Allis-Chalmers Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 348 (N.L.R.B. 1946)

In the Matter of ALLIS- CHALMERS MANUFACTURING COMPANY and
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOC•\I,
613, C. I. O.
Case No. 6-C-992.-Decided August 26 ,, 1946
-Mr. Joseph Lepie , for the Board.
Messrs. W. J. McGowan and John L. Weddelton , of Milwaukee,
Wis., and McCloskey , Best & Leslie, by Mr. Philip X. Ley, of Pitts-
burgh , Pa., for the -respondent.
Messrs. Dominic F. Dornetto and John M . Duffy, of Pittsburgh, Pa.,
for the Union.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
ORDER
On November 29, 1945, Trial Examiner Charles W. Schneider issued
his Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease-and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief. On
April 4, 1946, the Board at Washington, D. C., heard oral argument,
in which the respondent and the Union participated.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed! The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and to the extent consistent with the Decision and
Order herein, adopts the findings and conclusions of the Trial
Examiner with the following additions and modifications.
1 In addition to the cases cited by the Trial Examiner in support of his rulings excluding
evidence bearing on the question of the appropriateness of the unit because such evidence
was available and could have been introduced in the previous representation proceeding,
see N. L. R. B. V. We8t Kentucky Coal Company, 152 F. ( 2d) 198 ( C. C. A. 6 ), cert. denied
June 10, 1946, 18 LRRM 2104.
70 N. L . R. B., No. 34.
348 /
ALLIS-CHALMERS MANUFACTURING COMPANY 349,
1. We agree with the Trial Examiner's finding that, in addition to
violating Section 8 (5) by acting unilaterally, the respondent discrim-
inated against the inspectors in violation of Section 8 (3) of the Act
by downgrading them because they had selected the-Union as their
bargaining representative. In this case, the very existence of the
refusal to bargain, which is also found by our dissenting colleague,
tends to confirm the violation of Section 8 (3). The respondent con-
cedes the change in status (which included a reduction in wages), and
the immediate cause of that change. It admits that the alteration in
the terms and conditions of the inspectors' employment was made on
August 27, 1945, because the inspectors had selected the Union as their
bargaining representative on August 24, 1945, and that if the men
had voted against the Union, it would have made no changes. How-
ever, it seeks to excuse its action on the ground that its motivation was
not to discourage membership in the Union, but to conform the status
and functions of the inspectors to the Board's finding in the repre-
sentation proceeding 2 that the inspectors were not supervisory or
managerial employees and to establish a basis for compliance with the
Board's certification. The respondent further attempts to justify its
action with the argument that, because of the possible effect on the
integrity of their work engendered by their belonging to the union
which represents the production workers whose work they inspect,
removal of the so-called management and supervisory functions from
the inspectors was necessary in order to (a) retain control of inspec-
tion by methods essential to the requirements of customers, (b) enable
the respondent to minimize the possibility of liability for damage
resulting from defective equipment and loss of business due to the
same cause, and (c) protect the public interest.
As to the respondent's initial justification, nothing in the Board's
unit finding required or permitted the respondent unilaterally to alter
the terms and conditions of the inspectors' employment. The respond-
ent's second alleged justification rests on the assumption that there is
a necessary incompatibility between membership in a union and honest
performance of duty. Not only has the Board rejected such a conten-
tion when it has been explicity made,3 but it is also contrary to the
underlying philosophy of the National Labor Relations Act, i. e.,
that collective bargaining with its necessary concomitant-unioniza-
tion-are socially desirable objectives.
The purpose of the Act is to protect employees in their right to self-
organization, to protect employees from conduct by employers which,
2 Matter of Allis - Chalmers Manufacturing Company, 63 N. L . R. B 101.
3 See , e. g, Matter of Crucible Steel Company of America , 62 N. L R. B. 1294; Matter
of Standard Steel Spring Company, 62 N. L. R B 660; Matter of Tampa Shipbuilding Com-
pany, Incorporated , 62 N L R. B. 954 ; Matter of Packard Motor Car Company, 61
N. L. R. B. 4
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience indicates, has a tendency to thwart self-organization. One
of the most powerful forms of intimidation is to penalize employees
because of their membership in or their activities in behalf of a union.
To protect employees against this form of intimidation, Congress spe-
rifically made it unlawful for an employer "By discrimination in
regard to hire or tenure of employment or-any term or condition of
employment to encourage or discourage membership in any labor
organization." Radically to alter the job content of a position and.to
reduce the pay concededly because employees have selected a particular
union as collective bargaining agent is to practice the clearest variety
of discrimination banned by 'the Act. Such discrimination normally
and naturally tends to discourage membership in a labor organization
and is therefore an unfair labor practice. Here, to be sure, respondent
was seeking to deal with what it considered, or anticipated to be, a
management problem. But it is not determinative that the respond-
ent may not primarily have intended to discourage membership in the
Union. The vice in the respondent's action rests on the fact of dis-
crimination.4 Moreover, respondent must have realized that the reduc-
tion in status imposed upon the inspectors would, in practical effect,
cause them to question their own wisdom at having selected the union
as their bargaining representative only 3 days before.
