The Startwout Co.

National Labor Relations Board - Board Decisions

May 2, 1945

61 N.L.R.B. 832 (N.L.R.B. 1945)

In the Matter of THE SWARTWOUT COMPANY and MECHANICS EDUCA-
TIONAL SOCIETY OF AMERICA (CUA)
Case No. 8-R-1755.-Decided May L, 1945
Messrs. George D. Bonebrake , Thomas J. Veach, D. K . Swartwout,
Jr., George Schweinfurth , and C. E. Cooper, of Cleveland , Ohio, for
the Company.
Messrs. William Bullack and Warren T. Little, of Cleveland, Ohio,
for the Union.
Mr. Samuel G. Hamilton , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Mechanics Educational Society of
America (CUA), herein called the Union, alleging that a question
affecting commerce had arisen, concerning the representation of em-
ployees of The Swartwout Company, Cleveland, Ohio, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Arthur Stark, Trial
Examiner. Said hearing was held at Cleveland, Ohio, on February 16,
1945. The Company and the Union 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. 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 THE COMPANY
The Swartwout Company, an Ohio corporation having its only plant
at Cleveland, Ohio, is engaged in the manufacture of feed water regu-
'Although duly served with Notice of Hearing, The Swartwout Employees Benefit Asso-
ciation , Inc , herein called the Association , did not appear or participate.
61 N. L R. B, Na. 133.
832
THE SWARTWOUT COMPANY 833
lators and heaters, reducing valves, steam separators, exhaust heads
and roof ventilators. During 1944, the Company purchased raw mate-
rials valued at approximately $740,000, of which 20 percent was
shipped from points outside the State of Ohio. During the same
period, the Company completed products valued at approximately
$2,250,000, of which approximately 95 percent was shipped to points
outside the State of Ohio.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor' Relations Act.
H. THE ORGANIZATION INVOLVED
Mechanics Educational Society of America, affiliated with the Con-
federated Unions of America, is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated at the hearing that the Union had duly re-
quested recognition of the Company as the exclusive bargaining rep-
resentative of its employees and that the Company refused to accord
such recognition to the Union.
The Company raises as a bar to the proceeding a closed-shop con-
tract existing between it and the Association, expiring August 8, 1945.
The Union contends that the contract is no bar because the Association
has been dissolved by its membership.
The record discloses that the Association was organized in 1934 as
an unincorporated organization and continued in existence until on
or about November 16, 1941, at which time it received a State charter
of incorporation. On January 8, 1945, as a result of the commence-
ment of the Union's organizational drive, a special meeting of the
Association was called. At this meeting, a quorum being present, a
motion to dissolve was carried; and at a general meeting, held on
January 22, 1945, a quorum likewise being present, motions were car-
ried to dissolve the State charter, to divide among service men members
the bank balance remaining after payment of outstanding bills, and
to apply for a charter from the Union. Since January 25, 1945, no
grievances have been presented by the Association, it has not bargained
collectively, and it has held no meetings. Furthermore, dues have not
been accepted by the Association since January 1, 1945, and, although
it appears that it has not yet received a certificate of dissolution from
the Secretary of State of the State of Ohio, it has taken the required
preliminary steps for legal dissolution.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As is apparent from the foregoing facts, the Association is defunct.
Consequently, for reasons stated in Matter of Container Corporation
of America, Case No. 11-R-727, the contract between the Company
and the Association does not constitute a bar to a present determina-
tion of representatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
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 seeks a unit consisting of all production and maintenance
employees of the Company, including firemen and watchmen, but ex-
cluding all office and clerical employees, part-time and temporary
employees, foremen, assistant foremen, and all other supervisory em-
ployees. The Company agrees with the position of the Union, except
that it would exclude certain alleged supervisory employees and the
firemen and watchmen.
Working foreman in charge of boiler room: 3 He is responsible for
the condition of the boilers and fires. He assigns work to the two fire-
men and gives them instructions. It appears that he has authority to
recommend wage changes for the firemen as well as their discharge,
and that he has effectively exercised the latter power. Accordingly,
we shall exclude him from the unit.
Millwright-electrician: 4 He is a millwright and electrician in the
