Outboard Marine and Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 25, 1946

66 N.L.R.B. 1142 (N.L.R.B. 1946)

In the Matter of EVINRUDE MOTORS DIVISION OF OUTBOARD MARINE
AND MANUFACTURING COMPANY and UNITED STEELWORKERS OF
AMERICA, C. I. O.
Case No. 13-B-3236.-Decided March 25, 1946
Wood, Warner, Tyrell & Bruce, by Mr. Jackson Bruce, Messrs. F.
T. Irgens, and C. C. Uecke, all of Milwaukee, Wis., for the Company.
Messrs. TV. O. Sonneman and E. H. Gaulke, of Milwaukee, Wis.,
and Mr. Thomas J. Carey, of Shorewood, Wis., for the C. I. O.
Messrs. George Gratz and B. J. Parker, of Milwaukee, Wis., and
Mr. E. J. Reid, of Chicago, Ill., for the I. A. M.
Mr. Frederick D. Vincent, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America,
C. I. 0., herein called the C. I. 0., alleging that a question affecting
commerce had arisen concerning the representation of employees of
Evinrude Motors Division of Outboard Marine and Manufacturing
Company, Milwaukee, Wisconsin, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Leon A. Rosell, Trial Examiner. The hearing
was held at Milwaukee, Wisconsin, on October 25, 1945. The Com-
pany, the C. I. 0., and International Association of Machinists, Tool
& Diemakers Lodge No. 78, herein called the I. A. M., appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. In the course of the hearing the I. A. M.
moved that the petition be dismissed. The Trial Examiner reserved
ruling on this motion for the Board. For the reasons which appear
below, the motion is denied. The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
66 N. L . R. B., No. 138.
1142
EVINRUDE MOTORS DIVISION 1143
Upon the entire record in the case, the Board makes the following :
FINDINGS OF F.1cT
1. THE BUSINESS OF THE COMPANY
Evinrude Motors Division of Outboard Marine and Manufacturing
Company is a Delaware corporation. The Company's operations
are carried on at several places in the United States. At the Mil-
waukee, Wisconsin, plant solely involved in this proceeding, the
Company is engaged in the manufacture of outboard motors. During
the year 1944 more than $1,000,000 worth of raw materials was
transported to the Milwaukee plant, of which more than 25 percent
was received from points outside the State of Wisconsin. During
the same period the Company's sales totaled more than $1,000,000,
of which more than 75 percent was transported from the plant to
points outside the State of Wisconsin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
International Association of Machinists, Tool & Diemakers Lodge
No. 78, is a labor organization, admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 5, 1937, the Company entered into its first written
contract with Local 1302, Steelworkers Organizing Committee, con-
cerning the same 'unit of employees here alleged to be appropriate
by the C. I. O. Contractual relations with respect to these employees
were continued by Local 1302 of the C. I. O. and the Company until
March 31, 1944. Subsequently negotiations between the Company
and Local 1302 took place in regard to a new agreement.
On March 30, 1945, the I. A. M. first notified the Company of its
claim to represent the toolroom employees, a portion of the unit
which had been represented by Local 1302, and concerning which
Local 1302 and the Company were then negotiating. A petition for
Certification of Representatives was thereafter filed with the Board
by the I. A. M. On May 23, 1945, the Regional Director refused
to issue a notice of hearing predicated upon this petition and called
1 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the attention of the I. A. M. to its right to appeal to the Board.
Upon request of the I. A. M., the Regional Director extended its time
to appeal until June 12. However, no appeal was taken by the I. A. M.
Instead, on June 15, 1945, application was made by the I. A. M.
to the Wisconsin Employment Relations Board for an election among
the toolroorn employees and for designation of such employees as
a separate bargaining unit. On June 27, 1945, the Wisconsin Board
conducted a hearing on that application in which the I. A. M., the
C. I. 0., and the Company participated. This resulted in a direction
of election by the Wisconsin Board, and on September 1, 1945, it
certified the I. A. M. as bargaining representative in a separate tool-
room unit. On August 23, 1945, the petition herein was filed by the
C. I. 0., alleging as appropriate a unit of production and mainte-
nance employees, including the toolroom workers, the unit so long
represented by Local 1302.
In view of the conflicting claims to representation of the toolroom
employees made by the C. I. O. and the I. A. M., the Company will
recognize neither as the exclusive agent for such workers until a
resolution of the controversy is properly effected. Nevertheless, the
Company is willing to bargain with the C. I. O. as the representative
of all remaining production and maintenance employees in whom
that organization is interested. The I. A. M. contends, in effect,
that inasmuch as a segregated unit of toolroom employees is appro-
priate, and it has recently been designated by the Wisconsin Board
as the representative of such employees, no question concerning
representation has arisen. However, the appropriate unit consists
of production and maintenance employees, inclusive of the toolroom
workers, as hereinafter decided, and the Company will not recognize
the C.I. O. as the representative of the employees in this single unit.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the C. I. O. represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IN. THE APPROPRIATE UNIT
The C. I. O. contends that a unit comprised of all production and
maintenance employees of the Company's Milwaukee plant, including
toolroom employees, but excluding time-study men, rate setters,
1 The Field Examiner reported that neither the C. I. O. nor the I. A. M. submitted
cards. He did state, however, that the C. I. O. depends for its interest upon the con-
tracts with the Company , and the I. A. M. depends for its interest upon the certi $cation
of the Wisconsin Board.
EVINRUDL MOTORS DIVISION 1145
buffers and polishers, research engineers, office employees, confidential
secretaries, foremen, department heads, superintendents, and man-
agers, is appropriate. As already noted, the I. A. M. urges that a
separate unit of toolroom employees is appropriate. Although the
Company assumes a neutral position, it indicates a preference for
the plant-wide unit sought by the C. I. O.
