Ball Brothers Co.

National Labor Relations Board - Board DecisionsSep 21, 1943

52 N.L.R.B. 775 (N.L.R.B. 1943)

In the Matter of BALL BROTHERS COMPANY and FEDERATION OF GLASS, CERAMIC & SILICA SAND WORKERS OF AMERICA, CIO Case No. R-5853.-Decided September 21, 1943 Messrs. A. M. Bracken and Myron H. Gray, both of Muncie, Ind., for the Company. Messrs. Holmes, Lewis & Menendez, by Mr. William T. Lewis, of Columbus, Ohio, and Messrs. Everett Kanatzar and Jack Reed, both of Muncie, Ind., for the CIO. Mr. Joseph A. Padway, by Mr. Robert. A. Wilson, of Washing- ton, D. C., and Mr. Z. C. Wright, of Winchester, Ind., for the GBBA. Mr. Glenn L. Moller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Federation of Glass, Ceramic & Silica Sand Workers of America, CIO, herein called the CIO, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Ball Brothers Company, Muncie, Indiana, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William S. Shooer, Trial Examiner. Said hearing was held at Muncie, Indiana, on August 19, 1943. The Company, the CIO, and Glass Bottle Blowers Association of the United States and Canada, herein called the GBBA, appeared, participated, and 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. After the hearing the Company filed a motion for a further hear- ing, and requested oral argument. In its motion for further hearing, the Company set forth in detail, in the nature of an offer of proof, the evidence which it seeks to present at a further hear- ing. For the purposes of this Decision, we accept as true the evi- 52 N. L. R. B., No. 136 775 776 DECISIONS OF NArrrON'AL LABOR RELAMONISI BOARD dentiary matter set forth in the motion (as distinguished from, the argumentative portions thereof). The motion for further hearing is therefore denied. The Company's request for oral argument is also denied. All parties were afforded opportunity to file briefs with the Board and all parties have filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the follow- ing : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Ball Brothers Company is engaged in the manufacture of glass products, corrugated straw paper, rolled zinc and rubber products, all used in the manufacture and shipment of glass products. The Com- pany maintains factories at Muncie, Indiana, Okmulgee, Oklahoma, Eaton, Indiana, Noblesville, Indiana, Huntington, West Virginia, and Hillsboro, Illinois. Only the Muncie plant is involved in this proceed- ing. Over 50 percent of the raw materials used at the Muncie plant is shipped to the plant from points outside the State of Indiana and over 50 percent of the finished products of the plant is shipped from the plant to points,outside the State of Indiana. The Company admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Federation of Glass, Ceramic & Silica Sand Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Company. Glass Bottle Blowers Association-of the United States and Canada, affiliated with the American Federation of Labor, is a labor organi- zation admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about July 13, 1943, the CIO requested, that the Company recognize it as the exclusive bargaining representative of the Com- pany's unskilled, or "Miscellaneous" employees. The Company has refused to grant such recognition until the CIO has been certified by the Board in an appropriate unit. A statement of a Field Examiner for the Board, introduced into evidence at the hearing, indicates that the CIO represents a sub- stantial number of employees in the unit hereinafter found appro- BALL BROTHERS COMPANY 777 priate.1 The GBBA relies upon a current closed-shop contract as evidence of its interest. 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 CIO contends that all employees of all departments of the plant, except mold makers, mold repairmen , machine shop employees (represented by the International Association of Machinists), super- intendents, assistant superintendents, foremen, assistant foremen, chemical engineers, chemists, assistant chemists, chief engineers, elec- trical engineers, draftsmen, mechanical engineers , watchmen, brick- layers, (represented by the American Bricklayers Union), salaried employees, clerical help, and operators, constitute an appropriate bar- gaining unit. The Company and the GBBA, without disputing the propriety of the CIO's proposed grouping of occupational catego- ries, contend that the unit sought by the CIO is appropriate only as long as the employees therein continue to be represented by the GBBA.â€¢ For the past 50 years the skilled operators in the glass industry have been organized by the GBBA, and the mold makers and mold repairmen have been organized for a like period by the American Flint Glass Workers Union. These two unions are both affiliated with the American Federation of Labor and have respected each other's jurisdiction. Bargaining on behalf of these skilled groups is now conducted on an industry-wide basis and they are covered by industry- wide contracts. In 1937 the GBBA succeeded in organizing the re- maining unskilled categories of employees in the glass industry in a number of plants, including the plant here involved. The GBBA gained recognition from the Company in 1937 as bargaining repre- sentative of such employees and a contract was entered into covering them. This contract has been renewed, with amendments, every year since 1937 and annual negotiations were about to begin when the CIO made its claim. The contracts between the Company and the GBBA cover employees in the so-called Miscellaneous Depart- ment, which corresponds exactly with the unit here sought by the CIO. The CIO has not attempted to organize the skilled employees presently represented by the GBBA and the Flint Glass Workers. The Company's contention, that the unit is inappropriate unless the employees therein are represented by the GBBA, is based