Seneca Falls Machine Co.

National Labor Relations Board - Board DecisionsDec 16, 1946

71 N.L.R.B. 1106 (N.L.R.B. 1946)

In the Matter of SENECA FALLS MACHINE COMPANY, EMPLOYER and SENECA FALLS MACHINE EMPLOYEES' ASSOCIATION, PETITIONER Case No. 3-R-1358.-Decided December 16, 1946 Fraser Brothers, by Mr. Henry S. Fraser, of Syracuse, N. Y., for the Employer. Croog and Schwartz, by Messrs. Samuel Croog and Raymond H. Schwartz, both of Rochester, N. Y., for the Petitioner. Messrs. Burt Danquer and John Kowalski, both of Syracuse, N. Y., and Mr. R. Wellbury, of Waterloo, N. Y., for the Intervenor. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Seneca Falls, New York, on November 13, 1946, before Philip Licari, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Inter- venor made two separate motions to dismiss the petition. For reasons stated hereinafter, the motions are hereby denied.' The Intervenor's request for oral argument is hereby denied, inasmuch as the record and briefs, in our opinion, adequately present the issues and positions of the parties. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Seneca Falls Machine Company is a Massachusetts corporation engaged in the manufacture of machine tools at its plant in Seneca Falls,-New York. During the year 1943, the Employer used at this ' The first of the Intervenor's motions to dismiss was based upon the ground that the Intervenor was incorrectly designated in the petition. It appears, however, that the Inter- venor received adequate notice of the hearing, and that the petition was coriedted at the 'hearing so as to designate the Intervenor correctly. In view of these circumstances, we find no meiit in the Intervenor's contention that the petition should be dismissed on this ground. 71 N. L. R. B., No. 180. 1106 SENECA FALLS MACHINE COMPANY 1107 plant raw materials exceeding $100,000 in value, of which more than 10 percent was received from outside the State of New York. During the same period, the Employer manufactured at this plant finished products valued at more than $200,000, of which in excess of 50 percent was shipped to points outside the State. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED The Intervenor seeks to dismiss the petition on the ground that the Petitioner is not a bona fide labor organization. The testimony reveals that, while the Petitioner does not as yet collect dues from its mem- bers, it does have a constitution and temporary officers, and was or- ganized for the purpose of bargaining collectively with the Employer with regard to wages, hours, and working conditions. In view of all the facts, we find that the Petitioner is a labor organization within the meaning of the Act, claiming to represent employees of the Employer. United Steelworkers of America, Local Union 3481, herein referred to as the Intervenor , is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION Following an election conducted pursuant to a Board Decision and Direction of Election,2 the Intervenor was certified as the collective bargaining -representative of the employees here involved on November 27, 1944. The Employer and the Intervenor were unable to agree on the terms of a bargaining contract, and submitted the controversy to the National War Labor Board. By the fall of 1945, the National War Labor Board issued its decision, as a result of which the Inter- venor and the Employer entered into a collective bargaining contract in September 1945. The contract was made retroactive to July 24, 1945, and was to terminate on April 9, 1946. On January 21, 1946, the Intervenor called a strike at the Employer's plant, as part of the nation-wide steel strike.3 The Employer's opera- tions ceased on that date and had not been resumed up to the day of the hearing. No replacements have been hired by the Employer to take the place of the strikers. 2 Matter of Seneca Falls Machine Company , 58 N. L . R B 1413. The Intervenor s repiesentative stated that the strike was caused by the Employer's refusal to arbitrate the wage issue. The Employer maintains that the stiike constituted a violation of Article XV of the contract which read : "During the term of this contract , there shall be no lock-outs by the Company, nor any strike, interference with or curtailment of production by the Union." 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Early in July 1946, while the strike was in progress, the Petitioner was formed. On July 11. 1946, the Petitioner wrote to the Employer, claiming that it represented a majority of the employees and request- ing recognition as their collective bargaining representative. The Employer replied to this letter on July 15, 1946, pointing out that the Intervenor had been certified by the Board and that it would consider the certification effective until revoked by the Board. On August 22, 1946, the Petitioner filed its petition herein. On this state of facts, the Intervenor seeks dismissal of the petition on the ground, inter alia, that it has not had an adequate opportunity to represent the employees and has not been able to secure any benefits for them; that the delay in securing these benefits has not been oc- casioned by any neglect on the part of the Intervenor, but has been caused entirely by the fact that the Intervenor chose to follow the orderly process of collective bargaining and referral to the National War Labor Board. It urges that, under the doctrine set forth in the Allis-Chalmers case,' no election should be directed at this time. We find no merit in the contentions of the Intervenor. The Intervenor has been certified as the sole collective bargaining agent of the em- ployees for a period of more than 2 years. Following the submission of matters in dispute to the National War Labor Board, the Inter- venor was able to secure a written collective bargaining agreement, the fruits of which it has enjoyed for the full contract term except as rendered impossible by the strike which it called. Under these circumstances, the A llis-Chalmers doctrine is not applicable.' We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IN". THE APPROPRIATE 'UNIT In accordance with the agreement of the parties, we find that all production and maintenance employees of the Employer, including stationary firemen and group leaders '6 but excluding office and clerical employees, watchmen, guards, engineering department employees, superintendents, foremen: assistant foremen and all other supervisory 4 31atter of Allis-Chalmet s Manufacttn ing Company. 