Marshall Stove Co.

National Labor Relations Board - Board Decisions

Jul 15, 1944

57 N.L.R.B. 375 (N.L.R.B. 1944)

In the Matter of - MARSHALL STOVE COMPANY and UNITED STEEL,
WORKERS OF AMERICA, CIO
Case No. 10-R-1140.Deeided July 15, 1944
Mr. Lindsey ill . Davis , of Nashville , Tenn., for the Company.
Mr. William Dumn, of Nashville, Tenn ., for the C. I. O.
Messrs. Shelley lValdon and Draper Doyal, of Cincinnati, Ohio,
for the Molders.
Mr. Herbert 0. B. King and Miss Virginia Lee Roberts, of Chat-
tanooga, Tenn., and Messrs . Russ O'Neal and Edward Winters, of
South Pittsburg , Tenn.,' for the Stove Mounters.
Mr. William C . Paisinger . Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Steelworkers. of
America, CIO, herein called the C. I. 0., alleging that a question
affecting Commerce had arisen concerning the representation of em-
ployees of_ Marshall Stove Company, Lewisburg, Tennessee, herein
called•tlI Company, the National Labor Relations Board provided for
an.-appropriate hearing upon due notice before T. Lowry Whittaker,
Trial Examiner. Said hearing was held at Lewisburg, Tennessee, on
May 22, 1944. The Company, the C. I. O. International 'Molders
and Foundry Workers Union of North America, Local No. 170 A. F.
of L:, herein called the Molders, and Stove Mounters International
Union, Local No: 14, A. F. of L., herein called the Stove Mounters,
the latter two organizations being herein collectively referred to as
the A. F. of L. Unions, appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence bearing on the issues, and to file briefs
with the Board.- At the hearing the A. F. of L. Unions moved to
dismiss the petition on the grounds that (1) their bargaining contract
with the company is'a bar to this proceeding, and (2) the C. I. O.'s
evidence of representation with respect to the employees within'the
'57N.L.R B., No. 71.
375
'376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit it alleges to be appropriate is not substantial enough to raise a
question concerning representation. The Trial Examiner reserved
ruling upon this motion for the Board. For reasons stated in Section
III, infra, we hereby deny the motion. The Trial Examiner's rulings
made at the hearing are free from prejudicial error aiid-are hereby
affirmed. `
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Marshall Stove Company is a Tennessee corporation having its prin-
cipal office and place of business at Lewisburg, Tennessee, where it is
engaged in the manufacture of cast iron and magnesium castings.
During the last 12 months the Company purchased raw materials con-
sisting of iron, steel, magnesium, coal, equipment, machinery, and sup-
plies valued in excess of $500,000, of which approximately 60 percent
was shipped to its Lewisburg, Tennessee, plant from points outside the
State, of Tennessee. For the same period the Company's finished_prod-
ucts consisting of stoves, stove parts, magnesium castings and magne-
sium casting parts, were valued in excess of $800,000, of which ap-
proximately 90 percent was shipped to points outside the State of Ten-
nessee.
The Company admits, and we find,' that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, is a labor organization affiliated'
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
. International Molders and Foundry Workers Union of North Amer=
ica, Local No.. 170, and Stove'Mounters International Union of North
America, Local No. 14, are labor organizations affiliated with the
American Federation of Labor, admitting to membership employees
of the Company.
III. THE-QUESTION CONCERNING REPRESENTATION
From August 1938 to about June 16, 1943, the Company operated
under several consecutive collective bargaining contracts with the.
Molders and the Stove Mounters; respectively. By virtue of the afore-
said contracts the Molders was recogiiiked as the exclusive bargaining -
representative of all employees of the Company engagedin the produc-
tion of castings and the Stove Mounters was recognized as the ex-
MARSHALL STOVE, COMPANY 377
'elusive bargaining agent of those employees of the Company engaged
in certain' manufacturing operations which follow the production of
castings. The respective terms of each set of contracts ran for rela-
tively parallel periods of time. On June 16, 1943,, the A. F. of L.
Unions, jointly entered into a contract with the Company covering
a single bargaining unit comprised of the two groups of employees
who had theretofore been bargained for as separate units. This latter
contract provided that it should remain in effect until June 16, 1944.
It also contained a provision that, "Either party desiring to change
the terms of this agreement shall notify the other party in writing
sixty (60) days before expiration of this agreement, otherwise this
agreement continues from year to year." , -
On or, about January 17, 1944, the C. I. O. notified the Company
that it represented a majority of the employees within an alleged ap-
propriate bargaining unit and requested the Company not to enter
into a new contract or renew the current bargaining agreement with
the A. F. of L. Unions pending a determination of representatives,by
the Board. By letters dated April 15 and 17, 1944, respectively, the
Molders and the Stove Mounters, separately informed the Company
that they desired to renew their contract with the Company for an
additional year pursuant to the automatic renewal 'clause: On, April
20, 1944; the C. I. O. filed the amended petition herein.
