McGann Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jul 13, 1944

57 N.L.R.B. 246 (N.L.R.B. 1944)

In the Matter of McGANN MANUFACTURING COMPANY , INC., and
UNITED STEELWORKERS OF AMERICA , C. I. O.
I
Case No. 4-R-1419.-Decided July 13,1944 ,
Mr. W. Burg Anstine, of York, Penn., for the Company.
Mr. Arthur F. Johnston and Mr. John Hartwick, of York, Penn.,
for the Union.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the United Steelworkers of America,
C. I:, 0., herein called the Union, alleging that a question affecting,
commerce had arisen concerning 'the 'representation of employees' of
McGann Manufacturing Company, Inc., York, Pennsylvania, herein
called the Company, 'the National -Labor Relations Board provided'
for an appropriate hearing upon due notice before Eugene M. Purver,
Trial Examiner. Said hearing was held at York, Pennsylvania, on
May 31, 1944. The Company and the Union appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear;
ing on the issues. The Trial Examiner's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed. All
,parties were afforded an opportunity to file briefs yvith the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
McGann Manufacturing Company, Inc.,, is a Pennsylvania corpora-
tion with its principal office and only plant in York, Pennsylvania. It
is engaged in the manufacture of heavy machinery, such as cargo,
winches, traveling cranes, lime and hydrate plants, marine buoys,
special machinery, chemical equipment, and special LST shipping
5'i N. L . R. B., No. 45.
246
MCGANN MANUFACTURING COMPANY, INC. 247'
parts. Approximately 15 percent of the raw materials used in the
manufacturing process is received from outside the Commonwealth
of Pennsylvania. During the calendar year 1943, it produced finished
goods valued at approximately $2,000,000, of which 85 percent was
shipped in interstate commerce and 10 percent in' foreign commerce.
-The, Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act..,
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the,,exclusive bargaining representative'of its production and main-
tenance ,employees until the Union has been certified by the Board
in an appropriate unit. _
A statement of the Trial Examiner made at the hearing, indicates
that the Union represents a substantial number of employees in the
,unit hereinafter found appropriate.-
We find that a question affecting commerce has arisen concerning
the representation of employees of the,Company, within the mean-
ing of'Section 9 (c) and Section 2 (6) and (7) of'the Act.
IV. THE APPROPRIATE UNIT
The Union asks for a unit comprising all-production and mainte-
nance employees, but excluding foremen, assistant foremen, guards,
office ^ and clerical employees, and all supervisory personnel. ' The
Company, agreeing with the' list of exclusions formulated' by the
Union, contends that pattern makers and foundry workers should be
excluded as well. '
The Company, asserts- that the Board has already considered the
question of the'appropriate unit among its production and-mainte-
nance 'employees and in' a decision handed 'down less than a year
ago decided'that the ;unit' which it now- seeks`is the appropriate one?
1 The Trial Examiner , stated at the hearing thatrthe petitioner had submitted 133 mem-
bership and authorization cards, all beaiiing apparently genuine signatures , dated as
follows : 2 in, March 1944 ; 125, in -April 1944 ; and 6 undated. He also stated that there
were 193 employees in the unit sought by the Union.'
eMatter of McGann Manufacturing Company , 52 N. L. R. 'B.'55. The I. A:'M. lost the
election At the hearing in the instant case, a representative of the I. A. M. appeared
to disclaim any interest in the present proceeding and any desire to have his union made a
party
248 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
The, Union, on the other hand„ contends that it was not a party to
the prior proceeding and therefore is not bound by that decision,
and that the considerations which induced the Board to exclude
foundry workers and pattern makers in the previous proceeding are
absent in the present, case.
In the previous case,,the petitioner, the International Association
of Machinists, sought a unit of 'all production and maintenance
employees, excluding foundry workers and pattern makers. It sought
to exclude foundry workers on the ground' that- they came -under ,the
jurisdiction of the Molders Union which was then conductm9 an
organizational -drive among them. The Company, contrary to its
present position, desired to include both foundry workers and pattern
makers because, it stated, the plant was small and the -work of all
departments was closely interrelated. The Board, stressing the fact
that the jurisdiction of the International Association of Machinists
,and the Molders Union ".. . is well defined and governed by agree-
ments between themselves which make for harmonious labor rela-
tions . . .," excluded the foundry workers from the unit. It also
excluded the pattern maker and his assistant because their work was.,
closely allied to that of the foundry workers.