50 N L. R B. 306. s Matter of The Regina Coy poration, 57 N L R B 4 The certification of Novembei 27. 1944, excluded group leaders from the appropriate unit However , at the hearing in the instant case, all parties expressed their desire to include group leaders Evidence was intioduced demonstrating that group leaders. although they receive between 10 and 15 percent more pay than other production and maintenance employees, have no authouty to hire, promote, discharge, discipline or other- wise effect changes in the status of employees or effectively recommend such action. ' The Intervenor requested at the hearing that the unit definition state that foremen are not permitted to engage in any production or maintenance work. The request is hereby denied The Intem-enoi'e request, while it night fouu a proper subject for collective bargaining , is not an appropriate matter for Board action. SENECA FALLS MACHINE COMPANY 1109 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 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, subject to the limitations and additions set forth in the Direction. At the hearing, the Intervenor maintained that no election should be held while the employees are out on strike. The Employer and the Petitioner, on the other hand, desire an immediate election. In its brief, while conceding that the existence of a strike is not generally grounds for delaying a representation proceeding, the Intervenor argues that, in the instant case, an election before the strike has ter- minated would be inadvisable. We do not agree. The Intervenor itself was responsible for the calling of the strike, and the formation of the Petitioner and the filing of the petition occurred after the strike had begun. Moreover , this strike is not for recognition. Under all the circumstances , we deem it advisable to direct an immediate election." Chairman Herzog finds it difficult to understand the position taken by Mr. Reynolds in this matter. Although the Chairman's separate opinion in the Natio?ial Silver case ° indicated some sympathy with his colleague 's views on the facts presented there, he fails to see how industrial peace could possibly be advanced if an election were with- held in the instant case. In National. Silver the petitioning union, after invoking our jurisdiction, called a strike for recognition which the Employer could not lawfully have granted. Here, it is the Inter- venor, which desires to delay the balloting, that called a strike 7 months before the Petitioner requested an election. The Chairman does not see how, as a practical matter, the strike could ever be settled or the Employer extricated from the position in which the Midwest Piping 10 doctrine places it, if the Intervenor could be permitted per- petually to advance the prolongation of its own ancient economic strike as a reason for our not determining whether the Employer should bargain with the Intervenor or the Petitioner in the months ahead. All parties are in agreement that, if an election is conducted, the pay roll for the last pay-roll period before the work stoppage, which began on January 21, 1946, should be used in determining eligibility to vote. 8 Cf ,ifattei of National Silver Company , 71 N L . R. B 594. ° 71 N L If B 594, issued November 5, 1946. 20 63 N L R B 1060 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall direct that all employees in the appropriate unit who were employed during the pay-roll period immediately pre- ceding January 21, 1946, shall be eligible to participate in the election. The above Direction will be operative in the event that the Employer has not resumed operations before the issuance of this Decision and Direction of Election. Should the Employer have reopened its plant and hired replacements for the strikers before this Decision is issued, the customary eligibility date will be used in determining the right of employees to vote.11 The record reveals that, between the commencement of the strike and the hearing, 20 former employees who had been separated from the armed forces applied to the Employer for reinstatement, in ac- cordance with Section 8 of the Selective Service and Training Act of 1940.12 All parties have requested, and we shall direct, that all former servicemen who are entitled to, and who have applied to the Employer for, reinstatement, between January 21, 1946, and the date of the is- suance of this Direction, shall be eligible to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Seneca Falls Machine Com- pany, Seneca Falls, New York, 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 Third Region, acting in/this matter as agent for the National Labor Relations Board, and subject to Sec- tions 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, among the employees in the unit found ap- propriate in Section IV, above, who were employed during the pay- roll period immediately preceding January 21, 1946,13 including em- ployees who did not work on said date because they were ill or on vacation, or temporarily laid off, employees in the armed forces of the United States who present themselves in person at the polls, and former employees who have been separated from the armed forces of the United States and who are entitled to, and have since applied to the Employer for, reinstatement under the provisions of Section 8 of the Selective Service and Training Act of 1940, as amended, but excluding those employees who have since quit or been discharged for 11 See Matter of The Chase -Shawmut Company, 71 N L. R. B. 610 ; Matter of Wscaco Machine Corporation, 69 N. L R B 741. 12 54 Stat. 885 , 890, 50 U S C , App., Sec 308 , as amended by 56 Stat . 724 (1942) and 58 Stat. 798 (1944) 50 U S C , 1940 ed , Sup. IV, App, Sec 308. 