P. Lorillard Co.

National Labor Relations Board - Board Decisions

Apr 25, 1947

73 N.L.R.B. 596 (N.L.R.B. 1947)

In the Matter of P. LORILLARD COMPANY, EMPLOYER and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, PETITIONER
Case No. 9-R-2374.Decided April 25,1947
Mr. Todd Wool,'of New York City, for the Employer.
Mr. D. J. Omer, of Cincinnati, Ohio, for the'IAM.
Messrs. Elmer D. Keen and Oldham Clarke, of Louisville, Ky., for
the Tobacco Workers.
- Mr. Henry W. de Kormian, of counsel'to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Louis-
ville, Kentucky, on November 14, 1946, before Louis S. Penfield, hear-
ing officer. In its motion to intervene, the Tobacco Workers moved
that the petition be dismissed. The motion is denied to the extent,
hereinafter indicated. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
P. Lorillard Company is a New Jersey corporation engaged in the
manufacture of tobacco products. The Employer's plant in Louis-
ville, Kentucky, is solely involved in this proceeding. In a prior,
proceeding 1 involving the Employer's Louisville plant, the Board
found that during 1943 the Employer purchased r tw materials for its
Louisville plant valued in excess of $6,000,000, approximately 70 per-
cent of which was shipped to the Employer's Louisville, plant from
points outside the State of Kentucky. The Board also found that
during the same period the Employer manufactured finished products
at its Louisville, plant valued in excess of $7,000,000, approximately
95 percent of which was shipped to points outside the State of Ken-
tucky. The Employer conceded in the present proceeding that, insofar
1 Matter of P Lorillard Company, 5S N L. It. B. 1112
73 N. L. R. B., No. 115.
596
P. LORILLARD COMPANY 597
as these facts indicated the Employer was engaged in commerce
within the meaning of the Act, they remained substantially
unchanged. .
The Employer admits, and we find, that it is engaged" in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
The Petitioner, International Association ` of Machinists, herein
called the IAM, is a labor organization, claiming to represent
employees of the Employer.
The Intervenor, Local Union No. 201, Tobacco Workers Interna-
tional Union, herein called the Tobacco Workers, is a labor organiza-
tion affiliated with the American Federation of Labor, claiming to
represent employees of the Employer.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Employer and the Tobacco Workers contend that the petition
should-'be dismissed because the machinists, millwrights, and machine
adjusters, employees whom the IAM here seeks to represent, are
covered by a contract which will not expire until July 1, 1947. The-
IAM contends, however, that these employees are not covered by the
contract and that the agreement cannot, therefore, operate as a bar
to an election among them. I -
In Section,IV, below, we find that'the machinists and millwrights
are not covered by the contract relied upon by the Employer and the
Tobacco Workers, and that they alone constitute an appropriate unit.
-Since the employees in the appropriate unit are not covered by the
contract, we find that the contract is no bar to a determination of
representatives for these employees.
We find no merit in the Employer's contention that the rider to the
Appropriations Act of 1947 2 deprives the Board of jurisdiction in
this proceeding because there is a contract which has been in effect for
-more than 3 months. The rider is not applicable to a representation
proceeding as it refers only to a "complaint case."
We find that a, question affecting commerce has arisen concerning
,the representation of employees of the Employer within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act. - ,
IV. THE APPROPRIATE UNIT
A. Contentions of the, parties
The IAM seeks a unit of all,machinists, millwrights, and machine
adjusters at the Employer's Louisville plant. The Employer and
7
' Public Law 549, 79th Cong., 2d Sess.
- 598, DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
the Tobacco Workers contend that the history of collective bargaining
affecting the,Employer's Louisville plant renders inappropriate the
unit sought by the IAM, and the Tobacco Workers urges further that,
,in any event, machine adjusters should be excluded from the proposed
unit. '
The issues which are raised in this proceeding with respect to the
propriety of the unit sought by the TAM cannot be resolved without
reference to prior Board decisions affecting the Employer's Louisville
plant.
B. The'Board's-1939 decision and the functions of machinists, mill-
_ 20rigllts, and machine adjusters
In April 1938 the Tobacco Workers filed a charge against the Em-
ployer alleging, inter alia, that the Employer had violated Section 8
(5) of the Act by refusing to bargain with the Tobacco Workers as
the representative of employees at the Employer's Louisville Plant.
