Precision Castings Co., Inc.

National Labor Relations Board - Board Decisions

Aug 12, 1940

26 N.L.R.B. 528 (N.L.R.B. 1940)

In the Matter Of PRECISION CASTINGS COMP2 NY, INC. and NATIONAL
ASSOCIATION OF DIE CASTING WORKERS, REGION No . 5, AFFILI-
ATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Case No. R-1951.-Decided August 12, 1940
Jurisdiction : casting manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives; strike for recognition; contract no bar
to, where prior to execution Company had notice of petitioner's claim of repre-
sentation and of charges filed alleging a violation of Section 8 (2) with respect
to the contracting union and where said contract was executed after the petition
was filed without proof that contracting union represented a majority; tempo-
rary laid-off employees whose work is seasonal eligible to vote, employees
accused of committing acts of violence and others of having been convicted of
violating a temporary restraining order as to picketing, eligible to vote; request
of intervening union that it did not desire its name to appear upon the bal-
lot in the event an election is held, granted; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees, excluding watchmen. truck driver, timekeepers, clerical employees,
working supervisors, and any employees occupying higher supervisory positions.
Mr. Lowell Goerlieh, Mr. Edward Lamb, and Mr. Edward Cheyfitz,
of Toledo, Ohio, for the C. I. 0.
Horan & Bell, by Mr. R. S. Horan, of Cleveland, Ohio, for the
Association.
Stanley & Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio, for
the Company.
Mr. Leonard Lindquist, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 6, 1940, National Association of Die Casting Workers,
Region No. 5, affiliated with the Congress of Industrial Organizations,
herein called the C. I. 0., filed with the Regional Director for the
Eighth Region (Cleveland, Ohio), a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Precision Castings Company, Inc., Lakewood, Ohio, herein
called the Company, and requesting an investigation and certification
26 N. L. R. B. No. 52
528
PRECISION CASTINGS COMPANY, INC. 529
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On July 9, 1940,
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 Relations Board Rules and Regulations-Series 2, as
amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On July 9, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the C. I. 0.
and The Precision Employees Association, herein called the Associa-
tion. Pursuant to the notice, a hearing was held at Cleveland, Ohio,
from July 12 through July 18, 1940, before Max W. Johnstone, the
Trial Examiner duly designated by the Board. At the hearing, the
Association, claiming to represent employees directly affected by the
investigation, moved that it be allowed to intervene. This motion
was granted by the Trial Examiner.
The Company, the C. I. 0., and the Association were represented
by counsel, and all participated in the hearing. Full opportunity
to be heard, to examine and 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.
During the hearing, the Association filed written "charges" with
the Trial Examiner that by threats and other acts of intimidation
engaged in while the hearing was in progress, the C. I. 0. discouraged
certain employees from testifying as witnesses for the Association.
Upon request of the Association, the Trial Examiner granted sub-
poenas for the employees against whom the alleged acts of intimida-
tion were directed to appear as witnesses, and after certain of the
subpoenaed employees had testified as to this matter, the C. I. 0.
moved that the "charges" by the Association be dismissed. It
appears clearly that two of the C. I. 0. representatives made threats
and disparaging remarks to certain of the witnesses, and that this
improper conduct was condoned by counsel for the C. I. 0. While
we regard the actions of the C. I. 0. representatives, herein com-
plained of, as without excuse or justification, there is no showing
that the Association was thereby prejudiced in presenting its side of
the case. In view of the serious necessity for a determination of
representatives, discussed below, we therefore are of the opinion that
we should proceed to a determination of the merits of this case irre-
spective of the improper conduct of the C. I. 0. representatives.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 31, 1940, the C. I. 0., the Association, and the Company
filed briefs which we have considered. Pursuant to notice, a hearing
for the purpose of oral argument was held before the Board, August
1, 1940, at Washington, D. C. The C. I. 0., the Association, and the
Company appeared by counsel; all participated in the hearing.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company, a New York corporation with factories located at
Fayettesville and Syracuse, New York, and Lakewood, Ohio, is
engaged in the manufacture and, sale of castings. The principal raw
materials used by the Company are aluminum and zinc, approximately
all of which are obtained from sources outside the States of New York
and Ohio. During 1939 the Company shipped finished products
from its plants in the amount of $850,000, approximately 30 per cent
of which represented shipments into States other than New York and
Ohio.
