Fairbanks, Morse & Co.

National Labor Relations Board - Board Decisions

May 16, 1938

7 N.L.R.B. 229 (N.L.R.B. 1938)

In the Matter of FAIRBANKS, MORSE & COMPANY and PATTERN MAKERS
ASSOCIATION OF BELOIT
Case No. R-666.-Decided May 16, 1938
Machinery, Electrical Equipment , Radio, and Refrigerator Manufacturing
Industry-Investigation of Representatives : controversy concerning representa-
tion of employees : controversy concerning appropriate unit; employer 's refusal
to grant recognition of union until determination of appropriate unit by Board;
rival organizations ; strike-Unit Appropriate for Collective Bargaining: metal
and wood pattern makers, checkers , and workers engaged in construction,
maintenance, and repair of patterns , excluding molders, saw filers, pattern car-
riers, and clerical and supervisory employees ; craft ; skill ; occupational dif-
ferences ; desires of employees , as evidenced by membership in craft union,
continuous protest against inclusion in industrial unit, and strike ; participa-
tion in consent election without waiving contention concerning appropriate
unit ; where other considerations determinative of appropriate unit are evenly
balanced , decisive factor is desire and choice of employees involved-Represen-
tatives: proof of choice : comparison of pay roll with union list ; stipulation
as to majority representation in appropriate unitCertification of Representa-
tives: upon proof of majority representation.
Mr. Frederick P. Mett, for the Board.
Pope ctc Ballard, by Mr. Merrill Shepard, of Chicago, Ill., for the
Company.
Padway, Goldberg cQ Tarrell, by Mr. A. G. Goldberg, of Milwau-
kee, Wis., for the Association.
Mr. W. O. iSonnemann, of Milwaukee, Wis., for the Amalgamated.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On August 31, 1937, Pattern Makers Association of Beloit, herein
called the Association, filed with the Regional Director for the
Twelfth Region (Milwaukee, Wisconsin) a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of Fairbanks, Morse & Company, Beloit, Wiscon-
sin, herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
229
230 NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
September 17, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for -an
appropriate hearing. The Board also ordered, pursuant to Article
III, Section 10 (c) (2), and Article II, Section 37 (b), of the Rules
and Regulations, that this proceeding be consolidated for the pur-
poses of hearing with a case based on charges filed against the Coln-
p"any by the Amalgamated Association of Iron, Steel and Tin Work-
ers of North America, Lodge No. 1533, alleging that the Company
had engaged in and was engaging in unfair labor practices within
the meaning of the Act. On February 8, 1938, the Board issued an
order severing the two cases and continuing them as separate
proceedings.
On March 24, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
Association, and upon the Amalgamated Association of Iron, Steel
and Tin Workers of North America, Lodge No. 1533, herein called
the Amalgamated, a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to the no-
tice, a hearing was held on April 4, 1938, at Beloit, Wisconsin, be-
fore Herbert Wenzel, the Trial Examiner duly designated by the
Board. The Board, the Company, the Association, and the Amal-
gamated were represented by counsel 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 all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and objections to the ad-
mission 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
1. THE BUSINESS OF THE COMPANY
The Company is a corporation organized under the laws of the
State of Illinois, with its principal executive offices at Chicago, Illi-
nois, and is licensed to do business in each of the other States of the
United States and in the Territory of Alaska. It owns and controls
17 subsidiaries, including Fairbanks-Morse Construction Company,
Fairbanks, Morse & Co., Incorporated (Maine) ; Fairbanks-Morse
DECISIONS AND ORDERS 231
Water Supply Company, Seaford Light and Power Company, Munic-
ipal Acceptance Corporation, the Inland Utilities Company, and
Fairbanks-Morse Company (Australasia) Limited.
The Company is engaged in the design, manufacture, assembly,
sale, and distribution of diesel and other internal combustion engines,
electric motors, generators and magnetos, pumps and auxiliary pump
equipment, washing machines, radios, windmills, refrigerators, stok-
ers, scales, various other farm and home appliances, railroad equip-
ment, and other products at its manufacturing plants located in
Three Rivers, Michigan; Indianapolis, Indiana; East Moline, Illi-
nois; Stuttgart, Arkansas; St. Johnsbury, Vermont; San Francisco,
California; and Beloit, Wisconsin.
For the sale and distribution of its various products other than
home appliances, the Company maintains and operates 17 branch
sales offices throughout the United States. Home appliances manu-
factured by the Company are sold and distributed by dealers located
in various parts of the United States, and an export division office
is maintained in New York City for distribution to foreign countries.
The Company is under contract with the United States Government
for the manufacture and installation of various of its products and
equipment for use by many Government agencies. Its advertising
is done by direct mail and through nationally circulated general
publications and trade journals.
