The Cleveland Welding Co.

National Labor Relations Board - Board Decisions

Apr 10, 1946

67 N.L.R.B. 223 (N.L.R.B. 1946)

In the Matter of THE CLEVELAND WELDING COMPANY and INTER-
NATiONAI. ASSOCIATION OF MACHINISTS, DISTRICT 54
Cace No. 8--R-2041.-Decided April 10, 1946
Mr. A. F. McllInan, of Cleveland, Ohio, for the Company.
Messrs. John Toth, Jr., and Howard Tausch, of Cleveland, Ohio, for
the 1. A. M.
Messrs. Jesse Gallag/u r° and Carl Hubbell, of Cleveland, Ohio, for
the Federal Labor Union.
Mr. b'aniuel M. knynard, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STAI EMENT OF THE CASE
Upon a petition duly filed by International Association of Machin-
ists, District .54, herein called the I. A. M., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Cleveland Welding Company, Cleveland, Ohio, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before John A. Hull, Trial
Examiner. The hearing was held at Cleveland. Ohio, on February 13,
1946. The Company, the I. A. M., and Federal Labor Union No. 18671,
AFL,' herein called the Federal Labor Union, appeared and partici-
pated.2 All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the hearing and in its brief, the Federal Labor
Union moved for the dismissal of the petition upon the grounds dis-
cussed in Sections III and IV, infra. or reasons hereinafter stated,
the motion is denied. The Trial Examiner's rulings made at the hear-
ti At the hearing the Trial Examiner granted motions to correct all the papers in the
proceeding to reflect the names of the Company and the Federal Labor Union as set forth
above
Although served with a copy of the Petition and Notice of Hearing , Metal Polishers
Local #3, A. F of L , failed to appear at the hearing However , during the course of the
hearing, the parties agreed that the members of this organization should be excluded in
the event an election is held
li7 N L. R. B., No. 30.
223
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing are free from prejudicial error and are hereby affirmed. All parties
were afforded opportunity 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
The Cleveland Welding Company is an Ohio corporation with its
only plant located at Cleveland, Ohio, where it is engaged in the
manufacture of tractor and truck rims, gear rings and other molded
and welded hoops, and bicycles. Sales of the Company's products
in the year 1945 were in excess of $7,500,000 at least 90 percent of
which was shipped outside the State of Ohio. The principal raw
material used is steel which is purchased to the Company's specifica-
tions. The raw material used represents from 60 to 75 percent of the
value of sales and about 60 percent of the raw materials is purchased
from outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District 54, is a labor
organization, admitting to membership employees of the Company.
Federal Labor Union No. 18671 is a labor organization, affiliated
with the American Federation of Labor, admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In November 1945, the I. A. M. requested the Company to recognize
it as the representative of the employees in the Company's paint shop
for collective bargaining purposes. The Company refused, stating it
was under contract with the Federal Labor Union and did not know
whether the Federal Labor Union or the I. A. M. represented the
employees and therefore refused to bargain with the I. A. M. until
such time as it had been certified by the Board in an appropriate unit.
The contract involved herein contains an automatic renewal clause
which provides for yearly renewal, in the absence of written notice
of termination by either party at least 30 days prior to March 10. In
view of the I. A. M.'s timely filing of its petition herein, the contract
is not a bar .3
3 Matter of Mill B, Inc., 40 N L R. B 346.
THE CLEVELAND WELDING COMPANY 225
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the I. A. M. represents a substantial number of
employees in the unit hereinafter found appropriate.4
At the hearing and in its brief, the Federal Labor Union moved to
dismiss the petition on the ground that this is a jurisdictional dispute
between two A. F. of L. unions and is, therefore, not a proper subject
for determination by the Board. The dispute had at one time been
submitted to the Cleveland Federation of Labor to be resolved by its
procedures. Although the Board has often refused to assume jurisdic-
tion in the case of jurisdictional disputes between two unions affiliated
with the American Federation of Labor, we recognize the fact that the
1. A. M. at present is no longer affiliated with the American Federation
of Labor. Accordingly, no reason of policy exists for the Board to
refuse to assert jurisdiction.°
