Petersen & Lytle

National Labor Relations Board - Board Decisions

Mar 3, 1945

60 N.L.R.B. 1070 (N.L.R.B. 1945)

In the Matter of C. J. PETERSEN AND C. F. LYTLE p/B/A PETERSEN &
LYTLE and UNITED STEELWORKERS OF AMERICA (CIO)
Case No. 17-R-1040.-Decided March 3, 1945
Mr. Reed O'Hanlon, of Blair, Nebr., for the Company.
Messrs. Loyal G. Kaplan and C. N. Stover, of Omaha, Nebr., for the
Steelworkers.
Mr. John J. Manning, of Kansas City, Mo., for the Boilermakers.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Steelworkers of
America (CIO), herein called the Steelworkers, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of C. J. Petersen and C. F. Lytle, doing business as Petersen,
& Lytle, Blair, Nebraska, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon due
notice before Robert S. Fousek, Trial Examiner. Said hearing was
held at Blair, Nebraska, on January 12, 1945. The Company, the
Steelworkers, and International Brotherhood of Boilermakers, Iron
Ship Builders and Helpers of America, Local No. 83, herein called
the Boilermakers, 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. The Trial
Examiner's rulings made .at the hearing are free from prejudicial
error and are hereby affirmed. The motion of the Boilermakers to
dismiss is hereby denied for reasons hereinafter stated. All parties
were afforded the opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Petersen & Lytle, a partnership, having its principal place of busi-
ness in Blair, Nebraska, is engaged in the manufacture of steel vessels
60 N. L. R. B., No. 176.
1070
PETERSEN & LYTLE 1071
and the reworking of armored tank hulls. The Company uses annually
in its business raw materials consisting chiefly of steel, lumber, pipe,
and ship fittings of an approximate value of $350,000, of which more
than 50 percent is obtained from points outside the State of Nebraska.
The Company produces annually finished products valued at approxi-
mately $450,000, of which 90 percent is sold to the United States
Government.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
International Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, Local No. 83, affiliated with the American
Federation of Labor, is a. labor organization admitting to member-
ship employees of the Company.
IN. THE QUESTION CONCERNING REPRESENTATION
On November 18, 1944, the Steelworkers, claiming majority repre-
sentation among the Company's employees, mailed to the Company
a letter containing a request for recognition as bargaining agent for
the Company's employees. On November 23, 1944, the Company re-
plied that another labor organization also claimed the right to act
as bargaining representative and referred the Steelworkers to the
Board for the settlement of its claim to represent the Company's
employees.
The Boilermakers contends that the present proceeding is barred
by reason of an existing contract between the Company and the
Boilermakers covering the employees herein concerned. The con-
tract, dated and executed January 19, 1944, is an exclusive bargain-
ing agreement for a period of 1 year, with a provision for automatic
renewal in the absence of 60 days' written notice by either party to
the other of a desire to amend. The Boilermakers contends that the
contract, although dated January 19, 1944, became effective retro-
actively to January 1, 1944, and that by reason thereof the contract
was automatically renewed in the absence of notice by the parties, or
a claim by the Steelworkers made at least 60 days prior to January
1, 1945.
From our examination of the contract in question,' we are of the
opinion that while the wage rates therein 'are to be applied retro-
I The Boilermakers introduced evidence tending to show an oral understanding between
the Company and the Boilermakers prior to the execution of the written contract, to the
effect that the contract when executed should be effective retroactively to January 1, 1944.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actively to January 1, 1944, the terms of the, contract generally are
effective upon the execution thereof. We are also of the opinion that
the termination date, as contemplated by the automatic renewal clause,
is 1 year from the effective date of the general provisions of the said
contract. We find, accordingly, that the notice given by the Steel-
worlwrs on November 18, 1944, was timely and thus sufficient to pre-
vent the renewal of the contract under the terms of the automatic
renewal provision hereinabove referred to.2
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Steelworkers and the
Boilermakers each represents a substantial number of employees in
the unit which it claims to be appropriate.3
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.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement that the appropriate unit
should consist of all production and maintenance employees of the
Company, excluding office and clerical and supervisory employees.
The parties disagree, however, as to the following employees :
The Company employs 2 general foremen, a machine shop fore-
man and a yard foreman. The only dispute with respect to these
Such evidence has not been considered , since, under the parole evidence rule , it is presumed
that all prior oral understandings on the same subject matter are merged in the final
written agreement of the parties. Further evidence in the form of a letter dated December
2, 1944 , from an official of the Boilermakers to a Field Examiner for the Board , wherein
it is stated that the contract does not expire until January 1, 1945, falls to reflect the
,common interpretation of the parties with respect to the contract herein concerned.
See Matter of Buffalo Arms Corporation, 57 N L R B. 1560.
The Field Examiner reported that the Steelworkers had submitted 49 designations
dated in November 1944, of which 40 bear the names of employees on the pay roll of
November 30, 1944, containing 78 names in the unit claimed appropriate by the Steel-