The Tobacco Workers alleged that the appropriate unit consisted of
all production 3 employees at the Employer's Louisville plant... The
Board issued a complaint against the Employer based on the charge
filed by the Tobacco Workers and a hearing was held. Thereafter,
the IAM moved for'leave to intervene, alleging that it had jurisdic-
tion over "all employees .. regularly engaged at the work of re-
pairing and/or adjusting machinery including,-but without limitation,
machinists and their helpers and apprentices, and machine adjusters,"
and >;equested the Board not to direct the Employer to bargain with
the Tobacco Workers with respect to those employees'
The Board denied the IAM's motion for leave to intervene; and
later denied the IAM's motion for leave to file exceptions to the Inter-
mediate Report. Subsequently, the Tobacco Workers wrote a -letter
to the Regional Director wherein it waived all its rights to represent '
-journeymen machinists, machinists' helpers, and machinists' appren-,
tides. Pursuant to the terms of this waiver, the Board found in its de-
cision which issued in 1939 that the appropriate unit consisted of :
"The production'5 employees of the'respondent (the Employer in this
proceeding) at its Louisville plant, excluding . . . journeymen ma-
chinists, machinist helpers, and machinist apprentices." c The Board
then found that the Tobacco Workers was the exclusive representative
of employees in the above unit, and directed the Employer to bargain
with the Tobacco Workers concerning employees in that unit.
8 The Board found that the term "production employees " was clearly intended to mean
factory employees , as opposed to clerical employees , and to include maintenance employees.
4 The employees over whom the TAM asserted jurisdiction at that time. together with
other employees, had voted in 1957 in a consent election in which the Tobacco workers, the
only union on the ballot , received a majority of the valid ballots cast
5 As noted above , the -term- "production employees " was construed to include maintenance
employees -
6 Matter of P. Lorillard company, 16 N. L. R. B . 703, 725. ,
'P. LORILLARD COMPANY 599
As noted above, the I_AM in its motion for leave to intervene specifi-
cally asserted jurisdiction over machinists, their helpers and appren-
tices, and machine adjusters. The Tobacco Workers, on the other
hand, waived its right to represent machinists, their helpers and ap-
prentices, but made-no mention of machine adjusters. Under these
circumstances, we are forced to conclude that the Tobacco Workers
manifested no intention- to waive its right to represent machine ad-
justers. And this fact viewed in the light of the Board's omission of
machine adjusters from the excluded categories set forth in its 1939
unit determination impels the additional conclusion that machine ad-
justers were in fact-included in the appropriate unit established at
that time.' -
Moreover, it is clear that machine adjusters were properly included
in the production unit despite the exclusion of machinists, since the
duties and skills of the Employer's machine adjusters differ substan-
tially from those required of the-Employer's machinists.
Machine adjusters, also called fixers, are charged with making minor
adjustments and repairs on the various machines used by the Em-
ployer in the manufacture and packing of cigarettes and chewing to-
bacco. Each adjuster is charged with supervision over a line of 10
machines: Adjusters work in the same room as production employees,
are supervised by the production supervisor, and are carried on the
production pay roll, though their wage rates are determined on the
basis of wage rates applicable to maintenance employees. They are
paid less than machinists, and their'duties involve substantially less
skill than that required of machinists. It would appear that machine
adjusters are normally promoted from the ranks of production em-
ployees, though, as a result of the considerable increase in business
at the Employer's Louisville plant during the war, many of its present
machine adjusters were employed from the outside. In- the Philip
Morris case," which involved machine adjusters (referred to as fixers
in that proceeding), whose duties were substantially identical to those
of the Employer's machine adjusters, the Board stated: "The fixers
have a sufficient degree of skill and cohesiveness to constitute it sepa-
rate unit along craft lines. However, the fixer is in origin a machine
operator and may revert to that status."
' we are not unmindful that the Board's statement in its 1939 decision that the Tobacco
Workers' waiver rendered the denials of the IAM's motions non-prejudicial might suggest
it contrary finding However, upon a reappraisal of the record in that case, we are con-
vinced that the Board was merely following the, Tobacco workers' waiver, and we are
satisfied that there is nothing in that record which would indicate that the Tobacco Workers
intended to waive its right to represent machine adjusters.
8 70 N L'R B 274
" See also Matter of Ame> ican Can Company, 61 N L R B 1631, where the Board found,
contrary to the contention of another party to the proceeding, that the unit sought by the
lADI in that case, consisting of machinists, but excluding machine adjusters, was appro-
priate for the,purposes of collective bargaining.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
We have concluded that machine adjusters were included and.-ma-
chinists excluded from the unit found appropriate in the Board's
1939 decision. A question' remains as to the effect of that decision
upon the millwrights at the Employer's Louisville plant. Millwrights
were not specified by the IAM in its,motion for leave to intervene, nor
were `they specified by the Tobacco Workers in its waiver. But 'it
does not appear whether the Employer employed any millwrights at
the time of the 1939 decision.
The Employer's millwrights work primarily at installing and
overhauling machinery. They do some repair work as well. They
are more highly skilled than the machine adjusters, although their
duties require somewhat less skill than those of the machinists. Sig
nificantly, their work is very similar to that of the machinists. ,
We are persuaded in the circumstances that millwrights were not
included in the appropriate unit established in 1939,-and that they
should be treated for the purposes of this decision in the same manner
as the machinists.