II. THE ORGANIZATIONS INVOLVED
National Association of Die Casting Workers, Region No. ' 5,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company at
its Lakewood, Ohio, plant.
The Precision Employees Association is, a labor organization ad-
mitting to membership all factory employees of the Company, exclud-
ing foremen having the power to hire, discharge, or otherwise discipline,
at its Lakewood, Ohio, plant.
III. THE QUESTION CONCERNING REPRESENTATION
About November 1, 1939, the C. I. 0., which had been organizing
the Company's employees at its Lakewood plant since the spring of
1939, requested the Company to recognize it as exclusive bargaining
agent,, and on November 7 it filed a petition for investigation and
certification under Section 9- (c) of the Act. The Association began
organizing the Company's employees at its Lakewood plant in Novem-
ber 1939, and during the same month also requested that the Company
recognize it as exclusive bargaining agent. At a conference held
between the Company, the C. I. 0., and the Board's agents on
November 18, 1939, the Company suggested that a consent election
be held with both unions on the ballot. The C. I. 0., however, would
not agree to such an election since it already had filed charges with the
Board, alleging that the Company had dominated and interfered with
the formation and administration of, and contributed support to, the
Association in violation of Section 8 (2) of the Act.
PRECISION CASTINGS COMPANY, INC., 531
Another conference between the C. I. 0., the Company, and the
agents of the Board was held on November 22, 1939, and at that time
the Company was willing to agree to an election with only the C. I. O.
on the ballot, providing that the election, would be held on November
25, and that the Association also would consent thereto. The C: I. O.,
refused to agree on the November 25 date and demanded that the
election be held on December 4. The parties failed to reach an agree-
ment as to a date on which the election might be held, and the negotia-
tions as to the consent election ended when the Company refused to
issue a neutrality notice to its employees. On November 25 the
Company negotiated a draft contract with the Association, recognizing
it as,exclusive bargaining agent and providing, among other things, for
increased wages, regulations of hours, and seniority rules.' The
contract thereafter was signed by 128 employees, constituting a
majority, and then was executed by the Company. Such signatures
of the 128 employees constituted the only proof of employee adherence
to the Association that was submitted to the Company. The contract
is dated November 25, 1939, and is to remain,in effect for 1 year,'
subject to a renewal clause.
The C. I. O. withdrew its petition of November 7 in the latter part
of 1939, and upon charges that it had filed with the Board, an amended
complaint, dated March 6, 1940, was issued against the Company,
alleging violations of Sections 8 (1), (2), and (3) of,the Act. A hearing,
as to this matter was held from March 1.1 through April 3, 1940, and
at the date of the present proceeding, no intermediate report had been
issued.
On June 25, 1940, the C. I. O. called a strike at the Company's
Lakewood plant, and upon the Company refusing to meet with the
C. I. O. for purposes of hearing its demands, one of which was that it
be recognized as exclusive bargaining agent, the C. I. O. on July 6
filed its petition herein, requesting an investigation and, certification
of representatives. During the strike, which lasted until July 15,
when, most of the employees involved applied for reinstatement, the
operations of the Company were substantially curtailed.
The Company contends that the validity of its contract with the
Association, which is in issue in the unfair labor practice hearing above
referred to, must first be determined before the instant case may go
forward. The Company asserts that many employees who went on
strike had signed the contract, one of the clauses of which provides
that "An Employee shall lose his seniority . . . (2) If he remains
I The evidence considered above concerning events occurring prior to November 25, the date of the con-
tract , is for the most part taken from certain testimony and exhibits admitted in the unfair labor practice
proceeding of March 11 through April 3, 1940, wherein the same parties here participating were also involved
and which testimony and exhibits on being offered by the Company in the present proceeding were rejected
by the Trial Examiner . We think this rejected testimony and exhibits are material to a determination of
the issues in this proceeding , and they are hereby admitted in evidence
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
away from his work for three days or longer without justifiable cause
and without notifying the Employer of his intended absence. (3) If
he voluntarily leaves the employ of the employer." The Company
does not seriously contend, however, that the employees who signed
this contract and thereafter went on strike, are no longer employees of .
the Company within the meaning of the Act, which specifically states
that "The term `employee' shall include . . . any individual whose
work has ceased as a consequence of, or in connection with any current
labor dispute."
