Locke Insulator Corporation

National Labor Relations Board - Board Decisions

Jul 17, 1939

13 N.L.R.B. 615 (N.L.R.B. 1939)

In the Matter of LOCKE INSULATOR CORPORATION and CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. R-1364.--Decided July 17, 1939
Insulator Manufacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : controversy concerning appro-
priate units ; rival organizations ; employer 's refusal to recognize petitioning
union-Contracts : because of length of time elapsed since they were entered
into , does not preclude Board from investigating or certifying representatives-
Units Appropriate for Collective Bargaining : craft or plant : elections to deter-
mine ; separate unit of machinists if election shows these employees desire it ;
separate unit of firemen , oilers, water-tenders, and engineers in powerhouse
if election shows these employees desire it ; unit composed of all other produc-
tion and maintenance employees , excluding supervisors , foremen , and clerical
employeesElections Ordered
Mr. Reeves R. Hilton and Mr. Samuel M. Spencer, for the Board.
Weinberg, Sweeten & Green, by Mr. Harry J. Green, of Baltimore,
Md., for the Company.
Mr. Frank J. Bender, of Baltimore, Md., for the United.
Mr. E. L. Wheatley, of Trenton, N. J., for the Potters.
Mr. F. Nicholas Kershaw, of Baltimore, Md., for the I. A. M.
Mr. Roscoe Eminizer, of Baltimore, Md., for the Engineers.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On February 25, 1939, United Brick and Clay Workers L. I. U.
936, affiliated with the Congress of Industrial Organizations,' herein
called the United, filed with the Regional Director for the Fifth
Region (Baltimore, Maryland) a petition, subsequently amended,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Locke Insulator Corporation, Bal-
timore, Maryland, 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
'In the order directing investigation and hearing , the organization was designated
merely "Congress of Industrial Organizations ," omitting "United Brick and Clay Workers
L. I. U. 936.
13 N. L. R. B., No. 70.
615
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. On March 28, 1939, 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 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 April 4 and 17, 1939, respectively, the Regional Director issued
a notice of hearing and an amended notice of hearing, copies of which
were duly served upon the Company, upon the United, upon National
Brotherhood of Operative Potters, herein called the Potters, upon
International Association of Machinists, herein called the I. A. M., and
upon International Union of Operating Engineers, Local 272, herein
called the Engineers, labor organizations claiming to represent em-
ployees directly affected by the investigation. Pursuant to the
amended notice, a hearing was held on April 24, 1939, at Baltimore,
Maryland, before George O. Pratt, the Trial Examiner duly desig-
nated by the Board. The Board and the Company were represented
by counsel, and the United, the Potters, the I. A. M., and the Engineers
by their representatives; all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. Dur-
ing 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.
On June 15, 1939, the Board received a letter from counsel for the
Company stating that a substantial turn-over had taken place in the
Company's personnel since the hearing and requesting that the letter
be made a part of the record. The letter is hereby made a part of
the record.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TH' COMPANY
The Company is a Maryland corporation engaged in the business
of manufacturing, selling, and distributing electrical insulators and
electrical and mechanical porcelain and metal attachments. The prin-
cipal raw materials used by the Company are clay, felspar, and flint.
The Company spends approximately $1,000,000 annually for raw mate-
rials, 80 per cent of which are shipped to it from points outside the
State of Maryland. Approximately 85 per cent of the manufactured
products are shipped to points outside the State of Maryland. The
LOCKE INSULATOR CORPORATION 617
Company does an annual business amounting to approximately
$1,800,000 and employs an average of 500 employees. The Company
admits that the Board has jurisdiction.
II. THE ORGANIZATIONS INVOLVED
United Brick and Clay Workers L. I. U. 936 is a labor organization
affiliated with the Congress of Industrial Organizations . It admits
to membership all the production and maintenance employees of the
Company, excluding supervisors , foremen, and clerical employees.
National Brotherhood of Operative Potters is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership all the employees of the Company, including clerical em-
ployees and supervisors , but excluding firemen, oilers , and machinists.
