The Ohio Chemical & Mfg. Co.

National Labor Relations Board - Board Decisions

Nov 29, 1946

71 N.L.R.B. 903 (N.L.R.B. 1946)

In the Matter Of SCANLON-MORRIS DIVISION OF THE OHIO CHEMICAL &
MFG. CO., EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS, LODGE #1406, PETITIONER
Case No. 13-P-3672.Decided November 09, 1946
Cllr. Tom C. Clark, of New York, N. Y., for the Employer.
Messrs. P. L. Siemniller and Gilbert Brunner, of Chicago, Ill., for
the Petitioner.
Mr. Emil Costello, of Milwaukee, Wis., for the Intervenor.
Mr. Conrad A. Wickham, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Madison,
Wisconsin, on July 23, 1946, before Benjamin B. Salvaty, Jr., hearing
officer. The hearing off'icer'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 TILE EMPLOYER
The Ohio Chemical & Manufacturing Company, a Delaware corpo-
ration, is engaged in the manufacture and sale of hospital equipment
at its various plants throughout the United States. The only opera-
tions of the Employer involved in this proceeding are those in Madi-
son, Wisconsin, which include two plants known as the Johnson Street
and Washington Avenue plants, respectively. The Employer's annual
raw material purchases for these operations are in excess of $350,000,
of which approximately 80 percent represents shipments from points
outside the State of Wisconsin. Its annual sales exceed $1,000,000,
of which approximately 80 percent represents shipments by the
Employer to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
71 N L. R. B., No. 145.
903
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization, claiming to represent em-
ployees of the Employer.
United Steelworkers of America, herein called the Steelworkers, is
a labor organization affiliated with the Congress of Industrial Organi-
zations, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive'
bargaining representative of the employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
For several years prior to April 1946, the Employer's operations at
Madison, Wisconsin, consisted of the Johnson plant with its 9 inter-
connected buildings, and included, at times, several other buildings in
Madison used for storage purposes. For a period dating from 1938
to April 1946, it also conducted operations in Minneapolis, Minnesota,
some 270 miles distant from Madison. Both plants were engaged in
producing similar, but not identical, hospital equipment. Shortly
after April 27, 1946, however, the Employer transferred its Min-
neapolis plant to its present location at Madison, Wisconsin, in the
Employer's Washington plant,' about 1,000 yards from the Johnson
plant.
Before the transfer of the Minneapolis plant, production and main-
tenance employees at the Madison, Wisconsin, operations were covered
by a collective bargaining agreement, which is still current, between
the Employer and the Steehvorkcrs,2 whereas the production and main-
tenance employees at the Minneapolis plant Were covered by an agree-
ment between the Employer and an affiliate of the Petitioner. The
latter contract was terminated by the parties almost simultaneously
with the change-over, With the further agreement that the Employer
Would tranfer to Madison, without loss of seniority, all the Minneapolis
employees who desired to go. About 34 of the 250 a Minneapolis em-
ployees eventually Went to Madison under this arrangement. The
operations commenced at the Washington plant on May 8, 1946, with a
complement of about 45 to 50 employees, consisting in part of em-
ployees from Minneapolis and in part of employees recruited from the
'The Washington plant was purchased specifically for the purpose of accommodating
the operations transferred from Minneapolis
2 The Steelworkers was designated in 1944 as the bargaining representative of the
production and maintenance employees at these operations as it result of it consent election
held in August, 1944, pursuant to it consent election agreement to which the Employer, the
Steelworkers and the Board were signatories The current contract is the second one
between the parties.
3 These figures include employees both in and out of the unit The number of employees
in the unit at Minneapolis was approximately 170 The unit proportion of the 34
transferred, however, is not established by the record.
SCANLON-MORRIS DIVISION OF THE OHIO CHEMICAL & MFG. CO. 905
local labor market. At the time of the hearing, about 21/2 months after
the change-over, there were approximately 115 employees at the Wash-
ington plant, including 11 of the original 34 from Minneapolis. It is
anticipated that the full complement of the new plant will be 175 em-
ployees-equal in number to that of the Johnson plant-and that this
figure will be reached shortly.
On May 17, 1945, the Steelworkers, in reliance upon its current
contract, which, like its predecessor contract, covers the production
and maintenance employees at the Johnson plant ". . . and other
buildings . . . in Madison . . . in which Management carries on
manufacturing operations," notified the Employer that this contract
was applicable to the transferred operation. On May 20, the Peti-
tioner wrote a letter requesting recognition as bargaining representa-
tive for the employees at the Washington plant, and on May 22, the
Employer, after negotiating with the Steelworkers regarding wage
rates relative to certain classifications at the new plant, confirmed
these negotiations by letter and later incorporated them in its contract
with the Steelworkers. The petition was filed on May 29, 1946.
