La Plant-Choate Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 28, 1939

13 N.L.R.B. 1228 (N.L.R.B. 1939)

In the Matter of LA PLANT-CHOATE MANUFACTURING CO., INC. and
UNITED FARM EQUIPMENT WORKERS ORGANIZING COMMITTEE, LOCAL
116, AFFILIATED WITH THE C. I. O.
Case No. R-1390.Decided July 28, 1939
Dart-Moving Appliance Mann facturing Ii dustrg Investigation of Represen-
,tatives: controversy concerning representation of employees : rival organiza-
tions-Contract : subject to termination upon notice , no bar to determination
of representatives-Unit Appropriate for Collective Bargaining : agreement by
both unions that production and maintenance employees , including janitors,
watchmen, and painters, and excluding supervisory and clerical employees,
-dispatch clerks, a time-study man , a third -shift foreman , and engineering per-
sonnel, constitute general unit; controversy between unions as to inclusion of
certain individuals: servicemen working principally on repair and demonstration
outside plant , included ; tester working on experimental jobs, included ; torch-
man testing applicants for jobs to determine ability to handle acetylene equip-
ment, included ; ex-foreman , included ; "foreman material", included unless pro-
moted-Election Ordered: eligibility to vote extended to employees working at
date of Direction , and to former employees on the company 's seniority list,
who are entitled to reemployment when company increases its force.
Mr. Lester Asher, for the Board.
Mr. Roy E. Choate, of Cedar Rapids, Iowa, and Mr. O. N. Elliott,
for the Company.
Mr. Ben Meyers, of Chicago, Ill., for the United.
Mr. W. A. Heath, of Washington, D. C., for the I. A. M.
Elizabeth W. Weston, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 7, 1939, United Farm Equipment Workers Organizing
Committee, Local 116, herein called the United, filed with the Re-
gional Director for the Eighteenth Region ( Minneapolis , Minnesota)
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of La Plant-Choate Man-
ufacturing Co., Inc., Cedar Rapids, Iowa, herein called the Company,
and requesting an investigation and certification of representatives
13 N. L. R. B, No. 116.
1228
LA PLANT-CHOATE MANUFACTURING CO., INC. 1229
pursuant to Section 9 (c) of the National Labor Relations Act,. 49
Stat. 449, herein called the Act. On May 8, 1939, the National Labor
Relations Board, herein called the Board, acting pursuant to Sec-
tion 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 upon due notice.
On May 12, 1939, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the
United, and International Association of Machinists, Harmony Lodge
No. 831, herein called the I. A. M., a labor organization claiming to
represent employees directly affected by the investigation. Pursuant
to the notice, a hearing was held on May 22, 1939, at Cedar Rapids,
Iowa, before Madison Hill, a Trial Examiner duly designated by the
Board. The Board and the Company, represented by counsel, and
the United and the I. A. M., represented by duly authorized agents,
participated in the hearing. Full opportunity to be heard, to exam-
ine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. During the course of the
hearing the Trial Examiner made several rulings on motions and
on objections to the admission 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 TIIE COMPANY
La Plant-Choate Manufacturing Co., Inc., is a Delaware corpora-
tion having its principal place of business and its plant in Cedar
Rapids, Iowa, where it employs over 320 production and maintenance
workers. It manufactures tractor-drawn dirt-moving equipment and
is the second largest establishment in the industry. Over 65 per cent
of the materials used by the Company in its operations, consisting
principally of raw steel and castings, are shipped to its plant from
outside the State of Iowa, and approximately 90 per cent of its fin-
ished products, which for the year ending July 1, 1938, had a value•
of over $1,500,000, are shipped out of Iowa, one-third of the total
output going to foreign countries. The Company distributes its
products through sales agents located throughout the United States•
and has six direct sales representatives whose territory covers the
United States and South America.
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATIONS INVOLVED
United Farm Equipment Workers Organizing Committee, Local
116, is a labor organization affiliated with the Congress of Industrial
,Organizations, admitting to its membership all production and main-
tenance employees of the Company.
International Association of Machinists, Harmony Lodge No. 831,
is a labor organization affiliated with the American Federation of
Labor, apparently admitting to its membership production and main-
tenance employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Since 1937 the Company has bargained collectively with the I. A. M.
as the representative of its factory employees. In April 1937, nego-
tiations between the Company and the I. A. M. resulted in a written
contract which, a year later, on or about April 16, 1938, was superseded
by a second contract. This latter contract recognized the I. A. M.
as the exclusive representative of the Company's factory employees'
The contract provides that it is to remain in effect for a period of 1
year from April 25, 1938, and thereafter until terminated by either
party upon 30 days' notice.
On February 14, 1939, the United, which had obtained a sub-
stantial number of members among the Company's employees,
requested the Company's president, Roy E. Choate, to recognize it as
the representative of a majority of the Company's factory employees.
Choate replied that he could not accord the United recognition as
collective bargaining representative while the contract with the
I. A. M. was in effect. Thereafter, on February 27, 1939, the United
notified the Company by registered letter that it questioned the
I. A. M.'s majority and its right to bargain for the Company's
employees for the period after April 25, 1939, when the contract
would expire. On April 7 the United filed the petition in this case.
