Johnson City Foundry and Machine Works, Inc.

National Labor Relations Board - Board Decisions

Nov 26, 1946

71 N.L.R.B. 825 (N.L.R.B. 1946)

In the Matter of JOHNSON CITY FOUNDRY AND MACHINE WORKS, INC.,
EMPLOYER and UNITED CONSTRUCTION WORKERS, U. M. W. A.,
PETITIONER
Case No. 10-R-1961.-Decided November 06, 1946
Messrs. M. A. Ross and Clarence W. Bralley, of Johnson City,
Tenn., for the Employer.
Messrs . Thomas Davis and -C. T. Fansler, of Johnson City, Tenn.,
for the United.
111rs. Platonia P. Kaldes, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
Upon a petition duly filed the National Labor Relations Board on
August 8, 1946, conducted a prehearing election pursuant to Section
203.49, of National Labor Relations Board's Rules and Regulations-
Series 4, among the employees in the alleged appropriate unit to de-
termine whether or not they desired to be represented by the Petitioner
for the purposes of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that of approximately 98 eligible voters,
88 cast ballots , of which 50 were for the Petitioner and 38 were against
it. No ballots were challenged.
Thereafter , pursuant to Section 203.55, of the Board's Rules and
Regulations, a hearing was held at Johnson City, Tennessee, August
22, 1946, before Charles M. Paschal, Jr., 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 the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TILE EMPLOYER
Johnson City Foundry and Machine Works, Inc., is a corporation
chartered by and existing under the laws of the State of Tennessee,
71 N. L. R. B., No 139.
825
826 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
and having its principal office and place of business in Johnson City,
Tennessee. The corporation was chartered on February 28, 1946, and
from on or about March 16, 1946, has operated a gray iron jobbing
foundry and is engaged in the manufacture, assembly, sale, and dis-
tribution of gray iron castings, structural steel products, ornamental
and miscellaneous iron works, machine parts and related products at
its plant in Johnson City, Tennessee.
Since the date of its incorporation the Employer purchased approx-
imately $100,000 worth of raw materials consisting of steel, pig iron,
and scrap iron, of which approximately 80 percent was shipped to its
plant in Johnson City, Tennessee, from States other than the State of
Tennessee. During the same period, the Company sold $250,000 worth
of finished products, of which approximately 20 percent was shipped
to and through States other than the State' of Tennessee.
The Employer admits, and we find, that it is engaged in interstate
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer in the
alleged appropriate unit.
On July 9, 1946, the Employer filed a petition with the Board
alleging that no election should be held inasmuch as it was under
prior obligation to recognize and deal with a committee of its em-
ployees as their bargaining agent and had entered into an agreement
with the said committee on June 5, 1946, covering rates of pay. Al-
though it appears from the evidence that the committee was merely
appointed for one special purpose, namely, that of securing a wage
increase, and apparently was never intended to have a continuing
existence or representative authority, it is clear that the agreement
purportedly existing between the committee and the Employer cannot
be considered as any more than an oral understanding that the com-
mittee would be recognized as representing the employees.' As we
have heretofore held, mere recognition or an oral understanding such
as that allegedly existing here cannot preclude an investigation and
certification of representatives.'
Some question was raised at the healing as to the status of the committee as a labor
oigani.atiou However, we find it unnecessary to pass upon the status of the committee
inasmuch as it did not appear at the heaung or otherwise participate in the proceeding.
2 Matter of C V Hill d Company, Inc , 64 N L R B 1103, and cases there cited ;
platter of Stsefel Construction Co>poration, 64 N T, R B 565 Matter of Etcoi, Inc,
46 N. L R B. 1035, platter of Armour 6 Company, 16 N. L R. B 334
JOHNSON CITY FOUNDRY AND MACHINE WORKS, INC. 827
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer.
1V. THE APPROPRTATE UNIT
We find, in substantial accord with the agreement of the parties,
that all production and maintenance employees of the Employer, in-
eluding truck drivers and watchmen, but excluding office, technical,
and administrative employees, and all supervisory employees having
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective bar-
gainrng within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Employer objects to the election, alleging that a portion of the