workers . The Field Examiner further reported that the Boilermakers had submitted 66
designations dated December 1944, of which 61 bear the names of employees on the said
pay roll , containing 69 names in the unit claimed appropriate by the Boilermakers
The Boilermakers raises a question regarding the, showing of the Steelworkers. The
Boilermakers contends that the Steelworkers did not represent a majority of the Company's
employees upon the date of its notice to the Company claiming majority representation
and that such notice is therefore insufficient to prevent an automatic renewal of the con-
tract. The Boilermakers further contends that the showing of the Steelworkers based upon
the designations submitted to the Board is vitiated by the later designations of the Boiler-
makers obtained subsequent to the date on which the Steelworkers secured its designations
for the purposes of representation These contentions are based upon an erroneous
analysis of the basis for the requirement of a showing of union representation . The sub-
mission of cards is an administrative expedient adopted by the Board to determine for
itself whether or not a question of representation has arisen . Proof of majority status
is not required to raise a question concerning representation or give validity to a notice of
interest otherwise sufficient to prevent the automatic renewal . of a collective bargaining
agreement ; it is only necessary to establish to the satisfaction of the Board that the
petitioning uponl represents a substantial number of employees in the unit found to be
appropriate See Matter of Buffalo Arms Corporation, 57 N. L. R. B 1560 ; Matter of
Dempster Brothers , Inc., 58 N. L. it. B. 151.
PETERSEN & LYTLE 1073
employees concerns the 2 general foremen and the machine shop fore-
man whom the Boilermakers and the Company, in opposition to the
Steelworkers, would exclude from the unit of production and main-
tenance employees .4 The evidence reveals that the 2 general fore-
men and the machine shop foreman are salaried employees in charge
of crews varying from 2 or 3 to as many as 60 employees. Their
duties consist of laying out work and thereafter seeing that such work
is properly performed. Such foremen have not been included under
the recent contract between the Company and the Boilermakers.
While they may not directly hire and discharge employees, they have
the power to make effective recommendations with respect to the
status of employees under their supervision. We find that the gen-
eral foreman and the machine shop foreman hereinabove referred to
are supervisory employees within the meaning of our usual definition.
We shall, accordingly, exclude them from the unit hereinafter found
appropriate.
The. Steelworkers urges the inclusion of watchmen, carpenters,
assistant carpenters, machinists, machinists' helpers, electricians, and
storekeepers. The Boilermakers asks that all such employees be ex-
cluded upon the ground that they have not been part of the produc-
tion and maintenance unit established by the contract between the
Company and the Boilermakers. We are of the opinion that the
Boilermakers' position is well taken. While the record does not dis-
close that such employees have interests or duties which would of
necessity prevent their inclusion in the present bargaining unit, in
the absence of any compelling circumstances warranting a departure
therefrom, we shall adhere to our usual practice and not disturb the
contract unit established as the result of collective bargaining between -
the Company and the Boilermakers.5 Accordingly, we shall exclude
watchmen, carpenters and assistant carpenters, machinists, machinists'
helpers, electricians, and storekeepers from the unit involved in this
proceeding. % Our finding in this respect, however, shall not preclude
a later deterinination, based upon a new petition and a sufficient show-
ing of representation, that these employees may be offered an oppor-
tunity to vote as to their inclusion in the larger unit herein found
appropriate.6
4 All parties are agreed that the yard foreman who has been covered by the contract
between the Company and the Boilermakers should be included within the appropriate
unit. We find that the yard foreman, an hourly paid employee and subordinate of one
of the general foremen , is not a supervisory employee within the usual meaning of the term.
We shall , accordingly , include him within the unit herematter found appropriate.
6 Cf. Matter of Boston Edison Company , 51 N. L. R. B. 118 ; Matter of The Toledo Desk
and Future Company, 56 N L R B 1022.
9 See Matter of Jones & Laughlin Steel Corporation , Pittsburgh Works, 57 N . L. R. B.
357.
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1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees of the
Company at its Blair , Nebraska , plants, including the yard foreman,
but excluding watchmen, carpenters and assistant carpenters , machin-
ists, machinists ' helpers, electricians , storekeepers , office and clerical
employees , ggeneral foremen , machine shop foremen, and all super-
visory employees with authority to hire, promote , discharge, dis-
cipline, or otherwise effect changes in the status of employees , or effec-
tively 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 the em-
ployees 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.
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 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 C. J. Petersen and
C. F. Lytle, d/b/a Petersen & Lytle, Blair , Nebraska , 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 Seventeenth 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 Regu-
lations, 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 vacation
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 any 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 Steel-
workers of America ( CIO), or by International Brotherhood of
Boilermakers , Iron Ship Builders and Helpers of America, Local No.
83, for the purposes of collective bargaining , or by neither.