Lincoln Engineering Co.

National Labor Relations Board - Board Decisions

Jul 29, 1940

25 N.L.R.B. 1083 (N.L.R.B. 1940)

In the Matter of LINCOLN ENGINEERING COMPANY and TOOL & DIE
MAKERS LODGE 688 OF THE 4INTERNATIONAL ASSOCIATION OF MA-
CHINISTS, DISTRICT No. 9
In the Matter of LINCOLN ENGINEERING COMPANY and PROGRESSIVE
LODGE 41 OR THE INTERNATIONAL ASSOCIATION OF MACHINISTS, Dis-
nucr No. 9
In the Matter of LINCOLN ENGINEERING COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 691
Cases Nos. R-1882 to R-1884 inclusive.Decided, July 29, 1940
Jurisdiction : lubricating equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question: dis-
pute as to appropriate unit ; conflicting claims of rival representatives ; em-
ployer refuses to grant recognition to either union and requests that certi-
fication be obtained ; elections necessary.
Unit Appropriate for Collective Bargaining : industrial or several craft units:
other factors. evenly balanced determining factor desire of the employees;
determination of dependent upon elections.
Line leaders and group leaders having no authority to hire or discharge
but who occupy minor supervisory positions included in craft unit at request
of unions involved. -
Watchmen excluded from industrial unit where unions disagree as to
exclusion, since they have interests and perform functions differing from
those of other employees.
Mr. David F. Crossen, of St. Louis, Mo., for the Company.
Bartley d Mayfield, by Mr. Waldo C. Mayfield, of St. Louis, Mo.,
and Mr. Paul Hutchings of Washington, D. C., for Lodge 41 and Lodge
688. -
Judge Fred J. Ho ff meister of St. Louis, Mo., for the Association.
Mr. Delmond Garst, of St. Louis, Mo., and Mr. J. ' N. Tucker, of,
Detroit, Mich.,' for the U. A. W.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On May 10 1940, Tool & Die Makers Lodge 688 of the International
Association of Machinists, District No. 9, herein called Lodge 688,1
1 Erroneously designated in the petition as "Local" 688.
25 N. L. R. B., No. 110. 1083
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed with the Regional Director for the Fourteenth Region (St. Louis,
Missouri) a petition alleging that a question affecting commerce'=had`
arisen concerning the representation of employees of Lincoln Engi-
neering Company, St. Louis, Missouri, herein called the Company,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the Natl6nal'Labor Relations Act, 49
Stat. 449, herein called the Act. On May 13 and 17, 1940, respectively,
a similar petition and amended petition were filed by Progressive
Lodge 41 of the International Association of Machinists, District No.
9, herein called Lodge 412 On May 29, 1940, a similar petition was
also filed by International Union, United Automobile Workers of
America, Local No. 691, herein called the U. A. W.
On June 1, 1940, 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 Regula-
tions-Series 2, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice, and acting pursuant to Article III, Section
10 (c) (2), of said Rules and Regulations, further ordered that the
aforesaid three cases be consolidated.
- On June 4, 1940, the Regional Director issued- a notice of hearing,
copies of which were duly served upon the Company, upon the U. A.
W., upon Lodge 41, upon Lodge 688, and upon Lincoln Employes
Benefit Association, herein called the Association, a labor organization
claiming to represent employees directly affected by the investigation .3
Pursuant to the notice, a hearing was held on June 10, 1940, at
St. Louis, Missouri, before L. N. D. Wells, Jr., the Trial Examiner
duly designated by the Board. The Company, the U. A. W., Lodge 41,
Lodge 688, and the Association, were represented by counsel, partici-
pated in the hearing, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. In the course of the hearing the Trial
Examiner made various 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.
Pursuant to notice, a hearing was held before the Board on July,
9, 1940, at Washington, D. C., for the purpose of oral argument.
The Company, Lodge 688, Lodge 41, and the U. A. W., were repre-
sented by counsel and participated in the argument. The Company,
Lodge 688, and Lodge 41 also filed briefs which the Board has
considered.
8 Erroneously designated in the petition as "Local" 41.
8 At the opening of the hearing the Association filed a motion for leave to intervene.
The Trial Examiner accepted the motion in evidence.