In what we have said, we do not mean to imply that the respondent
is powerless to protect itself against failure of duty by such employees,
or may never take some anticipatory, but non-discriminatory, admin-
istrative action to meet certain new problems which may be created by
their unionization. Nor need we here decide whether or not some
of the minor changes in status which respondent effectuated, if stand-
ing entirely alone, would constitute violations of the Act; taken to-
gether here they form an indubitably discriminatory pattern.
The purpose of the Act is to protect the organizational rights of
employees; its purpose is not to protect incompetence, dishonesty or
disloyalty. The respondent is as free now as before the passage of
the Act to take any disseiplinary action needful against inefficient or
collusive inspectors, regardless of the cause of misfeasance. It may
take such disciplinary action on an individual basis, or it may, if
dereliction of duty becomes so widespread as to warrant such action,
reorganize an entire group of employees.' We are faced in the present
i
4 See N. L. R. B. v. Gluck Brewing Company, 144 F. (2d) 847 (C. C. A. 8) ; N. L. R. B. v.
Hudson Motor Co, 128 F. (2d) 528 ( C. C.'A. 6 ) ; N. L. R. B. v. Star Publishing Co., 97 F.
( 2d) 465 (C C. A. 9).
'The respondent offered to prove ( 1) that a production employee named Masslon, a
former union steward, had been demoted in 1941 because of improper work resulting from
his efforts to speed up production to increase his piece-work earnings; and (2) that from
November 1944 to March 1945 , a group of employees in one of the production departments
engaged in a slowdown under the leadership of two union stewards and a-member of the
bargaining committee . The Trial Examiner did not commit prejudicial error in excluding
this testimony. In the first place, the testimony does not relate to inspectors ; in the
1
ALLIS-CHALMERS MANUFACTURING COMPANY 351
proceeding with neither individual nor collective failure of duty by
the inspectors. There is not a shred of evidence to show that the in-
spectors have not faithfully performed or will not faithfully perform
their duty despite the fact that they have chosen to join the same union
which represents production employees. We cannot assume such
dereliction of duty. We do not believe that an employer may right-
fully make such an assumption and thereby justify his discriminatory
acts. The protection against discrimination by employers for union
activity is the bone and sinew of the Act. The whole structure of pro-
tection built lip by the Act would collapse if an employer were per-
mitted to discriminate against employees, not because of actual
dereliction of duty, but because of a speculative belief that membership
in a union and honest discharge of the duty owed the employer are
incompatible. Here, indeed, the discrimination having occurred on
the next working day following the Board election, it was necessarily
based so completely upon speculative considerations that, even assum-
ing the correctness of some of the general observations contained in
the dissenting opinion, they are hardly applicable here.''
TIIE REMEDY
The Trial Examiner has recommended that the respondent restore
all the employees listed in Appendix A attached hereto to the status
they occupied immediately prior to August 27, 1945. We adopt this
recommendation with the following qualifications. The evidence is
clear that even if the respondent had not committed unfair labor prac-
tices, the number of inspectors would have been reduced because of
purely economic reasons connected with the cessation of war orders
and the conversion to peacetime manufacturing. The evidence is also
clear that no discrimination was practiced in selecting individuals
for transfer. In these circumstances, the respondent urges that no
reinstatement of the transferees be required. The respondent's posi-
tion would have merit if it had not been complicated by the creation
of additional supervisors to whom were transferred many of the
duties and responsibilities performed by the non-supervisory inspec-
tors before August 27, 1945. In respect to numbers, the respondent
on August 24 had 40 non-supervisory and 2 supervisory inspectors.
On October 8 it employed only 28 non-supervisory inspector's but had
increased the number of its supervisory inspectors to 9. It is apparent,
therefore, that the creation of additional supervisory inspectors has
second place, it can hardly be said to indicate a generalized attitude of disloyalty by union
members such as to warrant the drastic action taken by the respondent in respect to the
inspectors None of it would have tended to show any danger to the respondent' s custo-
mers or the public interest, or any change in the inspectors' attitude after they chose this
union in the Board election.
"Nor are "statistics . presented in oral argument" any substitute for evidence
352 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had the effect of reducing the number of non-supervisory inspectors.
