Kearney & Trecker Corp.

National Labor Relations Board - Board Decisions

Jul 7, 1945

62 N.L.R.B. 1174 (N.L.R.B. 1945)

In the Matter of KEARNEY & TRECKER CORPORATION and INTERNATIONAL
UNION OF OPERATING ENGINEERS , LOCAL 311, A. F. OF L.
Case No. 13-R-2865.-Decided July 7, 1945
Lana from, Tighe, Engelhard & Peck, by Mr. Leon B. Lam from, of
Milwaukee, Wis., and Mr. Carl F. Enroth, of West Allis, Wis., for the
Company.
Padway & Goldberg, by Mr. David Previant, of Milwaukee, Wis., and
Mr. Werner J. Schaefer, of West Allis, Wis., for the Engineers.
Mr. D. C. Monte, of Milwaukee, Wis., and Mr. Arthur M. Sorenson,
of West Allis, Wis., for the EIU.
Mr. Franklin E. Blake, of West Allis, Wis., for the CIO.
Mr. Donald H. Frank, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Operating Engineers,
Local 311, A. F.'of L., herein called the Engineers , alleging that a question
affecting commerce had arisen concerning the representation of employees
of Kearney & Trecker Corporation , West Allis, Wisconsin, herein called
the Company , the National Labor Relations Board provided for an appro-
priate hearing upon due notice before John R. Hill, Trial Examiner. Said
hearing was held at Milwaukee , Wisconsin , on March 16 , 1945. The
Company, the Engineers, Employees Independent Union at Kearney &
Trecker Corporation , herein called the EIU, and International Union;
United Automobile , Aircraft and Agricultural Implement Workers of
America (UAW-CIO), herein called the CIO,' appeared and partici-
1 The CIO expressed no intention of intervening in order to appear on the ballot in any election
the Board might order as a result of the hearing but solely for the purpose of establishing that the
production and maintenance unit determined to be appropriate in Matter of Kearney & Treeker
Corporation, 60 N. L R B. 148, is the only appropriate unit
62 N. L. R. B., No. 152.
1174
KEARNEY & TRECKER CORPORATION 1175
pated.' All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues.
At the hearing, the Company moved the dismissal of the petition upon
three grounds. Ruling on the motion was, reserved for the Board. For rea-
sons stated in Sections III and IV, infra, the motion is hereby denied. The
Trial Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kearney & Trecker Corporation is a Wisconsin corporation, with its
plant located at West Allis, Wisconsin, where it is engaged in the manu-
facturing of milling machines and related parts. During the year 1944 the
Company used raw materials consisting of gray iron, steel castings, and
various other metals.and materials, of an approximate value of $13,000,000,
approximately 50 percent of which came to it from points outside the
State of Wisconsin. During the same period the Company manufactured
finished products of an approximate value of $50,000,000, approximately
95 percent of which was shipped by it to purchasers outside the State of
Wisconsin.
The Company admits that it is engaged in commerce within the meaning
of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers , Local 311, affiliated with
the American Federation of Labor, is a labor organization admitting to
membership employees of the Company.
International Union, United Automobile , Aircraft and Agricultural Im-
plement Workers of America (UAW-CIO), affiliated with the Congress
of Industrial Organizations , is a labor organization admitting to member-
ship employees of the Company.
Employees Independent Union at Kearney & Trecker Corporation, affili-
ated with the Confederated Unions of America, is a labor organization
admitting to membership employees of the Company. .
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Engineers as the
exclusive bargaining representative of the Company' s power plant employ-
2 International Brotherhood of Firemen & Oilers, Local 125, A. F. L , and International Associa-
tion of Machinists, District No. 10, A. F. of L , were served with notice of hearing but failed to
appear or participate at the hearing.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees until the Engineers has been certified by the Board in an appropriate
unit. The Company, the EIU, and the CIO contend that the Board's pre-
vious determination concerning the unit question in Matter of Kearney &
Trecker Corporation, supra, bars a new determination at this time. It
appears, however, that the Engineers, while having a substantial interest
in the Company's employees, was not a party to that proceeding and had
no notice thereof. Prior to the election which followed that decision, the
Board ordered the impounding of the ballots of the employees involved
herein, with the result that their votes were not counted in the subsequent
certification of the EIU as representative of the production and mainte-
nance employees. We find, therefore, that our previous decision is not a
bar to a new determination, and we have denied the motion of the Company
to dismiss the petition on that ground.
At the hearing, the Trial Examiner reported that the cards submitted by
the Engineers indicate that the Engineers represents a substantial number
of employees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within'the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Engineers seeks a unit of the Company's power plant employees, in-
cluding the engineers , and the firemen and their helper, but excluding the
chief engineer, whom the parties agree is a supervisory employee within
our usual definition. The engineers maintain the power plant equipment,
including the stokers, furnaces, compressors, and generators, and must
know the location of all equipment supplied by power originating in the