LINCOLN ENGINEERING COMPANY 1085
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lincoln Engineering Company, a Missouri corporation, has its
principal office and place of business at St. Louis, Missouri, where
it is engaged in the manufacture, production, sale, and distribution
of lubricating equipment. It also operates a manufacturing plant
at Detroit, Michigan. For the period from September 1939 to Feb-
ruary 1940, inclusive, the total purchases of raw materials by the
respondent for use at its St. Louis plant, the only one involved in
this proceeding, amounted ' to $211,758.51, of which 54 per cent were
shipped to it from States other than Missouri. During the same
period, the respondent's sales of products manufactured at its St.
Louis plant totaled $888,672.32, of which approximately 96 per cent
were shipped to points outside the State of Missouri. The respondent
.,employs approximately 242 production and maintenance employees
at its St. Louis plant.
II. THE ORGANIZATIONS INVOLVED
Tool & Die Makers Lodge 688 of the International Association of
Machinists, District No. 9, affiliated with the American Federation
of Labor, is a labor organization admitting to membership the tool
and die workers and apprentices employed by the Company.
Progressive Lodge 41 of the International Association of Ma-
chinists, District No. 9, affiliated with the American Federation of
Labor, is a labor organization admitting to membership machinists,
machine hands, helpers, and apprentices employed by the Company.
International Union, United Automobile Workers of America,
Local No. 691, is a labor organization affiliated with the Congress
of Industrial Organizations. It admits to membership all produc-
tion and maintenance employees of the Company.
Lincoln Employes Benefit Association is an unaffiliated labor or-
ganization, admitting to its membership all employees of the Com-
pany, except office and supervisory employees.
III. THE QUESTIONS CONCERNING REPRESENTATION
The U. A. W. began to organize the employees of the Company in
August 1939, and Lodge 688, Lodge 41, and the Association, in April
1940. On May 3, 1940, Lodge 688 requested the Company to recog-
nize it as the exclusive bargaining representative for all the tool
and die workers employed in the toolroom. On or about May 17,
1940, Lodge 41 sought similar recognition as representative for all
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the machinists, machine hands, helpers, and apprentices, employed,
in the machine shop, the fitting department, and the experimental
department. The Company refused to grant recognition to either
union until it had been certified by the Board.
On April 22 and May 28, 1940, respectively, the U. A. W. asked
the Company for recognition as the bargaining agent for all the
maintenance and production employees in the plant. The Company
thereupon granted partial recognition to the U. A. W. and, pend-
ing a decision by the Board on the petitions previously filed by
Lodge 688 and Lodge 41, entered into bargaining negotiations with
the U. A. W. as the representative of all the production' and main-
tenance employees except the machinists and the tool and die makers.
We find' that questions have arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION
UPON COMMERCE
We' find that the' questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNITS
The U. A. W. contends that all the production and maintenance
employees of the Company, excluding supervisory employees with
authority to hire and discharge, office employees, and watchmen,
constitute a ' unit appropriate for the purposes of collective bar-
gaining. The Association likewise contends that a plant-wide in-
dustrial unit is appropriate, but maintains that watchmen should be
included therein. Lodge 41 asserts that the machinists, machine
hands, helpers, and' apprentices, employed in the machine shop, fit-
ting department, and experimental department, constitute a sepa-
rate unit appropriate for,collective bargaining purposes. Lodge 688
claims that the tool and die makers and apprentices employed in
the toolroom should be considered as a separate bargaining unit.
The Company is substantially in accord with the contentions of the
U. A. W. and the Association.
The tool and die makers are a separate and well-established craft
which requires the serving of a 4-year apprenticeship. Evidence was
introduced showing that the toolroom is separate and apart from the
production division of the plant, that the toolroom employees are
engaged solely in maintenance work, and that there is little, if any,
LINCOLN ENGINEERING COMPANY 1087
interchangeability in personnel between the toolroom and the other
production units. The machinists likewise form a definite and recog-
nized craft. The evidence shows that the great majority of the
employees in the, machine shop, the fitting department, and the
experimental department, are engaged in production work requiring
skill and training in the machinists' trade. Both Lodge 688 and
Lodge 41 are craft organizations. On the other hand, evidence
was introduced to show the integrated character of the plant and the
appropriateness of an industrial unit including both the tool and die
makers and the machinists. The record discloses no prior history
of collective bargaining with the Company in respect to this plant.