International Association of Machinists is a labor organization affili-
ated with the American Federation of Labor , admitting to its mem-
bership the machinists employed by the Company, excluding
supervisors.
International Union of Operating Engineers , Local 272 , is a labor
organization affiliated with the American Federation of Labor. It
admits to membership the firemen , oilers, water -tenders, and engineers
employed by the Company in its powerhouse , excluding foremen and
supervisors.
III. THE QUESTION CONCERNING REPRESENTATION
On November 2, 1934, the Company entered into a contract with
the International Brotherhood of Firemen, Water Tenders, Oilers,
Coal Passers, Maintenance Men, and Helpers, Local No. 341, herein-
after referred to as Local 341, governing the working conditions of
the employees in the power plant. It does not appear upon the face
of the contract, nor does the record disclose, whether this contract
was as an exclusive bargaining contract or operated as a contract
for members only. The contract was for a term of 1 year, with the
further provision that it should remain in effect thereafter unless
either party thereto by 30 days' notice advises the other of a desire
to terminate it. No such notice has been given. The Engineers suc-
ceeded to all the rights under this contract.
On April 1, 1935, the Company entered into a contract with the
Potters, governing the wages and hours of all the employees except
those employed in the power plant and the machinists. As to this
contract also it is not disclosed by the record whether it is an exclusive
bargaining contract or one for members only. This contract is like-
wise terminable upon 30 days' notice of either party thereto, but no
such notice has been given.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In February 1939, the United commenced organizational activ-
ities in the plant and on February 22, 1939, claiming to represent
a majority of the employees, requested the Company to deal with it as
exclusive representative of the employees. The president of the
Company refused this request and stated that the Company would
not bargain with the United until it was certified by the Board as
the exclusive representative of the employees.
The Engineers and the Potters maintain that the contracts men-
tioned above are still in full force and effect. However, in view of the
length of time which has elapsed since the contracts were entered into,
the Board is not precluded from investigating or certifying repre-
sentatives for the purposes of collective bargaining.2
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
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 UNITS
The United contends that all the production and maintenance em-
ployees of the Company, including watchmen, but excluding foremen
and clerical employees, constitute a unit appropriate for the purposes
of collective bargaining. The Potters asserts that all the employees,
including supervisors, foremen, watchmen, and clerical workers, but
excluding firemen, oilers, water-tenders, engineers, and machinists,
constitute an appropriate unit for collective bargaining purposes.
The Engineers claims that the firemen, oilers, water-tenders, and en-
gineers employed in the Company's powerhouse should be a separate
unit. The I. A. M. urges a separate unit for the machinists employed
by the Company. The Company takes a neutral position as to what
should constitute the appropriate unit or units.
Machinists. Although no signed agreements were reached at any
time between the I. A. M. and the Company, there have been continu-
ous and friendly relationships between them. In 1934 the I. A. M.
2 Compare Matter of Heldman-Schild-Lasser, Inc. and Cincinnati Joint Board of the
Amalgamated Clothing Workers of America ( C. I. 0.), 11 N . L. R. B. 1289.
LOCKE INSULATOR CORPORATION 619
made an oral agreement with the Company on behalf of the machinists
employed in the machine shop, covering wages, hours, and working
conditions. The record does not disclose whether or not this agreement
operated as an exclusive bargaining contract. On several occasions
when a vacancy has occurred in the machine shop, the foreman of that
department has requested the I. A. M. to send over applicants for the
position. On the other hand, evidence was introduced to show the
highly integrated character of the plant and the appropriateness of an
industrial unit including the machinists. The employees in the ma-
chine shop could thus function either as a separate unit or as part of a
single industrial unit. Accordingly, we will follow our previous
rulings in similar situations that the determining factor is the desire
of the employees themselves.3
It appears that there are 21 machinists in the plant. Although the
I. A. M. did not introduce any documentary evidence of membership,
it claimed that it had 12 members among the machinists. The United
stated that if an election were held among the machinists it wished to
appear on the ballot. An election will be held among the machinists
in the machine shop to determine whether they wish to be represented
by the I. A. M. or by the United. On the results of this election will
depend the appropriate unit. If these employees choose the I. A. M.,
they will constitute a separate and distinct appropriate unit. If they
choose the United, they will be merged into the company-wide indus-
trial unit.