To what precise extent this has occurred is not possible to determine
from the record. -
In order to effectuate the policies of the Act, we shall order the
respondent to restore to their former status, duties, responsibilities and
wage classification, those of the employees listed in Appendix A who
are now or would have been employed as inspectors but for the un-
lawful discrimination practiced by the respondent. We shall also
order the respondent to make whole,all the employees listed in Appendix
A for losses suffered as the result of its discriminatory action. In
determining the amount of the losses consideration will be given to the
factor of economic displacement alluded to above.
Nothing in our order shall be construed to require the respondent
either to reduce wages or to abolish the additional supervisory in-
spectors' positions created since August 27, 1945. We do not here
question the right of the respondent, if it so desires, to create an ad-
ditional check on the work of its production employees by establishing
a new rank in its hierarchy or by enlarging its crew of supervisory
inspectors. Our order only requires the respondent to reinstate to
their former status, those of the inspectors listed in Appendix A who
would have retained their positions if the additional supervisory in-
spectors' positions had not been created. In short, while the respondent
may retain its additional supervisory inspectors, it cannot do so at the
expense of the non-supervisory inspectors.
We also expressly reserve the right to modify the back-pay and rein-
statement provisions if made necessary by a change of conditions in.
the future, and to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a
specific set of circumstances not now apparent.?
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Allis-Chalmers Manufactur-
ing Company, Pittsburgh, Pennsylvania, and its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Ma-
chine Workers of America, Local 613, C. I. 0., or any other labor
organization of its employees, by discriminating in regard to the hire
and tenure of their employment, or any term or condition of employ-
ment ;
7 Matter of Wright-Hibbard Industrual Electric Truck Co, Inc, 67 N. L R B. 897.
Matter of Bermite Powder Company, 66 N. L. R. B. 678; Matter of Brown's Tie & Lumber
Company, 66 N. L. R. B. 637 ; Matter of Fairmont Creamery Company, 64 N. L. It. B. 824.
ALLIS-CHALMERS MANUFACTURING COMPANY 353
(b) Refusing to bargain collectively with United Electrical, Radio
& Machine Workers of America, Local 613, C. I. 0., as the exclusive
collective bargaining representative of the respondent's employees in
the appropriate unit, with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act : 8
(a) Restore to the status they occupied immediately prior to August
27, 1945, those of the employees named in "Appendix A," attached
hereto, who are now employed as non-supervisory inspectors or would
have been employed as such but for the discriminatory acts of the re-
spondent, in the manner set forth in our Decision under the section en-
titled "The Remedy";
(b) Make whole each of the employees named in "Appendix A,"
attached hereto, for any loss of pay that he may have suffered by reason
of the respondent's discriminatory change in the status of inspectors on
and after August 27, 1945, by payment to each of them.of a suns of
money equal to the amount which he normally would have earned as
wages during the applicable period, less his net earnings during that
period; 9
(c) Upon request , bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment
with United Electrical, Radio & Machine Workers of America, Local
613, C. I. 0., as the exclusive representative of all the respondent's in-
spectors at its Bayard, Juniata, Manchester, River-new part and
River-old part plants in Pittsburgh, Pennsylvania, including senior
inspectors and inspectors' assistants , but excluding clerical employees,
inspectors who work out of the Pittsburgh plants, the head inspector-
metals, the chief inspector, the assistant chief inspector, and all other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action;
(d) Post at its Juniata, Bayard, Manchester, River-new part and
River-old part plants at Pittsburgh, Pennsylvania, copies of the notice
attached hereto and marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Sixth Region, shall
after being duly sighed by the respondent's representative, be posted
'The Board expressly reserves the right to modify the back -pay and reinstatement provi-
sions of the Order if made necessary by a change of circumstances in the future, and to
make such supplements thereto as may hereafter become necessary in order to define or
clarify their application to a specific set of circumstances not now appearing.
9In determining the amounts due under this provision of the Order, consideration shall
be given to the possibility that some of the employees listed on "Appendix A" might have
been discharged or transferred for economic reasons unconnected with the discriminatory
acts of the respondent.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) days thereafter, in conspicuous places, including
all places where notice to employees are customarily posted. Reason-'
able steps shall be taken by the respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director of the Sixth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting in part,:
I disagree with so much of the Order as finds a violation of, Section
8 (3) in the transfer of some of the duties of the inspectors to a higher
level of supervision. - I agree that Section 8 (5) was violated by this
respondent.