The plant of the Company situated at Beloit, Wisconsin, herein-
after referred to as the Beloit Plant, is the only plant concerned in
this proceeding. It occupies 112 acres upon which there are 30
major buildings and 18 minor buildings, with a total floor area of
approximately 1,254,505 square feet. In the operation of its Beloit
Plant, the Company purchases and uses large quantities of raw ma-
terials consisting of pig iron, scrap steel, bar steel, coal, silica sand,
fire clay, grey iron castings, nuts, bolts, screws, rivets, electric and
gasoline motors, lumber, copper, tin sheet metal, various types and
kinds of wires, paint, chemicals, cables, pulleys, and other products,
and materials.
Ninety-nine per cent of these materials are obtained from outside
the State of Wisconsin. In 1937, the Company's total net sales of
finished products amounted to $30,596,349.54. About 98 per cent of
the products manufactured at the Beloit Plant were shipped to points
outside the State of Wisconsin. The Beloit Plant employs in excess
of 3,000 persons.
II. THE ORGANIZATIONS INVOLVED
Pattern Makers Association of Beloit is a labor organization af-
filiated with the Pattern Makers League of North America, which in
106791-38-vol vu-16
232 NATIONAL LABOR RELATIONS BOARD
turn is affiliated with the American Federation of Labor. The Assrn
ciation admits to membership wood and metal pattern makers, check-
ers, and persons engaged in the construction, maintenance, and re-
pair of patterns, employed by the Company.
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge No. 1533, is a labor organization affiliated with the
Committee for Industrial Organization, admitting to membership
all production and maintenance employees of the Company. Steel
Workers Organizing Committee, representing the Amalgamated in
this case, is likewise a labor organization affiliated with the Com-
mittee for Industrial Organization.
III. THE QUESTION CONCERNING REPRESENTATION
By virtue of a consent election held June 19, 1937, the Amalgamated
claims to represent all the production and maintenance employees
of the Company, including the pattern makers, all of which employees
the Amalgamated contends constitute a unit appropriate for the pur-
poses of collective bargaining. Prior to the consent election, and
several times thereafter, the Association protested against the inclu-
sion within such a unit of the pattern makers and the employees en-
gaged in the construction, maintenance, and repair of patterns. Fol-
lowing the consent election, the Company recognized and bargained
with the Amalgamated for all production and maintenance workers
in its employ, but excluded the pattern makers as subjects of special
bargaining with the Amalgamated until such time as their asserted
might to separate representation was determined. The Company is
willing to deal with the Association only if the Board finds that the
pattern makers and repairers constitute an appropriate bargaining
unit, so that until a determination is made by the Board the representa-
tion of the pattern makers and repairers remains unsettled.
We find that a question has arisen concerning representation of
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 and has led to labor disputes burdening and obstructing
commerce and the free flow of commerce.
DECISIONS AND ORDERS
V. THE APPROPRIATE UNIT
233
Upon the broad basis that the coexistence of craft and industrial
unions in the same plant is not conducive to effective collective bar-
gaining, the Amalgamated contends that the entire Beloit Plant
should be treated as a single unit . On the other hand, the Associa-
tion contends that the pattern makers, checkers , and pattern repair-
men, employed by the Company constitute a unit appropriate for the
purposes of collective bargaining.
The Amalgamated began its organization of the Company 's plant
at Beloit a short time before the Association received its charter
from the Pattern Makers League of North America on May 24, 1937.
Following the consent election Held on June 19, 1937 , the Amalgamated
was recognized by the Company as the bargaining representative of
all the production and maintenance employees in the Beloit Plant.
However, both prior to and following the consent election in which
they participated without waiving their contention concerning the
appropriate unit, the pattern makers vigorously claimed the right
to be considered a unit separate and apart from the industrial unit.
Evidencing the solidarity of their desire to be separately represented,
the pattern makers' protest culminated in a strike on August 18, 1937.
On October 4, 1937, the pattern makers returned to work and were
granted an increase in pay with the understanding that recognition
and bargaining would await the decision ' of the Board as to the
appropriate unit. Although the Amalgamated conducted successful
negotiations for a collective bargaining agreement covering all em-
ployees of the Beloit Plant during the period the pattern makers
were on strike, special bargaining by the Amalgamated on behalf of
the. pattern makers was expressly omitted until such time as the
Board determined their claim for separate representation.
That the pattern -making craft is one that requires the highest de-
gree of skill in the plant is not contested by the Amalgamated. The
checkers are capable pattern-maker journeymen ; and the pattern
repairmen , through experience gained in repair work, are also able
to make some patterns , thus justifying their" inclusion within the
unit claimed .by the Association to be appropriate. Although there
are two molders , one saw filer , a number of pattern carriers, and
some clerical workers employed in the separate building which com-
prises the Pattern Shop of the Company, none of these workers are so
allied with the pattern makers as to justify their inclusion within
the same craft unit . The Association makes no claim to represent the
pattern maker apprentices employed by the Company, due to the fact
that their services are furnished under a contract between the Com-
234 NATIONAL LABOR RELATIONS BOARD
parry and the Industrial Commission of the State of Wisconsin which
makes full provision for all conditions relative to their employment.