Because the L A. M. was certified by the Wisconsin Board in a
separate unit of toolroom employees, it insists that, purely as a matter
of comity, we should find this gronping to be' appropriate? As
interpreted by the Wisconsin Board, however, the Wisconsin law
requires that, whenever employees are found to constitute a single
',craft, division, department or plant," they are entitled as a matter
of right to a separate election and, if a majority of them so choose,
they are further entitled to be regarded as a "separate bargaining
unit." 3 Once the preliminary finding is made as to the existence
of the "craft, division, department, or plant," the actual determina-
tion of whether certain employees are to be considered a separate
unit depends entirely upon their desire. Comparison with the Na-
tional Labor Relations Act reveals that this Board is itself re-
sponsible for the determination of the "appropriate" unit. Moreover,
the decisions of this Board have repeatedly held that the desire of
small segments of employees is but one of a number of factors which
must be considered before finding the appropriate unit. Were this
Board, without independent investigation, to adopt as decisive the
unit determination of the Wisconsin Board, which was premised
solely upon the preliminary finding that the toolroom employees
comprised a separate craft and division, it would be ignoring com-
pletely its obligation under the National Labor Relations Act and
its own substantive law. We, who have-and are required to
exercise-discretion in this matter, cannot be bound by the determina-
tion of an agency which had no choice under the State Statute but
to conduct a separate craft election. Our desire to coordinate our
action with the action of State agencies continues strong, but that
desire cannot prevail on this particular set of facts.
Putting aside temporarily the history of collective bargaining in
this case, the facts relative to the establishment of a toolroom unit
do not necessarily lead to a finding that a separate unit would be
appropriate. There are other employees in the plant who perform
similar tasks to those in the toolroom, using similar machines.
Furthermore, the machine repair employees in the toolroomn unit
9 No contention is made that this Board has no jurisdiction because of the proceeding
before the Wisconsin Board, or that this Board is required as a matter of law to follow
the determinations of the Wisconsin Board. There is no question that the Company is
engaged in commerce within the meaning of the National Labor Relations Act.
a See Chapter III, subchapter I, of the Wisconsin Statutes, as amended , Section
111.02 (8).
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged to be appropriate by the I. A. M. work outside the confines
of the toolroom proper, and in the course of their work circulate in
the plant in connection with the repair of production machines.
There is also evidence that other employees of the toolroom circulate
frequently in the plant to adjust tools made in the toolroom. Like-
wise there is evidence of transfer of employees between the production
part of the plant and the toolroom. Seniority, moreover, is plant-
wide. A clear case indicating the propriety of a separate unit is not,
consequently, presented.
In addition there is a clear history of collective bargaining since
1937, when the C. I. O. was first recognized, on the basis of a plant-
wide unit. For the period 1937 to 1945, the C. I. O. always bargained
for the toolroom employees of the Company as a part of this unit.
None of the contracts entered into during the history of bargaining
provided for maintenance-of-membership or a closed shop. Prior
to March 30, 1945, there is no evidence of organization of the tool-
room employees on a craft basis. Nor is there evidence of any
membership in the I. A. M. at the inception of bargaining relations
in 1937. Furthermore, there is no evidence of any substantial member-
ship in the I. A. M. up to the time of the first demand of that
organization for recognition on March 30, 1945. We also note that
there is no evidence that any toolroom employees were obtained
through the I. A. M., or that there were any negotiations of any
nature, formal or informal, between the I. A. M. and the Company
prior to the I. A. M.'s initial demand for recognition. Finally,
there is no evidence of resistance by employees of the toolroom to
the C. I. O.'s organization of the Company's workers on a plant-
wide basis, or that any other union ever had any interest in the
toolroom employees before 1945.
This long bargaining history, in the absence of evidence to the
contrary, indicates that the toolroom employees have been effectively
assimilated into the plant-wide unit. Grievances were prosecuted
through the C. I. O. in accordance with established procedure. The
evidence shows that the recording secretary of the C. I. 0., at the
time of the hearing, was a toolroom employee, that the C. I. O. main-
tained a steward in the toolroom for the purpose of handling griev-
ances, and that grievances had been processed by the C. I. 0., even
during the 9 months preceding the hearing and after the I. A. M.'s
claim to representative status. There is evidence of aggressive and
successful bargaining activity on the part of the C. I. 0., including
submission of a number of issues to the War Labor Board. One
of the cases before that Board concerned primarily the subject of
wages of toolroom employees.
We find, therefore, that all production and maintenance employees
EVINRT DE MOTORS DIVISION 1147
of the Company's plant, including toolroom employees, but excluding
time-study employees, rate setters, buffers and polishers, research
engineers, office employees, confidential secretaries, foremen, depart-
ment heads doing supervisory work, superintendents, managers, and
all other 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.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.4
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 Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 3, as amended,
it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Evinrude Motors
Division of Outboard Marine and Manufacturing Company, Mil-
waukee, Wisconsin, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Thirteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately 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, and including employees in the armed forces
of the United States who present themselves in person at the polls,
Although the Company demands that Local 1302 of the C. I. O. be placed on the
ballot , we find no reason to do so in the face of the C. I O.'s insistence that the Inter-
national , which filed the petition, be designated on the ballot.
We shall also accord the I. A. M. a place on the ballot, but should it desire to with-
draw from the election, it may do so upon notice to that effect given to the Regional
Director within 5 days from the issuance of this Decision and Direction of Election.
1 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date
of the election, to determine whether they desire to be represented
by United Steelworkers of America, C. I. 0., or by International
Association of Machinists, Tool & Diemakers Lodge No. 78, for the
purposes of collective bargaining, or by neither.