The problem of defining the scope of the rights of such monitorial
employees as guards and inspectors has been one of the most trouble-
some which has arisen under the Act in recent years, as a result of the
tendency of unions representing the production employees to admit
to membership persons whose duties might have an adverse effect upon
the standing of the individual employees whose work and conduct they
are hired to check. While it has seemed to me that the fiduciary duties
vested in supervisors are such an important aspect of their work that
this Act should not be construed as permitting them to have bargain-
ing representatives affiliated or allied with the bargaining repre-
sentatives of the rank and file,11D I have concurred with my colleagues
that such considerations were not usually controlling-with respect to
monitorial employees.1' However, it must be conceded that monitorial
employees do possess some management functions but, generally speak-
ing, these are peripheral. In other words, the difference is essentially
one of degree. -
Nevertheless, I had always assumed that the Board was aware of
certain dangers in permitting such employees to have the same bar-
gaining representative as the production workers. We have repeatedly
insisted upon separate bargaining relationships, not only in our unit
findings but in negotiating and grievance procedures. In the leading
10 See Matter of Maryland Drydock Company, 49 N. L R B 733, and my dissenting opin-
ions in Matter of Packard Motor Car Company, 61 N L. R B 4, and Matter of Jones t
Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L R. B 386
11 See Matter of Yellow Truck and Coach Corp., 39 N. L. R. B. 14, and Matter of Dravo
Corporation, 52 N L R 13 322 In the latter case, we said
. . . "While it Is true that management may have partially delegated certain duties
to plant-protection employees, this does not, mean that such employees are deemed
to be a part of management or should not be regarded as employees within the
meaning of the Act. This Board has never held that the acts of plant guards- ai e
unfair labor practices which can be imputed to an employer in the absence of circum-
stances indicating that the employer authorized or ratified the conduct in question.
In this respect, guards and other plant-protection employees are quite dlffeient from
- foremen or other supervisory personnel. -
ALLIS-CHALMERS MANUFACTURING COMPANY 355
case on the subject of guards we said: 12 ... We contemplate that
the separation of the bargaining units in their negotiations with the
Company and their day to day activities will be one of fact, not merely
form."
There is some doubt as to whether this cautionary language has been
effective, is in several recent cases statistics have been presented'in oral
argument which have indicated that when monitorial groups have
been organized, the number of reports sent in on fellow union members
among the production workers has fallen off to a marked degree.
Certainly a company like the respondent, which is engaged in the
manufacture of machines which would be highly dangerous unless
carefully inspected, has every right to guard against the possibility of
careless fabrication. As our own decisions imply that there is some
danger of laxity when inspectors and production workers belong to the
same union, it does not seem to me that the company acted unreason-
ably in transferring some of the peripheral (or management) func-
tions of the inspectors to a different group of employees, even though
the company had not had any actual experience with the catastrophes
which might result from any deterioration in the quality of the inspec-
tion process. To hold that an employer must show actual experience to
warrant a change in his inspection methods under these circumstances
would seem an invitation to disaster.
This'conlpany has apparently had a classification system in effect
for several years which had been approved under the Wage Stabiliza-
tion Act. A normal, if not a necessary, consequence of transferring
some of the duties of the inspectors elsewhere would therefore involve
a certain amount of down-grading. While in the long run this may
have the effect of "discouraging membership in a labor organization,"
it cannot be said on this record that such a result was intended or
would even inevitably occur. Accordingly, the portions of the com-
plaint alleging violations of subsection 8 (3) should be dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
See Matter of Dravo Corporation, supra.
712344-47-vol. 70-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We will bargain collectively upon request with United Elec-
trical, Radio & Machine Workers of America, Local 613, C. I. 0.,
as the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay, hours of employ-
ment or'other conditions of employment, and if an understanding
is reached, embody such understanding in a signed agreement.
The bargaining unit is :
All inspectors at the Bayard, Juniata, Manchester, River-new
part and River-old part plants in Pittsburgh, Pennsylvania,
including senior inspectors and inspectors' assistants, but ex-
cluding clerical employees, inspectors who work out of the
Pittsburgh plants, the head inspector-metals, the chief in-
spector, the assistant chief inspector, and all other supervi-
sory employees with authority to hire, promote, discharge,
discipline or otherwise effect changes in the status of em-
ployees, or effectively recommend such action.
The employees to be reinstated and made whole are :
Karl Garbo Herbert L. Bolster
Hollis W. Markley Joseph Humiloviclt
Franklin L. Barnhart Albert H. Mercer
Francis E. Sauerburger Charles M. Lavender
Charles M. Rhoades Frank E. Zeck
Frank J. Domke Robert C. Kerr
Edwin J. Means Norman Stone -
James R. Headrick Thomas Lyons
Joseph M. Stankowski Joseph W. Riding
Paul W. Hoffman Frank J. Reffert
Paul W. Kifer Leona E. Radick
John F. Burke Henry Bachman,
Joseph B. Reiss Steven R. Musial
Edmund Y. Knight Harold C. Gumbert
Aloysius A. Kopycinski Thomas F. Regan
Bohdan Yagello William M. Steidle
John R. Caye William E. Briggs
Anthony Falvo Samuel Woods
John J. Sadauskas Richard G. Fleming
Carl P. Banks , Bernard C. Fromme
Edward H. Sheets Karl R. Braddock
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
ALLIS-CHALMERS MANUFACTURING COMPANY 357
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
ALLIS-CHALMERS MANUFACTURING COMPANY,
Employer.
