Lakey Foundry and Machine Co.

National Labor Relations Board - Board Decisions

Aug 21, 1941

34 N.L.R.B. 677 (N.L.R.B. 1941)

In the Matter of LAKEY FOUNDRY AND MACHINE COMPANY and PAT-
TERN MAKERS ASSOCIATION OF MUSKEGON, IN AFFILIATION WITH THE
PATTERN MAKERS LEAGUE OF NORTH AMERICA
Case No. R-2778.-Decided August 21, 1941
Jurisdiction : casting manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition because of subsisting contract with other
labor organization ; extension of contract with rival organization after notice
of representation and unit claims of petitioning craft organization, no bar to ;
election necessary.
Unit Appropriate for Collective Bargaining : election directed among pattern
makers and pattern makers' apprentices excluding non-working supervisors
and apprentices who have not served a year'of their apprenticeship to deter-
mine whether or not they desire to constitute a separate unit.
Mr. Joseph T. Riley, of Muskegon, Mich., for the Company.
Mr. A. K. Karlson, of East Lansing, Mich., for the Pattern Makers.
Mr. Maurice Sugar, by Mr. N. L. Smokier, " of Detroit, Mich., and
Mr. Leonard Woodcock, of Muskegon, Mich., for the U. A. W.
Mr. William T. Little, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 18, 1941, Pattern Makers Association of Muskegon, in
affiliation with the Pattern Makers League of North America,' herein
called the Pattern Makers, filed with the Regional Director for the -
Seventh Region (Detroit, Michigan) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Lakey Foundry and Machine -Company, Muskegon,
Michigan, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On June 20, 1941, the National Labor Relations Board, herein called
i The petition was originally filed in the name of Pattern Makers Association of Muske-
gon. At the hearing the petition and all'formal papers were amended to designate the
petitioner as appears above.
34 N. L. R. B., No. 84.
677
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678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board, acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 2, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On July, 11, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Pattern
Makers, and Local 403, International Union, United Automobile
Workers of America, affiliated with the C. I. 0., herein called the
U. A. W., a labor organization claiming to represent employees d i-
rectly affected by the investigation. Pursuant to notice, a hearing
was held on July 18, 1941, before Earl R. Cross, the Trial Examiner
duly designated by the Acting Chief Trial Examiner. The U. A. W.
appeared at the hearing and intervened. All parties were repre-
sented by counsel or official representatives and participated in the
hearing. Full opportunity to be heard, to examine and cross-exarz-
ine 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 confirmed. At the hearing the U. A. W.
moved to dismiss the petition of the Pattern Makers on the ground
That the unit set forth therein was not appropriate. The motion is
hereby denied.
On August 1, 1941, the U. A. W. submitted a brief which has been
duly considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Lakey Foundry and Machine Company, a Michigan corporation
having its principal office and place of business at Muskegon, Mich-
igan, is engaged in the manufacture of castings. During the year
ending October 31, 1940, the Company purchased raw materials
valued at approximately $1,287,000, about 50 per cent of which
came from sources outside the State, and sold finished products
valued at approximately $3,320,245, approximately 40 per cent of
which was shipped to points outside the State.
H. THE ORGANIZATIONS INVOLVED
Pattern Makers Association of Muskegon, in affiliation with the
Pattern Makers League of North America, is a labor organization
LAKEY FOUNDRY & MACHINE COMPANY 679
affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
Local 403, International Union, United Automobile Workers of
America, is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
In June 1940, the Company and the U. A. W. entered into a 1-year
exclusive bargaining contract covering the factory employees of the
Company, including the pattern makers. This contract by its terms
did not become effective until July 1, 1940. On April 7 and 11 and
May 27, 1941, the Pattern Makers notified the Company that it
represented a majority of the pattern makers in its employ and
requested a collective bargaining conference. The Company refused
on the ground that its contract with the U. A. W. prevented it from
recognizing the Pattern Makers. In its letter of May 27, 1941, the
Pattern Makers specifically informed the Company that it had filed
a petition with the Board.
On July 1, 1941, the Company and the U. A. W. entered into a'
1-year exclusive recognition contract which included the pattern
makers. The Company and the U. A. W. assert that the contract
entered into on July 1, 1941, constitutes a bar to the present pro-
ceeding. We have repeatedly held, however, that a contract executed
after an employer has notice that a rival labor organization claims
to represent a majority of his employees is no bar to an election 2
Accordingly, we find the contention of they Company and the U. A. W.
to be without merit.
A statement of the Regional Director introduced in evidence at
the hearing shows that the Pattern Makers represent a substantial
number of employees in the unit claimed by it to be appropriates
We find that a question has arisen concerning the 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
2 See, for example , Matter of Monroe ' Calculating Machine Company and United Electra
cat, Radio & Machine Workers of America, Local No. 431, affiliated with the Congress of
Industrial Organizations , 29 N. L . R. B 653.
0 The Regional Director stated that the Pattern Makers had submitted a certified mem-
bership roster containing the names of 34 employees who were on the Company 's June 4,
