Essex Wire Corp.

National Labor Relations Board - Board Decisions

Jan 16, 1953

102 N.L.R.B. 332 (N.L.R.B. 1953)

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 ( 6) and (7) of the Act.
5. The Respondents have not engaged in unfair labor practices within the
meaning of the Act by discharging and refusing to reinstate Joseph L. Sala.
[Recommendations omitted from publication in this volume.]
ESSEX WIRE CORPORATION, CHICAGO TRANSFORMER DIVISION and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, LODGE 1234, AFL,
PETITIONER
ESSEX WIRE CORPORATION, CHICAGO TRANSFORMER DIVISION and INTER-
NATIONAL ASSOCIATION OF MACHINISTS , AFL, PETITIONER. Ca8e8
Nos. 8-RC-1794 and 8-RC-1814. January 16,1968
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles A. Fleming, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Employer moved to dismiss the petition in Case No. 8-RC-
1794 on the ground that its current contract with International
Brotherhood of Electrical Workers, AFL, Local 1623, herein called
the Intervenor, is a bar to the proceeding. On September 12, 1952,
the Petitioner wrote a letter to the Employer claiming recognition on
behalf of "tool and die makers, machinists, and other tool room em-
ployees." The petition, filed 4 days later, describes the unit sought as
"all tool room employees." On September 30, 1952, the Employer
and the Intervenor executed a contract covering all the employees in
the plant. At the hearing which followed, it appeared clearly that
the unit sought is the usual machine shop group.
The Employer argues that the employees sought at the hearing are
not the ones requested by the Petitioner, and that therefore it had a
right to make a contract with the Intervenor covering the various
mechanic categories in the machine shop. This argument rests en-
tirely on the fact that there exists in the plant an enclosure, called the
"tool room" by the Employer, situated adjacent to its conventional
machine shop. One or two toolroom crib attendants work in this
102 NLRB No. 40.
ESSEX WIRE CORPORATION 333
enclosure, and distribute tools to the machine shop employees as well
as to other employees in the plant. In addition, there is a regular
machine shop consisting of 6 tool and die makers, 2 apprentices, and
15 machinists, first and second class. It is clear that the Petitioner's
knowledge of the Employer's organizational nomenclature was limited
when it filed the petition, and that at all times it intended to claim
recognition for the machine shop unit. Its letter of September 12
so stated. In contrast with the Petitioner's scant knowledge of the
plant's departmental organization, the Employer fully realized that
the claim was for the machine shop, for its contract with the Inter-
venor, executed about a week after the Petitioner's demand, explicitly
excludes the machine shop unit.' The amendment of the petition at
the hearing, by which the phrase "machine shop employees" was sub-
stituted for "tool room employees," was made merely to substitute a
more precise job title; it did not constitute a substantial change?
Consequently, the amendment did not create a new petition or affect
the timeliness of the original filing. As the contract was made after
the petition was filed, it is not a bar to a present election.
The Employer also moved to dismiss the petition in Case No. 8-RC-
1814 on a contract-bar basis. In support of this contention, it argues
that a telegram sent by the Petitioner on September 24, before the
contract with the Intervenor was made, did not constitute a proper
claim for recognition. In pertinent part, the telegram reads as
follows :
Please be advised International Association of Machinists in-
tend to file petitions for representation election in near future
for all production and maintenance employees of your plant.
We find no merit in the Employer's contention as to the import
of this telegram. No particular form of words is necessary to apprise
an employer of a claim to representation. Whatever the words used,
they are to be viewed in the light in which they are uttered. Applying
this test, we have no doubt that a reasonable person in the place of the
Employer would readily understand that the Petitioner's telegram
was tantamount to an assertion that it claimed a majority representa-
tion of the employees involved. As such, the telegram was sufficient
to create a question concerning representation, unless the failure to
file a petition within 10 days vitiated the effects of the telegram s
I Section 3 of the contract reads : "The parties agree that whereas a petition for cer-
tification has been filed on behalf of the Machine Shop employees in the plant , that in the
event it is determined that such employees should not be included in this unit that this
contract shall be deemed not to include the Machine Shop employees provided the remainder
of this contract shall not be affected thereby. In the event the Machine Shop employees
are included in this unit such employees shall be governed by the terms of this contract."
2'W. E. Caldwell Company , 81 NLRB 1131.
S Bauer-Schweitzer Hop and Malt Company, 72 NLRB 1223 ; cf. Clayton d Lambert Mfg.