By -----------------------------------------------
(Representative ) ( Title)
Dated --------------------
NOTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
llh. Joseph Lepie, for the Board.
Messers. W. J. McGowan and John L. Waddelton, of Milwaukee, Wis., and
McCloskey, Best d Lestse, by Mr. Philip X. Ley, of Pittsburgh, Pa., for the
respondent. -
Messrs. Dominic F. Dornetto and John M. Duffy, of Pittsburgh, Pa., for the
Union.
'STATEMENT OF THE CASE
Upon amended charges duly filed by United Electrical, Radio & Machine
Workers of America, Local 613, C. I. 0., herein called the Union, the National
Labor Relations Board, herein called the, Board, by the Regional Director for
the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint dated Septem-
ber 18, 1945, against The Allis-Chalmers Manufacturing Company, Pittsburgh,
Pennsylvania, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8'(1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint and notice of hearing thereon were duly served upon the re-
spondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
the following: (1) that the respondent, by various described acts and state-
ments of certain of its officers or representatives, disparaged the Union and
discouraged membership therein; (2) that on July 31, 1945, the Board found
that all inspectors employed by the respondent at its Pittsburgh, Pennsylvania,
plant, with certain exclusions, constituted a unit appropriate for the purposes
of collective bargaining ; (3) that on August 24, 1945, the said inspectors, at an
election directed by the Board, selected the Union as their bargaining agent
within the said appropriate unit; (4) that about August 27, 1945, the respondent,
unilaterally and without prior consultation with the Union, demoted and re-
classified 40 named inspectors, for the reason that they had selected the Union
as their bargaining representative; and, further, that the respondent thereafter
refused to reinstate these inspectors to their former positions; and (5) that on
August 27, 1945, on September 11, 1945, and at all times thereafter, the re-
spondent refused to bargain collectively with the Union as the representative of
the inspectors, although requested so to do.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 10, 1945, the respondent filed its answer in which it admitted that
changes were made in the duties and the wage rates of the inspectors without
prior consultation or collective bargaining with the Union, but denied the com-
mission of unfair labor practices thereby. The answer further admitted the,
selection of the Union as bargaining representative of the inspectors, but denied
that the inspectors constituted an appropriate unit, and averred that the
Board was without authority so to find. In conclusion the answer denied the
commission of any unfair labor practices.
Upon due notice, a hearing was held at Pittsburgh, Pennsylvania, from October
15 to October 23, 1945, before Charles W. Schneider, the undersigned Trial
'Examiner duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel, and the Union by representatives. All
parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
on the issues
At the conclusion of the hearing, the complaint and answer were amended to.
conform to the proof with respect to names, dates, and similar formal variations.
A motion by counsel for the respondent, upon which the undersigned reserved
Luling , to dismiss the complaint, is hereby denied to the extent that it is incon-
sistent with the following findings. All parties were afforded opportunity to argue
the issues orally before, and to file briefs with, the undersigned.' Briefs were
received from all parties
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following
FINDINGS OF FACT
1. THE BUS] NESS OF THE RESPONDENT
The Allis-Chalmers Manufacturing Company is a Delaware Corporation main-
taining plants and offices in Milwaukee and La Crosse, Wisconsin ; Springfield,-
Illinois; LaPorte, Indiana: Norwood, Ohio; Boston, Massachusetts ; Oxnard,
Califoinia ; and Pittsburgh, Pennsylvania. Only the Pittsburgh plant, at which
the respondent is engaged in the manufacture and distribution of electrical.
transformers and related products, is involved in the present case
During the year preceding the hearing, a representative period, the respondent
purchased, transferred, and delivered to its Pittsburgh plant raw materials
valued in excess of $5,000,000, of which approximately 65 percent was transported
to the Pittsburgh plant from States other than the Commonwealth of Penn-
sylvania. During the same period of time the respondent manufactured at the
Pittsburgh plant products valued in excess of $10,000,000, of which approximately-
85 percent was transported from that plant to and through States of the United
States other than the Commonwealth of Pennsylvania.
The respondent concedes that it is engaged in commerce within the meaning-
of the Act.