steam department, reporting directly to the superintendent of that
department. His duties consist of the care and repair of machines.
Exercise of his alleged supervisory function is confined to instances in
which he requires assistance in his duties, the major portion of his time
being taken up in independent work. Assistants or helpers are bor-
rowed from other departments through their foremen in case of ma-
chine breakdowns. He reports to the superintendent if his helpers do
not properly perform their duties and asks their replacement. Since
his authority over his helpers is apparently limited to a degree neces-
sary to perform satisfactorily the particular task at hand, we believe
that his relationship to them is more that of skilled mechanic to his
2 The Field Examiner reported that the Union submitted 105 application for membership
cards ; that all 105 of the cards bore names appearing on the Company's pay roll of Feb-
ruary 4, 1945; that there were 164 employees in the unit alleged in the petition to be
appropriate ; and that 10 of the cards were dated in December 1944, 65 in January 1945,
and that 30 were undated.
8 Louis Bryan.
4 George ngunas.
THE SWARTWOUT COMPANY 835
helpers than that of supervisor to his subordinate employees. Accord-
ingly, we shall include the millwright-electrician.
Assembler-acting foreman: 8 He is in entire charge of the work in his
department when the foreman is away on service tasks. These tasks
necessarily vary in amount of time and type of work required according
to the particular circumstances involved. They average in point of
time from 41/2 to 5 days per month. The foreman 6 has been engaged
in this type of service work for the past 12 to 14 years, and it comprises
a substantial portion of his duties. The foreman has the power to
recommend the discharge and discipline of his subordinates, and in his
absence the assembler-acting foreman has similar authority, although
no instance was recalled in recent months when he had exercised it. In
these circumstances, we shall exclude the assembler-acting foreman
from the unit.?
Firemen: The Company employs two firemen." They take care of
the boiler room and keep up steam under the supervision of the work-
ing foremen, discussed above. They check equipment, traps and radi-
ators, watch for leaks, and make such repairs as they can to the heating
system throughout the plant. When the weather is warm and the boil-
ers are not needed the firemen function as production employees. The
Company asserts that firemen frequently have been excluded from
units of production employees, and that their interests are different
from those of such employees. For the past 10 years firemen have
been included in the bargaining unit covered by contracts between the
Company and the Association. Therefore, firemen have substantial
interests in common with the production workers, notwithstanding the
Company's contrary assertion. We shall include them in the unit.
Watchmen: The Company employs two watchmen,9 who are neither
militarized, deputized, nor armed. The Company makes the same
contentions for their exclusion as it does for the exclusion of firemen.
Watchmen make hourly rounds and carry a time clock. Their primary
duties apparently are to keep under surveillance the Company's plant
when it is not in operation. They too, have been bargained for by
the Association for the past 10 years. We shall include them in the
unit 10
We find that all production and maintenance employees, including
firemen and watchmen, and the millwright-electrician, but excluding
all office and clerical employees, part-time and temporary employees,
foremen, assistant foremen, the assembler-acting foreman, the working
foreman in charge of the boiler room, and all other supervisory em-
5 Edward Perko.
6 Melvin Meyers. -
4 See Matter of Ford Motor Company , 54 N. L. It. B. 82.
Edward Fredricksen and Joseph Recich.
George York and Anton Kocina.
30 See Matter of Gluck Brothers , Inc, 45 N. L. R B. 1159.
1
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recom-
mend 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
herAin, 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 La-
bor Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions 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 The Swartwout
Company, Cleveland, Ohio, an election by secret ballot shall be con-
ducted 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 Eighth 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
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including 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 or not they desire to be represented
by Mechanics Educational Society of America (CUA), for the pur-
poses of collective bargaining.
MR. GERARD D. REILLY, dissenting :
For the reasons stated in my dissent in Container Corporation of
America, 61 N. L. R. B. 823, I feel constrained to dissent from the
majority opinion in this case.