The Boardman Co.

National Labor Relations Board - Board Decisions

Feb 28, 1944

55 N.L.R.B. 105 (N.L.R.B. 1944)

In the Matter of THE BOARDMAN Co. and UNITED STEELWORKERS OF
AMERICA, CIO
Case No. 16-R-771.-Decided February 28, 1944
Mr. Edward Spiers, of Oklahoma City, Okla., for the Company.
Mr. John H. Curry, of Oklahoma City, Okla., for the Union.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America,
CIO,' herein called the Union, alleging that a question affecting com-
merce had arisen concerning the representation of employees of The
Boardman Co.; Oklahoma City, Oklahoma, herein called the Com-
pany, the Nationalatio al Labor Relations Board provided for an appro-
priate hearing upon due notice before Elmer Davis, Trial Examiner.
Said hearing was held at Oklahoma City, Oklahoma , on January 6,
1944 . The Company and the Union appeared and participated.3 All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues. The Company moved the dismissal of the petition alleging
that the Board lacks jurisdiction ; that the petition is fatally defective ;
and that no question concerning representation has arisen ( 1) because
recognition has never been denied the Union , and (2 ) because, the
Union does not show substantial representation . For reasons herein
given, the motion is denied . The Trial Examine 'r's rulings made at
'The petition was filed by the Union on behalf of its Local 2561. The Company con-
tended that the petition was defective in that its caption carried the name of the Local
but it was signed in the name of the International. We find no merit in this contention.
See Matter of Fort Dodge Creamery Co., 53 N. L. It. B. 928.
2'The parties stipulated that this is the correct name of the Company. The formal
papers were captioned "The Boardman Company." There is no merit in the Company's
contention that this misnomer is ground for dismissal of the petition.
3 International Association of Bridge, Structural and Ornamental Iron Workers, Shop-
man's Local, 546, AFL, herein called the Iron Workers, was not served with notice and did
not appear at the hearing. Subsequently it requested that it be accorded a place on the
ballot in the election herein directed. Since it appeared that the Iron Workers had mem-
bership among the employees of the Company prior to the hearing, the motion was granted
and this Decision and Direction of Election was amended on March 11, 1944, to include the
Iron Workers on the ballot.
55 N. L. R. B., No. 19.
105
106 - 'DECISONS OF NATIONAL LABOR RELATIONS BOARD
the hearing are free from prejudicial error and , are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the ,following :
FINDINGS OF FACT
1. THE BUSINESS OF THEE COMPANY
f. ,
The Boardman Co., a Delaware corporation; is engaged at its plant
in Oklahoma City, Oklahoma, in the manufacture and production of
special equipment used in the construction of defense industries and
in the sale and servicing of construction equipment. During the year
1943, the Company purchased raw materials amounting to ' approx-
imately $500,000, in value, 95 percent, of which originated at points
outside the State of Oklahoma. During the same period, the Com-
pany's sales amounted to apprwiiinately $900,000, of which approx-
imately 13 percent wits shipped to points oritside the State of
Oklahoma.
Contrary to its contentions we find that the Company is engaged
in commerce within the meaning of the National:Labor Relations Act 4
II. THE ORGANIZATION INVOLVED
United Steelworkers of America,' affiliated. with the Congress, of
Industrial Organizations, is a labor organization admitting to mem-
bership eiilployees of the Company through its Local 2561.
1II. THE QUESTION CONCERNING REPRESENTATION
On June 24, 1943, the Union was defeated in a Board ordered elec-
tion ' at which no `representative was; chosen by the employees of the
Company. On November 10, 1943, a representative of the Union called
on Edward Spiers, the Company's counsel, stated that the Company's
employees were showing renewed interest in the Union, and requested
that a new-election be- held by consent. , Spiers stated that he would
take the matter up with the president and board of.directors of the
Company. On the same day the Union filed its petition s The Com-
pany contends that, no, question concerning representation has here
arisen because the Company's board of directors has never refused the
Union's request for a consent election. We reject this contention. The
Company's' board - of directors . has met since the request was made.
r 'The Board asserted its jurisdiction over the Company's operations in Matte of 'The
Boardman. Co., 50 N. L. R B 405, a Decision and Direction of Election hereinafter
discussed
s Mattei of The Boardriian Co , footnote 3 sups a The Union lost the election by a vote
of 31 to 36; 3 ballots were challenged
° The petition states that the Company refused' to consent to an election There is no
evidence of fraudulent intent in making the misstatement, nor was the Company injured
thereby It is, therefore, no ground for dismissal as the Company urges. See Matter of
Lennox Fun naee Co., 50 N. L. R. B 80.
I
THE BOARDIVIAN CO. 107
The matter was not discussed. This failure to' act' on the Union's
request is tantamount to refusal thereof. I '
i A statement of `a Board agent, introduced into evidence' at the hear-
ing; indicates that the Union 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.
