Special Machine and Engineering Co.

National Labor Relations Board - Board Decisions

Sep 15, 1949

85 N.L.R.B. 1332 (N.L.R.B. 1949)

In the Matter of SPECIAL MACHINE AND ENGINEERING COMPANY, EM-
PLOYER and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO,
PETITIONER
Case No. 7-RC-282
SUPPLEMENTAL DECISION
ORDER
AND
SECOND DIRECTION OF ELECTION'
September 15,1949
On November 23, 1948, pursuant to a Decision and Direction of
Election issued by the Board on October 25, 1948,2 an election by secret
ballot was conducted under the direction and supervision of the Re-
gional Director for the Seventh Region. Upon completion of the
election, a Tally of Ballots was furnished the parties. The tally shows
that of the valid votes counted, 17 votes were cast for, and 46 were cast
iigainst, the Petitioner.
On November 29, 1943, the Petitioner filed nine objections to the
conduct of the election alleging that certain acts by the Employer
prior to the election deprived the employees within the unit of the full
exercise of their right of franchise in the election we had directed.
Upon investigation thereof, the Regional Director issued his Report on
Objections in which he found, as alleged by the Petitioner, that the
Employer had interfered with the conduct of the election in three im-
portant respects,' which had a substantial and material effect on the
election. He.recommended therefore that the election be set aside.
I On January 31, 1949 , Mechanics Educational Society of America requested permission
to intervene in this proceeding . As its authorizations to represent employees were acquired
subsequent to the original hearing in this case , the request is denied . See Matter of
LaClede Gas Light Company , 81 N. L . R. B. 462 ; Matter of Gullet Gin Co., 72 N. L. R. B.
1101 ; Matter of Grand Central Airport Co ., 70 N. L . R. B. 1094 ; Matter of Swift and
Company, 68 N. L. R. B . 440; Matter of Ford Motor Co. (Chicago Branch ), 66 N. L. R. B.
1317.
2 Unpublished.
8 The Regional Director found as contended by the Petitioner : ( 1) that the Employer
failed to post election notices in the production division ; ( 2) that the Employer without
notice to the Board , advanced the quitting time of production division employees on the
85 N. L. R. B., No. 220.
1332
SPECIAL MACHINE AND ENGINEERING COMPANY 1333
Thereafter, the Employer filed exceptions to the Regional Director's
report in which he primarily attacks the validity of the Board's
original unit findings.4
The Employer's position in effect is that the unit found to be appro-
priate by the Board did not include employees in its production divi-
sion , and that if they were included the inclusion was improper.
On April 11, 1949, the Board, having considered the Regional Di-
rector's Report on Objections, and the Employer' s exceptions thereto,
determined that the factual issues raised could best be resolved by a
second hearing. Pursuant to this decision, a hearing was ordered and
held at Detroit, Michigan, on May 10, 1949, before Harold L. Hudson,
hearing officer. All parties appeared and participated. The Board 5
has reviewed the hearing officer's rulings made at this hearing and finds
that they are free from prejudicial error. Accordingly, such rulings
are hereby affirmed.
The record in this case shows that at the time the petition was filed
on July 12, 1948, the Employer was engaged solely in the manufacture
of special machines, tools, dies, jigs, and gauges, at its plant in Detroit,
Michigan. This operation is referred to by the Employer as the tool
division and will be so called herein. Between the date of the filing
of the petition and the date of the hearing, September 28, 1948, the
Employer started a new division of its operations involving the mass
production of tractor parts for another manufacturer. This latter
operation was begun about August 15, 1948, and is called the produc-
tion division by the Employer and will be so called herein. Both of
these divisions are housed in the same building and were functioning
at the time of the original hearing in this matter.
The petition as originally filed described the unit as consisting of
"all hourly rated skilled and semi-skilled production and maintenance
employees, including group leaders" with the customary exclusions.
During the hearing, at the suggestion of the Employers' counsel the
day preceding the election , so that they were released 45 minutes ahead of the hour
scheduled by the Board for the election ; and (3 ) that the eligibility list it furnished
for the Board failed to include the approximately 44 employees in the production division;
although pursuant to the Board 's decision these employees were eligible to vote. The
Regional Director further found that the 6 other objections were either not supported by
evidence , or that they did not materially affect the result of the directed election. As
no exceptions have been taken to the Regional Director ' s findings concerning the 6 objections
in which he found no merit , we affirm the Regional Director 's findings in this respect, and
we shall not consider these objections herein.
4 The Employer does not specifically take issue with the factual aspects of the Regional
Director ' s report, but challenges the legal sufficiency of the findings as a basis for nullifying
the election . Indeed, the Employer admits that it committed the three acts described above
