North Star Specialty Co.

National Labor Relations Board - Board Decisions

Mar 3, 1938

5 N.L.R.B. 763 (N.L.R.B. 1938)

In the Matter of NORTH STAR SPECIALTY Co. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LOCAL 382
Case No. B-466.-Decided March 3, 1938
Metal Products Industry-Investigation of Representatives : controversy con-
cerning representation of employees : rival organizations ; substantial doubt as
to majority status ; strike provoked by employer 's delay in recognizing inter-
vening union as exclusive representative-Unit Appropriate for Collective
Bargaining : production and maintenance employees , including production worker
with some supervisory duties ; experimental worker excluded on stipulation
by both unions-Election Ordered: eligibility to vote determined as of day
preceding strike.
Mr. Thurlow Smoot, for the Board.
Mr. R. C. Stephan, of Minneapolis, Minn., for the Company.
Mr. W. A. Heath, of Minneapolis, Minn., for the I. A. M.
Mr. Ralph L. Helstein, of Minneapolis, Minn., for the United.
Mr. Richard A. Perkins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 20, 1937, International Association of Machinists,
Local 382, herein called the I. A. M., filed with the Regional Director
for the Eighteenth Region (Minneapolis, Minnesota) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of North Star Specialty Manufac-
turing Co.,' Minneapolis, Minnesota, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On November 9, 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 Rela-
tions 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.
On November 29, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the I. A. M., and upon United Electrical, Radio, and Machine Workers
of America, Local 1139, herein called the United, a labor organization
claiming to represent employees directly affected by the investigation.
Pursuant to the notice, a hearing was held on December 13, 1937, at
1 The petition incorrectly designated the Company as "North Star Specialty Co."
763
764
NATIONAL LABOR RELATIONS BOARD
Minneapolis, Minnesota, before J. J. Fitzpatrick, the Trial Examiner
duly designated by the Board. The Board and the United were repre-
sented by counsel, the I. A. M. by one of its officials, and the Com-
pany by its secretary. All participated in the hearing. Full oppor-
tunity to be heard, to examine 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 errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
North Star Specialty Manufacturing Co., a Minnesota corporation,
manufactures portable refrigerators, humidifiers, glass washers, and
merchandise display racks and executes special orders for machine
and metal work at its plant in Minneapolis, Minnesota. Processes
carried on at the plant include cutting, shaping, welding, painting,
polishing, and packing. Raw materials used by the Company include
sheet metal, machined castings, band iron, angle iron, aluminum,
copper, rubber, and cotton textiles. The Company obtains some of its
raw materials from Illinois, New York, and Pennsylvania.
The Company solicits business by mail in all parts of the United
States and Canada. In the year 1936 the Company' s gross sales
amounted to $80,856.19. Goods to the aggregate value of $25,141.29,
or approximately 31 per cent of the total, were shipped out of Minne-
sota to customers in every other State, the District of Columbia, and
Canada.
There is a seasonal fluctuation in the number of employees at the
plant operated by the Company. The normal pay roll includes 21
production workers and 3 clerical employees.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Local 382, is a labor
organization affiliated with .the American Federation of Labor, ad-
mitting to its membership production and maintenance employees of
the Company.
United Electrical, Radio, and Machine Workers of America, Local
1139, is a labor organization affiliated with the Committee for In-
dustrial Organization, admitting to its membership production and
maintenance employees of the Company.
iii. THE QUESTION CONCERNING REPRESENTATION
The United claims that on October 5, 1937, a majority of the
employees of the Company became members of that organization.
DECISIONS AND ORDERS 765
On October 6 the United submitted a proposed agreement to the
Company. A representative of the I. A. M. commenced about October
7 to solicit employees to join his organization . A number of the
employees thought the Company was hostile to the United and was
postponing negotiations with that union until the I. A. M. could
induce employees to change their affiliation. Accordingly, on Oc-
tober 13, 10 or 11 employees walked out in protest. Later the same
day the Company shut down the production department and laid off
all employees except the office force. The,United commenced picket-
ing the plant, which remained closed for about two weeks. The
plant was reopened pursuant to an agreement whereby the Company
was to rehire its employees as fast as production would justify it
in the order of their seniority according to a list furnished by the
Company. The unions agreed to submit the matter to the Board
for decision.
We find that a'question has arisen concerning the representation
,of 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 and has led to labor disputes burdening and obstructing
commerce and the free flow of eommerce.
V. THE APPROPRIATE UNIT
In its petition the I. A. M. alleges that "twenty-three production
workers" of the Company constitute a unit appropriate for collective
bargaining. The United in an intervening petition claims a unit com-
