R. G. Le Tourneau, Inc.

National Labor Relations Board - Board Decisions

May 6, 1946

67 N.L.R.B. 1166 (N.L.R.B. 1946)

In the Matter of R. G. LE TOURNEAU, INC. and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA
Case No. 13-R-3368.Decided May 6, 19416
Mr. W. W. Kimmell, of Peoria, Ill., for the Company.
Mr. John L. Mayo, of Peoria, Ill., for District 50.
Messrs. A. F. Young and Thomas M. Conway, of Peoria, Ill., and
Mr. John J. Manning, of Kansas City, Mo., for the Boilermakers.
Meyer & Meyers, by Mr. Irving Meyers, of Chicago, Ill., and Mr.
Bruce Brown, of Peoria, Ill., for the CIO.
Mr. Samuel G. Hamilton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by District 50, United Mine Workers
of America , herein called District 50, alleging that a question affecting
commerce had arisen concerning the representation of employees of
R. G. Le Tourneau , Inc., Peoria , Illinois, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before William O. Murdock , Trial Examiner.
The hearing was held at Peoria , Illinois, on March 26 , 1946. The
Company , District 50; Local 158 , International Brotherhood of
Boilermakers , Iron Shipbuilders , Welders and Helpers of America,
AFL, herein called the Boilermakers ; and United Farm Equipment
and Metal Workers of America , CIO, herein called the CIO7
appeared and participated . All parties were afforded full opportunity
to be heard, to examine and cross -examine witnesses , and to introduce
evidence bearing on the issues.
At the hearing , the Boilermakers moved to dismiss the petition, on
the grounds that (1) the showing of District 50 of approximately 388
members in the alleged appropriate unit of approximately 1800 em-
ployees is insufficient , and that ( 2) the contracts between it and the
Company are a bar to the present determination of representatives.
Ruling on the motion was reserved for the Board. For reasons ap-
67 N. L . R. B. No. 151.
1166
R. G. LE TOURNEAU, INC. 1167
pearing in Section III, infra, the motion is hereby denied.' The
Trial Examiner's rulings made at the hearing are free from prejudi-
cial error and are hereby affirmed. All parties were afforded oppor-
tunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
R. G. Le Tourneau, Inc., is a California corporation with its prin-
cipal offices at Peoria, Illinois. The Company operates several plants
in the United States and foreign countries. We are here solely con-
cerned with its Peoria, Illinois, plant, at which it is engaged in the
manufacture of heavy earth-moving equipment. For this purpose it
purchases annually approximately $5,000,000 worth of raw materials,
consisting of steel, rubber tires, Diesel engines, and other component
parts of its manufactured products, of which 80 percent is shipped
from points outside the State of Illinois. Annually, the Company
manufactures earth-moving equipment valued in excess of $10,000,000,
of which more than 80 percent is shipped to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IL THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, and Local 158, In-
ternational Brotherhood of Boilermakers, Iron Shipbuilders, Welders
and Helpers of America, are labor organizations affiliated with the
American Federation of Labor, admitting to membership employees
of the Company.
United Farm Equipment and Metal 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
Continuous contractual relations have existed between the Company
and the Boilermakers since December 29, 1941, the effective date of a
contract entered into by them. This contract provided for mainte-
nance of membership and it contained the following termination
clause:
The Boilermakers also moved to dismiss the petition on the ground that both District
50 and the Boilermakers are affiliated with the American Federation of Labor and thus
a jurisdictional dispute exists . Inasmuch as the CIO, which is not a party to the jurisdic-
tional dispute, is also seeking to represent the employees involved in the controversy, we
find no merit in this contention. See Matter of Owens-Corning Fiberglass Corp, 57
N L R B 345, Matter of Buffalo Tank Coiporatton, 56 N L. R B 829
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This agreement shall be in effect from the 29th day of December,
1941 and shall remain in effect until the 29th day of December,
1942 and thereafter. Either party desiring a change at the anni-
versary date of this contract, shall give the other party a thirty
(30) day notice in writing of the proposed change or changes.
Both parties agree to start negotiations immediately upon re-
ceipt of said notice.2
In the absence of notice the 1941 contract was automatically re-
newed from year to year and continued in effect until the execution
of a new contract on March 25, 1946. In support of its motion to
dismiss the petition, the Boilermakers claims these contracts bar this
proceeding.
On September 11, 1945, while the Company and the Boilermakers
were conducting negotiations with respect to the new contract, Dis-
trict 50 addressed a letter to the Company claiming to represent a
substantial number of the Company's employees and requesting to
discuss an agreement. The Company replied in a letter dated Sep.
tember 29, 1945, in which it referred District 50 to the Board. On
November 16, 1945, the petition herein was filed by District 50. Inas-
much as District 50 filed its petition in timely fashion with respect to
the 1945 operative date of the automatic renewal clause in the 1941
agreement, and this agreement was in any event superseded by the
new contract, it is clear that the 1941 contract does not constitute a
bar to this proceeding .3 Furthermore, the new agreement does not
preclude a current determination of representatives because the
Boilermakers filed its petition before its execution and effective date.'
In addition the Boilermakers claims that Government regulations
freezing wages during the war prevented it from securing a general
wage increase and thus prevented it from effectively representing the