Under these circumstances we are of the opinion that the tool and die
makers and the machinists, respectively, might properly constitute
separate bargaining units, or they might function as part of 'a single
industrial unit. In this situation we will follow our previous rulings
in similar situations, that the determining factor is the desire of the
employees themselves.' As stated in Section VI, infra, the determina-
tion of their desires can best be made in elections which we shall direct.
On the results of these elections will depend our definition of the Ap-
propriate unit or units herein.
There remains for consideration the ascertainment of the specific
composition of the above-named units.
Lodge 688 requested that Harry Peters, a salaried toolroom em-
ployee, be included within the tool and die unit. Although it appears
that Peters is employed on a salary basis,5 he occupies no position of
authority in the toolroom and performs the same type of work as
the other tool and die workers. We shall therefore include him
within the tool and die group. '
Lodge 41 would include within the machinists' unit Alexander J.
Pawlowicz, classified on the pay roll as "Laborer," Bernard Klaesner,
classified as "Inspecto"r,'.' and all employees classified as "Set-up men."
Pawlowicz's duties consist of supplying steel to the machinists in the
machine shop, and he is more properly classified as a machinist's
helper. Klaesner is the only inspector in the machine shop and an
experienced machinist. The set-up men are finished machinists em-
ployed in the machine shop to set and prepare machines for operation:
Inasmuch as it appears that all of the foregoing employees perform
work of the type which is within the recognized jurisdiction of the
machinists', trade, we shall include them within the machinists' group.
4 Matter of Globe Machine and Stamping Co and Metal Polishers Union Local No. 3,
International Association of Machinists, District No. 5$, Federal Labor Union 18788, and
United Automobile Workers of America, 3 N. L R B 294, and subsequent cases
5 The evidence shows that Peters was formerly a salaried supervisory employee in the
machine shop, and that apparently for this reason was permitted to retain his monthly
wage rate when transferred to the toolroom.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lodge-41 desired to -exclude from the machinists' unit-Harold-R.-
Sauer, classified on-the-pay roll as "Shop Dispatcher," Max Kubisiak
and John H. Allen, classified as "Laborers," Nicholas W. Proost,
classified as "Tool Crib Boy," and Albert Anslyn, classified as "Bench
Assembler." All are classified on the pay roll as machine-shop em-
ployees. The evidence shows that Sauer does not operate a machine
or perform other machinist's work, Kubisiak is a floor sweeper, Allen
performs general cleaning and trucking work, and Proost is assigned
to clerical duties which are more closely connected with the office than
with the machine shop. Anslyn's duties are the same as those of the
other bench assemblers employed in the Bench Assembly Depart-
ment. The foregoing employees do not perform Work pertaining
to the machinists' trade and we shall exclude them from the ma-
chinists' group.
Neither Lodge 688 nor Lodge 41 requested the exclusion or in-
clusion of supervisory employees. However, in accordance with
our usual practice, we shall exclude supervisory employees from the
units which these labor organizations claim to be appropriate.
The U. A. W. and the Association would include within the
appropriate unit line leaders and group leaders who occupy minor
supervisory positions and have no authority to hire or discharge.°
Applying our usual rule, we shall include line readers _ and group
leaders within the unit.?
While both the U. A. W. and the Association requested the ex-
clusion of certain named foremen, their position as to the inclusion
or exclusion of foremen generally is not clear from the record.8 We
shall follow our usual practice and shall exclude all foremen from the
unit.9
The U. A. W. and the Association desire to exclude from the unit
Nicholas W. Proost, tool crib boy in the machine shop whose duties
as we have above stated are largely of a clerical nature, and Clar-
ence H. Stockton, classified on the pay roll* as "Office Clerk" in the
Floor Assembly Department. Since their work is shown to be simi-
6 within this category are John H . Gibbs, classified on the pay roll as
"supervisor" in the Stores & Handling Department , and Herman P Menge, classified as
"Spray Painter and Supervisor" in the Painting Department , whose inclusion was specifi-
cally requested by the U. A. W. and the Association.
