Westinghouse Electric and Manufacturing Company-Porcelain Division at Derry, Pennsylvania

National Labor Relations Board - Board Decisions

May 31, 1939

12 N.L.R.B. 1360 (N.L.R.B. 1939)

In the Matter Of WESTINGHOUSE ELECTRIC AND MANUFACTTJRING COM-
PANY-PORCELAIN DIVISION AT DERRY, PENNSYLVANIA and UNITED
ELECTRICAL , RADIO AND MACHINE WORKERS OF AMERICA
In the Matter of WESTINGHOUSE ELECTRIC AND MANUFACTURING COM-
PANY-PORCELAIN DIVISION AT DERRY , PENNSYLVANIA and INDE-
PENDENT ELECTRICAL AND PORCELAIN WORKERS OF PENNSYLVANIA,
OF DERRY BOROUGH
Cases Nos. R-1359 and R-1360, respectively.-Decided May 31, 1939
Porcelain Insulator and Electrical Apparatus Manufacturing Industry-Inves-
tigation of Representatives : controversy concerning representation of em-
ployees: employer 's refusal to recognize either of petitioning unions as exclusive
bargaining agent-Unit Appropriate for Collective Bargaining: all production
and maintenance employees , exclusive of technical , clerical , and supervisory
employees ; stipulation as to ; controversy only as to classification of five factory
clerks, who are excluded-Election Ordered
Mr. Robert H. Kleeb, for the Board.
Mr. Fred Haug, of East Pittsburgh, Pa., for the United.
Lightcap and Lighteap, by Mr. John S. Lighteap, Jr., of Latrobe,
Pa., for the Independent.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 9, 1939, United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations,
herein called the United, filed with the Regional Director for the
Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a
question affecting commerce had arisen concerning representation of
employees of the Westinghouse Electric & Manufacturing Company,
Porcelain Division, at Derry, Pennsylvania, herein called the Com-
'The Company was designated in the petition filed in Case No. Rr-1359 as Westinghouse
Electric and Manufacturing Company-Porcelain Division , and in the petition filed in
Case No. 8-1360 as Westinghouse Electric and Manufacturing Company-Derry Works.
At the hearing the title was amended by agreement of all parties.
12 N. L . R. B., No. 132.
1360
WESTINGHOUSE ELECTRIC & MANUFACTURING CO. 1361
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On April 4, 1939, the Independent
Electrical and Porcelain Workers of Pennsylvania, of Derry Bor-
ough, herein called the Independent, filed a similar petition. On
April 13, 1939, the National Labor Relations Board, herein called the
Board, acting pursuant to Article III, Section 10 (c) (2), of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered the two cases consolidated, and pursuant to Section
9 (c) of the Act and Article III, Section 3, of said Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing on due notice.
On April 18, 1939, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Independ-
ent, and the United. Pursuant to the notice, a hearing was held on
April 27 and 28, 1939, at Pittsburgh, Pennsylvania, before Henry J.
Kent, the Trial Examiner duly designated by the Board. The Board,
the United, and the Independent were represented and 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 the parties.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY'
Westinghouse Electric & Manufacturing Company is a Pennsyl-
vania corporation which owns and operates a number of factories and
plants throughout the country. Its sales activities extend to every
State. At the Porcelain Division, which is located at Derry, Penn-
sylvania, the Company manufactures porcelain insulators for electric
power lines and various types of electrical apparatus. Ninety-five
per cent of the raw materials used at Derry are shipped to the plant
from outside the State of Pennsylvania. Of the Division's total
production, 40 per cent is sold or shipped to points outside Pennsyl-
vania. The volume of business at the Derry plant during the year
1938 was $756,562. On March 22, 1939, 388 persons were employed
by the Division at Derry.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America is a
labor organization affiliated with the Congress of Industrial Organ-
2 These findings are based on a stipulation of facts.
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izations . Local 612 admits to membership all production and main-
tenance employees within the proposed unit at the Company's
Porcelain Division at Derry, Pennsylvania.