During the course of the hearing counsel for the respondent made a motion to adjourn
for a period of 3 weeks in order to file an interlocutory appeal with the Board from rulings-
excluding certain evidence offered by the respondent . The undersigned denied this mo-
tion. At the close of the hearing the respondent moved to stay any further proceedings,
pending the filing of such an appeal This motion was denied . A request by counsel for the
Board, made after the respondent had completed its case, for an adjournment to secure-
the attendance of a witness for rebuttal purposes , was also denied.
ALLIS-CHALMERS MANUFACTURING COMPANY
II. THE ORGANIZATION INVOLVED
359
United Electrical, Radio & Machine Workers of America, Local 613, is a labor
organization affiliated with the Congress of Industrial ' Organizations , admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background and sunlmary of the issue
The Pittsburgh Works of the respondent consists of five plants : Juniata, Bay-
ard, Manchester, River-new, and River-old, constituting a single operating unit.
The respondent's business at the Works consists of the manufacture of electrical
transformers and related products. To insure the quality of workmanship on
these products, the respondent emplo; s a staff of inspectors. As of the time the
present controversy arose, the duties of the inspectors were to inspect, work before,
during and after fabrication, and to reject such of it as was unsatisfactory. At
that time, this staff comprised approxmiatel^' 40 employees It has since been
,reduced to approximately 28 persons, excluding supervisory employees
i , Since January 1938, the production and maintenance employees at the I'itts-
,buirgh Works have been continuously represented by the Union, and are today,
by, reason of a certification by the Board and subsequent collective bargaining
contracts between the Union and the respondent This certification and the
resulting contracts excluded inspectors. among others, from the collective bar-
gaining unit'
On March 20, 1945, however, the Union filed with the Board a petition for
certification as the representative of the inspectors in a bargaining unit separate
from the production and maintenance employees. At a hearing held by the Board
upon that petition on May 11, 1945, the Company appeared and contested the
appropriateness of such a unit on the ground that the inspectors were managerial
and supervisory employees On July 31, 1945, the Board issued a Decision and
Direr ' s of Election in which it found, contrary to the respondent's contention,
inspectors were not supervisory or managerial employees within the
ustomary definition of those terms' The Board further found that they
ed an appropriate bargaining unit.
election conducted, pursuant to the Board's decision, on August 24,
majority of the inspectors selected the Union as their bargaining rep-
ative On September 7, 1945, no objections having been filed to the
ict of the election or to the results of the balloting, the Board certified
Jnion as such representative.4
[owever, on August 27, 1945, prior to the certification, the respondent uni-
erally, and without consultation with the Union, changed the duties and
classification of the inspectors. with resultant reduction in pay, prestige, and
the importance of their duties. These changes are more fully discussed at a
later point in this Report The present proceeding arise out of this unilateral
t
2 The bargaining unit found appropriate by the Board in the proceedings referred to
above was based upon a stipulation made at a hearing conducted in 1938 upon the Union's
petition for certification There was no dispute as to the unit. No claim of representa-
tion was made with regard to the inspectors. Allis-Chalmers Manufacturing Company,
4 N L. R B. 824.
3 Allis Chalmers Manufacturing Company, 63 N. L. It. B. 101.
4 The results of the election were as follows. For the Union, 28; against the Union, 11.
Five ballots were challenged, but were not counted since they could not affect the result of
the election.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action of August 27. The Board and the Union contend that the respondent
thereby discriminated against the inspectors; also that the respondent refused
to bargain collectively with the Union as the representative of the inspectors.
The respondent denies these allegations. It contests the appropriateness of
the bargaining unit found by the Board and the Board's jurisdiction so to
find. As to the alleged discrimination, the respondent contends, in substance,
that the reclassification of the inspectors was a nondiscriminatory action de-
signed to relieve them of supervisory and managerial functions, and to obviate
conflict in their duties engendered by membership in, and representation by,
the Union.
Though the respondent has been in business for mane years, no previous
complaint has ever been issued by the Board charging the respondent with un-
fair labor practices.