7 See Matter of Todd-Johnson Dry Docks , Inc. and Industrial Union of Marine and
Shipbuilding Workers of America, Local No 29, 18 N. L R B . 973, and cases cited
therein.
s The U. A. W. desired specifically to exclude Walter Kleinigger , night foreman in the
Sheet Metal Department , and John R. Graef, Inspection Department foreman. While
the Association would includ e Kleinigger , it introduced no evidence to show wherein his
duties differed from those of other foremen. We shall exclude him from the unit.
u See Matter of Locke Insulator Corporation and Congress of Industrial Organizations,
13 N. L. R. B. 615 ; Matter of Todd-Johnson Dry Docks Inc. and Industrial Union of
Marine and Shipbuilding Workers of America , Local No. 29, 18 N L R. B 973
LINCOLN ENGINEERING COMPANY 1089
lar and closely related to that of the office employees, we shall exclude
them from the industrial group.
The U. A. W. desires the exclusion of watchmen from the industrial
unit because of the confidential nature of their employment, while
the Association desires their inclusion. Because watchmen have
interests and perform functions differing from those of other em-
ployees, we have excluded them from the appropriate unit in pre-
vious cases involving a similar dispute as to their inclusion.1e For
the same reasons we shall exclude them from the unit herein.
We shall, therefore, order elections among the employees of the
Company at its St. Louis plant within the groups described below :
(a) The tool and die makers and apprentices employed in the-
toolroom, excluding supervisory employees, to determine whether
they desire to be represented by Lodge 688, the U. A. W., or the
Association, for the purposes of collective bargaining, or by none
of the three labor organizations ;
(b) The machinists, machine hands, helpers, and apprentices,
employed in the machine shop, the fitting department, and the experi-
mental department, excluding supervisory employees, to determine
whether they desire to be represented by Lodge 41, the U. A. W., or
the Association, for the purposes of collective bargaining or by none
of the three labor organizations;
(c) All the remaining production and maintenance employees of
the Company, excluding supervisory employees having authority
to hire and discharge, foremen, office employees, and watchmen, but
including linemen and group leaders, to determine whether they
desire to be represented by the U. A. W. or the Association for the
purposes of collective bargaining, or by neither.
As before stated, there will be no final determination of the appro-
priate unit or units pending the results of the elections. If a major-
ity of the" tool and die makers cast their votes for the U. A. W.
and/or the Association, the tool and die makers shall be included with-
in the industrial unit and their votes shall then be counted for the
determination of the representative as between the U. A. W. and
the Association, along with the other votes cast by the employees
who are already found to be included in the industrial unit. In the
event, however, that a majority of the tool and die employees cast
11) Matter of Allied Laboratories , Inc., (Pitman-Moore Division) and Indianapolis Spe-
cialty Union #465, affiliated with the International Printing Pressmen and Assistants'
Union affiliated with AFL, 23 N L R. B 184; Matter of Elliott Bay Mill Company
and Plywood & Veneer Workers Union Local #26, C 1 0 ef liat,.,, and Plywood
it Veneer Workers Union, Local 2618, chartered by the United Brotherhood of Carpenters c&
Joiners of America, affiliated with the•American Federation of Labor, 21 N L R. B.
564; Matter of Todd-Johnson Dry Docks Inc and International Union of Marine and
Shlpbnaldinq Workers of America , Nocal No . 29, 1S N L R B 973.
1090 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD
their votes for Lodge 688 or for neither the U. A. W., the Association,
nor Lodge 688, the tool and die employees shall be excluded from
the industrial unit. Likewise, if a majority of the machinists choose
the U. A. W. and/or the Association, the machinists shall be included
within the industrial unit and their votes counted for the determina-
tion of the representative as between the U. A. W. and the Associa-
tion, along with the other votes cast by the employees who are
already found to be included in the industrial unit. However, should
a majority of the machinists cast their votes for Lodge 41 or for
neither the U. A. W., the Association, nor Lodge 41, the machinists
shall be excluded from the general unit. We shall-certify the union
or unions, if any, designated by a majority of the employees within
the appropriate unit or units as the exclusive representative there-
of.11
VI. THE DETERMINATION OF REPRESENTATIVES
Prior to the hearing,, all the labor organizations involved herein
submitted to the Regional Director evidence of recent designation as
representatives for the purposes of collective bargaining by a sub-
stantial number of employees of the Company within the respective
units each claims to be appropriate. We find, however, that elections
by secret ballot can best resolve the questions concerning repre-
sentation.
