Austin-Western Co.

National Labor Relations Board - Board Decisions

Apr 23, 1946

67 N.L.R.B. 692 (N.L.R.B. 1946)

In the Matter of AUSTIN-WESTERN COMPANY and UNITED STEEL-
WORKERS OF AMERICA, LOCAL UNION NUMBER 3612, C. I. O.
Case No. 13-R-3428.-Decided April 23, 1946
Mr. Barnabas F. Sears, of Aurora, IlJ., for the Company.
Mr. Albert A. Kraywonos, of Joliet, Ill., for the Steelworkers.
Mr. Joseph J. Zyrkowski, of Chicago, Ill., for the Pattern Makers.
Mr. A. J. E-berhardy, of Chicago, Ill., for the Blacksmiths.
Mr. M. J. Costello, by A. J. I; berhardy, of Chicago, Ill., for the
Firemen and Oilers.
Mr. Rudolph Faupi, of Chicago, Ill., for the Machinists.
Mr. Roy C. 1Veie/nel, of Aurora, Ill., for the Teamsters.
Mr. F. G. Du in, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMIENr OF THE CASE.
Upon a petition duly filed by United Steelworkers of America,
Local Union Number 3672, C. I. O., herein called the Steelworkers,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Austin-Western Company. Aurora,
Illinois, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Leon A. Rosell, Trial Examiner. The hearing was held at Aurora,
Illinois, on February 15 and 18, 1946. The Company, the Steelwork-
ers, Pattern Makers League of North America, Chicago Association,
A. F. L., herein called the Pattern Makers,' International Brotherhood
of Blacksmiths, Drop Forgers and Helpers, Local 239. herein called
the Blacksmiths, International Brotherhood of Firemen and Oilers.
herein called the Firemen and Oilers, International Association of
Machinists, District 108, herein called the Machinists, Teamsters,
Chauffeurs, and Sales Drivers, Local 423, I. B. T., A. F. L., herein called
'At the beginning of the hearing, the Steelwoikeis « as given peimission to amend its
petition excluding Pattern Makeis from the unit apught . The Pattern Makeis thereupon
withdrew from the pioceedings
fir N . L. R. B., No. 88.
692
AUSTIN-WESTERN COMPANY 693
the Teamsters, herein referred to collectively as the Intervenors, ap-
peared 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.
At the hearing and in its brief, the Company moved for the dis-
missal of the Petition on the grounds discussed in Section III, infra.
Ruling on said motions was reserved by the Trial Examiner for the
Board.
For reasons hereinafter stated, the motions are denied. The peti-
tion of the Company for oral argument before the Board is hereby
denied. All parties were afforded opportunity to file briefs with the
Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSI\ ESS OF TILE COMPANY
Austin-Western Company is an Illinois corporation engaged in the
manufacture of road building machinery, dump cars, and crushing
equipment at its plant at Aurora, Illinois, During 1945, the Company
purchased raw materials in excess of one million dollars, of which
more than 50 percent was transported to the plant from points outside
the State of Illinois. During the salve year, the sales of the Company
were in excess of one million dollars, of which amount more than 50
percent was transported from the plant to points outside the State of
Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, Local Union Number 3672, is a
labor organization , affiliated with the Congress of Industrial Organi-
zations , admitting to membership employees of the Company.
Pattern Makers League of 'North America, Chicago Association,
Teamsters , Chauffeurs and Sales Drivers , Local No. 423 , I. B. T., and
International Brotherhood of Firemen and Oilers , are labor organiza-
tions , affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
International Association of Machinists , District 10S, is a labor
organization , admitting to membership employees of the Company.
III, THE QUESTION CONCERNING REPRESENTATION
Since May 1940, the Company has recognized the Intervenors under
successive joint contracts as the collective bargaining representative of
. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its production and maintenance employees. On July 7, 1941, the Com-
pany and the Intervenors executed a new contract covering all terms
and conditions of euiployment with exception of wages, which latter
issue was submitted to the War Labor Board for settlement. There-
after, the Intervenors refused to abide by the decision of the War
Labor Board, and, on 'November 24, 194:i, went on strike. Through
intervention of the United States Conciliation Service, the strike was
settled, and on February S, 1946, the Intervenors and the Company
executed a new contract. The Steelworkers filed the petition herein
on January 9, 1946. The Company and the Intervenors contend that
the 1946 contract constitutes a bar to the installt proceeding. The
Board has repeatedly held that a contract entered into after the filin_4
of a petition does not preclude a determination of representatives.'
Accordingly, we find that the 1946 contract is no bar to the instant
proceeding.
The Blacksmiths urges in its brief that no election should be con-
ducted until a disposition has been made of charges filed against the
Company for alleged unfair labor practices." However, the charges
were filed by the Blacksmiths and not by the Steelworkers, the peti-
tioner herein 4 Furthermore, it would appear that the charges con-
cern eight employees who are not in the bargaining unit sought by
the Steelworkers, nor were they covered by any prior contracts be-
tween the Company and the Intervenors. We shall, therefore, not
withhold directing an election because of the pending charges.°
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the Steelworkers represents a substantial num-
ber of employees in the unit hereinafter found appropriate.`'
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 DETERMINATION OF REPRESENTATIVES
The Steelworkers and the Company contend that the appropriate
unit should be comprised of all production and maintenance em-
ployees, excluding pattern maker apprentices, clerical employees, fore-
men and assistant foremen, and all or any other supervisory employees.
2 Matter of General Chemical Company, 48 N L R B 988 ; Matter of J M Portola &
Company, Inc, 61 N L R. B 64
' Case No 13-O-2793, filed Februai y 19, 1946.
4 The Steelworkers filed charges of unfair labor practices against the Company, in case
No. 13-C-2666 , on September 20, 1945 Subsequent to the hearing, it flied a waiver of
these charges in the present case
5 Cf. Matter of Bethlehem -Ihngham Shipyard, Inc ., 48 N L. It. B 1297
The Field Examinei reported that the Steelworkeis submitted 583 cards , bearing the
