Cleveland Pneumatic Industries, Inc.

National Labor Relations Board - Board DecisionsAug 2, 1963

143 N.L.R.B. 1165 (N.L.R.B. 1963)

CLEVELAND PNEUMATIC TOOL COMPANY, ETC. 1165 Cleveland Pneumatic Tool Company, Division of Cleveland Pneumatic Industries , Inc. and Aerol Aircraft Employees Association Cleveland Pneumatic Tool Company, Division of Cleveland Pneumatic Industries , Inc. and Elmer Ward and Metal Pol- ishers, Buffers, Platers and Helpers International Union, Local No. 3, AFL-CIO. Cases Nos. 8-RC-5140 and 8-RD-296. August 2, 1963 DECISION, ORDER, AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before W. R. Gries- bach, hearing officer. The hearing officer's rulings made at the hear- ings are free from prejudicial error and are hereby affirmed. Upon the entire record 1 the Board finds : 1. The Employer, Cleveland Pneumatic Tool Company, Division of Cleveland Pneumatic Industries, Inc., is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.2 3. The parties stipulated that the Employer, on or about May 6, 1963, refused the Association's request for recognition as the bargain- ing representative for a unit of metal polishers, snaggers, electro- chemical machine operators, buffers, platers, and plater-helpers. The Association's instant petition seeks an election in this unit, but the Metal Polishers, for the reasons discussed below, opposes the direction of an election.' In a recent Decision and Determination of Dispute issued by the Board on April 29, 1963, which arose out of a proceeding under Sec- tion 10(k) of the Act, the Board set forth in detail the bargaining history at the Employer's plant.4 In essence, the record shows that in 1944, the Metal Polishers was certified as the exclusive bargaining representative of the Employer's metal polishers, buffers, platers, and helpers. At the same time, the Association was certified for a unit 1 The parties stipulated that the transcripts and exhibits in the prior representation hearing in Case No. 8-RM-271 and in the prior jurisdictional dispute hearing in Case No. 8-BCD-27 be incorporated and made a part of the record in the instant proceeding 2 The petitioner in Case No. 8-RC-5140, Aerol Aircraft Employees Association, is herein called the Association. Metal Polishers, Buffers, Platers and Helpers International Union, Local No. 3, AFL-CIO, herein called the Metal Polishers, was permitted to intervene at the hearing. 8 As reflected hereinafter , the unit herein found appropriate is not a unit currently recognized by the Employer or previously certified by the Board under Section 9 of the Act. In these circumstances , we find no basis for the processing of a decertification peti- tion and we shall therefore dismiss the petition in Case No. 8-RD-296. See, e.g., Goldeen's , Inc., 134 NLRB 770, 775. 4 Cleveland Pneumatic Tool Company , Division of Cleveland Pneumatic Industries, Inc., 142 NLRB 374. 143 NLRB No. 107. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consisting of all production and maintenance employees.' Successive bargaining contracts between the Employer and the Association in- cluded the job classification of "snaggers" in the production and main- tenance unit; whereas the contracts between the Employer and the Metal Polishers covered only the classifications for which the latter was certified. The current agreement between the Employer and the Association was entered into in May 1961 and has a May 1964 termi- nal date. The most recent Metal Polishers' contract with the Em- ployer expired on May 4, 1961. Since then, the Employer has continued to recognize and deal with that union without a written agreement because of grievances raised by the Metal Polishers con- cerning disputed work assignments to snaggers and metal polishers. For a number of years, the Employer had been assigning certain work indiscriminately to either snaggers or metal polishers. As the Em- ployer was of the opinion that the snaggers appropriately belonged in the same craft unit represented by the Metal Polishers,6 the Em- ployer filed, in June 1961, a petition in Case No. 8-RZI-271 seeking an election in an overall craft unit of metal polishers and snaggers. In the same proceeding, the Employer also moved for a clarification of the prior certifications issued by the Board. The Board, on pro- cedural grounds, dismissed the petition and denied the motion for clarification.' Thereafter, in March 1962, the Employer initiated the Section 10(k) proceeding in Case No. 8-CD-27, when the Metal Polishers threatened a strike if the work performed by the snaggers were not assigned to employees in the unit it represented. In its Decision and Determination of Dispute, issued on April 29, 1963, the Board found that the snaggers were in reality metal polishers and determined the dispute by assigning the work of snaggers and the employees per- forming that work to the bargaining unit represented by the Metal Polishers." The Board also held that the only appropriate unit con- sisted of the job classifications within the Metal Polishers' historical unit together with snaggers, and that an election in such a unit would resolve the issue, but that no petition for such an election was before- it. Thereafter, the Association filed the petition herein on May 1, 1963. 5 55 NLRB 746. In Apiil 1961, following a consent election in Case No. 8-RC-4204, the Association was again certified for all production and maintenance employees, exclud- ing the craft unit of employees represented by the Metal Polishers O The Employer also asserted that during slack periods. a constant problem existed con- cerning whether snaggers represented by the Association or metal polishers represented by the Metal Polishers, should be temporarily laid off However, as noted above, the Employer, in May 1961 , executed a contract with the Association which included snaggers. 4135 NLRB 815. (Decision and Order issued February 1, 1962 ) 8 The record showed that, although the snaggers had formerly performed semi-skilled duties, since 1948 they worked in the same department and under the same supervision as the metal polisher's ; they had acquired comparable skills and were performing the same precision work as metal polishers. CLEVELAND PNEUMATIC TOOL COMPANY; ETC. 1167 The Metal Polishers contends that two contracts bar a present direction of election : ( 1) its oral understanding with the Employer which continues in effect its written contract which expired on May 4, 1961; and ( 2) the Association 's current contract with the Employer, which includes snaggers . We find no merit in these contentions. It is well established that oral agreements may not constitute a bar.' With regard to the current agreement between the Association and the Employer, neither of these contracting parties alleges that this con- tract constitutes a bar to a present determination of representatives." Moreover , in the Section 10 (k) proceeding wherein the disputed work of snaggers was awarded to the Metal Polishers , the Board effec- tively removed the snaggers from the production and maintenance unit.ll Therefore , there is no contract bar to a present direction of an election . Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 ( c) (1) and Section 2(6) and (7) of the Act. 4. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All metal polishers , snaggers, electrochemical machine operaters ,12 buffers , platers, and plater- helpers employed at the Employer's Cleveland , Ohio, plant , excluding all production and maintenance employees , office clerical employees, guards, professional employees , and supervisors as defined in the Act. The Metal Polishers requests the Board to direct a self-determina- tion election for metal polishers . The Employer and the Association oppose this request. In view of the entire background of this case, we see no warrant for a self-determination election as such procedure would not only conflict with the Board 's 10(k ) Decision and Deter- mination of Dispute that a single unit is appropriate , but would also tend to perpetuate the unit and work assignment problems. The Employer and the Metal Polishers request that the Board preserve the seniority rights of the various employees included in the appropriate unit, consistent with the outcome of the election. We believe this question is best resolved at the bargaining table. As seniority is a bargainable issue , the Employer may raise it with either union which will be certified after the election directed herein. [The Board dismissed the petition filed in Case No. 8-RD-296.] [Text of Direction of Election omitted from publication.] g Appalachian Shale Products Co., 121 NLRB 1160. 1° In fact, the contracting parties by urging an election, have waived the contract as abar. 11142 NLRB 374, supra. 12 The parties agree that the employees in the new job classification of electrochemical machine operators possess comparable skills and perform comparable duties to those of the metal polishers and snaggers.