The Steelworkers urges that its current contract, which is dated
April 3, 1946, and is effective until November 2, 1947, is a bar to the
present proceeding. It points in this connection to the above quoted
language and argues therefrom, in effect, that the change in circum-
stances operated merely to enlarge the existing unit in Madison 4 and
to extend to the employees at the Washington plant the terms of the
April 3, 1946, contract. We are unable to agree with the Steelwork-
ers' position. An examination of the contract, and particularly the
language in the coverage clauses, fails to disclose any intent upon the
part of the contracting parties to make the contract applicable to
plants of the Employer in other cities if and when they are moved
to Madison, Wisconsin, under circumstances comparable to those in
the instant case. Nor can we imply such an intention. Indeed, the
parties themselves found it necessary to amend the contract in certain
respects in order to make its provisions applicable to the Washing-
ton plant. Accordingly, since the contract as originally drawn was
inapplicable to the operations at the Washington plant, and inasmuch
as the claim of Petitioner antedated the amendment thereto embrac-
ing the Washington plant operations and was supported by a petition
within less than 10 days after such claim, we find that the April 3,
1946, contract, as amended, is not a bar to a current determination
of representatives.
Accordingly, in view of the foregoing, and our conclusion in Sec-
tion IV, infra, that the employees at the Washington plant ma', if
' In its brief, the employer argues that this change-over constituted an expansun of,
or a merger or consolidation with , the Madison plant. This issue is treated in Section IV,
infra.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they desire, constitute an appropriate unit apart from the employees
at the Johnson plant, we are of the opinion that no obstacle exists
to a present determination of representatives.
We find, therefore, that a question affecting commerce has arisen
concerning the Employer's Washington plant employees within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit of all production and maintenance em-
ployees of the Employer's Washington plant, including employees in
the toolroom and machine maintenance, building service, machine
shop, assembly and apparatus repair, plating and polishing, assembly
and machine shop inspection, receiving, shipping room, stockroom and
inventory control, and group leaders and working foremen, but
excluding office and clerical employees, foremen, and other super-
visors. The Employer and Steelworkers maintain that the unit
sought is inappropriate, and that the appropriate unit is one compris-
ing all production and maintenance employees of the Employer, with
generally similar inclusions and exclusions, at all its operations in
Madison, Wisconsin.
The Washington plant manufactures now, as it did when located
in Minneapolis, anaesthesia and oxygen therapy equipment and re-
suscitators. With the possible exception of certain oxygen therapy
equipment, these products are different from those manufactured by
the Johnson plant, which produces such items as sterilizers, operating
tables, and operating room lights.
There are numerous features common to the two plants which point
to the appropriateness of a single unit of all their employees. Thus,
the products of each call for the same basic raw materials, similar
but not identical parts, and require similar skills in their production.
The Washington plant also manufactures small parts for ice boxes
produced by the Johnson plant. These parts are incorporated into
the ice boxes at the Johnson plant, and the ice boxes are thereupon sent
to the Washington plant for attachment to its oxygen equipment.
Both plants have a number of similar job classifications, and all em-
ployees enjoy like seniority and wage scales, and the same vacation,
hospitalization and insurance privileges. Although there is presently
little interchange of personnel, it is the Employer's intention to
integrate its operations to a greater extent in the future. The plants
also share one mailing address, and the following departments, which
are located in one or the other plant, serve both : personnel, purchasing,
sheet metal, engineer and research, methods and tooling, and toolroom
and machine maintenance. The manager of apparatus manufacture,
assistant controller, plant office manager, plant superintendent and
SCANLON-MORRIS DIVISION OF THE OHIO CHEMICAL & MFG. CO. 907
chief inspector are also common to both plants. In addition, the
Employer is in the process of establishing a single accounting system
for both operations, under which the presently separate cost account-
ant and order and billing sections will be unified. Finally, shipments
for one plant are often received at the other and trans-shipped by the
Employer's trucks to their proper destination.
However, it is equally apparent that, despite a high degree of
integration between the two plants, the Employer conducts these
operations as separate units. Thus, there has been no real interchange
of personnel, nor will substantial employee interchanges occur in the
near future under the present arrangenlent.° Arid although similar
classifications and skills exist at both plants, the manufacturing oper-
ations are conducted separately. In addition, with the exceptions
noted above, there is little interchange of parts or products between the
two plants, each of which produces different final products. Super,
visory employees below the level of plant superintendent are generally
different, and the Employer maintains separate departments of in-
spection, production scheduling, building service, assembly, plating
and polishing, receiving, shipping, and inventory control, as well as
separate machine shops and stockrooms. The Johnson plant is also
presently on a 45-hour week and the Washington unit on a 40-hour
basis. Although common pay-roll records are nmaintained, the
individual plants are paid bi-monthly on alternate week ends.