names of 489 employees , listed on the Company' s pay roll of January 21, 1946 , and the
cards are dated as follows 3 January through June 1945, 296 July and August 1945; 130
November and December 1945 ; 92 January 1946 , and 10 undated
There are approximately 903 emploi ees in the appropriate unit
AUSTIN-WESTERN COMPANY 695
The intervenors contend that the foregoing unit is inappropriate and
that the Company's employees comprise three separate appropriate
units corresponding to the respective jurisdiction of the Intervenors
under their prior joint contracts with the Company. They are in
agreement, however, with respect to the specific exclusions sought by
the Steelworkers.
As stated above. the Company has been contracting with the Inter-
venors on a joint basis Since 1940. Each of the Intervenors is named
therein and signed such contracts as separate parties. Wage scales
appear under separate headniirs for each of the Intervenors and griev-
ances are handled separately by each of the Intervenors for the em-
ployees under its jurisdiction. Seniority is on a departmental basis
and there is no interchange of personnel except in case of emergencies.
Hours of employment, overtime, vacations, and other conditions of
employment are set out in the contract generally for all employees.
Ordinarily the Board would not divide the Company's employees into
the units sought by the Intervenors in the face of a desire on the part
of a labor organization to represent them in a single unit. However,
the foregoing indicates both several and joint action in the conduct
of bargaining relations between the Company and the Intervenors.
In view of such bargaining history, which does not conclusively estab-
lish the appropriateness either of separate units or of a single unit, we
are of the opinion that the groups sought here by the Intervenors may
either function as separate units or as a single unit for collective bar-
r airing purposes. We therefore shall permit the scope of the bar-
Iaining unit or units to be deteiiiiinetl, in part, by the desires of the
employees themselves to be ascertained by means of separate elections.'
Upon the basis of the entire record and in conformance with the
foregoing conclusions, we shall order the conduct of elections among
the employees of the Company within each of the groups listed below."
excluding pattern makers and pattern maker apprentices, clerical
employees, foremen, assistant foremen, the outside truck driver," and
all or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action :
(1) All employees in departments commonly known as the iron
room, punch room, sheet metal department, blacksmith shop, store-
room, shipping department, receiving department, heat treating and
laboratory departments, car shop, stock chasers, and including all
7 Matter of Struthers Wells Corporation, 59 N L R. B 454. Cf Matter of Commerce
Pattern Foundry and Machine Companu. 53 N L R B 8,18
"The voting group, are delineated in substantial accordance with prior contracts between
the Company and the Intervenor,
P Inasmuch as the Teamsters has represented only one outside truck driver, we have
excluded hint in line with the general Board policy of not finding a unit composed of one
emplo, ee appropriate The Teamsters agreed to this procedure at the hearing.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welders in all departments of the Company's plant, but excluding all
inspectors, pipe fitters in the car shop, drill press operators in the
blacksmith shop, and all shop truck drivers in the above departments;
(2) All employees in departments known as toolroom, machine
shops (heavy and light), main assembly department, maintenance
department, woodworking department, paint shop, pipe fitters in car
shop, all shop truckers, experimental department, machine repair
department, and electrical department;
(3) All employees in the poiveihouse and yard departments, all
guards, watchmen, and janitors.
We will make no final determination of the appropriate unit or
units pending the results of the elections. If the Steelworkers is
chosen as the bargaining representative of the employees in each of
the three groups, we shall find a single plant-wide unit appropriate;
otherwise, each group shall constitute a separate bargaining unit.
Those eligible to vote in the elections which we shall direct shall be
the employees of the Company described in the voting groups above
who were employed during the pay-roll period immediately preceding
the date of the Direction of Elections herein, subject to the limitations
and additions set forth therein.
DIRECTION OF ELECTIONS
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 9, of National Labor Relations
Boards 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 Austin-Western
Company, Aurora, Illinois, separate elections by secret ballot shall -be
conducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Thirteenth Region, acting in -this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among em-
ployees in the voting groups listed 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 said
pay-roll period because they were ill or on vacation or temporarily 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 elections, and
excluding pattern makers and pattern maker apprentices, clerical
employees, foremen, assistant foremen, the outside truck driver, and
AUSTIN-WESTERN COMPANY 697
all or any other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action :
(1) All employees in Group (1), the Blacksmith's group, described
in Section IV, above, to determine whether they desire to be represented
by United Steelworkers of America, Local Number 3672, C. I. O.,
or by International Brotherhood of Blacksmiths, Drop Forgers and
Helpers, Local 239, for the purposes of collective bargaining, or by
neither ;
(2) All employees in Group (2), the Machinists' group, described
in Section IV, above. to determine whether they desire to be represented
by United Steelworkers of America, Local Union Number 3672, C. 1. 0.,
or by International Association of Machinists, District 108, for the
purposes of collective bargaining, or by neither ;
(3) All employees in Group (3), the powerhouse group, described
in Section IV, above, to determine whether they desire to be repre-
sented by United Steelworkers of America, Local Union Number 3672,
C. I. 0., or by International Brotherhood of Firemen and Oilers, for
the purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.