Westinghouse Electric & Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 17, 1942

38 N.L.R.B. 404 (N.L.R.B. 1942)

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM-
PANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LOCAL 804,
(A. F. OF L.)
Case No. B-3286.-Decided January 17, 19449d
Jurisdiction : naval ordnance manufacturing industry; plant owned by the
United States Navy Department, and operated on its behalf by the Company
under a lease agreement.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord union recognition until certified by the Board ; conflicting
claims of rival representatives ; organization which made no showing of
representation , but which based its - claim of interest on contracts with the
Company covering employees at its other plants , not accorded place on ballot ;
immediate election ordered notwithstanding stipulation that Board might
certify petitioner on the basis of evidence in the record and despite one of
the union 's objections that no election should be held and petition should be
dismissed because plant is operating with less than one fourth of its antici-
pated staff ; since expansion of plant is anticipated in a comparatively short
time Board will entertain a new petition if filed less than one year from any
certification in this proceeding , should it be satisfied under circumstances
then showing , that a question concerning representation exists. -
Unit Appropriate for Collective Bargaining : all production and maintenance
employees , including instructors , but excluding supervisory , clerical, and
powerhouse employees , watchmen , guards, and draftsmen ; agreement as to ;
outside truck drivers excluded notwithstanding contention of the Company
that it has been its policy to include them in similar units at its other plants,
where they are under the jurisdiction of a craft union'of their own, and
their eligibility to join the petitioner is questionable.
Mr. Harry L. Lodish, for the Board.
Mr. William E. Miller, of Pittsburgh, Pa., for the Company.
Mr. Paul R. Hutchings, of, Washington, D. C., and Mr. Walter C.
Summers, of Louisville, Ohio, for the I. A. M.
Mr. Arthur L. Garfield, of Dayton, Ohio, and Mr. Fred Haug, of
Sharon , Pa., for the U. E. R. M.
Mr. Robert R. Hendricks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 29, 1941, International Association of Machinists, Local
804, (A. F. of L.) herein called the I. A. M., filed with the Regional
38 N. L. R. B., No. 81.
404
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 405
Director for the Eighth Region (Cleveland, Ohio) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees at the naval ordnance plant, Canton, Ohio,
operated' by Westinghouse Electric & Manufacturing Company,
Pittsburgh, Pennsylvania, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On November 6, 1941, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On November 6, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
I. A. M., and United Electrical, Radio & Machine Workers of Amer-
ica, affiliated with the C. I. , 0., herein called the U. E. R. M., a labor
organization claiming an interest in this proceeding. Pursuant to
notice, a hearing was held on November 12, 1941, at Canton, Ohio,
before Joseph L. Hektoen, the Trial Examiner duly designated by the
Chief Trial Examiner. The Company, the I. A. M., and the U. E.
R. M. were represented and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. ^ At
the hearing the I. A. M. moved that the U. E. R. M. be_ precluded
from participating in this proceeding on the ground that it had
offered no evidence tending to show that it represented a substantial
number of employees in the Canton plant. The Trial -Examiner
reserved ruling on the motion. For reasons stated below, we shall
not permit the U. E. R. M. to appear on the ballot in the election
hereinafter directed.2 . During the course of the hearing,, the Trial
Examiner made various rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. Briefs filed by the I. A. M.
and the U. E. R. M have' been considered by the Board. With the
leave of the Board and pursuant to notice, a hearing for the purpose
of oral argument was field before the Board, in Washington, D. C.,
on December 2, 1941. The I. A. M. and the U., E. R. M. appeared
and participated in the hearing; the Company appeared but did not
participate.
The Company was incorrectly described in the notice of hearing herein as owning and
operating the Canton plant Testimony presented at the hearing shows that the Canton
plant is owned by the' United States Navy Department and operated , under a lease agree-
ment, by the Company. The notice of hearing is hereby amended to conform with the proof
adduced at the hearing.