Independent Electrical and Porcelain Workers of Pennsylvania,
of Derry Borough is an unaffiliated labor organization likewise ad-
mitting to membership all employees within the proposed unit at the
Porcelain Division in Derry.
III. THE QUESTION CONCERNING REPRESENTATION
The Independent was originally established among the employees
of the-CoxIipany?s plant at Derry as an unincorporated organization.
On December 29, 1937, it was granted a certificate of incorporation by
the State of Pennsylvania and commenced anew to recruit member-
ships at the plant. All of its present members have joined since Janu-
ary 1, 1938. The United was also in existence at the Derry plant in
December 1937. On January 20, 1938, it filed charges with the Board
alleging that the Independent was a company-dominated union. On
March 30, 1938, Independent filed a petition with the Board asking
for certification as the exclusive bargaining agent in the Derry plant.
At this time a company-sponsored Employee Representation Plan
was also in operation, but was disestablished about August 1, 1938.
By an agreement which went into effect October 1, 1938, the United
withdrew its charges theretofore filed with the Board, and the Inde-
pendent withdrew its petition for certification. Each union agreed
to wait 6 months before renewing, respectively, its charge or petition
for certification. At the same time the Company agreed to post a
notice in the plant stating that the workers were entitled to an or-
ganization of their own choosing, and also to send a letter to each
employee stating that he had such right. Pursuant to this agreement
the Company posted the notice and sent letters. The Independent
waited 6 months before renewing its petition for certification on April
1, 1939. The United has not renewed its charge of company-domina-
tion of the Independent.
Each organization claims that a majority of the employees has
designated it as bargaining agent and submits its membership or
application cards to establish the claim. The petitions of both state
that their requests for recognition as the exclusive representative of
employees in the appropriate unit have been refused by the Company.
The Company did not appear at the hearing and these allegations
stand undenied.
We find that a question has arisen concerning representation of
employees of the Company.
WESTINGHOUSE ELECTRIC & MANUFACTURING CO. 1363
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The United and the Independent have stipulated that the appropri-
ate unit for purposes of collective bargaining shall consist of all pro-
,duction and maintenance employees, exclusive of technical, clerical,
and supervisory employees, with the understanding, however, that
the Independent shall not be precluded from showing that five em-
ployees listed on the pay roll as clerks are in fact production or main-
tenance employees, and should be included within the stipulated unit.
In opposition to the Independent, the United contends that the five
should be excluded from the unit. The duties of these clerks consist
of taking care of employees' time slips, posting production cards, mak-
ing reports of the work done during the day, and writing up cus-
tomers' orders for the use of the foremen. Although they work in
the open factory under conditions similar to those of the production
and maintenance employees and are paid an hourly wage, their duties
are almost entirely clerical. While the nature and incidents of the
employment of these employees does not necessarily require their
exclusion from the appropriate unit, since their work is clerical and
since one of the rival labor organizations desires their exclusion, we
shall not include them in the appropriate unit.8
The parties agreed at the hearing to exclude from the proposed unit
one employee, C. O. T. Bolling, because of his supervisory duties.
We find that the production and maintenance employees of the
Company, exclusive of technical, clerical, and supervisory employees,
constitute a unit appropriate for the 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 otherwise effectuate the policies of the Act.
3 For other cases in which factory and production clerks have been excluded see Matter
of R C A Manufacturing Company, Inc, and United Electrical & Radio Workers of
Ame,sea, 2 N. L. R. B. 159; Matter of Keystone Manufacturing Company and United Toy
and Novelty Workers Local Industrial Union No. 583 of the C. I. 0., 7 N. L. R. B. 172.
169134-39-vol 12-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
Each union claims its membership or application cards show that
it should be certified as the exclusive representative of the employees
in the appropriate unit for the purposes of collective bargaining.