The Company and the Association requested that the pay roll for
the period immediately preceding the Direction of Elections be used
as the basis for determining eligibility to vote, while the U. A. W.,
Lodge 688, and Lodge 41, requested that the pay roll for the period
ending June 5, 1940, which shows an increase in personnel of 18
employees, be used. Since the increased personnel is considered to
be permanent by the Company, there appears to be no reason why, in
accordance with our usual practice, the pay roll immediately preced-
ing the date of this Direction of Elections should not be used. We
shall therefore direct that all employees within the alleged appro-
priate units who were employed by.the Company during the pay-roll
period immediately preceding the date of this Direction of Elections,
including employees who did not work during such pay-roll period
because they were ill or on vacation and employees who were then or
have since been temporarily laid off, but excluding those who have
since quit or been discharged for cause, shall be eligible to participate
in the elections.
n See Matter of New York Evening Journal, Inc and Newspaper Guild of New York and
American Advertising Associates Union, Federal Local 21627 , 10'N L R B 14; Matter
of'Pacifle Gas and Electric Company and United 'Electrical & Radio Workers of America,
.3 N. L. R . B. 835.
LINCOLN ENGINEERING COMPANY 1091
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
Questions affecting commerce have arisen concerning the repre-
sentation of employees of,Lincoln Engineering Company, St. Louis,
Missouri, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
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, 49 Stat..449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rtiles and Regulations-Series 2, as
amended, it is hereby
DIRECTED that, as-part of the investigation ordered by the Board
to' ascertain representatives for the purposes of collective bargaining
with Lincoln Engineering Company, St. Louis, Missouri, elections 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 Director for the Fourteenth 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 those employees who fall within the groups indicated below
who were employed by the Company at its St. Louis, Missouri, plant,
during the pay-roll period immediately preceding the date of this
Direction of Elections, including employees who did not work during
such pay-roll period because they were ill or on vacation, and em-
ployees who were then or have since been temporarily laid off, but
excluding those who have since- quit or. been discharged for cause:
(a) All tool and die makers and apprentices employed in the tool-
room, excluding supervisory 'employees, to determine whether or not
they desire to be represented by Tool & Die Makers Lodge 688 of the
International Association of Machinists, District•No. 9, by Interna-
tional Union, United Automobile Workers of America, Local No. 691,
or by Lincoln Employes Benefit Association, for the purposes of
collective bargaining, or by none of these three labor organizations;
(b) All machinists, machine hands, helpers, and apprentices, em-
ployed in the machine shop, the fitting department, and the experi-
mental department, excluding supervisory employees, to determine
whether or not they desire to be represented by Progressive Lodge 41
of the International Association of Machinists, District No. 9, by
International Union, United Automobile Workers of America, Local
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 691, or by Lincoln Employes Benefit Association, for the pur-
poses of collective bargaining, or by none of these three labor
organizations ;
(c) All the remaining production and maintenance employees, ex-
cluding supervisory employees having authority to hire and dis-
charge, foremen, office employees, and watchmen, but including
linemen and group leaders, to determine whether they desire to be
represented by International Union, United Automobile Workers of
America, Local No. 691, or by Lincoln Employes Benefit Association,
for the purposes of collective bargaining, or by neither.
MR. EDWIN S. SMrrH, dissenting :
There is an absence of any bargaining history between the machin-
ist crafts and the Company in the present case. Under these cir-
cumstances, I see no warrant in granting the craft groups the
privilege of splitting themselves off from the general body of pro-
duction and maintenance workers who are seeking representation on a
plant-wide basis. The reasoning in my dissents in the, Allis?
Chalmers 12 and subsequent cases is here applicable.
12Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N L R B. 159, 175