For the following reasons, among others, we further conclude that
the contract executed between the Company and the Association on
November 25, 1939, constitutes no bar to the present proceedings:
(1) the contract was entered into after the C. I. 0. had filed a petition
for investigation and certification under Section 9 (c) of the Act; (2)
prior to the execution of the contract, the Company had notice that
the C. I. 0. claimed to have been designated by a majority of the Com-
pany's employees as their sole bargaining agent; (3) since the only
proof of employee adherence to the Association at the date the con-
tract was entered into is the employee signatures to the contract after
it had been drawn up, the record does not clearly establish that the
Association was the chosen majority representative at that date; and
(4) prior to the execution of the contract, the Company had notice
that the C. I. 0. had filed charges with the Board alleging that the
Company had dominated and interfered with the formation and
administration of the Association, and had contributed support to it,
in violation of Section 8 (2) of the Act.
The C. I. 0. asserts that it represented a majority of the employees
in the appropriate unit. There was introduced in evidence a written
statement by the Regional Director reporting that the C. I. 0. had
submitted to him 164 signed application cards, most of which were
dated between August 1939 and July 1940; and that the signatures on
105 of these cards appeared to be genuine and original and were
names appearing on the Company's seniority list. The Company
normally employs about 180 persons in all at the Lakewood plant.
The C. I. 0. also submitted to the Regional Director 81 signed cards
for the most part containing duplicate signatures of names appearing
on the application cards, wherein the signers thereof disavowed any
authorization they may have granted to the Association to represent
them for purposes of collective bargaining.
The Regional Director also reported that the Association had
submitted to him 143 signed authorization cards, none of which were
dated, but an Association representative stated that all the cards
were signed in the latter part of 1939; that the signatures on these
cards appeared to be genuine, original signatures; and that 134 of the
323429-42-vol. 26-37
PRECISION CASTINGS COMPANY, INC. • 533
signatures were names appearing on the Company's seniority list.
In addition, the report stated that 56 of the 81 disavowal, cards pre-
sented by the C. I. O. bore the names of persons whose signatures,.
also appeared on the Association cards.
We find that a question has arisen concerning representation, of
the 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. to labor disputes burdening and obstructing com-
merce and the free flow of commerce. °
V. THE APPROPRIATE UNIT
At the hearing the C. I. O. contended that all production employees
of the Company, excluding supervisors, watchmen, truck driver,
timekeepers, and clerical and maintenance employees, constituted a
unit appropriate for the purposes of collective bargaining.- .The
Association and the Company requested a unit consisting of all hourly
and piece-work employees, excluding foremen having power to hire,
discharge, or otherwise discipline, or to determine rates of pay.
The Company employs approximately 8 maintenance employees at
its Lakewood plant. They work largely as millwrights in keeping
the plant and machinery in repair, and are paid on an hourly basis,
as are several production workers. One of the maintenance workers
was admitted to membership in the C. I. 0.; others of them have
joined the Association. The Association and the Company desire
that the maintenance employees be included in the unit, and the
C. I. O. objects to their inclusion largely on the basis that these
employees are,"opposed to legitimate trade unionism." In its peti-
tion of November 7, 1939, referred to above, the C. I. O. requested
that maintenance workers be included in the unit. We shall include
maintenance employees in the appropriate unit.
The Association and the Company request, and the C. I. O. opposes,
the inclusion of John Hembly in the appropriate unit. Hembly
measures the dimensions of the finished castings to determine their
size. We think that Hembly's work is a part of the production process,
and we shall include him in the appropriate unit. - - - -
William S. Grant is employed in the stock room. His duties
onsist of handing out materials to the employees, and keeping a
record of supplies. The Association and the Company request his
323429-42-vol. 26--35
534. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inclusion in the;unit,'andjthe'C.^I. 0., whileyobjecting to his inclusion;
offers no substantial reason to support its, contention.). We 'think' it
clear that the nature of the work performed by Grant does not result
in his having any interests or problems different from ordinary,
production or maintenance workers. We shall include Grant' in the
appropriate unit. , . • 41 . ,
Clyde Luke, employed in the shipping room in packing castings
and keeping a record of shipments, is desired to be included in the'
unit by the Company and the Association, and the C. I. 0. does not
oppose his inclusion. We shall include Luke in the appropriate unit.