upon the theory that the skilled operators and mold repairmen must work 1 The Field Examiner reported that the CIO submitted 1,378 authorization cards bearing apparently genuine original signatures of persons whose names were listed on the Company's pay roll of July 20, 1943 , which contained the names of 2,682 employees in the appropriate unit. '778 DECISIONS OF NA(TPON'AL LABOR RELATIONS BOARD in very close cooperation with various employees in the Miscellaneous group and that they would not cooperate if they were to be represented by competing unions. That a considerable degree of cooperation is necessary between the operators and mold repairmen, respectively, and certain of the employees in the Miscellaneous group, cannot be 'questioned. Nor can it be doubted that the possibilities for friction are increased when the employees are represented by rival unions. However, we note that the employees in the machine shop, whose close cooperation with the operators is essential to the successful conduct .of the work, are represented by a separate union, the International Association of Machinists. Moreover, as stated above, the Company and the GBBA have themselves determined and fixed the unit in -the course of 6 years of continuous collective bargaining. The oper- ators belong to a local of the GBBA which is entirely separate from the locals to which the employees in the Miscellaneous group belong, and the operators bargain on an industry-wide basis whereas the Miscellaneous group has always bargained on a plant-wide basis. Minutes of the annual bargaining conferences between the Company and the GBBA Miscellaneous locals indicate that the Miscellaneous employees consider themselves to be quite separate and apart from the operators, mold makers, and mold repairmen. There have been frequent disputes between the skilled and unskilled employees over questions of jurisdiction. Grievance machinery for the Miscellaneous group is entirely separate from that of the skilled employees. The locals meet separately and bargaining is conducted separately. Upon 'consideration of these facts we think it is patent that the unit pro- posed by the CIO is appropriate for the purposes of collective bar- gaining.2 It follows, of course, that the employees therein may be -represented by any bargaining agent of their choice and may, at suit- able intervals, change their representatives. To hold that they con- ,stitute an appropriate bargaining unit only so long as they are repre- sented by a particular labor organization would be to nullify the fundamental rights guaranteed them in Section 7 of the Act.3 Between June and October of each year the Company has a peak production period during which it employs a large number of addi- tional employees, many of whom are students who quit voluntarily at the end of the summer vacation period. Both the GBBA and the CIO desire to exclude such students from the unit. It appears that this year a large proportion of the employees hired for the peak sea- son are high school students under 18 years of age. Those whose 2Matter of Universal Glass Products Company, 40 N. L. R. B. 1358; Matter of Hazel .Atlas Glass Company, 46 N L. R B. 1391. 3 Matter of Chrysler Corporation , Highland Park Plant, 44 N. L. R B 881 ; Matter of Bruggs Manufacturvng Company , 49 N. L. R. B. 57; Matter of Revere Copper and Brass Inc, 51 N L. R. B. 350. BALL BROTHERS COMPANY 779 tenure of employment is limited to the school vacation period and whose interest in the selection of a bargaining representative is, there- fore, slight, can be most readily identified by the fact that they are working under what the parties herein term "school permits." In accordance with the agreement of the unions, we shall exclude from the unit the employees who are working under such permits. We find that all employees of all departments in the Company's Muncie, Indiana, plant, excluding the mold makers, mold repairmen, operators, machine shop employees, bricklayers, chemical engineers, chemists, assistant chemists, chief engineers, electrical engineers, draftsmen, mechanical engineers, watchmen, salaried employees, of- fice and clerical employees, employees working under school permits, superintendents, assistant superintendents, foremen, assistant fore- men, and any other supervisory employees who have authority to hire, promote, discipline, discharge, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit. The CIO has requested that eligi- bility to vote in the election be determined by the Company's pay roll of July 20, 1943, rather than by the customary pay roll next preceding the date of the Direction of Election, on the ground that there will be a substantial force reduction about September 15, 1943_ Under our normal practice, persons permanently discharged are in- eligible to vote whereas employees temporarily laid off are eligible- We believe that the eligibility of any employees affected by the antic- ipated force reduction can best be determined by challenge at the polls and we shall, in accordance with our usual practice, provide. that the employees eligible to vote in the election shall be those who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is. hereby 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Ball Brothers Company, Muncie, Indiana, and election 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 Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Arti-, cle III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate 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, to determine whether they desire to be represented by Federation of Glass, Ceramic & Silica Sand Workers of America, affiliated with the Congress of Industrial Organizations, or by Glass Bottle Blowers Association of the United States and Canada, affiliated with the American Federation of Labor, for the purposes of collective bar- gaining, or by neither.