Since the contract is now terminated or is subject to termination by
notice, it does not constitute a bar to a determination in this proceed-
ing of the representative of the Company's employees for the pur-
poses of collective bargaining.
We find that a question has arisen concerning representation of
the employees of the Company.
' The contracting parties are the Company and its factory employees , "the said employees
'being represented" by the I. A. M.
'Matter of Sound Timber Company and International Woodworkers of Ameica Locals
•67 and 75, 8 N. L. R. B. 844 ; Matter of Sandusky Metal Products , Inc. and Ame,ican
Federation of Labor, 6 N L R B . 12; cf. Matter of Colonic Fibre Company, Inc and
.Cohoes Knit Goods TPo,kers Union No 21511,, A. F. of L ., 9 N. L. R. B. 658.
LA PLANT-CHOATE MANUFACTURING CO., INC. 1231
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 to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
In its petition, as amended at the hearing, the United designated
the Company's production and maintenance employees, excluding
foremen, assistant foremen, supervisors, office workers, engineering
personnel, and any employee working in a supervisory capacity, as
the bargaining unit claimed by it to be appropriate for the purposes
.of collective bargaining. At the hearing both unions agreed upon
this description of the unit; and further agreed that janitors,
watchmen, and painters should be included, as maintenance
employees, and that dispatch clerks should be excluded, as clerical
personnel. The Company took no position in regard to the appro-
priate unit. The production and maintenance workers are employed
on an hourly wage basis in the Company's 15 production depart-
ments. They are parties to the contract of April 16, 1938, where
they are designated as "factory employees." Under these circum-
stances there is no reason for departing from the general unit agreed
upon by the unions involved.
There is a controversy between the two unions respecting the
propriety of including in the unit five employees known as service-
men. The I. A. M. desires their inclusion and the United desires
their exclusion.
The principal work of the servicemen is repairing and demon-
strating appliances manufactured and sold by the Company. In the
performance of these duties they make field trips throughout the
United States, returning to work in the factory between trips. They
are paid a flat monthly wage and have certain duties assigned to
them, but no prescribed working hours. The minimum wage clause
of the contract of April 1938, provided : "Servicemen shall work
under the terms of this agreement and shall be paid as herein pro-
vided when employed in the plant, but same shall not apply when
away from the plant." Formerly the servicemen did regular pro-
duction work when in the factory, but within the last year, in view
of wage and hour legislation, the Company has made an arrange-
ment whereby they no longer do normal production work during the
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
periods when they are in the plant. As Choate expressed it, they
have "a sort of rest and they may set up a tractor and test it out
and do any little work they want to check up on parts that they
claim are not right." The servicemen are mechanics, and their
work, though principally performed outside of the factory, appears
to be substantially similar to that of the production employees.
Under these circumstances we see no reason why they should not
be included in the same unit with the production workers. We find
that the servicemen are in the appropriate unit.
The United asserted that Michael Weber, Ralph Meaney, Glen
Johnson, and Vernal Stimson are foremen, or have supervisory
duties, and therefore should be excluded from the unit. The I. A. M.
took no position regarding Michael Weber, but denied that Meaney,
Johnson, and Stimson should be classed with the supervisory
employees.
Michael Weber may be described as a tester of experimental prod-
ucts. When the engineering department issues specifications for a
new applicance, Weber goes from shop to shop where the first of the
new machines is being fabricated and assembled, to see whether the
parts fit together properly. He takes information on wrongly fitted
parts to the engineering department so that the blue-prints can be
corrected. When the new appliance is assembled, Weber takes it
outside the plant for a test. According to Choate's uncontradicted
testimony, Weber has no supervisory duties and is considered by the
Company as a production worker. The record does not indicate
whether or not he is affiliated with either union. Nor is there any
evidence indicating how he may have been affected by the 1938 con-
tract. We find that he is in the unit.
Ralph Meaney works on the first shift in the steel-stock depart-
ment, and is in charge of acetylene torches, which he fits with new
tips. He tests applicants for jobs to determine whether or not they
are competent to use acetylene torches, and subsequently watches such
employees to make sure that they take proper care of the acetylene-
welding gauges. While he does not hire or discharge or recommend
hiring or discharging, his report on the result of an ability test
determines whether or not an applicant is given a job involving
acetylene-torch work. The contract of April 1938 specifies a mini-
mum hourly wage rate for "torchmen," a classification which includes
Meaney. It does not appear whether he is affiliated with either union.
We find that he is in the unit.
Glen Johnson was a foreman on the second shift until the summer
or fall of 1938, when he was replaced in this position. At the time
of the hearing he performed no supervisory work. He is listed on
the pay roll as a machinist in the maintenance department. As a
LA PLANT-CHOATE MANUFACTURING CO., INC. 1233
"machinist" or a "maintenance employee" his compensation was
covered by the minimum-wage provisions of the 1938 contract. At
the time of the hearing Johnson was an applicant for membership
in the I. A. M. Since he is no longer a foreman, he is in the unit.