The Board is not precluded from making a redetermination of the
appropriate unit, where, as here, its previous decision has not re-
sulted in either a certification or a history of collective bargaining.3
The circumstances which impelled us to exclude foundry workers and
pattern makers from the unit in the earlier decision are no longer
present. Since the foundrymen and pattern makers are clearly pro-
duction workers and there is no evidence of interest in either of these
two groups of employees by any other union, we shall include them
in the unit.
We find that all production and maintenance employees of the Com-
pany at York, Pennsylvania, including pattern makers' and foundry -
workers,5 but excluding foremen, assistant foremen, office sand clerical
employees, guards and all or any other supervisory employees *ith.,;
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 meaning of Section 9 (b) of the Act. ,
V. THE DETERMINATION OF REPRESENTATIVES
The Union's request that the date of eligibility to vote be the pay-
roll period of the date of the petition,or hearing because its •organi-
Matter o f Thomasville Chair Company, 54 N. L. R. B. 1071.
There are at present. six men in this category, which includes pattern makers'
assistants.
a This category includes carpenters and carpenters' assistants.
McGANN MANUFACTURING COMPANY, INC. 249
zational efforts were then completed is hereby denied. The reason
'given is not sufficient to justify a departure from our customary prac-
tice in fixing the date of eligibility. We shall direct that the question
concerning representation which has arisen be resolved by an elec-
tion by secret ballot among the employees in the appropriate unit who
were employed during the pay-roll period immediately preceding the
date of the Direction of Election, subject to the limitations and ad-
ditions set forth in the Direction.
`Of the 193 persons in the appropriate unit, 92 are classified by the
Company as temporary employees. The Company seeks to exclude
these temporary employees from voting, while the Union contends
that they should be permitted to vote. The temporary employees in-
clude (1) a group of men borrowed from other employers through
the United States Employment Service, under the so-called "York.
Plan," for full-time or spare-time work with the Company at their
.regular occupations, (2) a smaller miscellaneous group composed of
people like students, bank clerks, rural mail carriers, etc., who-spend,
some of their spare time working in the Company's factory. The
men in group (1) are not paid by the Company, at its own wage scale
but according to that of their respective regular employers. They are
also subject to recall at any time by their regular employers, as a
consequence, of which, the turn-over among such borrowed employees
is very high. The employees in group '(2) work no fixed number of
hours per week and,-so far as it appears, report for work and leave
at their convenience. Some of these employees work as little as 2 or
3 hours per week. The Company does not expect to retain either group
of temporary employees for more than approximately 4 months when
it contemplates completion of its present war -contract: Since em-
`p'loyees in group (1) are not paid according to the Company's wage'
scale and are subject to recall at any time, and since the hours of work
and manner of employment of employees in group (2) are so uncer-
tain and irregular, we find that 'neither group of temporary employees
has sufficient interest in common with the regular employees to be en-
titled to participate, in the election. Accordingly, we' shall exclude
both groups of temporary employees from participation in the election.
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 Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DmECEn that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with McGann Manufac-
turing Company, Inc., York, Pennsylvania, an election by secret ballot
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be conducted as early as possible, but not later than thirty, (30)
days from the date of this Direction, under the, direction and supervi-
sion of the Regional Director, for the Fourth Region', acting in this
matter as.agent for the National Labor Relations Board, and subject
to Article, III, Section's 10 and 11, of said Rules and Regulations,
among the employe'es'-in the unit found appropriate'in Section IV,
above,'who were employed during the pay-roll period immediately pre-
ceding the date of this Direction, including employees who did not
work during the said pay-roll period because they were ill or on vaca-
tion or temporarily laid off,' and including employees in'- the armed'
forces 'of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, to determine whether or not they desire to be,
represented by United Steelworkers of America, affiliated with the
Congress of Industrial' Organizations, for the purposes of collective"
bargaining. '