2 See Section VI, infra.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
' 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, a Pennsylvania
corporation, is engaged in the manufacture of naval ordnance at
Canton, 'Ohio. While the, Canton 'plant, including all tools and
equipment, is owned by the United 'States Navy. Department, it is
operated•by the Company for, and on behalf of, the Navy Department
under a' lease agreement. More than 50 percent of the raw materials
used by the plant in' the manufacture of naval ordnance is obtained
from -without the State of Ohio. All the finished products of the
plant are sold to the United States-Navy Department and shipped
to points outside the State of Ohio.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Local 804, is a' labor or-
ganization affiliated with the. American Federation of Labor. It
admits to membership employees of the Company.
United Electrical, Radio & Machine Workers of America, is a
labor organization affiliated with the Congress of Industrial Organi-
zations. It admits to membership employees of the Company.
III.' THE QUESTION CONCERNING REPRESENTATION
':On several occasions preceding the date of hearing herein, the
I.-A. -, M. requested, recognition from the Company as the exclusive
bargaining 'representative of the employees at the Canton plant in
the unit claimed by'it to be appropriate.3 The Company, although
it has evinced willingness to consent to an election or to certification
based on' a comparison of 'signatures on I. A. M. authorization cards
with, Company records, has refused to recognize the petitioning union
until such time as it is certified-by the Board.
'A1 statement of the -Regional Attorney introduced into evidence
at -the' hearing and a signature check statement,4 prepared by 'the
sA.pi•ior•petition requesting an investigation and ceitificat ,on as bargaining representa-
tive for all machinists and machine helpers, includ ing instructors and helpers , at the Canton
plant; wus filed, with the Regional Director for the Eighth Region by the I.' A. M. on Jul',
28, 1941' , The petition was, dismissed without prejudice by the Board on August 22, 1941,
on the ground that it was premature in that the plant was not then in operation On
September 24, 1941 , the Board , after further investigation , refused to reconsider its pie-
vious action in dismissing the petition stating that subsequent investigation indicated that
a,,representative group of., employees were not then working , in the plant . At that, time
there « ere,approximately.180 mnachinists , on the pay roll •
*-,llade pursuant to, a, stipulation entered into between the I A. M and the Company at
the•hearing,,wherein both , parties agreed that_the Board might certify ; upon the, basis of a
pay-roll check , the I A M. as the exclusive bargaining representative , of the employees -in
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 407
Regional Attorney after the hearing and made part of the record
herein, disclose that the I. A. M. represents a substantial number of
employees in the unit alleged as appropriate.6
We find that a question has arisen concerning the representation
of employees at the Canton, Ohio, plant, operated by the Company.
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 I. A. M. contends that the appropriate unit consists of all pro-
duction and maintenance employees, including instructors, but exclud-
ing supervisory, clerical, and powerhouse employees, outside truck
drivers, watchmen, guards, and draftsmen s The Company agrees that
such a unit is appropriate except insofar as it purports to exclude
outside truck drivers.
There were, as of November 3, 1941, five outside truck drivers
employed by the Company at the Canton plant. The Company wants
the outside truck drivers included in the unit because "it is common
policy . . . in other plants" of the Company to include them in the
bargaining unit. The I. A. M. seeks their exclusion from the unit
on the ground that "the truck drivers have a union 7 in Canton for
truck drivers who are far better able to speak for them than any other
craft would be." . In view of the fact that the outside truck drivers
are under the jurisdiction of their own craft organization and since
their eligibility to join the I. A. M. is questionable, we shall therefore
exclude them from the unit.
the Canton plant. For reasons hereinafter stated , we believe that the question concerning
representation , which we hereinafter find to have arisen , can best be resolved by the hold-
ing of an election by secret ballot.
s The Regional Attorney 's statement in the record shows that the I. A. M. presented 291
authorization -for-representation cards bearing apparently genuine signatures ; that 263 of
the names contained thereon appeared on the Company 's list of employees of November
3, 1941 ; that all the cards bore dates subsequent to July 1 , 1941. The Regional Attorney's
signature check statement , dated November 13, 1941, and as supplemented on November
19, 1941, states that the I . A. M. submitted 296 authorization -for-representation cards; that
259 of the cards contained the original and valid signatures of employees listed on the
Company's records and within. the claimed unit. There were, as of November 3, 1941,
approximately 450 employees in the unit alleged as appropriate.