1941, pay roll . There are approximately 42 employees in the unit "claimed by the Pattern
Makers to be appropriate.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Pattern Makers: assert that all pattern makers and pattern
makers' apprentices, excluding non-working supervisors and appren-
tices who have not served a year of their apprenticeship, constitute
an appropriate Unit .4 The UAW insists that such employees should
be included within a plant-wide unit consisting of all the factory
employees of the Company. The Company employs approximately
1000 employees about 100 of whom are skilled craftsmen represent
ing 6 different crafts. There are approximately 42 employees iii
the unit claimed by the Pattern Makers.
The pattern makers are a well-established and highly skilled craft
requiring a lengthy apprenticeship and are more highly paid than
the other employees of the Company. They work in a building sepa
rate and apart from the ordinary factory employees,5 with' whom
they have relatively little contact. Although a large portion of the
patterns are used by the Company in its foundry, the Company
sells a number of patterns directly to its customers. While the 194U
and 1941 plant-wide exclusive recognition contracts entered into by
the Company and the UAW included the pattern makers in their
scope, there is no showing in the record that the pattern makers
were members of the, UAW or in any other manner acquiesced in
the unit established in the contract. In other cases coming before
us we have observed the seasonal nature of the pattern makers' work
and they function performed by the Pattern Makers in obtaining work
for its unemployed members.6
In view of all the circumstances in the case, particularly the dis-
tinction between the interests of the pattern makers and the other
employees of the Company, and the absence of any evidence that the
pattern makers acquiesced in the unit established in the contracts
of 1940 and 1941, we believe that the question of the appropriate
4 At the hearing the Pattein -Makers did not specifically request the exclusion of non-
working supervisors and apprentices who have not served a year of their apprenticeship.
However, in view of the testimony of its representative that it did not bargain for non-
working supervisors and did not admit to membership apprentices who had not served a
year of their apprenticeship, it would seem clear that the Pattern Makers desire such
employees excluded from the unit.
5 Six pattern mounters , 3 supervisors , a sweeper , and a stock clerk work in the pattern
shop along with the pattern makers
6 See for example Matter of Mullins Manufacturing Corporation and Pattern Makers
League of North America (affiliated with the A F. of L ),, 31 N. L. R. B 1532; Matter
of Wilips Overland Motors, Inc. and The Pattern Makers League of North America, 15
N. L. R. B. 484.
LAKEY FOUNDRY & MACHINE COMPANY 681
unit should be decided by the desires of the pattern makers them-
selves. Accordingly we shall direct that an election be held among
all pattern makers and pattern makers apprentices employed by the
Company, excluding non-working supervisors and apprentices who
have not served a year of their apprenticeship, to determine whether
they desire.to be represented by the Pattern Makers or by the UAW
for the purposes of collective bargaining, or by neither. If a ma-
jority of these employees vote for the Pattern Makers, they shall
constitute a separate appropriate unit, otherwise the petition shall
be dismissed.
The Company employs one, supervisor in the pattern shop who
works as a pattern maker during slack periods. Unlike the -other
pattern makers who are paid on hourly basis, he is a salaried employee.
Since his work is predominantly that of a non-working supervisor, he
shall not be entitled to vote in the election.
VI. THE DETERMINATION OF REPRESENTATIVES
We have hereinabove found that the question concerning repre-
sentation which has arisen can - best be resolved by an election by
secret ballot. At the hearing the parties expressed no preference
as to the pay-roll date to be used in determining eligibility to vote.
We find that the employees of the Company eligible to vote in the
election are those employees who were employed during the pay-roll
period immediately preceding the date of this Direction of Election,
subject to such limitations and additions as are set forth in the
Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the repre-
sentation of employees of Lakey Foundry and Machine Company,
Muskegon, Michigan, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) 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 Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining with Lakey Foundry and Machine Company, Muskegon,
Michigan, an election by secret ballot shall be conducted 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 Direc-
tor for the Seventh Region (Detroit, Michigan) acting in this mat-
ter as agent for the National Labor Relations Board, and subject
to Article III, Section 9, of said Rules and Regulations, among all
pattern makers and pattern makers' apprentices who were employed
by the Company during the pay-roll period immediately preceding
the date of this Direction of Election, including employees who did
not work during such pay-roll period because they were ill or on
vacation, or in the active military service or training of the United
States, or temporarily laid off, but excluding non-working super-
visors, apprentices who have not served 1 year of their apprentice-
ship, and those who have since quit or been discharged for cause,
to determine whether they desire to be represented by Pattern Mak-
ers Association of Muskegon, in affiliation with the Pattern Makers
League of North America, or by Local 403 International Union,
United Automobile Workers of America, affiliated with the C. I. 0.,
for the purposes of collective bargaining, or by neither.
MR. EDwiN S . SMITH took no part in the consideration of the
above Decision and Direction of Election.