Firemen, Oilers, Water-Tenders, and Engineers. The Engineers
contends that these employees constitute a separate unit for collective
bargaining. All of them are employed in the powerhouse, which is
physically separated from the remainder of the plant. These em-
ployees were covered by the contract negotiated on their behalf by
the International Brotherhood of Firemen, Water Tenders, Oilers,
Coal Passers, Maintenance Men and Helpers, Local 341, with the
Company in 1934. As stated above, the Engineers succeeded to all
the rights under this contract. While the contract has not been ter-
minated, it appears that relationships between the Company and the
Engineers have been in a dormant state since 1937. We are of the
opinion that these employees could with equal propriety be included
within the industrial unit or constitute a separate bargaining unit.
Under the circumstances, we will follow our previous rulings that the
determinative factor is the desire of the employees themselves.4
s Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local
No. 3 et al., 3 N L. R. B. 294 , and subsequent cases.
4 See footnote 3, supra. See also Matter of Joseph S Finch & Co, Inc and United
Distillery Union, Local No 3 et al ., 7 N. L. R B. 1; Matter of Wsllys Overland Motors,
Inc. and International Union, United Automobile Workers of A merica, Local No. 12,
9 N. L. R. B. 924.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are nine employees in the unit claimed by the Engineers to
be appropriate. The Engineers claimed membership among these
employees, though it did not introduce any documentary evidence of
such membership. The United stated that in the event of an election
for the firemen, oilers, water-tenders, and engineers it wished to appear
on the ballot. An election will be held among the firemen, oilers, water-
tenders, and engineers employed in the powerhouse to determine
whether they wish to be represented by the Engineers or the United.
If these employees choose the Engineers, they will constitute a sepa-
rate and distinct appropriate unit. If they choose the United, they
will be merged into the company-wide industrial unit.
Clerical Employees. As above stated, the United desires the exclu-
sion of these workers, and the Potters their inclusion. With respect
to the clerical employees, the record discloses little more than the
preference of the rival unions. No special reason appears why these
persons should be included in the unit under consideration. We have
normally excluded clerical employees from a unit composed of produc-
tion and maintenance employees, where one union desires their exclu-
sion.5 We shall accordingly exclude the clerical employees from the
industrial unit.
Supervisors and Foremen. The Potters desires the inclusion of
these workers and the United their exclusion. Where, as here, there
is a rivalry among labor organizations claiming to represent em-
ployees, it is important that the employer be free from the imputa-
tion of coercing his employees in their choice of representatives.
Since the supervisors and foremen are identified with the manage-
ment, it is not improbable that their participation in a controversy
between rival unions will lead to charges of employer interference.
We will, therefore, exclude supervisors and foremen from the indus-
trial unite
We find that all the production and maintenance employees of
the Company, including watchmen, but excluding supervisors, fore-
men, and clerical employees, may properly constitute a unit appro-
priate for the purposes of collective bargaining which would insure
to employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate
the policies of the Act. As indicated above, machinists in the ma-
chine shop, and firemen, oilers, water-tenders, and engineers in the
powerhouse may or may not be included within such unit, depend-
ing on the results of elections which we shall order. We shall
'Cf. Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 91164,
5 N. L. It. B. 768.
6 See Matter of Rem Manufacturing Co., Inc. and A. F. of L_ Federal Local Union No.
20893, 7 N. L. R. B. 95.
LOCKE INSULATOR CORPORATION 621
therefore make no final determination of the appropriate unit pend-
ing the elections to be conducted among the machinists in the machine
shop, and firemen, oilers, water-tenders, and engineers in the power-
house.
VI. THE DETERMINATION OF REPRESENTATIVES
We have heretofore decided that separate elections will be held
to determine the collective bargaining representatives for the ma-
chinists and the firemen, oilers, water-tenders, and engineers. The
question of determining collective bargaining representatives for the
industrial unit set out heretofore remains.
