 to the hearing of this case on
October 7, 1958, the Intervenor has : -(1) executed a separate agree-
ment with Kansas City Hay Press and neither party to that contract
considered it necessary to obtain permission from the other employ-
ers; (2) participated in, as intervenor, and lost to an independent
union a Board-directed election7 involving employees of National
Aluminum &,Brass without raising the multiemployer unit issue as a
basis for dismissal of that petition and, subsequently, National
Aluminum entered into a contract with the independent union; and
.(3) approached Midland Metal about separate collective bargaining
for its employees, but. had received no answer by the time of the
hearing.
In our opinion, the irresistible conclusion which must be drawn
from the foregoing is that the Intervenor and the members of the
employer group abandoned the multiemployer bargaining unit before
the hearing herein. Thus, by entering into a separate contract with
Kansas City Hay Press and participating in the separate election
among the employees of National Aluminum & Brass, both the In-
tervenor and these employers have manifested their understanding
that, at least as to Kansas City I-lay Press and National Aluminum
& Brass, the multiemployer unit had ceased to exist. Moreover, the
Intervenor's action in requesting Midland Metal to bargain separately
was likewise in derogation of the existence of a binding multiem-
ployer unit. Furthermore, no steps have been taken by the Inter-
venor (until the hearing in this case) or any of the previous members
7 National Aluminum cE Brass Foundry, Inc., 17-RC-2780 (unpublished).
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employer group to insist upon, revive, or resume joint bar-
gaining.
Indeed, after having been an active participant in the dissolution
of the multiemployer unit, the Intervenor at the hearing herein
placed itself in a wholly untenable position. On the one hand, it
now seeks to reestablish that unit including therein not only the
employer with which it already has a separate contract, but also a
second employer now under contract with another labor organization
after Board certification and a third employer it has approached
concerning separate bargaining. On the other hand, it has stated on
the record that it might still bargain on an individual basis with any
of the employers in the former six-member group if requested to do
so. In addition, the Intervenor's abandonment of its strike against
all except the instant Employer, when considered in the context of
its other conduct, further evidences its desire to bargain separately
with this Employer. We think that, by its inconsistent conduct, the
Intervenor has effectively estopped itself from arguing as to the
propriety of a multiemployer unit .a
In these circumstances, we find that the following employees of
the Employer constitute a unit appropriate for the purposes of col-
lective bargaining within Section 9(b) of the Act:
All production and maintenance employees at the Employer's
North Kansas City, Missouri, plant, excluding office clericals, watch-
men, and supervisors as defined in the Act.
5. At the hearing, the Employer and Petitioner argued that the
Board should consider herein the eligibility to vote of the employees
who went on strike in May 1958. As the strike was still in progress
at the time of the hearing, and the Board, under its Pipe Machinery s
doctrine frequently defers eligibility issues of this type until the
election for disposition by way of challenges, the hearing officer
committed no prejudicial error in excluding evidence and rejecting
an offer of proof with regard to this matter.'°
As we cannot, on the present record, determine whether the strikers
have been permanently replaced, have abandoned their employment
with the Employer, or have a reasonable expectancy of reemploy-
ment at the time the Employer's operations have returned to normal,
we shall permit all persons hired since the date of the stirke and all
strikers to vote subject to challenge in the election hereinafter
directed."
8 We reject the contention of the Intervenor that the situation presented in this case
is analogous to that in Retail Associates, Inc., 120 NLRB 388.
The Pipe Machinery Company, 76 NLRB 247.
10 The Hertner Electric Company, 115 NLRB 820.
11 Nothing in this Decision shall be construed as indicating that the Board has pre-
judged in any respect any of the questions which may be drawn in issue by a challenge
to the eligibility of any voter.
SPARTcN BROADCASTING COMPANY (WWTV) 1191
The, challenged ballots shall not be counted unless they affect the
election results, in which case the question as to which of them shall
be opened' and counted shall await further investigation as to the
employment status of the individual involved.
[Text of Direction of Election omitted from publication.]
Sparton Broadcasting Company (WWTV) and National Asso-
ciation of Broadcast Employees and Technicians , AFL-CIO,
Petitioner. Case No. 7-RC-3697. February $, 1959
SUPPLEMENTAL DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
Pursuant to a Decision and Direction of Election issued by the
Board on June 25, 1958,1 an election by secret ballot was conducted
on July 22, 1958, under the direction and supervision of the Regional
Director for the Seventh Region, among the employees in the unit
heretofore found appropriate. Upon the conclusion of the election,
the parties were furnished with a tally of ballots which showed that
of approximately 21 eligible voters, 7 cast ballots for the Petitioner,
10 against the Petitioner, and 5 ballots were challenged. The chal-
lenged ballots were sufficient in number to affect the results of the
election. None of the parties filed objections to conduct affecting
the results or the conduct of the election.
After investigation, the Regional Director, on December 15, 1958,
issued a report on challenged ballots in which he recommended that
the challenges to the ballots cast by Al La Guire, Thomas Schoon-
over, and Richard Merritt be sustained' and that the Board issue a
certification of the results of the election. Thereafter the Petitioner
filed timely exceptions to the Regional Director's findings as to the
challenged ballots.
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 member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has considered the Regional Director's report and the
Petitioner's exceptions thereto, and upon the entire record in the
case. fnds :
After an investigation the Regional Director concluded that
La Guire, Merritt, and Schoonover were discharged for cause prior
1 Unpublished.
2 The Regional Director did not deem it necessary to resolve the two remaining chal-
lenged ballots made by the Petitioner because they could not affect the results of the
election.
122 NLRB No. 150.