The A. F. of L. Unions contend that the contract of June ,16,
1943, as renewed for an additional year constitutes a bar to a pres-
ent determination of representatives. We cannot agree with this
contention. ,
It is the established policy of the Board that a bargaining contract
-executed or renewed after the employer has received notice that a
rival union challenges the contracting union's status as the exclusive
bargaining representative is no bar to a-determination of representa-
tives.1 Therefore, since it is undisputed that the Company received
notice of the C. I. O's claim of representation prior to the renewal
date of June 16, 1943, contract, we find that the contract is not a bar
to an immediate determination of representatives. _
We also find, contrary to the contention of, the A. F. of L. Unions,
that -the statement prepared by a Field Examiner v,f the Board, in-
troduced into,evidence at the hearing, indicates that the' C. I. O.
represents a substantial number of employees within the unit here-
inafter found to be appropriate.2
'Matter of CraddocA-Terry Shoe Cori), 55 N L R. B 1406
1 The Field Examiner reported that the C I. 0 submitted 208 application for membership
cards bearing the names of persons whose names appear on the Company's pay roll of
February 26, 1944, which contains the names of 52S, persons within the unit it alleges to be
appropriate.
The A. F. of L.'Unions rely upon their contract with the Company to substantiate 'their
respec tive representation claims. According to the, Field Examiner's report, the aforesaid
378 DECISIONS OF NATIONAL LABOR `RELATIONS BOARD
We find that a question affecting 'Commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE,UNIT
Contentions of the parties
.'The C. I. O. seeks a single plant-wide production and maintenance
unit while the A. F. of L. Unions contend that the employees of,the
Company within their respective jurisdictions comprise two separate
appropriate units. The Company takes a neutral position.
The Company's plant
Until recently the Company was engaged in, the manufacture of
stoves ,arid stove parts; however, within the past 2 years its, plant
was converted for the purpose of-producing magnesium castings for
aircraft motors and gun turrets. Before conversion, the Company's
plant consisted of two separate buildings, approximately 30 feet apairt,
known as the north and south plants. The north plant housed the
foundry in which gray iron castings for stoves were produced and
the south plant contained the stove assembly operations. Since the
Company has been engaged in war production, the alley-way between
the north and south plants has been covered in order to provide more
operating space, so that now all the Company's operations are per-
fornied.urider a single roof. In converting from the manufacture of
gray iron castings to magnesium castings the Company's operations
have undergone both functional and physical changes involving new
processes, 'rearrangement of departments, employment of new person-
nel, and the addition of a number of new departments. As a result
of this, operational expansion many of the Company's older em-
ployees,.because of their skill and experience, have been promoted and
transferred to new or different departments. -
History of collective bargaining
As previously mentioned in°Section UI, supra, prior to the execution
of their joint bargaining contract of June 16, 1943, the Molders and
the Stove Mounters each represented a group of the Company's em-
ployees pursuant to the provisions of successive separate collective
bargaining agreements dating back to August 1938. The Molders'
contract unit consisted of all employees engaged in the production of
castings while the Stove Mounters represented all employees engaged
in manufacturing operations subsequent to the production of castings
pay roll lists 184 persons in the unit sought by the Stove Mounters and 310 persons in
the unit which the Molders alleges to be appropriate.
'MARSHALL STOVE COMPANY '379-
The employees comprising the Molders ' unit, while not strictly a craft
group, were for the most part employed ' in the north plant , and the
employees in the Stove Mounters ' contract unit worked in the south
plant. Under the Company's present operational set-up the , A. F. of
L. Unions found it difficult to adhere to departmental lines in identi-
fying their respective units . This was especially true with respect to
the new departments which the Company found it necessary to create.
As a result the A. F. of L . Unions jointly executed the contract -of June
16, 1943. Throi gh6ut`t,his contract the A . 'F. of L . Unions are referred
to as the "Union ." Section III of the contract reads as follows :
The employees , recognized as the appropriate unit for collective
bargaining , are generally those engaged in the production and
processing of magnesium castings ; Molders, Core Makers, Chill
Department Workers, Core Assemblers , Melters, Pourers, Shake-
out, Knock -out, Sandblast , Band Saw , Rough Lathe, Boring Mill,
Drill Press , Chip, Heat Treat , Inspection , Dip, Rotary File,
Grind, Polish, Buff; Final Sandblast , Pack and Stencil, Ship,
Pressure Test, Chrome Pickle, Impregnating , Repair Department
Workers; and Receiving Labor, excepting Plant Guards , Inspec-
tors, Supervisors , Timekeepers , clerical employees , officials,
Laboratory Personnel and Executives..