B The appropriate unit and the Union's majority therein
As has been indicated, the Board, on July 31, 1945, after a full hearing, issued
a Decision and Direction of Election in which it found that the following em- i"
ployees of the respondent constituted an appropriate bargaining unit : S`
All the Company's inspectors at the Bayard, Juniata, Manchester, Rivev-
new part and River-old part plants in Pittsburgh, Pennsylvania, includiaig
senior inspectors and inspectors ' assistants , but excluding clerical em-
ployees, inspectors who work out of the Pittsburgh plants, the head inPpec-
tori-metals, the chief inspector, the assistant chief inspector, and all other
supervisory employees with authority to hire, promote, discharge, discipline
or otherwise effect changes in the status of employees, or effectively recom-
mend such action. -
In the present case,,as it did in the representation proceeding, the respond-
ent denied that this unit is appropriate. The ground urged herein is that the
inspectors, being managerial and supervisory employees, were "acting in the
interest of an employer" within the meaning of Section 2 (2) of the and
consequently were not employees." In support of this assertion the re
offered further evidence in the instant case of the duties and respon
of the inspectors as of the time of the representation hearing, for its
on the appropriateness of the unit found by the Board. Proof direct
same issues had been adduced in the prior proceeding The additional `t
offered in the instant case would not have been different from evidence
same issues offered in the representation hearing. The proffered evidence
variously described by counsel for the respondent as "supplementary," "a
tional," and "cumulative." It is conceded that this evidence was available a
known at the time of the representation hearing and that full opportunity wil
afforded to introduce it at that time. No adequate explanation was offered for the
failure to do so. No contention is made that the representation record is de-
ficient. The position of the respondent was summed up as follows:
Mr. MOGOWAN • (respondent's counsel) : Well, our position is this, 'Mr.
Examiner: There was sufficient evidence in the [representation] record for
the Board to find that the inspectors were supervisory employees It is
clearly apparent to us that they were. The Board, however, has found that
they were not, and the Board is wrong Now, it is our intention to go into
this matter very, very fully so there can be no misunderstanding on the part
of the Board, and I am sure that if the Board has erred it will be only too
happy to receive any additional evidence bearing on this point. As I say,
ALLIS-CHALMERS MANUFACTURING COMPANY 361
it is supplementary. Sometimes it is difficult to know what is important
and what isn't important, but in view of the findings made by the Board it is
quite apparent that the Board has not grasped the situation with respect to
inspectors at the Pittsburgh Works, and we just do not want any misunder-
standing. We want the Board to be as fully apprised of the facts as it is
possible.
This evidence was excluded by the undersigned. In the case of Swift and Com-
pany,' decided on August 31, 1945, the Board adopted the following language :
The respondent contests the appropriateness of the unit found by the
Board , urging (a) that plant clerks and standards department checkers per-
form management functions; (b) that since an affiliated local of the Union
is the recognized bargaining representative of the production and mainte-
nance employees at the respondent's plant here involved, it would not effectu-
ate the policies of the Act for the Union to represent the employees in the
unit for which it was certified; and (c) that, in any event, the said unit is
heterogeneous in character. As appears from the Board's Decision and
Direction of Election and from the record in the representation proceeding
(Case No. 2-R-4409), these precise contentions were raised by the respondent
in that case, and there litigated and decided adversely to the respondent
In the instant proceeding, the respondent sought to introduce testimony as
to the duties and responsibilities of each individual employee who, according
to its view, was a member of the unit-at the time of the hearing. This proof
was offered by the respondent in support of its position that the unit was
'omprised of management employees. While making its offer, the respondent
conceded that proof of the same general character, although less detailed,
wets adduced by it in the representation proceeding in which it participated
anti was given full opportunity to be heard. Likewise, the respondent con-
ceded that the testimony offered by it in the instant proceeding was known
to it at the time of the hearing in the representation proceeding and that the
witl)lesses who would give such testimony were available at that time.
d affirmed the exclusion of the offered testimony in the Swift case. That
appears to be controlling here.'
stly, the holding of a hearing under Section 9 of the Act for the purpose
fining an appropriate bargaining unit would be a useless gesture if factual
raised therein can be relitigated upon the issuance of a complaint'for re-
o bargain. Congress provided in Section 9 (c) for a hearing for the purpose
ducing evidence on questions of representation. Section 9 (c) reads as
s:
V Whenever a question affecting commerce arises concerning the representa-
tion of employees, the Board may investigate such controversy and certify to
the parties, in writing, the name or names of the representatives that have
been designated or selected. In any such investigation, the Board shall pro-
vide for an appropriate hearing upon due notice, either in conjunction with a
proceeding under section 10 or otherwise, and may take a secret ballot of em-
ployees, or utilize any other suitable method to ascertain such representatives.
[Italics supplied.]
That a proceeding under Section 10 was not intended to provide a second op-
portunity to present such evidence, absent a showing of reasonable cause for hav-
ing failed to do so theretofore, seems clear, both from the provisions of Section
63 N. L It. B. 718.
See : Pittsburgh Plate Glass Company v. N. -L. R. B ., 313 U. S. 146, aff'g 113 F. (2d)
698 (C C. A 8), enf'g 15 N L. R. B 515; Matter of Pacific Greyhound Linea, 22 N. L. It. B.
111. See also , Matter of Armour and Company, 55 N. L . R. B. 1150.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
9 (c) and from those of 9 (d ) as well. The latter sub-section provides for the use
of the representation record in the complaint proceedings.?