50 ballots cast in favor of the Petitioner were marked incorrectly by
men who wanted to vote against the Petitioner. In support of its
objections the Employer presented a petition bearing the signatures
of 50 employees who cast ballots at the election. The said petition
was addressed to the Employer and stated as follows :
The undersigned employees of the Johnson City Foundry &
Machine Works, Inc. are not satisfied with the result of the elec-
tion which was held in this plant on Thursday, August 8, 1946,
and believe that the result of 50 votes for the Union and 38 votes
against the Union is incorrect. If 50 ballots were marked so as
to show votes for the Union, they were marked incorrectly by
those voting probably through nervously signing on the wrong
side of the ballot through misunderstanding. In signing our
names to this paper we do so to indicate our wish that some action
be taken by you to prevent the United Construction Workers from
acting as our bargaining agent as we do not want that organiza-
tion to represent us.
The Employer does not contend that any conduct on the part of the
Board's agents, authorized observers, or Petitioner's officials caused
mismarking of the ballots. It is undisputed that the ballot clearly
defined the proposition to be decided and that the participating em-
ployees were given full and free opportunity to express their desires
at the poll.3
We have many times been called upon to repudiate the results of
an election for reasons similar to those presented here by the Em-
8 Cf. Matter of France Foundry cC Machine Co 52 N. L R. B. 12q2.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer4 In all such cases, we have refused to consider such reasons
as being substantial enough to warrant our disregarding the results
of an election surrounded by all the safeguards customarily provided
to insure complete freedom of choice.' No circumstances have been
presented here to warrant departure from our normal policy to give
conclusive effect to the results of an election for a reasonable period
so that the statutory scheme for the ascertainment of representatives
and for the effectuation of collective bargaining may become opera-
tive.6 Accordingly, we hereby overrule the Employer's objections
to the election.
The results of the election held before the hearing show that the
United has secured a majority of the valid votes cast. We shall there-
fore certify the United as the collective bargaining representative of
the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that United Construction Workers, U. M. W.
A., has been designated and selected by a majority of all production
and maintenance employees of Johnson City Foundry and Machine
Works, Inc., Johnson City, Tennessee, including truck drivers and
watchmen, but excluding office, technical, and administrative employ-
ees and all supervisory employees having authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, as their representative
for the purposes of collective bargaining, and that, pursuant to Section
9 (a) of the Act, the aforesaid organization is the exclusive representa-
tive of all such employees with respect to rates of pay, wages, hours of
employment, and other conditions of employment.
4 E. g Matter of Century Oxford Mfg Co., 47 N. L. R. B. 835, enforced, N. L. R B.
v. Century Oxford Mfg. Co., 140 F. (2d) 541 (C. C. A. 2) ; Matter of Appalachian Electric
Power Co , 47 N L R B 821, enforced as modified, N. L. R B. v Appalachian Electric
Power Co , 140 F. (2d) 217 (C. C. A 4) ; Matter of Botany Worsted Mills, 41 N L R. B.
218, enforced as modified, N. L R. B. v. Botany Worsted Mills, et at, 133 F. (2d) 876
(C C A. 3) , Matter of France Foundry and Machine Cc , 52 N L R B 1393 ; Matter
of Dorset Foods Ltd, 43 N. L. R. B. 390; Matter of Simmonds Ac,ocessories, Inc, 43
N I, R B 689
The language of the Second Circuit Court of Appeals, in enfoicing the Board's Order
directing an employer to bargain collectively with a union repudiated by employee
petition shortly after a Board conducted election, is particularly apropos to this dis-
cussion (N L R B. v. Century Oxford Mfg. Co., supra, at p. 543)
As in the case of choosing it political representative, the justification for the
franchise is some degree of sobriety and responsibilily in its exercise Unless the
Board has power to hold the employees to their choice for a season, it must keep
ordering new elections at the whim of any volatile caprice , for an election, con-
ducted under proper safeguards, provides the most reliable means of ascertaining
the deliberate will of the employees
6 See case cited, sups a, footnote 4.