The contract further provides that "any jurisdictional disputes between
unions or crafts will be adjusted between unions or crafts . .." The
contract also expressly acknowledges the Company's right to "employ,
transfer or promote persons of its own selection . .." It provides for
a single plant grievance committee composed of three, employees, of
which no more than one shall come from any department. Wage scales
appear under the heading, "rates," in an appendix to the contract. All
other provisions of the contract such'as hours of employment, over-
time, and.other conditions of employment, are set out generally for all
employees.
The A. F. of L. Unions contend that the long history of collective
bargaining 'among the Company's employees on the basis of two
separate units militates against the establishment of the single plant-
wide unit sought by the C. I. O. They -argue that, although they en-
tered into a single bargaining agreement with the Company on June
16,1943, they have maintained their separate identities and the separa-
tion of their units has been recognized under this contract.-
While bargaining history is relevant and often persuasive in de-
termining the appropriate unit, it is but one of the factors to be con-
sidered and, under all the circumstances in this case, we are convinced
that it,is not conclusive. The conversion to war production has pro-
duced changes so fundamental that the past history of bargaining can-
not be considered as controlling the determination of the appropriate
DSO DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit. It- is clear that -all the Company departments are functionally
interdependent. The record supports the conclusion that, under the
'Company's present operational set -up, the bargaining units previously
established by collective bargaining agreements have lost their identi-
'ties,and may no longer be considered appropriate. It is apparent that,
this fact was also recognized by the, contracting parties when they
negotiated their last contract. Furthermore, the A. F. of L. Unions
have indicated their willingness'to continue their joint agreement for
another year. Accordingly, we find, that, a single plant-wide unit is
-appropriate for the purposes of collective bargaining.
There remains for consideration the specific composition of the
unit.
At the hearing the parties based their contentions as to the ap-
propriate unit upon a current classified pay roll of the Company
which 'was introduced into evidence. The C.'I. O.'s proposed unit
includes all employees' in the Sand Conditioning Department, Core
Department, Molding Department, Pour and Shakeout Department,
Melting Department, Maintenance Department, Pattern Department,
Reclaim Department, Rough Cleaning Department, Gate Removing
Department, Heat Treat Department (except junior clerks), Rotary
Filing Department, Final Operations Department, Shipping Depart-
ment, Receiving Department (except clerks-stockroom, clerks-stock-
.room beginners and clerk-receiving), Carpenter Shop, Stove Repair
Parts Department, and General Factory Department (except matron
:and laboratory employees), of the Company, but excludes militarized
guards and watchmen, employees of the Experimental Department,
Lay-out and`Dimensional Department, and Personnel Department,
office clerical help, timekeepers, general foremen, foremen class I, fore-
'',men class Ih, shift foremen and all supervisors with authority to
recommend hiring and discharging. . A combination of the,units
sought by the A. F. of L. Unions coincides substantially with the single
knit which the C. I. 0. claims -is appropriate. The parties, however,
disagree with respect to the inclusion of certain employee classifica-
tions in the appropriate unit. We shall discuss each of these disputed
categories below :
Head sand mix operator: This employee works in the sand con-
ditioning department. He is in charge of about 12 employees and
has authority effectively to recommend their discharge. He spends
the majority of his working time supervising the work of these em-
ployees whose function- it is to, run tests on sand, and the remainder
-of the time he conducts special tests on the 'sand for, moisture content
and permeability. He reports directly to the general foreman of the
department. The C. I. 0. 'is the- only interested party who desires his
inclusion. In view of his apparent supervisory 'authority, we' shall
exclude the -head sand^mix operator from the appropriate unit.
MARSHALL STOVE COMPANY 381
Melting control operator: This position is held by a female'em
ployee in the Melting Department. She works in the foundry and
sits in a chair beside an electric control switch and a dial which records.
the temperature of the melting pot. It-is her- duty to note the tem=
perature indicated on the dial and to inform the melting helpers
whether or not more heat should be applied"to the melting pot. The;
operator is paid an hourly wage and has no supervisory duties. - She-
is under the supervision of the foreman in charge of the melting-
operation. The Company desires her exclusion on the grounds that,
her duties are purely clerical. The C. I. 0: and the A. F. of L. Unions
would include her in the appropriate unit. Since her duties are,
closely connected with the production of castings, we shall include the-
malting control operator in the appropriate unit.