The C. I. 0. further asserts that A. W.. Warren, Harry Kirk, and
Joseph Farbarik, Sr., employed as watchmen;. Clarence Decker, ,
employed as an outside truck driver; Genevieve Rose •Horlak and
Arthur Seith, employed as timekeepers,' Mary, Sliwa,, essentially a
timekeeper employed in compiling production returns, for the-pay;-roll
records; and Jack Combs, Joseph Farbarik, Jr., Ted Kaput, Joseph
Toczek, Nelson Stephan, George Searle, Walter Lewicki, Julian Barry,
and John Beltz, employed as working supervisors,' should be excluded
from the unit, while the Association and the Company desire their
inclusion . As, to the employees classified as working supervisors,
A. D. Weigolt, the plant superintendent, testified,,
We have a number of employees which act in the capacity of
supervisors part time, to the extent that they will hand out work'
to that particular group in any one department and keep track
of production and also instruct the particular group ' in any
operation in the department, and in general act as ' assistant''
foremen in that capacity and put in the balance of -the time on,
production labor. I ' . . . -
Weigolt continued, "they (the working supervisors) have the right to'f
suggest increases in wages," and "they would be in a position to know,'
whether the work was done 'right." Mary Sliwa, secretary of the
Association, described several of these working supervisors as being
in "charge" of various departments. '
Where one union in a case such as this desires ;to 'exclude employees '
of the above classifications from a unit composed of production 'and
maintenance employees and another does not, it has been the practice'
of the Board to exclude them, unless some special reason `appears' for
their inclusion.' No such reason appears in the record as to the em
ployees listed in the above paragraph. We shall exclude them'from'•
the appropriate unit.
2 During the strike, several of these working supervisors signed cards applying for membership ; in, the
C I. 0. Subsequently, however, the C I 0 decided that these employees were not eligible for member-
ship, and action was taken to remove their cards from its files. 1
3 Watchmen excluded Matter of The Peoples Gas Light and Coke Company and Chicago By-Product Coke
Company and United Mine Workers of America, District 50, Affiliated with the Congress of Industrial Organi-
(Footnote 3 continued on following page.)
i. PRECISION, CASTINGS COMPANY, INC. 535
John Biss; , vice president, of, the C. I. 0., testified that he had re-
ceived reports that Molley Wessel, employed in the filing department,
had ,been promoted to forelady in place of Mary Mulqueen, and it was
contended, therefore, that Wessel should be excluded from the unit.
Weigolt, however, testified that Wessel had not taken over the duties
of, Forelady Mulqueen, and that the latter had merely decided not to
report to work during the period of the strike. • We, therefore, shall
include Wessel in the unit.
In view of the circumstances noted above, existing at the time that
the Company and the Association entered into their contract of No-
vemberi25, 1939, we can give no weight to the contention of the Asso-
ciation., and the Company that, the unit fixed in that contract should
control our -determination of the unit in the present proceedings.
We find that all production and maintenance employees of the
Company at its Lakewood plant, excluding watchmen, truck driver,
timekeepers, clerical employees, working supervisors, and any em-
ployees occupying higher supervisory positions, constitute a unit
appropriate for '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 will otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Ini Section III, above, we have noted the conflicting claims of the
two labor organizations as to majority representation in the appro-
priate unit: We find that the question concerning representation
which has arisen can best be'resolved by an election by secret ballot,
and we shall'direct the holding of such an election.
At the hearing, the C: I. 0. asserted that if an election was to be
held, eligibility to.vote should be determined by the pay roll of June
22, 1940, the last pay-roll period previous to the strike. The Associa-
tion and the Company did not oppose adoption of this date. At the
time 'of the:hearing the plant had not resumed normal operations,
although picketing had been. discontinued and most of the striking
employees had applied for reinstatement. We shall adopt the pay-
(Footnote 3 -Continued from previous page )
zations, 15 N L. R B 1024; Matter of Plankington Packing Company and Packing House Workers Organizing
Committee on Behalf of Local 681 of the United Packing House Workers of America , 5 N L R. B. 813 Truck
drivers exeluded •,Matter of Payne Furnace and Supply Co ., Inc and Stove Mounters International Union of
North America Local A o. 98 , AFL, 21 N L. R B. 797; Matter of Blue Diamond Corporation , Ltd. and Inter-
national Longshoremen 's and Warehousemen ' s Union, Local 1-26, 18 N . L. R. B 730 Timekeepers excluded
Matter of American Radiator Company (Bond Plant and Terminal Plant ) and Amalgamated Association of
Iron, Steel & Tin Workers , Lodges 1199 and 1629, 7 N. L. R B 452, Matter of Atlantic Basin Iron Works and
Industrial Union of Marine and Shipbuilding Workers of America, Local No. 13, 5 N. L. R. B 402. Super-
visors excluded : Matter of Jones Lumber Company and Lumber and Sawmill Workers Union , Local No.