Vernal Stimson, at the time of the hearing, was working as a
welder in the experimental department, but he had been a foreman
until a reduction of force early in the spring of 1939. Choate testi-
fied that Stimson is regarded by the Company as "foreman material"
and that he will be promoted to a foreman's position if a second shift
becomes necessary. It does not appear whether Stimson is a mem-
ber of either union. We find that he is in the unit unless at the date
of this decision he has been promoted to the position of foreman.
James Schneberger and "Earl" Wilson' are other employees Whom
Choate designated as "foremen material" when questioned as to
whether or not he employed any assistant foremen. We find that
they are in the unit unless at the date of this decision they have
been promoted to foremen's positions.
Both unions agreed that two other employees whose names were
mentioned at the hearing should be excluded from the unit: Emil
Stuckenschneider, third-shift foreman, and Paul Palmer, a time-
study man. We find that they are not in the unit.
We find that the production, maintenance, and service employees
of the Company, excluding supervisory and clerical employees and
engineering personnel, constitute a unit appropriate for the pur-
poses of collective bargaining, and that said unit will insure to em-
ployees 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
The I. A. M., which negotiated -the contracts of 1937 and 1938,
claimed, and sought to prove by the testimony of its financial secre-
tary, that it has 70 members among the Company's employees. It
claims that 36 additional employees have applied for membership
since February 8, 1939, and introduced application cards signed by
36 employees.' The United introduced in evidence membership cards
signed by 120 persons' who were in the Company's employ on May
20, 1939. The Company's pay roll for the week ending May 20,
which we find represents its present normal employment, contains
$ The name Earl Wilson does not appear on either of the pay rolls submitted in
evidence . The May 20 pay-roll list contains the names of E. A Wilson ( designated
Elbert A. Wilson on the April 8 pay -roll list ) and Merrill Wilson ( designated Merrill R
Wilson on the April 8 list), both in the welding department , and Harold E. Wilson in the
shipping department.
4 The United claims as members 7 of these 36
5 Including the seven who are also claimed by the I A. H.
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the names of 320 employees within the appropriate unit! Under
these circumstances, we find that the question which has arisen con-
cerning representation will best be resolved by a secret ballot.
The I. A. M. urges that eligibility to vote extend to all persons
working in the plant who have acquired a seniority standing by 30
days' employment, and to all persons whose names are on the Com-
pany's seniority list. This seniority list, according to provisions of
the 1938 contract, contains the names of employees who have worked
for the Company for 30 days. An employee's name is removed
from the list after a year's continuous lay-off. The contract also pro-
vides that after "a temporary shut-down" the Company shall recall
men to work in departments where operations are to be resumed
"according to their seniority rights." While the record does not
show precisely how the seniority list is used in hiring employees, or
how many names there were on the list at the time of the hearing,
it is clear that such a list is maintained, and that after lay-offs old
employees on the list are generally reemployed, at least if there is
work for them in the department where they hold seniority.
The Company suggests that all employees who are actively work-
ing at the time of the election, including those who are not working
for some cause such as illness, should be eligible to vote, irrespective
of whether they have acquired a seniority standing by 30 days' em-
ployment. We think that the most accurate determination of the
desires of all the Company's employees affected by our investigation
will be obtained by insuring eligibility to vote to all employees who
were working at the date of our Direction of Election and to those
who, although not working at that time, have a seniority standing
which entitles them to reemployment when the Company increases its
force of employees. Accordingly, those eligible to vote, excluding any
who have quit or been discharged' for cause, will be : (a) employees
in the appropriate unit who were working during the pay-roll period
last preceding the date of our Direction of Election herein; (b) em-
ployees who, during such pay-roll period, were on vacation or absent
because of illness; and (c) all other employees whose names, at the
close of the same period, were on the Company's seniority list.
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 La Plant-Choate Manufacturing Co., Inc.,.
Cedar Rapids, Iowa, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
6 Including Meaney, Johnson, Stimson, Schneberger, and all three Wilsons ; not includ-
ing the five servicemen.
LA PLANT-CHOATE MANUFACTURING CO., INC. 1235
1
2. The production, maintenance, and service employees of the Com-
pany, excluding supervisory and clerical employees and engineering
personnel, constitute a unit appropriate for the purpose of collective
bargaining, within the meaning of Section 9 (a) of the National
Labor Relations Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with La Plant-Choate Manufacturing Co., Inc., Cedar Rapids,
Iowa, an election by secret ballot shall be conducted within fifteen
(15) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Eighteenth Region,,
acting in this matter as agent for the National Labor Relations Board
and subject to Article III, Section 9, of said Rules and Regulations,
among the production, maintenance, and service employees of said
Company who were working or were on vacation or absent because
of illness during the pay-roll period last preceding the date of this.
Decision and Direction of Election, and in addition, among those
employees who, although not actually working, had seniority stand-
ing and were on the Company's seniority list at the close of the same
pay-roll period, excluding supervisory and clerical employees and
engineering personnel, and any persons who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented for the purposes of collective bargaining by United Farm
Equipment Workers Organizing Committee, Local 116, or by Inter-
national Association of Machinists, Harmony Lodge No. 831, or by
neither.