employees covered by the 1941 contract, and, therefore, it should be
permitted to retain the status of bargaining representative for the
employees here concerned. We find no merit in this contention.
While we have afforded a measure of protection to a newly certified
union which has found itself unable to secure for the employees it
represents substantial benefits of collective bargaining because of the
delay attendant upon submission to the orderly procedure of a gov-
ernmental agency, there is no evidence in this case that there was
2 We assume , for the purposes of this decision, that the contracting parties intended
that their agreement was to renew automatically for annual periods in the absence of
notice to change given 30 days prior to any anniversary date.
3 See Matter of National Container Corporation, 62 N. L. R. B 48, Matter of Portland
Lumber Mills , 56 N. L It. B. 1336 , Matter of Purepac Corporation, et at, 55 N. L. R B.
1386.
4See Matter of National Container Corporation, supra, Matter of Foster-Grant Co , 54
N L It. B. 802.
R. G. LE TOURNEAU, INC. 1169
such delay. The contention of the Boilermakers amounts to no more
than a claim that it should be allowed to continue undisturbed as
collective bargaining agent, despite the fact that it has acted as such
for a period of more than 4 years, merely because of the situation
which existed under a war economy.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that District 50 represents a substantial number of em-
ployees in the unit hereinafter found appropriate.5
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
We find, in accordance with the agreement of the parties, that all
hourly paid production and maintenance employees at the Company's
Peoria, Illinois, plant, excluding production department and other
office employees, engineering, blueprint, printing, laboratory and time-
study department employees, process coordinators, standards appli-
5 The Field Examiner reported that District 50 submitted 582 authorization cards bear-
ing the names of 388 employees listed on the Company' s pay roll of January 8, 1946, which
contained the names of 1770 employees in the alleged appropriate unit. The Field
Examiner further reported that the CIQ submitted 387 authorization cards and that the
names of 303 persons appearing on the cards were listed on the Company's pay roll of
January 8, 1946. The Boilermakers relies upon its contracts for the establishment of its
interest.
The Trial Examiner stated on the record that, at the hearing, District 50 submitted
25 additional authorization cards, and the CIO submitted 82 additional authorization
cards.
In support of its motion to dismiss , the Boilermakers contends that District 50 has not
made a sufficient showing to warrant the holding of an election at this time. However,
in view of the maintenance of membership clause contained in the 1941 contract between
the Company and the Boilermakers , thiC clause having been continued in effect until the
1946 contract was executed , we are of the opinion that District 50 has made a substantial
showing of representation . See Matter of Gabbs Gas Engine Company, 55 N. L. R. B 492;
Matter of Willys Overland Motors, Inc., 55 N. L. R. B. 376 ; Matter of National Container
Corporation , supra.
At the hearing, the Boilermakers offered to prove by witnesses and to submit to the
Trial Examiner lists of applicants for membership in the Boilermakers , dues and member-
ship records , and certain application and check-off cards, to be checked by the Trial Exam-
iner or the Board against the authorization cards submitted by the CIO and District 50,
for the purpose of showing that employees who had signed District 50 and CIO authoriza-
tion cards had subsequently indicated an intention to change their affiliation to the
Boilermakers in sufficient numbers to make the showing of interest of both the CIO and
District 50 insufficient to justify an election . These attempts by the Boilermakers to
attack collaterally the Field Examiner 's statement were properly forestalled by the Trial
Examiner , "As we have frequently stated, the report of a Board Agent with respect to a
claim of authorization for the purposes of representation is taken, not as proof of the
precise number of employees who desire to be represented by a labor organization, but
rather to protect the Company and the Board from unfounded claims by such organiza-
tions and to give reasonable assurance that a substantial number of employees desire to
be so represented."
See Matter of Amos-Thompson Corporation , 49 N L. R B. 423. "Furthermore, the
submission of cards is an administrative expedient adopted by the Board to determine
for itself whether or not a question concerning representation has arisen . It is a part of
the Board's investigatory procedure . . . Matter of Buffalo Arms Corporation, 57
N. L. R. B. 1560.
692148-46-vol. 67-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cators, cafeteria and plant protection employees, executives, superin-
tendents, supervisors, foremen, 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 col-
lective bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
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 and additions set forth in the Direction.
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, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with R. G. Le Tourneau,
Inc., Peoria, Illinois, 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
Director for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among 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 present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to
determine whether they desire to be represented by District 50, United
Mine Workers of America, or by Local 158, International Brother-
hood of Boilermakers, Iron Shipbuilders, Welders and Helpers of
America, AFL, or by United Farm Equipment and Metal Workers of
America, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining, or by none of said
organizations.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.