Co., 101 NLRB 107.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The technical defects in the Petitioner's demand, which were remedied
in the formal petition, certainly did not prejudice the Employer, and
are no basis for a valid objection.
In further support of the motion to dismiss the petition in Case
No. 8-RC-1814, the Employer and the Intervenor contend that more
than 10 calendar days elapsed between the Petitioner's request for
recognition and the filing of the petition, and that therefore, under
the General Electric X-Ray doctrine, the contract executed on Sep-
tember 30 is a bar to this proceeding.4 The record shows beyond
any doubt that the telegraphic claim was delivered either late in the
evening of September 24, or on September 25. The petition was filed
October 6. Whether the Employer received the telegram on the
evening of the 24th or on the 25th, it is clear that the petition was
filed within 10 days of the claim. The 10th day following the claim
fell on Saturday, October 4, and the petition was filed on the following
Monday. As the Board has held, the Petitioner is entitled to any
additional time made necessary by the fact that the Board's offices
are normally closed Saturdays and Sundays.5 Accordingly, the mo-
tion to dismiss the petition in Case No. 8-RC-1814 is denied.
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. The main unit issue in these cases arises from the request of
Petitioner-Local 1234, for a unit limited to the employees of the
machine shop department. The Employer and the Intervenor oppose
this unit on the grounds that the employees are not craftsmen and
that they have heretofore been represented on a plantwide basis.
Petitioner-IAM agrees with Local 1234. In this plant, located at
Zanesville, Ohio, the Employer produces transformers and parts for
radio and television. The machine shop is located on the second floor
of a three-story building and is fenced off, as are most of the other
departments of the company. Working in the machine shop, under
the supervision of the machine shop foreman, are approximately
6 tool and die makers, 2 apprentices, and 15 machinists, first and second
class. The primary responsibility of the machine shop employees
is to maintain, service, and repair, and to make new parts for, all of
the company's diversified machinery.
The Employer maintains a formal 4-year on-the-job training pro-
gram for the machine shop employees; the apprentices participate
by working with the other machinists and tool and die makers. While
the tool and die makers spend the majority of their time repairing
4 General Electric X-Ray Corp , 67 NLRB 997.
6 Standard Nut and Bolt Company , 92 NLRB 412.
The record contains no evidence supporting the Employer 's assertion that it may have
received the telegraphic claim as early as September 23.
ESSEX WIRE CORPORATION 335
dies, they devote about 15 percent of their time making new dies. A
minimum of 4 years' experience is required to progress to the tool-
maker classification. There is no interchange between the machine
shop group and other employees. Like most maintenance craftsmen,
the machinists spend most of their time throughout the plant exer-
cising their special skills wherever need arises; they do no repetitive
work. Since 1949 the machine shop group has been represented by
the Intervenor as part of a plantwide production and maintenance
employee unit.
It is clear that these machinists, tool and die makers, and apprentices
comprise an identifiable, homogeneous group, with interests separate
from those of other plant employees. The Board has held that such
craftsmen may be separately represented, if they so desire, despite
their previous inclusion in a broader bargaining unite They may
also, of course, continue to be a part of the existing plantwide unit.
We shall, therefore, make no unit determination now, but shall await
the results of the elections to follow. We shall direct separate elec-
tions in the following voting groups :
(a) All machine shop employees at the Employer's Zanesville,
Ohio, plant, excluding all other employees, the toolroom attendant,'
office clerical employees, guards, professional employees, and all super-
visors as defined in the Act.
(b) All production and maintenance employees at the Employer's
Zanesville, Ohio, plant, excluding office employees, time-study em-
ployees,8 machine shop employees, tool designers, nurses, guards, engi-
neering employees, professional employees, and all supervisors as
defined in the Act.
If a majority of the employees in voting group (a) select a union
different from that selected in voting group (b), they will be taken
to have indicated their desire to constitute a separate appropriate
unit, and the Regional Director conducting the elections is instructed
to issue a certification of representatives to that labor organization
for such group, which the Board in such circumstances finds to be a
separate unit appropriate for the purposes of collective bargaining.
[Text of Direction of Elections omitted from publication in this
volume.]
"United ,States Time Corp , 86 NLRB 724.
7 Contrary to the request of Petitioner -Local 1234 , we have excluded the toolroom
attendant from this voting group because his interests are not centered in the machine
shop. The toolroom is not physically a part of the machine shop . It is under separate
supervision and its attendant services employees in many departments outside the machine
shop . See Johns -Manville Products Corp ., 98 NLRB 748.