£877, chartered by United Brotherhood of Carpenters and Joiners of America , Affiliated with the American Federa-
lion of Labor , 12 N. L. R B 209 , Matter of Alabama By-Produts Corporation , Coke Oven Division and District
60, United Mine Workers of America (C. 1. 0), 13 N. L. R. B. 427.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll period for the week ending June 22 for determining the eligibility
to vote.
The record discloses that during the summer months the Company's
business declines and, consequently, that some of its employees are
laid off during that period. There was -introduced in evidence a list
of about 40 employees, all of whom had been laid off between April
and June 1940, and who had been in the employ of the Company for
periods ranging from 4 weeks to 3 years. Weigolt testified that as
business increased in the fall, each of these employees would be re-
hired on a seniority basis. The C. I. 0. contends that these laid-off
employees should not be entitled to vote in any election, while the
Company and the Association take the opposite position. Although
the work of these laid-off employees is seasonal, it is evident that they
have an interest in conditions of employment which might be agreed
upon during the year even though not employed at the.particular
time the agreements are made.4 That interest entitles them to a
voice in the determination of representatives, and we, therefore, shall
consider these temporarily laid-off employees as eligible to vote in the.
election.
Although the Company presented evidence that certain employees
had been convicted of violating a temporary restraining order as to,
picketing in the Court of Common Pleas, which conviction was being
appealed at the date of the hearing, and also accused other employees,
none of which had been so convicted, of committing acts of violence,'
it did not contend that by reason of-the acts complained of, the em-
ployer-employee relationship as to the employees in question thereby
had automatically terminated, nor that the employees had been dis-
charged. In view of the circumstances, we conclude that none of the
employees involved in the acts above mentioned have lost their
employee status, and we deem them entitled to participate in the
voting.
..We find that those eligible to vote in the election should be employ-
ees in the appropriate unit who were employed by the Company during
the week ending June 22, 1940, including employees who did not
work during such pay-roll period because they were ill, on leave, or
on vacation, and employees who were then or shall have since been
temporarily laid off, but excluding those who shall have since quit
or been discharged for cause.
At the hearing the Association advised that if an election was
held, it did not desire to have its name appear upon the ballot. Ac- ,
4 Cf Matter of National Distillers Products Co and United Distillery Workers of N A, Local No 484, Affili-
ated with Committee for Industrial Organization, 5 N L R B 862
s During the bearing the Company requested that subpoenas be issued for two policemen to appear at
the hearing and testify as to events occurring on the picket lines during the strike This request was refused
by the Trial Examiner on the ground , among others, that picketing had been discontinued We hereby
affirm this ruling.
PRECISION CASTINGS COMPANY, INC. 537
cordingly, the name of the Association shall be omitted from the
ballot.
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 Precision Castings Company, Inc., Lake-
wood, Ohio, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company
at its Lakewood, Ohio, plant, excluding watchmen, truck driver, time-
keepers, clerical employees, working supervisors, and any employees
occupying higher supervisory positions, constitute a unit appropriate
for the purposes of collective bargaining within the meaning 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 2, as amended, it is
hereby
DIRECTED that, as part of the investigation ordered by the
Board to ascertain representatives for the purposes of collective
bargaining with Precision Castings Company, Inc., Lakewood, Ohio,
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 of
Election, under the direction and supervision of the Regional Director
for the Eighth Region, acting in the matter as agent for'the National
Labor Relations Board, and subject to Article III, Section 9, of
said Rules and Regulations, among all production and maintenance
employees of the Company at its Lakewood, Ohio, plant who were
employed during the week ending June 22, 1940, including employees
who did not work during that period because they were ill, on leave,
or on vacation, and employees who were then and shall have since been
temporarily laid off, but excluding watchmen, truck driver, timekeepers,
clerical employees, working supervisors, and any employees occupying
higher supervisory positions, and those who shall have since quit or
been discharged for cause, to determine whether or not they desire
to be represented by National Association of Die Casting Workers,
Region No. 5, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining.
WM. M. LEISERSON, dissenting:
I dissent from the foregoing Decision and Direction of Election.