In view of the foregoing, and on the entire record in the case, we are
persuaded that the production and maintenance employees at the
Washington plant could function feasibly either as a separate, single
plant unit, or as a part of a two-plant unit. We believe, therefore, that
our determination of the appropriate unit should be dependent, in part,
nlpon the desires of these employees themselves. Consequently, we
shall make no determination of the appropriate unit at this time, but
shall weigh the results of the election hereinafter directed. If the
production and maintenance employees at the Washington plant select
Petitioner as their bargaining representative, they will constitute a
separate appropriate unit. If they select the Steelworkers, they may
then be bargained for as part of the unit of production and mainte-
nance employees at the Johnson plant.'
There remains for consideration the disposition to be made of certain
employees at the Washington plant.
'There have been only five instances in which employees were transferred between the
plants, and these transfers were all permanent.
6Although the Employer indicated that it contemplated considerable employee inter-
change in the future, it conceded at the hearing that there would be few, if any, further
transfers until the Washington plant became completely settled as a going concern, so as to
place the full burden of the move from Minneapolis on the Washington plant and none
on the Johnson plant, thus enabling the latter to continue operations at full productive
capacity.
4 Matter of General American Aei ocoach Company, 55 N. L. R. B. 1377.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Truclc driver: This individual is hourly rated and is under the
supervision of the storekeeper. He is engaged ni delivering parts from
one plant to the other and in the disposal of rubbish. He does not do
any city delivery or pick up. Since his interests appear to be closely
related to those of the production and maintenance employees, we shall
include him in the unit.
Receiving man: At the time of the hearing this employee S was the
only member of the receiving department. He is a salaried employee
].older the supervision of the storekeeper, and is primarily responsible
for the issuance of "receiving papers" to substantiate the payment of
bills and invoices. Although lie occasionally may assist in unloading
materials, this woik is currently performed by employees borrowed
from other sections of the stores department who work under his super-
vision. However, it appears that the Employer contemplates hiring
two additional receiving employees to perform these duties, over whom
the receiving man will exercise the usual authority of a supervisor.
We are of the opinion that this employee is a supervisor within our
customary meaning of that term and shall exclude him from the unit."
Inspection group leaders of assembly and machine shop inspection:
Although normally the Employer's group leaders possess no super-
visory authority within our customary meaning of the term, the two
inspection group leaders at the Washington plant do possess this
authority and actually perform the duties of an assistant foreman
rather than a group leader. We find diem to be supervisory employees,
as contended by the Employer, and shall exclude them from the unit.
Accordingly, we shall direct that an election be held among the
employees in the following voting group : All, production and mainte-
nance employees at the Employer's Washington Avenue plant in Madi-
son, Wisconsin, including all employees in toolroom and machine
maintenance, building service, the machine shop, assembly, apparatus
Iepair, plating and polishing, assembly and machine shop inspection,
receiving, the shipping room, the stockroom, and inventory control, the
tiuck driver, and group leaders and working foremen, but excluding
ofice and clerical employees, foremen, inspection group leaders, and all
or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action.
As stated above, there will be no final determination of the appro-
priate unit pending the results of the election.10
-8 Robert Harris
° Matter of Southeastern Telephone Company , 70 N. L. R. 13 . 4 (Chief draftsman)
10 Petitioner contends in its reply brief that, in the event an election is directed , the Steel-
workers should be denied a place on the ballot , since the latter has submitted no evidence
of intei est among the employees of the Washington plant . However, inasmuch as we are
administratively satisfied that the Steelworkers has made an adequate showing for purposes
of mteivention, we shall accord it a place on the ballot Petitioner's contention is accord-
ingly rejected Matter of 0 D. Jennings cC Company, 68 N. L It B 516
SCANLON-MORRIS DIVISION OF THE OHIO CHEMICAL & MFG. CO. 909
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Scanlon-Morris Division' of
The Ohio Chemical & Mfg. Co., Madison, Wisconsin, 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 Thirteenth 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
voting group described in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and includ-
ing 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 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 International Association of Machin-
ists, Lodge No. 1406, or by United Steel Workers of America, C. I. 0.,
for the purposes of collective bargaining, or by, neither.