8 At one point in the record the Petitioner -IAM Indicated that it might want time-study
employees included in the unit if they exercise the same authority as production workers,
but that if they have power to change rates of pay , they should be excluded . Towards the
close of the hearing , it agreed to their exclusion. The record contains no facts relating
to the duties of these employees . As they have been excluded in past contracts , we have
excluded them according to the Employer 's request.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER STYLES took no part in the consideration of the above De-
cision and Direction of Elections.
MEMBER MURDOCK, dissenting in part :
While in agreement with my colleagues as to the disposition of
other issues in this case, I must register my dissent from their refusal
to dismiss the petition in Case No. 8-RC-1814. In my opinion, the
ambiguous and inadequate statement of claimed interest, or less,
made by the Petitioner in that case is on its face insufficient to con-
stitute a proper claim for recognition.
Such a claim for recognition is, of course, of vital necessity to the
Petitioner's cause in this proceeding. The contract executed between
the Employer and the Intervenor on September 30 antedates the
filing of the petition. The petition, accordingly, under our well-
settled contract bar rules, must be dismissed unless a proper claim
for recognition was made prior to the execution of the contract .9 This
Board has consistently held that a petitioner, under such circum-
stances, must have indicated clearly that it claimed to be the repre-
sentative of a majority of employees in the appropriate unit 10 While
it is true, as suggested by my colleagues, that "no particular form
of words is necessary" to apprise an employer of a claim to be ma-
jority representative, it is nonetheless essential that a claim to that
status is made clear in some fashion. The Petitioner in Case No.
8-.RC-1814, however, merely indicated an "intent" to file petitions "in
[the] near future" with no mention of any present contention that
it represented a majority of the production and maintenance em-
ployees. Nor can such a majority claim be inferred from the lan-
guage of the telegram which, at most, amounts only to a notification
that an organizing drive was proceeding which might result in a
future petition.n It is presumed that most unions active in this coun-
try, in an organizing situation where voluntary recognition cannot be
acquired, have an "intent" to file a petition with this Board should
success in an election appear possible at any time in the course of
organization. This intent may or may not be realized but, in any
event, is a far cry from an assertion of present substantial interest
or majority support.
° Subject, of course, to the 10-day rule enunciated in General Electric X-Ray Corporation,
67 NLRB 997.
10 See Pittsburgh Corning Corporation, 79 NLRB 1040. See also Clayton and Lambert
Manufacturing Comany, 101 NLRB 107. Although the language in the latter case might
be construed to indicate that an intent to file a petition with the Board was sufficient
claim , I believe such an interpretation is erroneous unless read to mean a notification
that a petition was actually being presented to this agency. Bauer-Schweitzer Hop ct Malt
Co., et at., 72 NLRB 1223 , relied upon by the majority, is clearly distinguishable. There
the Petitioner had held contracts with the employer and the Board found its notices to
be assertions that "the Petitioner continued to be" the majority representative.
u The Board has frequently held that organizing efforts themselves do not constitute
such a claim . See The Baldwin Company, 81 NLRB 927, and cases cited therein.
SPENGLER-LOOMIS MANUFACTURING COMPANY 337
The Board has previously emphasized that even a proper claim
of majority representation, under these circumstances, must be sup-
ported by the filing of a petition within 10 days to be valid. This
is so because the "mere naked claim of representation . . . places no
onus on the claimant to substantiate its claim and thus gives rise to
no inference of substantial interest." [Emphasis supplied.] 12 The
fundamental interest of this Board is thus in ascertaining that con-
tracts are not nullified without a clear and substantial contest between
claimants to majority representation at the time of the execution of
the agreement. In the instant case, however, the majority position
of the Intervenor had not even been questioned by a bare assertion
of majority status on the part of the Petitioner at the time of the
contract execution. Under these facts, and when the challenging
union fails to contest the majority position of the incumbent organi-
zation to even this limited extent, I do not believe that the processes
of the Act or the stability of bargaining relationships is aided by
striking down the contract and directing an election. Accordingly,
I would dismiss the petition in Case No. 8-RC-1814.
2 General Electric X-Ray Corporation, supra.
SPENGLER-LOOMIS MANUFACTURING COMPANY amid INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, C. I. O. Cases Nos. 13-CA-915 and
13-RC-17X. January 19,1953
Decision and Order
On July 10, 1952, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also recommended that the
petition in Case No. 13-RC-1732 be dismissed. Thereafter, the Union
filed exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Styles and Peterson].
2 The Respondent did not file exceptions to the Intermediate Report. The Union
excepted only to the failure of the Trial Examiner to recommend that the election be set
aside.
102 NLRB No. 47.