23 In the event that the Employer has resumed operations and replacements have been hired before the issuance of this Direction , those eligible to vote shall be determined from the pav roll for the period immediately preceding the date of this Direction , including both employees on strike and their replacements , if any. SENECA FALLS MACHINE COMPANY cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by Seneca Falls Machine Employees' Association, or by United Steelworkers of America, Local Union 3481, CIO, for the purposes of collective bargaining, or by neither. MR. JAMES J. REYNOLDS, JR., dissenting : I do not agree with my colleagues that we should direct an election in this case at a time when the employees in the bargaining unit found to be appropriate are engaged in a strike which has been in progress for nearly 11 months. In my opinion a more orderly and determina- tive resolution of the representation question would be achieved by withholding the Board's election machinery until such time as the strike is terminated and normal work schedules resumed. I believe that the adoption by the Board of a policy such as I suggest would go far to eliminate strikes which serve no legitimate interest of the workers involved and which retard and tend to make difficult an orderly determination by the Board of any question concerning repre- sentation. We have held in recent decisions 11 that when a petition for an in- vestigation and certification of representatives is before us, the em- ployer involved may not grant exclusive recognition to one of the two or more unions claiming to represent a majority of the employees. Consequently, it is evident that since August 22, 1946, the date upon which the Petitioner filed its petition herein, the Employer could not have legally extended exclusive recognition to either the Petitioner or the Intervenor. The only course open to the Employer since that date has been to refuse to bargain exclusively with either union, and the only manner whereby negotiations could have been resumed entailed a determination by the Board of the conflicting claims of majority representation. It seems apparent, therefore, that no matter what the original objectives of the strike may have been, at least since August 22,1946, it has been a singularly futile and pointless affair such as this Board should discourage. It appears to me that a clear-cut resolution of the representation question, accompanied by a Board certification of the majority union, whether it be the Petitioner or the Intervenor, would immeasurably strengthen the bargaining position of the employees. Negotiations could then be resumed by the newly certified representatives under the protection of the Act in an atmosphere more conducive to a determina- tion of the economic issues. However, I do not believe that a final resolution of the representation question is best accomplished by hold- 34 Matter of Medv est Piping and Supply Co., Inc., 63 N L R B 1060; Matter of Fruit- vale Canning Company, 71 N. L. It. B. 488; Matter of C. W. Hume Co., 71 N. L. It. B. 533. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing an election during a prolonged strike such as we have in this, case. I share the majority's hope that a resolution of the question con- cerning the majority status of the two competing unions while the strike is still in progress may result in its early termination and its removal as an obstruction to the free flow of commerce. However, I feel the result which we wish to effect could have been expected to have occurred earlier-that is, immediately after the Board entertained the Petitioner's petition-had the policy which I propose here been the Board's rule on August 22, 1946. I am also concerned that the possi- bility of effectuating an early termination of the strike by the holding of an election, as directed by the majority, overlooks the difficulty and delay which the Board frequently encounters in determining the voting eligibility of those who have ceased work as a result of a strike.15 We have observed that the strike in this case has been in progress nearly 11 months, having begun January 21, 1946, and it may reasonably be presumed that numerous individuals involved have since obtained em- ployment elsewhere. Whether or not they are now "employees" within the meaning of the Act and therefore eligible to vote in the election depends on whether between January 21, 1946, and the date of the election they have obtained any other "regular and substantially equivalent employment" 16 elsewhere. Therefore, before an election can resolve the question before the Board, it may expect to be called upon to determine whether any employment accepted by strikers since the inception of the strike was "regular employment" "substantially equivalent" to that in which the strikers were engaged when working in the Employer's plant. Thus, because of our doubtful ability to accomplish a clear-cut reso- lution of the representation question by the holding of an election dur- ing a strike which has been in progress for such a long period, and in accord with my views as to what constitutes salutary Board policy with respect to such questions,17 I would direct an election in this case within 30 days after the conclusion of the first pay-roll period subsequent to the termination of the strike and the resumption of normal work sched- ules at the Employer's plant. MR. JOHN M. HOUSTON, concurring : In this case Member Reynolds, as he did in the recent National Silver Company case, suggests that the Board refuse to utilize its election 1$ For example, see Matter of Norms, Incorporated, 63 N L R. B 502, in which, after an election conducted by the Board on February 16, 1945, while a strike was in progress, the Board was able to resolve the question concerning representation only after 9 months of investigation and litigation devoted principally to the question of whether certain strikers who had voted in the election were employees at the time they cast their ballots. 16 See Section 2 (3) of the Act i7 Matter of National Silver Company, 71 N. L. R B. 594. SENECA FALLS MACHINE COMPANY 1113 machinery to settle a question concerning the representation of these employees because they are on strike. In my opinion in the National Silver Company case I adverted to the clear duty placed by Congress upon the Board in this type of case. That duty involves expeditious use of our machinery to settle representation disputes which either threaten or actually do interfere with commerce. I reiterate the view I expressed there, but also desire to observe that from a larger stand- point, if in the narrow area presented by these cases, we can contribute to an early resumption of production and employment in these plants, we ought not to refrain from doing so because of considerations of administrative expediency advanced in these dissenting opinions.