There is a showing that the pattern makers could satisfactorily
function either as a separate unit or as part of the larger industrial
unit. Since this is true, we will follow our previous ruling in similar-
situations that the determining factor is the desire of the employees
themselves.' Here, as found below in Section VI, a majority of the
pattern makers are included in the Association membership. This
membership of a majority in the Association is not the only indication
of the desire of the pattern makers to constitute a separate bargaining-
unit ; that desire is further evidenced by their continuous protest
against inclusion within the industrial unit, which protest resulted
in their striking on August 18, 1937.
We find that the wood and metal pattern makers, checkers, and
workers engaged in the construction, maintenance, and repair of
patterns, excluding molders, saw filers, pattern carriers, clerical and
supervisory employees, employed in the Pattern Shop of the Com-
pany, constitute a separate unit appropriate for the purposes of
collective bargaining, and that said unit will insure to the employees
of the Company the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuate the policies of the
Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, counsel for the Board made a check of the member-
ship list submitted by the Association 2 which he compared with the
Association books and with the Company's pay rolls of August 31,
1937, and March 31, 1938, respectively.3 It was found that of the
44 eligible employees of the Company, 35 were members of the As-
sociation, and counsel for the Amalgamated stipulated that such
finding was correct.
We find that the Association has been designated and selected by
a majority of employees in the appropriate unit as their representative
for the purposes of collective bargaining. It is, therefore, the ex-
clusive representative of all the employees in such unit for the
purposes of collective bargaining, and we will so certify.
'Matter of Globe Machine and Stamping Co., 3 N L R B 294; Matter of Common-
ivealth Division of General Steel Castings Corporation, 3 N. L. R. B 779'; Matter of Allis-
Chalmers Mfg Co, 4 N L. R. B 159; Matter of Schick Dry Shaver Co, 4 N. L. R B. 246 ;
Matter of American Hardware Corporation, 4 N L. R B. 412; Matter of Worthington Pump
and Machinery Corp , 4 N. L R B. 448, Matter of Waterbury Mfg. Co , 5 N. L. R B 288 ;
Matter of Combustion Engineering Co , Inc., 5 N. L R B. 344.
2 Petitioner Exhibit No. 8.
1 Board Exhibit Nos. 2 and 3.
DECISIONS AND ORDERS 235
Upon the basis of the above findings of fact and upon the entire
-record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Fairbanks, Morse & Company, Beloit, Wis-
consin, within the meaning of Section 9 (c) and Section 2 (6) and
(7), of the National Labor Relations Act.
2. The metal and wood pattern makers, checkers, and workers
=engaged in the construction, maintenance, and repair of patterns,
-excluding molders, saw filers, pattern carriers, clerical and super-
visory employees, constitute a unit appropriate for the purposes of
-collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
3. Pattern Makers Association of Beloit is the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the National
.-Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
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 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
IT IS I-IEREBY CERTIFIED that Pattern Makers Association of Beloit
has been designated and selected by a majority of the metal and
wood pattern makers, checkers, and workers engaged in the construc-
tion, maintenance, and repair of patterns of Fairbanks, Morse &
Company, Beloit, Wisconsin, excluding molders, saw filers, pattern
-carriers, clerical and supervisory employees, as their representative
for the purposes of collective bargaining and that, pursuant to the
-provisions of Section 9 (a) of the Act, Pattern Makers Association
of Beloit is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
-EDWIN S. SMITH, dissenting :
In accordance with the view taken by me in previous cases,' I
'hold that the unit composed of Pattern Shop employees found by the
majority of the Board to be an appropriate unit for collective bar-
4 See Matter of Allis-Chalmers Manufacturing Company and International Union, United
-Automobile Worke,s of America, Local 21,,8, 4 N. L R B 159
236 NATIONAL LABOR RELATIONS BOARD
gaining is, under the circumstances of this case, not such an appro-
priate unit.
The Amalgamated was on June 19, 1937, chosen at a secret election
as the collective bargaining representative for a majority of the,
production and maintenance employees of the Company. There is
no contention that it has lost support since then. To split off the
minority group of skilled pattern makers from the general body of
production workers, • although possibly constituting an advantage
to a small number of workers, also constitutes a threat to the col-
lective bargaining effectiveness of the rest of the workers, both
skilled and unskilled. The majority of all production and mainte-
nance workers have decided to pool their separate strengths for the
purpose of presenting a united bargaining front to the employer.
To deprive them of the support of the pattern makers invites dis-
ruption and economic rivalries which may interfere with continued
successful bargaining for the bulk of the employees. On the other-
hand, there is no evidence that the Amalgamated could not bargain
successfully for the pattern makers. I would deny the petition of the-
Association.