B The unit claimed by the U. E. R. M. (all hourly rated employees except supervisors) is
substantially the same as that claimed by the I. A. M.
7 A. F. of L.
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production and maintenance employees, including
instructors, but excluding supervisory, clerical, • and powerhouse em-
ployees, outside truck drivers, watchmen, guards, and draftsmen, con-
stitute a unit appropriate for the purposes of collective bargaining,
and that said unit will insure to employees at the Canton, Ohio, ordnance
plant operated by the Company, the full benefit of their right to self-
organization and to collective bargaining and otherwise will effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
It was disclosed at the hearing that the Canton plant is in the
process of expanding. Actual production did not begin until on or
about July 1, 1941. At the date of the hearing, approximately 30 per-
cent of the machine tools had been installed and the number of pro-
duction and maintenance employees in the plant had increased from
43 on July 27, 1941, to 454 on November 3, 1941. As nearly as could
be approximated, the plant expansion program (conditioned upon
Navy demands and the materials and machine tools available) calls
for approximately 75 new employees per month for the following 3
months, and then for 100 men per month until a peak of 2,000 produc-
tion and maintenance employees is reached.
The U. E. R. M. contends that the petition herein should be dis-
missed and no election be directed on the ground that a certification
at the present time-when the plant is operating with less than a
fourth of its anticipated full staff-would be premature in that the
large number of workers who are expected to be employed within the
next year will have no voice in the choice of their representative.
As previously noted, a prior petition requesting an investigation and
certification as the bargaining representative for the employees at the
Canton plant, filed by the I. A. M. on July 28,,1941, was dismissed
by the Board on the ground that it was premature, and on September
24, 1941, reconsideration of the dismissal was refused by the Board on
the ground that subsequent investigation 'had indicated that a repre-
sentative group of employees was not then working in the plant.,,
It now appears, however, that the plant is in actual production and
that there is, in addition, a substantial number of employees, presently
on the pay roll, comprising numerous categories of employees which
the Company will maintain at the Canton plant. We do not believe
that the large number of employees now working at the Canton plant
should be deprived, simply because the Company intends to expand
its working staff, of their right, at the present time, to bargain col-
lectively with the Company as_ provided in the Act. We shall, accord-
ingly, proceed with an immediate determination of representatives.
8 See footnote 3.
WESTINGHOUSE' ELECTRIC & MANUFACTURING .COMPANY 409
In one respect, however, we shall, in view of the circumstances herein
presented, modify our usual practice. Ordinarily we refuse, for ad-
ministrative reasons, to entertain a petition for an investigation and
certification of representatives within 1 year after we have issued
a certification.° Since the planned expansion of the Canton plant will
almost quadruple the number of production and maintenance em-
ployees at that plant in a comparatively short time, we shall not,
in the event a collective bargaining representative is certified as a
result of this proceeding, adhere to our usual 1-year rule. We shall,
instead, entertain a new petition for an investigation and certification
of representatives at any time following issuance of any certification
in this proceeding, provided we are satisfied, under all the circum-
stances then shown (including proof that there has been a substantial
increase in the number of employees at the Canton plant and that the
petitioner represents a-substantial number of employees), that a ques-
tion concerning representation affecting commerce has arisen.
