Bagley & Sewall Co.

National Labor Relations Board - Board Decisions

Feb 21, 1942

39 N.L.R.B. 67 (N.L.R.B. 1942)

In the Matter of BAGLEY & SEWALL COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS (A. F. L.) -
Case No. R-3404.-Decided February 21, 1942
Jurisdiction : tool manufacturing industry
Investigation and Certification of Representatives : existence of question .
refusal to accord union recognition ; election necessary.
Unit Appropriate for Collective Bargaining : employees in the machine
shop of the Company excluding clerical and supervisory employees, watch-
men, and engineers ; employees in the foundry excluded notwithstanding
Company's contention that they should be included-employees of another
Company owned individually by the president and majority stockholder
of the above Company excluded from the unit found appropriate notwith-
standing sole union's desire for their inclusion where among other circum-
stances there is an absence of showing whether the labor relations of the
companies are administered jointly or separately.
Bond, Sehoeneck d King, by Mr. Tracy H. Ferguson, of Syracuse,
N. Y., and Mr. Lawrence R. Ormiston, of Watertown, N. Y., for the
Company.
Mr. Willriam H. Bradt, of Albany, N. Y., for the Union.
Mr. Raymond J. Heilman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
'On November 3, 1941, International Association of Machinists,
affiliated with the American Federation of Labor, herein called the
Union, filed with the Regional Director for the Third Region
(Buffalo, New York) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Bagley & Sewall Company, Watertown, New York, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On December 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
39 N. L. R. B., No. 16.
67
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 December 9, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and
the Union. Pursuant to notice- a hearing was held on December 16,
1941, at Watertown, New York, before Peter J. Crotty, the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany and the Union were represented and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was af-
forded both parties. During the course of the hearing the Trial
Examiner made rulings on motions and on objections to the admis-
sion of evidence. The -Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Bagley & Sewall Company has a plant at Watertown, New .York,
at which it normally manufactures paper-making machinery but now
is engaged primarily in making machine tools, Prentiss dies, vises
and boiler heads for the United States Navy, and parts for 155 mm
guns. From December 1, 1940, to November 30, 1941, the, Company
used materials exceeding in value $75,000, of which more than 15 per-
cent was shipped to the Company from points outside the. State of
New York. During the same period the Company manufactured
finished products amounting in value to more than $75,000, of which
more than 50 percent was shipped to points outside the State of New
York: The Company admits that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Union has requested that the Company recognize it as the
exclusive representative of employees of the Company for the pur-
poses of collective bargaining . The Company has refused recognition
BAGLEY & SEWALL COMPANY 69
to the Union upon the grounds that the employees the Union desires
to represent do not constitute an appropriate unit and that the Com-
pany is not convinced that the Union represents a majority of the
employees within the unit claimed by the Union.
It appears from a report of the Regional Director that the Union
represents a substantial number of the employees in the unit herein-
after found to be appropriate?
We find that a question has arisen concerning the representation of
the employees of 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'Company has a machine shop with several departments and a
foundry. Across the street from the Company's plant, there is a shop
for the reconditioning of used machinery, operated under the name
Lance Machine Company, herein called'the Lance Company. The
Union 'seeks a unit consisting of all employees in the machine shop of
the Company as well as the employees of the Lance Company, ex-
cluding clerical and supervisory employees, watchmen, and engi-
neers? The Company contends. that the employees of the foundry
should also be included in the unit and that the employees of the
Lance Company should be excluded.
The Lance Company is not a corporation but is owned individ-
ually by-one Cooper, the Company's president and majority stock-
holder. The Company receives orders from-the Lance Company which
are treated like the orders received from any other Company. The
record indicates that an employee of the Lance Company works in the
office of the Company on the accounts and records of the Lance
i The Regional Director reported , that the Union submitted 143 application cards, of