Welder: The welder in dispute is in charge of the` new Reclaim,
Department of the Company. He exercises a high degree of skill in-
the performance of his welding duties. He supervises four employees,,
has authority to recommend' their discharge, spends approximately
75 percent cf his working time in supervising and the remaining 25.
percent performing wekliug operations, and reports directly to the-
plant superintendent. His pay is comparable to that of a, shift forve-
tnan. , The C. I. 'O. and the A. F. of- L. Unions would include this-
welder in the appropriate unit, while the Company desire's his ex--
elusion. Since it appears that his duties bring him within our cus-
tomary definition of supervisory employees, we' shall exclude- the
welder in charge of the Reclaim Department from the appropriate
unit
Production clearers: The Company employs a number of-high-School'
boys in its General Factory Department who are classified as produc-
tion chasers. Certain special castings must be produced within, a
limited time and it is the duty of the production chasers to follow upa
each special casting to see that it receives special and immediate at-
tention on the production line. They report to the plant superinten-
dent. In the performance of their duties the production chasers keep
a running record of each special casting. The Company contends that
they should be excluded from the appropriate unit because of their'.-
clerical duties. The C. I. O. and A. F. of L. Unions- desire that the
production chasers be included in the'unit. 'Since it appears thahtheir
duties and interests are closely related to production,.we,shall inchul-v
the production chasers in the appropriate unit.
Inspectors and inspectors-junior: These employees are listed as-part
of the General Factory .Department, but are assigned throughout the,
plant to regular stations for the purpose of checking castings for de-
fects. They work under the supervision of the- chief inspector and,,
in connection with their inspection duties, they keep records and'
report defects to the chief inspector who in turn, reports-to.the'foremant
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in charge-of the particular job reported. .Experience and skill is the
only factor differentiating inspectors from inspectors-junior. Neither
of these classifications of employees has authority to make recommenda-
tions affecting' the production workers pay or. employment status.
They are transferred from station Jo station throughout the plant.
The C. I. O. desires their inclusion iii the appropriate unit. The Com-
'pany seeks their exclusion on the ground that they are It part of man-
agement. The A. F. of L. Union do not take a positive position with
respect to these employees. Since inspectors and inspectors-junior
work in the plant in close proximity to the production workers,. have no
supervisory authority'ancl are in no respect part of management, we
:shall include them in the appropriate unit.
In view of the foregoing facts and upon the entire record in the case,
we find that all'employees of the Company ernployed'in the Sand Con-
ccitioning Department (except the head sand mix operator), Core De-
partment, Molding, Department, Pour, and Shakeout Department,
Melting Department(including the meltingc'ontrol operator), Mainte-
nance Department, Pattern Department, Reclaim Department (except
Welder), Rough Cleaning Department, Gate Removing Department,
Heat Treat Department (except junior clerks), Rotary Filing De-
partment, Final Operations Department, Shipping , Department,
Receiving Department (except clerks-stockroom, clerks-stockroom
beginners and clerk-receiving)', Carpenter Shop, Stove Repair Parts
Department, General Factory Department (except matron and labora-
tory employees, but including production chasers and inspectors and
inspectors-junior), excluding militarized guards and watchmen, em-
ployees of the Experimental Department, Lay-out and Dimensional
I)epartmerit, and Personnel Department, office clerical workers, time-
keepers, general foremen, foremen class I, foremen class II, shift fore-
men, and all other supervisory employees' with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act. . ,
V. THE DE1ERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately, preceding the date of the Direction of Election
herein, subject ' to the limitations ',an,d additions ' set forth in the
Direction.3 '
,s At the healing the C I. 0 and the A. P of L Unions requested that their names
appear on the ballot as heiemafter set forth in the Direction of Election
MARSHALL STOVE COMPANY 383
'We shall place the A. F. of L. Unions jointly on the ballot and if
they are selected by a majority of the employees voting in the election
hereinafter directed, they will be jointly certified as the single repre-
sentative of the employees comprising the appropriate unit.
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, it is hereby
DIRECTED (hat,-as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with,Marshall Stove
,Company, Lewisburg, Tennessee, an election by secret ballot shall be
conducted as early as:possible, but not later than thirty (30) days from,
the di to of this Direction, under the direction and supervision of the
Regional Director for the Tenth 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 unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during 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 pre-
sent themselves in person at the polls, but excluding any who have since
quit or been discharged for cause, and have not been rehired or rein-
stated prior to the date of the election, to determine whether they desire
to be represented by United Steelworkers of America, CIO, or by I•i-
ternational Molders and Foundry Workers Union of North America,
Local No. 170, A. F. of L., a'id Stove Mounters Union of North Amer-
ica, Local No. 14, A. F. of L., jointly, for the purposes of collective
bargaining, or by neither.
Mn. GEnArn D. REILLY took no part in the consideration of the above
Decision and Direction of Election.