C. The history of collective bargaining, the Board's 1944 decision,
and concluding findings
The bargaining history between the Employer,. the Tobacco Work-
ers, and other labor organizations representing employees at other
plants of the Employer was considered in a-decision of the Board
issued in 1944.10 The Board there found that in 1940 the Tobacco
Workers and several other unions representing employees of the Em-
ployer met with the Employer and, after negotiations, executed a mas-
ter' agreement effective June 1, 1940. The master agreement covered
all the plants at which employees-of the Employer were represented
by the labor organizations participating in the negotiations and con-
tained uniform provisions for all plants covered regarding hours,
overtime, holidays, vacations, seniority rights, and grievance proce-
dures. On July 1, 1941, the same parties entered into another master
agreement which provided that it should remain in ' effect to July 1,
1944.
The Board also found that while wage rates were established 'by
supplemental agreements on a single-plant basis, the negotiations per-
taining to the establishment of such wage rates were likewise con-
ducted on a multi-plant basis. The Board concluded that, despite
the original certifications of the unions involved restricted to em-
ployees at one plant, the parties had established a multi-plant unit
through the practice of collective bargaining followed by them, and
for that reason dismissed the petition of a labor organization, seeking
to represent employees of the Employer at its Louisville plant.
10 Matter of P. Lorillard Company, 58 N. L. R. B. 1112
P. LORILLARD COMPANY 601
Upon the record in this case we note that the parties to'the master
agreement of July 1, 1941, amended that'agreement, and, as amended,
extended it to July' 1, 1947: It appears that the Employer, the To-
bacco Workers, and the other labor organizations which are parties
to that agreement have continued to bargain in the multi-plant unit
deemed appropriate by the Board in 1944.
By the agreement of July 1, 1941, the Employer recognized the
Tobacco Workers,' inter alia, as the representative "for such unit of
employees at such plant of the company as said Unionhas been desig-
nated to represent, pursuant to the respective certifications of the
Unions by the National Labor Relations Board, reference to each of
such certifications being hereby made for a more particular descrip-
tion of the unit of employees represented by each of said Unions."
This provision was carried over to the master agreement of July 1,
1944.
We have found that machinists, and millwrights at the Employer's
Louisville plant were not included in the unit found appropriate by
the Board in 1939. Consequently, they are not covered by the master
agreement of July 1, 1944, now if effect.
The Employer and the Tobacco Workers contend, however, that the
machinists and millwrights have actually been represented by the
Tobacco Workers in the multi-plant unit and that all the provisions
of the master agreement and the supplemental agreements covering
wages at the Louisville plant have been applied to-them. But we
have held that a history of collective bargaining between a certified
labor organization and an employer in a unit different than that found
appropriate by the Board may be disregarded," and, further, that a
history of collective bargaining not predicated upon a written contract
is not entitled to serious consideration 12 .,
Accordingly, since machinists and millwrights form a cohesive and
homogeneous craft group which would normally constitute a unit
appropriate for the purposes of collective bargaining, we find that
there is not present a sufficiently compelling history of collective bar-
gaining to warrant a contrary conclusion.
A distinctly different question is -raised with respect to the Em-
ployer's machine adjusters. Their duties and skills; as indicated
above, vary materially from those required of the Employer's ma-
chinists and millwrights. And we have found that these machine
adjusters were included in the unit found appropriate by the Board
in 1939. Consequently, they are, covered by the master agreement,
" Matter of The Globe Oil if Refining Company, 63 N. L R B 958
n Matter of International Harveste, Company, 68 N. L R B 383; Matter of h amilton-
Scheu it Walsh Shoe Company, 66 N. L. R. R. 146 . If the 'Employer and the Tobacco
-workers have in fact applied the terms of the master agreement to the machinists and'
millwrights , this must have been done pursuant to an oral understanding between parties.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
and they have in fact been represented in the multi plant unit. We
do not believe that we should now allow these employees to be severed
from the multi-plant unit on a single-plant basis,,either as a separate
grouping or as 'part of one ' comprised also of the. machinists and
millwrights. - _ . -
We find that all machinists and millwrights, their helpers and
apprentices, employed at the Employer's Louisville, Kentucky, plant,
excluding machine adjusters,' and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes- in the status of employees, or effectively'reconimend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act. -
DIRECTION OF ELECTION 13
As -part of the investigation to ascertain representatives for the
purposes of collective bargaining with P. Lorillard Company, Louis-_
ville, Kentucky, 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 Ninth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the 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,vaca-
tion or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the,
polls, but excluding those employees who have since quit or been dis-
charged for cause. and have not been rehired or reinstated prior to_
the date of the election, to determine whether they desire to be repre-
sented by International Association of Machinists, or by Local Union
No. 201, Tobacco Workers International Union, AFL, for the purposes
of collective bargaining, or by neither.'
CHAIRMAN HERZOG took no part in the- consideration of the above
Decision and Direction of Election.
13 Any participant in' the election herein may, upon its prompt request to and approval
thereof by the Regional Director, have its name removed from the ballot