IV. THE APPROPRIATE UNIT
The Union requests a unit of all production and maintenance em-
ployees excluding employees in the tractor department; supervisory
avid technical personnel, clerical employees' and tool•oom employees.
The Company takes the position that it is a small concern, not depart--
mentalized and that all but supervisory employees should be included
in- the unit. With exception of the office and technical employees 8
who because of the nature of their work do not share -interests with
production and maintenance employees, this position is' substantially
valid.' Although the tractor 'department is separately housed, it
interchanges employees with the rest of the plant. All production
and maintenance employees are subject to the 'same supervision,
exercise comparable skills and are paid on the same basis.' The tool'
room is an integral part of the factory. We shall, therefore, exclude
clerical, technical, and supervisory employees 'but' include , all others
in the unit.
The production and maintenance employees are tinder the general
supervision of 0. D. Underwood. The Company contends that
Underwood is the only person whose powers of supervision warrant
his exclusion from the unit. The Union requests the exclusion of
certain other employees, discussed below.
. George Day, W. M. Stewart, and A. D. Nicholas are subforemen
directly under Underwood. Day and Stewart are on .the day shift;
Nicholas-on the night shift. The Company's operations are carried
on in several different buildings; the, Company's president stated that
these men work"between the buildings." They 'work manually only
7It appears from the Field Examiner's report that the Union submitted 37 application
for membership cards, all of which bore apparently genuine original signatures correspond-
ing with names of persons listed on the Company's pay roll of November 8, 1943, which
'contained the names of 97 persons in the appropriate unit. At the hearing, the Union
submitted 9 authorization cards, 2 of which were apparently signed by persons listed on
the said pay roll. Five of the cards submitted to the Field Examiner were undated, the
balance were signed in November 1943 The cards submitted to the Trial Examiner were
signed in November and December 1943 The Company avers that the showing here made
by the Union is no better than that made prior to the June election At that time, 10
of the cards submitted were dated 1941, 1 was dated 1942, and 1 was undated Only 25
were new. The 'fact that the cards now presented were signed so recently indicates a
present interest in organization that was lacking in June 1943
8 These categories include salesmen, draftsmen, tracers, and telephone operators
108 DECISONS OF NATIONAL LABOR RELATIONS BOARD.
in emergencies or on construction work. The major portion of their
time is taken up in supervisory activities. C. T. Belding is foreman
of the tractor department which is housed in a separate building. He
works manually wherever his skill as a mechanic is needed and super-
vises the four other men in the department. Although the Company
.insists that Underwood personally supervises all production and main-
tenance employees, it is apparent from the physical facts, the number
of separate buildings involved, and the amount of time that Day,
Stewart, Nicholas, and Belding spend in supervision, that these em-
ployees have supervisory responsibility and authority.9 We find,
therefore, that they are supervisory employees within our customary
definition and they will therefore be excluded as such.
Corbett. Baccarini, Bradshaw, and Porter, on the other hand, work
with and direct small crews, spending the major portion of their time
in manual labor. They have neither the power to effect nor the power
to recommend hiring, discharging, or disciplining of employees.
These men are, in our opinion, production and maintenance employees
whose superior experience enables them to guide others in the per-
formance of their work. The minor supervisory functions they per-
form do not warrant their exclusion from the unit 1°
We find that all maintenance and production employees of the Com-
pany, excluding clerical and technical employees, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees or effectively rec-
ommended such action 11 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 Direc-
tion. The Union requests that the designation of its local be carried
on the ballot. The request is hereby granted.
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 Relations Act,
' See Matter of Stacy Bros. Gas Construction Company , 54 N. L. R . B. 651.
10 See footnote 9, supra.
"This is the same unit established by the Board in Matter of The Boardman Co., foot-
note 3 , supra.
THE BOARDMAN CO. 109
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations , Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Boardman
Co., Oklahoma City, Oklahoma, 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 Sixteenth 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 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, Local 2561 , CIO, or by International Association
of Bridge , Structural and Ornamental Iron Workers, Shopman's Local
546, AFL , for the purposes of collective bargaining , or by neither.
MR. JOHN M. HousTON took no part in the consideration of the
above Decision and Direction of Election.