power plant, since on occasion they leave the power plant temporarily in
order to repair and maintain generators and other equipment, and to eradi-
cate difficulties in plant services throughout the company area. At such
times they remain under the supervision of the chief engineer. The engi-
neers are not licensed. The firemen operate the boilers, boiler feed pumps,
stokers, draft fans, and other equipment supplemental to the operation of
the boiler, and check the hoppers, coal, and pressure and water level. The
helper assists the firemen in the performance of their duties, and cleans the
tubes and fires, and fills the tanks with chemicals. The power plant consists
of two power houses, one adjacent to Plant No. 1 and the other in a corner
of the Defense Plant Corporation's addition to Plant No. 1, but both physi-
3 The Engineers submitted 8 cards , all of which bore apparently genuine original signatuics; the
names of all persons appearing on the cards were listed on the Company 's pay roll of March 16,
1945, which contained the names of 11 employees in the unit sought; and all of the cards were
dated in January 1945. Testimony at the hearing revealed that 2 of these employees 'have been
members in good standing, of the Engmeeis since 1934 and 1937, respectively. The E1U relies on
its prior certification as proof of its interest heiem.
KEARNEY & TRECKER CORPORATION 1177
cally separated from the other plant departments. Occasionally an employee
from the maintenance department has access to the power plant for the
purpose of making repairs. There is no interchange of power plant em-
ployees with other maintenance workers. The power plant employees are
paid on a salary basis and are under a single separate supervision.
On May 12, 1942, the EIU and the Company entered into a collective
bargaining agreement which is still in effect. This contract covers, generally,
the Company's production and maintenance employees. Although there is
stated no specific exclusion of power plant employees from the coverage
of the contract, the EIU admitted at the hearing that it had never bargained
for these employees in the past, and the record revealed that the parties
had never considered salaried employees to be covered by the contract. It is
therefore clear that there is no previous history of collective bargaining for
these employees, and we have therefore denied the Company's motion to
dismiss the petition, based on an alleged history of bargaining on a plant-
wide unit basis. The Company based its motion, moreover, on the ground
that the Engineers does not represent a majority of the power plant em-
ployees. The best method of determining whether or not the Engineers
represents the employees in the unit it seeks is to conduct an election among
those employees, and we have therefore denied the Company's motion based
on that allegation.
We have frequently held that, in the absence of bargaining history upon
a plant-wide basis including power plant employees, such employees may,
if performing duties analogous to those involved herein, and if similarly
situated and supervised, appropriately be represented in a separate unit.'
We are of the opinion that these power plant employees may function either
as a separate bargaining unit, if such unit is finally determined to be appro-
priate, or as a part of the larger unit previously deemed appropriate.
Accordingly we shall defer our determination of the appropriate unit. Such
determination will depend, in part, upon the results of the election we
hereinafter direct.
We shall direct that the question concerning representation which has
arisen be resolved by secret ballot among the engineers, and the firemen
and their helper, employed in the power plant of the Company, excluding
the chief engineer and any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, who were em-
ployed 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. In the event these employees select the Engineers
* Matter of Revere Copper and Brass Incorporated , Magnesium -Aluminum Division, Halethorpe
Extrusion Plant, 58 N . L. R. B 1319, Matter of General Foods Corporation , Corn Mill Division,
54 N L. R B . 596; Matter of Tampa Florida Brewery , Inc, 42 N. L . R. B 642; Matter of
General Electric Company, 42 N. L. R. B. 569.
1,178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as their collective bargaining representative, they will thereby have indi-
cated their desire to form a separate appropriate unit. On the other hand, if
they select the ETU as their collective bargaining representative, they will
thereby have indicated their desire to be represented as part of the plant-wide
production and maintenance unit previously certified.
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 Relations Act, and
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Kearney & Trecker Cor-
poration, West Allis, Wisconsin, an election by secret ballot shall be con-
ducted 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 Thirteenth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections 10
and 11, of said Rules and Regulations, among the employees in the group
described in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including em-
ployees who did not work during the 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 any who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by International
Union of Operating Engineers, Local 311, A. F. of L., or by Employees
Independent Union at Kearney & Trecker Corporation, for the purposes
of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above Deci-
sion and Direction of Election.