At the hearing the United introduced in evidence 319 member-
ship cards purporting to be signed by employees of the Company.
The Company introduced its pay roll dated February 26, 1939, con-
taining the names of 450 employees in the unit claimed by the
United to be appropriate. Almost all of the United cards were signed
during February 1939. The authenticity of the signatures on the
cards was not supported by any testimony and the Potters objected
to the use of the cards as a basis for certifying representatives. The
Potters did not introduce any documentary evidence of membership,
but claimed that it had members in the plant and stated that it
desired to be on the ballot in an election. We find that the question
concerning representation can best be resolved by means of an election
by secret ballot.
As stated hereinbefore, the Company introduced its pay roll of
February 26, 1939, in evidence. The parties first agreed at the
hearing that, in the event the Board should direct an election, the
eligibility of an employee to participate therein should be determined
by the presence of his name upon that pay roll. Subsequent to this
agreement, the Company stated that a pay roll for the period from
February 21 to April 23, 1939, bearing the names of 500 employees,
would be more appropriate as it considers all of these workers
regular employees and that the pay roll of February 26, 1939, does
not contain the names of all the regular employees. Evidently a
pay roll covering a period of two months is a more accurate reflec-
tion of the employment conditions in the Company's plant than is a
pay roll for a single date. In view of the time that has elapsed
since the filing of the petition herein, we will direct that the em.
ployees eligible to vote will be those employees who were employed
during the 2-month 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
and employees who were then or have since been temporarily laid
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off, but excluding those who have since quit or been discharged for
cause.
Upon the basis of the above findings of fact and upon the entire rec-
ord in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the representa-
tion of employees of Locke Insulator Corporation, Baltimore, Mary-
land, 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 Relations 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 authorized by the Board
to ascertain representatives for collective bargaining with Locke In-
sulator Corporation, Baltimore, Maryland, elections 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 Fifth 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 :
1. Among the machinists in the machine shop who were employed
by the Company during the 2-month pay-roll period immediately
preceding the date of this Direction, 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 employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Inter-
national Association of Machinists, affiliated with the American Fed-
eration of Labor, or by United Brick and Clay Workers L. I. U. 936,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining, or by neither;
2. Among the firemen, oilers, water-tenders, and engineers in the
powerhouse who were employed by the Company during the 2-
month pay-roll period immediately preceding the date of this Direc-
tion, 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 employees
who have since quit or been discharged for cause, to determine whether
LOCKE INSULATOR CORPORATION 623
they desire to be represented by International Union of Operating
Engineers, Local 272, affiliated with the American Federation of
Labor, or by United Brick and Clay Workers L. I. U. 936, affiliated
with the Congress of Industrial Organizations, for the purposes of
collective bargaining, or by neither;
3. Among all other production and maintenance employees who
were employed by the Company during the 2-month pay-roll period
immediately preceding the date of this Direction, 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 tem-
porarily laid off, but excluding supervisors, foremen, clerical em-
ployees, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by United,
Brick and Clay Workers L. I. U. 936, affiliated with the Congress
of Industrial Organizations, or by National Brotherhood of Opera-
tive Potters, affiliated with the American Federation of Labor, for
the purposes of collective bargaining, or by neither.
MR. EDWIN S. SMITH, concurring :
By reason of the previous history of bargaining relations between
the I. A. M. and the Company, and the Engineers and the Company,
in the plant before the advent of the United, I concur in the decision
to give the employees in these craft groups the opportunity to vote
either to retain their accustomed bargaining status or to merge their
interests with their fellow employees in the industrial unit .7
MR. WILLI(M M. LEISERSON took no part in the consideration of
the above Decision and Direction of Elections.
I See my concurring opinions In Matter of American Hardware Corporation and United
Electrical and Radio Workers of America, 4 N. L. R. B. 412; Matter of Vultee Aircraft
Division, Aviation Manufacturing Corporation and United Automobile Workers of America,
Local 361, 9 N. L R . B. 32; Matter of William Powell Company and Pattern Makers
Association of Cincinnati , 12 N. L . R. B. 115.