and upon which the Regional Director based his recommendation.
Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Reynolds, Murdock , and Gray].
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit description was amended to read as follows : "All hourly rated
skilled, semi-skilled, and wrt-skilled production and maintenance
employees, including group leaders." [Emphasis added to show the
amendment .] In connection with this amendment we note the follow-
ing statement by counsel for the Employer :
Pursuant to the conference held in the corridor by the courtesy
of the hearing officer, attention has been drawn to the particular
language used in the petition and notice. It being the desire of
both the union and the Company that there be no difficulty about
who is included in the bargaining unit .. .
No mention was made at this hearing by any party to the proceedings
to indicate in any way an intention to delimit the coverage of this unit
description.
The Employer now contends that the unit description was intended
to be limited to the employees of the tool division. We find this con-
tention to be without merit. On its face the unit description obviously
covers the employees of both divisions. Furthermore, the unit de-
scription was agreed on by the parties at a time when both divisions
were in operation and the record is devoid of evidence that the parties
intended to limit the unit. Neither division is mentioned by name at
any place in the record of the/ original hearing on the petition. We
can reach no conclusion other than that the subject matter of our first
Decision was both of the Employerls divisions and consequently that
our finding was inclusive of both of them.
The Employer additionally contends, however, that if our original
unit determination was intended to be inclusive of the employees of
both divisions that such unit was inappropriate. We find this con-
tention also to be without merit. Although there are indications that
there are functional and administrative distinctions to be drawn be-
tween the two divisions G there are many precedents for the establish-
ment of a single unit of two such divisions of a single employer's op-
e.rations.7 The record here indicates that both divisions are housed in
the same building; the hierarchy of management rises to a common
top; the employees are paid from common funds; and in general the
skills.of the employees involved are not markedly different.
On the basis of the foregoing facts we find that: (1) the subject
matter of our determination was in existence at the time of the
6 The record contains some evidence that the employees of the tool division are in general
more skilled than those of the production division , that separate cost balances are main-
tained for the divisions , that there is little employee interchange, and that the products
of the two divisions are different and for different customers.
Y See Matter of General Steel Tank Co., 81 N. L. R. B. 1345; New York Steam Laundry,
Inc., et al ., 81 N. L. R. B. 591.
SPECIAL MACHINE AND ENGINEERING COMPANY 1335
original hearing herein; (2) the unit stipulated by the parties, after
ample opportunity for mature consideration, on its face covered the
employees of both of the Employer's divisions, and there is no evi-
dence that the parties intended to limit the unit; and (3) the unit
in which the Board directed an election is in fact an appropriate
unit. These facts being true the activities of the Employer described
above prevented the employees involved herein from fully exercising
their right to select a bargaining representative. Accordingly we
affirm the findings and adopt the recommendations of the Regional
Director. We shall set aside the election previously held in this case
and direct that a new election be held .8
ORDER
IT Is HEREBY ORDERED that the election conducted on November 23,
1948, at the plant of the Employer, be, and it hereby is, set aside.
SECOND DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for pur-
poses of collective bargaining with Special Machine and Engineering
Company, Detroit, Michigan, 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 Seventh' Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and
Regulations, among all hourly rated skilled, semi-skilled, and un-
skilled production and maintenance employees. of the Employer,
including leaders, but excluding all clerical and office employees,
plant guards, and supervisors, as defined in the Act, heretofore found
to be an appropriate unit in paragraph numbered 4 of the Decision
and Direction of Election issued on October 25, 1948, who were em-
ployed 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, 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, and also excludingo employees on strike who
are not entitled to reinstatement, to determine whether or not they de-
sire to be represented, for purposes of collective bargaining, by Inter-
national Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, UAW-CIO.
8 The Petitioner requests that the same eligibility date be used in this election as
was used in the previous election. However, we perceive no reason for departure from
our usual practice in determining voting eligibility in this proceeding . The request is
therefore denied. See Matter of Limerick Yarn Mills, 76 N. L. R. B. 433.