By stipulation the company pay roll of March 23, 1939, is to be used
as the basis for determining the question concerning representation-
Of the names on this pay roll 341 are in the unit we have found to
be appropriate.4 The United submitted 184 membership cards and
the Independent 200 application cards which were received in evi-
dence by agreement without the necessity of producing witnesses to
identify each signature. The tabulation of cards, also agreed upon
by the parties and introduced by stipulation, shows 104 eligible
employees have signed membership cards in the United, none of
whom has signed an Independent card; 1201 employees have signed
application cards of the Independent, none of whom has signed a
United card; 42 6 employees have not signed either with the United
or the Independent; 80 have at some time signed the cards of both
organizations. The United claims all of the 80 duplications because
these persons signed with the United after January 1, 1939. The
basis of the United's contention is that the agreement of October 1,
1938, wiped out all memberships in both the United and the In-
dependent and the employees became free to join either organiza-
tion. With this understanding the United instituted a campaign
and re-signed all its members. The Independent, on the other hand,
kept its old membership list-all of which had been obtained since
January 1, 1938-and merely added new members. There is no
evidence that the agreement of October 1, 1938, required or even
contemplated abandonment of prior memberships in the United and
the Independent, and this contention of the United cannot be sus-
tained. Furthermore, the Independent produced evidence tending
to show that 42 of the 80 have paid their dues in the Independent up
to April 1, 1939, and are members in good standing. No testimony
was available as to how many had paid dues up to date to the
United. One witness who had signed cards with both organizations
testified that he had requested the United to remove his name from
its roll, and that he had never paid dues to the United, but was a
paid-up member of the Independent. In view of the dispute over
the 80 duplications the evidence is inconclusive as to which of these
two organizations, if either, has a majority of the employees in the
4 The parties agreed there were 346, including the 5 clerks whose status was in
controversy.
a Includes four of the five clerks we have excluded from the unit.
6 Includes one of the five clerks we have excluded from the unit.
WESTINGHOUSE ELECTRIC & MANUFACTURING CO. 1365
appropriate unit. We find, therefore, that the question concerning
representation which has arisen can best be resolved by an election
by secret ballot.
The parties stipulated that the pay roll of the Company for March
23, 1939, covering hourly employees in the employ of the Company
between March 1 and 15, 1939, received in evidence as Board Ex-
hibit No. 6, contains the complete list of employees eligible to par-
ticipate in the determination of representatives, including the names
of the five clerks whose status was in controversy, with the excep-
tion that the last sheet of said exhibit contains the names of eight
supervisory employees who are not to be included in the unit. Dur-
ing the hearing they agreed that C. O. T. Bolling was also doing
work of a supervisory character, and should likewise be excluded
from the unit.
We find that all employees in the appropriate unit who were on
the Company's pay roll of March 23, 1939, which covers employment
by the Company during the pay-roll period between March 1 and
15, 1939, including employees who did not work during such pay-
roll period because they were ill or on vacation, but excluding those
employees who since March 15, 1939, have quit or been discharged
for cause, shall be eligible to vote.
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 Westinghouse Electric and Manufacturing
Company, Porcelain Division, at Derry, Pennsylvania, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the National
Labor Relations Act.
2. The production and maintenance employees of the Company,
exclusive of technical, clerical, and supervisory employees, 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
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
it is hereby
DIRECTED that, as part of the investigation ordered by the
Board to ascertain representatives for the purpose of collec-
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining with Westinghouse Electric and Manufacturing
Company, Porcelain Division, at Derry, Pennsylvania, an election by
secret ballot shall be conducted within fifteen (15) days from the
date of this Direction, under the direction and supervision of the
Regional Director for the Sixth Region, acting in this matter as
agent for the National Labor Relations Board and subject to Article
III, Section 9, of said Rules and Regulations, among the production
and maintenance employees of the Company, exclusive of technical,
clerical, and supervisory employees, who were on the Company's
pay roll of March 23, 1939, which covers employment during the
pay-roll period between March 1 and 15, 1939, including employees
-who did not work during such pay-roll period because they were
ill or on vacation, but excluding those employees who since March
15, 1939, have quit or been discharged for cause, to determine whether
they desire to be represented by the United Electrical, Radio &
Machine Workers of America, Local 612, or by the Independent
Electrical and Porcelain Workers of Pennsylvania, of Derry
Borough, for the purposes of collective bargaining, or by neither.