which 129 were dated between September 9 and October 29, 1941, and 14 bore no date The
record does not show the number of employees in the alleged appropriate unit. In its
petition the Union alleges that there are approximately 164 employees in the unit it claims
appropriate.
S The Union seeks to have the following classes of employees included in the appropriate
unit ( It is not clear from the record whether they work in the machine shop and in the shop
of the Lance Company or only in the machine shop ) • group leaders , stock clerks , shipping-
department employees , wood-department employees , grinders, rollers , gear cutters , planers,
mill workers , maintenance employees ( including sheet-metal workers or pipe fitters and
millwrights ), firemen, electricians , painters , crane operators, road men in the erection
department, sweepers , and truck drivers.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company., In addition, the employees of the Lance Company are
paid by checks of the Company and these payments are then charged
against the Lance Company's account. The record does not indi-
cate, however, whether the labor relations of the Company and the
Lance Company are administered jointly or separately. Nor does
the record show the extent to which, if any, the Lance Company is
controlled by the Company. Under these. circumstances, we are not
satisfied that the evidence in the record, warrants the inclusion of
the employees of the Lance Company_ in a unit together with em-
ployees of the company.3
The machine shop and the foundry are separate departments of
the Company. Moreover, the record indicates that the "Molders
Union" has jurisdiction over the employees in the foundry. and has
commenced to organize them. We are of the opinion that the em-
ployees of the foundry should be excluded from the unit of employees
in the machine shop.4
We find that all employees in the machine shop 5 of the Company
excluding clerical and supervisory employees, watchmen, and en-
gineers, constitute a unit appropriate for the purposes of collective
bargaining and that said unit-will insure to-,employees of the Com-
pany 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
We find 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 of the Company eligible to vote in the election shall
be those who were employed by the Company during the pay-roll
period immediately preceding the date of this Direction of Election,
subject to the limitations and additions hereinafter set forth in the
Direction.
Upon the basis of the above findings of fact" and upon the entire
record in the case, the Board rakes the following :
CONCLUSIONS OF LAW,
1. A question affecting commerce has ,arisen concerning the rep-
resentation of employees of Bagley !& Sewall Company, within -the
s Cf Matter of Farmers Feed Company of New York and Employees of the 'Farmers Feed
Company; 36 N. L. R. B 650
4 See Matter of Smith & Caffrey Company and International Association Bridge Structural
Ornamental Iron Workers Local Union #612, 38 N L R B 90.
5 The employees of the machine shop included in the unit are listed in footnote 2 above.
BAGLEY & SEWALL COMPANY 71
meaning of Section 9 (c) and Section 2 (6) and (7) of the National
Labor Relations Act.
2. All employees in the machine shop of the Company excluding
clerical and supervisory employees, watchmen and engineers, consti-
tute 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, .it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Bagley & Sewall Company, Watertown, New York, an election
by secret ballot shall be conducted as early as possible but not later
than 30 days from the date of this Direction of Election under the
direction and supervision of the Regional Director for the Third
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 employees in the machine shop of the,
Company, 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 clerical and supervisory employees, watchmen
and engineers, and employees who have since quit or been'discharged
for cause, to determine whether or not they desire to be represented
by International Association of Machinists, affiliated-with the Amer-
ican Federation of Labor, for the purposes of collective bargaining.
In the Matter of BAGLEY & SEwALL COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS (A. F. L.)
Case No. B-3414
ORDER PERMITTING WITHDRAWAL OF PETITION
March 07, 194
The Board having issued a Decision and Direction of Election, dated
February 21, 1942,1 in the above-entitled case, and, on March 18, 1942,
International Association of Machinists, affiliated with the American
Federation of Labor, having requested. permission to withdraw the
petition for investigation and certification of representatives,
IT IS HEREBY ORDERED that the request of the petitioner, for permis-
Sion to withdraw its petition be, and it hereby is, granted, and that the
aforesaid case be, and it hereby is, closed.
139 N L R B 67.
39 N. L R B, No 16a.
72