The U. E. R. M. contends that the petition herein should be dis-
extent that its representatives cross-examined witnesses and made
statements in the record, introduced no documentary evidence to show
that it represented any of the employees at the Canton plant. Its
claim of interest in this proceeding is based, primarily, on the ground
that it has contractual relations with the Company covering numerous
employees at its other plants and that it has an agreement with the
Mansfield plant of the Company concerning the transfer of workers
therein laid off (due to curtailment of, non-defense manufacturing)'
to Company plants engaged in defense work. There is no evidence
in the record that the U. E. R. M. has any contract with the Company
covering employees in the Canton plant, or with' any plant of the
Company providing for the transfer of U. E. R. M. employees to the
Canton plant.10 We do not consider that the circumstances above
stated establish that the U. E. R. M. has a sufficient interest in this
proceeding, in the absence of a showing of representation,h1 to entitle
it to be placed on the ballot in the election directed below.
° Cf Matter of Wilson it Co , Inc and International Brotherhood of Teamsters , Chauffeurs,
Stablemen and Helpers of, America, Local # 202, affiliated with the A . F of L, 25 N L
R B , No 103 ; Matter of Minneapolis -Moline Power Implement Company and International
Association of Machinists, Local #3107, by District Lodge 77 (A F of L ), 11, N L R B
920; Matter of Todd-Johnson Dry Docls, Inc and Industrial Union of Marine and Ship-
building Workers of America , Local No 29, 10 N L R B 629
10 At the hearing, representatives of the Company's Canton plant testified that transfer
of men from the Mansfield plant, where electrical household appliances are manufactured,
to Canton , was impractical because the employees at the former plant were not experienced
in the type of heavy machine - shop operations being done at Canton . The manager of the
Canton plant denied knowledge of any agreement of the Company with the U E R M.
concerning the transfer of men from other Company plants to Canton
it Cf . Matter of Goodrich Electric Co, Inc, and United Electrical Radio it Machuie Work-
ers of America, 30 N L R B 979: Matter of American Enka Corporation and Teirtile
Workers Union No 22129 , American Federation of Labor, 28 N L R B 423
410 DECISIONS OF^ NATIONAL LABOR RELATIONS BOARD
Although the Company and the I. A. M. stipulated that the Board
might certify the I.. A. M. as the exclusive representative of the em-,-
ployees in • the appropriate unit on the basis of the evidence in the
record, we ' believe, under the circumstances herein presented, that
the question concerning representation which has arisen. can best be
resolved by the holding of an, election by secret ballot. In accordance
with , our usual practice, we shall direct that the employees at the
Canton, Ohio, plant operated by, the Company eligible,to vote in the
election shall be those in the appropriate unit who were employed dur;
ing the pay-roll period immediately preceding the date of the Direc-
tion of Election herein, subject to the limitations and additions, set
forth in the•Direction.
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 the employees' at the Canton, Ohio, plant operated by
Westinghouse Electric &-Manufacturing Company, Pittsburgh, Penn-
sylvania, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act. '
2., All production and maintenance employees of the Company at
the Canton', Ohio, plant operated by it, including instructors, but
excluding supervisory, clerical, and powerhouse employees, outside
truck drivers, watchmen, guards, and draftsmen, constitute 'a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the 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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DmECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Westinghouse Electric & Manufacturing Company, Pittsburgh,
Pennsylvania, at the Canton, Ohio, plant operated by it, 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 of Election, under
the direction and supervision of the Regional Director for the Eighth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III,, Section ' 9, of said Rules and
Regulations, among all production and maintenance employees, in-
WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 411
eluding instructors, of the Company at the Canton, Ohio, plant oper-
ated by it, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during such pay-roll period because they were ill or on
vacation or in the active military service or training of the United
States, or temporarily laid off, but excluding supervisory, clerical,
and powerhouse employees, outside truck drivers, watchmen, guards,
and draftsmen, and those employees who have since quit or been dis-
charged for cause, to determine whether or not they desire to be
represented by International Association of Machinists, Local 804,
affiliated with the A. F. of L., for the purposes of collective bargaining.