Considerations of public policy require that when the Board 's authority is in-
voked for the determination of an appropriate bargaining unit, it be provided with
all the facts necessary to an informed and intelligent discharge of its responsi-
bilities . Section 9 so contemplates Indeed, without such requirement, the
validity of unit determinations would be clouded with doubt and open at any
time to relitigation by employers and labor organizations To permit successive
opportunity to adduce unit evidence would tend to render representation proceed-
ings meaningless , encourage the withholding of evidence , and invite parties to
ignore representation hearings altogether . Orderly administration of the Act
would be, in many cases , seriously hampered , and one of the Act's basic purposes-
the settlement of uncertainty respecting representation-in large measure frus-
trated.
In the instant case the proffered evidence was 'available at the time of the
representation hearing, adequate opportunity was had therein to present it, and
no substantial reason was offered to excuse the failure to do so Under the
circumstances , the explanation , in effect, that the evidence was not previously I
adduced because the respondent believed that it was unnecessary for the securing ,)
of a determination favorable to the respondent , does not constitute adequate
excuses
Whatever the duties of the inspectors , the Board has found , and it is clear,
that they were employees of the respondent within the meaning of Section 2 i(3)
of the Act.' It is therefore found that the unit found by the Board in its Eleci-
sion and Direction of Election of July 31, 1945 , and set out heretofore , consti-
tutes and at all times material herein constituted , an appropriate bargaining
unit within the meaning of Section 9 (b) of the Act . It is further fouled that
on August 24, 1945, the Union wa,s the duly .designated bargaining representative
of a majority of the employees in the aforesaid bargaining unit, and that, pur-
suant to Section 9 (a) of the Act, the Union was, on August 24, 1945, and at all
times thereafter , the exclusive bargaining representative of all employees in
7 Section 9 (d) provides as follows :
Whenever an order of the Board made pursuant to Section 10 (c) is based
or in part upon facts certified following an investigation pursuant to subse
of this section, and there is a petition for the enforcement or review of su
such certification and the record of such investigation shall be included in t
script of the entire record required to be filed under subsections 10 (e) or 10
thereupon the decree of the court enforcing, modifying, or setting aside in whol
part the order of the Board shall be made and entered upon the pleadings, testi
and proceedings set forth in such transcript.
eIt is to be noted that at the representation hearing the Union rested its case after
introduction of the formal papers. The Company thereupon rested and moved to dismi
the petition on the ground that the burden was on the Union to prove the appropriateness
of the unit. The Trial Examiner referred that motion to the Board and proceeded with
the hearing by calling witnesses, consisting of officials of the respondent and a representa-
tive of the Union, to ascertain the inspectors' duties and responsibilities.
In that hearing, during the examination of Chief Inspector Becker, the Trial Examiner
asked him the following questions:
Q. Now, you have heard Mr. McArn [works manager] testify with relation to the
Inspection Department?
A. Yes, sir.
Q. Was his testimony substantially correct?
A. Yes, sir, it was.
Q. Are there any details which you consider should be amplified?
A. None, unless you have some. I don't have any offhand that might be amplified.
° The respondent contended in its brief that certain findings of fact made by the Board
in its Decision and Direction of Election are not supported by the representation record.
The undersigned finds no substantial or material error
ALLIS-CHALMERS MANUFACTURING COMPANY 363
the aforesaid unit with respect to rates of pay, wages, hours of employment,
status, classification and other terms and conditions of employment10
After August 24, 1945, changes were made by the respondent with respect to
the duties and status of the persons within the appropriate unit. For reasons
apparent from the discussion hereinafter, these changes are found to have no
effect upon the appropriateness of the bargaining unit or upon the Union' s repre-
sentative status.
C. The changes in status
1. How the change was effected
On August 27, 1945, 3 days after the inspectors had selected the Union as their
bargaining representative at the Board -directed election , the respondent uni-
laterally , and without consulting the Union with reference thereto, changed the
classification and status of the inspectors within the appropriate unit The effect
of these changes is discussed hereinafter.
On that day the inspectors were called individually to the office of D. G . McArn,
works manager , and interviewed by the respondent 's labor advisory committee,
consisting of McArn, P . E Cooke, chief engineer , and J C. Shupe , works account-
ant McArn read or related the substance of the following statement to each
of the inspectors.
We recognize your right to join or not to join any organization of your own
choice.
However , you cannot be represented by the Union , and at the same time
hold a company job, and exercise management functions which you have
'!tone in the past.
The Foreman 's Club is made up of several management of Company
groups as you know and have known.,
'Since you have chosen to be represented by the Union , you have withdrawn
fr