posed of "all employees except clerical and supervisory employees"
is appropriate. Strictly construed, the I. A. M. description would
-exclude maintenance workers, but it is not clear from the record that
such was its intention. We shall include maintenance employees
within the bargaining unit.
Both unions agree that supervisory employees should be excluded
from the unit found to be appropriate, but they differ on the ques-
tion whether William Jensen is a supervisory employee. Jensen is a
,skilled and experienced employee whose duties include instructing
other employees and inspecting their work, but who works at pro-
-duction and is paid an hourly wage, as are other production workers.
Three employees of the Company, testifying for the United, stated
that they considered Jensen a foreman. A United organizer, how-
.ever, who heard testimony relating to Jensen's duties, testified that
he thought Jensen should be permitted to vote in the event of an
766 NATIONAL LABOR RELATIONS BOARD
election to determine representatives for collective bargaining. We
find that Jensen should be included within the bargaining unit.
Both unions agree that John Ludwig should be excluded from the
unit found to be appropriate for collective bargaining . Ludwig,
who was hired after the strike to do experimental work , is a highly
skilled and valuable employee whom both unions apparently believe
able to bargain effectively for himself . It does not appear that he
is a member of either organization , and there is no showing that he
desires to be included in the unit here under consideration. We
shall refer to him herein . as an experimental worker, and he will be
excluded from the bargaining unit.
We find that all employees of the Company, excluding clerical and
supervisory employees and the experimental worker, 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. THE DETERMINATION OF REPRESENTATIVES
The I . A. M. in its petition claimed to represent 23 production
workers of the .Company . In an intervening petition the United
alleged that it represented ,18 production workers. Neither organiza-
tion offered proof of authority to represent a majority of the em-
ployees in the unit which we have found to be appropriate. The
question concerning representation of employees of the Company
within the appropriate unit ' can best be resolved by holding an
election by secret ballot , to determine whether the employees wish
to be represented by the I. A. M., by the United, or by neither.
The unions contend for different dates for determining the eligi-
bility of employees to vote at an election . The I . A. M. urges that
only those employees on the pay roll of the Company on August 13,
1937 , 60 days prior to the strike , be allowed to vote. The reason
given is that union contracts with employers engaged in work similar
to that of the Company often provide for a probationary period of
30, 60, or 90 days during which the employer has an option to dis-
charge new employees at will . It appears , however, that this provi-
sion is commonly included at the request of the employer for his
protection , and further , that newly hired employees are immediately
eligible for membership in the I. A. M., which bargains for proba-
tionary employees as well as for the other employees . The reasons
advanced for taking a date 60 days prior to the strike are not
convincing.
The United asks that eligibility to vote be determined as of October
6, 1937 , when that organization first requested negotiations with the
Company. The pay roll of the Company remained unchanged from
October 6 to October 13, 1937 , the date of the strike, except that two
DECISIONS AND O1tDEPS 767
employees who appear on the pay roll for October 12 were laid off
on that day. In election cases involving strikes we have heretofore
held that employees on the pay roll on the last working day 2 or
during the pay-roll period 3 preceding the strike were eligible to
vote. We shall, therefore, direct an election among those employees
in the appropriate unit who were on the pay roll of the Company
on October 12, 1937, exclusive of those who have since quit or been
discharged for cause.
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 North Star Specialty Manufacturing Co.,
Minneapolis, Minnesota, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All employees of the Company, excluding clerical and super-
visory employees and the experimental worker, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
i11'g•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 part of the investigation authorized
by the Board to ascertain representatives for the purpose of collective
bargaining with North Star Specialty Manufacturing Co., Minne-
apolis, Minnesota, an election 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 Eighteenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations-Series 1, as amended, among all employees of the Com-
pany, excluding clerical and supervisory employees and the experi-
mental worker, who were on the pay roll on October 12,. 1937, ex-
cepting those who have since quit or been discharged for cause, to
determine whether they desire to be represented by International
Association of Machinists, Local 382, or United Electrical, Radio
and Machine Workers of America, Local 1139, for the purposes of
collective bargaining, or by neither.
z In the Matter of Saxon Mills and Local Union No. 1882, United Textile Workers of
America, 1 N L. R . B. 153.
In the Matter of Oregon Worsted Company and United Textile Workers of America,
Local 2435, 2 N. L R B. 417.