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 ; THE DETERMINATION OF REPRESENTATIVES
The I. A. M. contends that the employees of the Company's paint shop
should be included in the unit with the production and maintenance
employees which it now represents. The Federal Labor Union con-
tends that, based on the past history of collective bargaining in the
plant, the employees of the paint shop constitute an appropriate unit.
Since 1934, the Company has been under joint contract with the I. A.
M. for production and maintenance employees, with the Federal Labor
Union for employees of the paint shop, and with the Metal Polishers
Union for metal polishers and platers. Prior to the war, the Company
manufactured bicycles. With the advent of the war, the facilities of
the Company were principally utilized for war work, with the intermit-
tent manufacture of bicycles on a small scale to take up any slack in war
production due to changes in Government specifications. The record
discloses that at the time the Company was converting to war work
4 The Field Examiner reported that the I. A. M submitted 62 authorization cards, bear-
ing the names of 58 employees listed on the Company's pay roll of December 18, 1945 ; that
the cards are dated December 1945 , and that on January 4, 1946, 65 persons were em-
ployed in the appropriate unit The Field Examiner also reported that the approximate
number of additions to the appropriate unit during the 2-month period preceding December
18, 1945, was 65.
At the hearing, the Company stated that there were between 70 and 80 employees in the
appropriate unit at the time and that when the plant is in full production, approximately
125 will be employed in the appropriate unit
Federal Labor Union relies on the joint contract between the Company and the I. A. M.
and the Metal Polishers Union and itself as evidence of its interest in the proceeding
S Matter of Federal Knitting Mills Co , 3 N. L It. B. 257; Matter of Interlake Iron
Corporation, 2 N. L. R B. 1036.
692148-46-vol 67-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was an informal agreement between the Company, the Federal
Labor Union, the Metal Polishers Union and the I. A. M. that employ-
ees laid off from their usual employment because of conversion would
be absorbed in some other capacity ; that the I. A. M. would accept
employees transferred to production and maintenance on transfer cards
or would accept their membership books; and that such employees
would pay dues to the I. A. M. It was further agreed that upon recon-
version to peacetime production, such employees would return to their
original employment and be represented by their former bargaining
agent.'
When work in the paint shop was reduced at the outset of the war, all
employees in the paint shop, with the exception of six or eight, were
transferred to the production department, joined the I. A. M. and
accordingly were bargained for by the I. A. M. In the fall of 1945 when
the Company began to transfer these employees back to the paint shop,
they remained members of the I. A. M. and the I. A. M. sought to
bargain for them. The Federal Labor Union contends that since the,
employees have now returned to the paint shop, they should be repre-
sented by the Federal Labor Union.
Although we ordinarily regard the history of collective bargaining
as very persuasive in determining the appropriate unit, we think that
factor is overbalanced by other considerations in this case. In instances
where there has been a suspension of a former collective bargaining
unit for a number of years due to conversion from peacetime activities
to war work, the Board has held that such past collective bargaining
is not controlling and has considered the question of the appropriate
units de novo. In some cases, appropriate units varying from the
pattern of prior collective bargaining have been found.7 In this case
there was a virtual, if not complete, suspension of the activities of the
paint shop during the war years. Furthermore, the collective bargain-
ing history in this case has not been predicated upon any prior deter-
minations in which the Board has passed upon the appropriateness of
the unit.
In°our opinion, the evidence points to the propriety either of a unit
of production and maintenance employees with the paint shop em-
ployees included, as sought for by the I. A. M., or of a separate unit
of paint shop employees, as contended for by the Federal Labor Union.
Favoring the establishment of the all inclusive unit are the following
facts : The work of the paint shop is closely integrated with the produc-
6 Although the I A M did not admit the latter aspect of the agreement , it seems most
plausible that this would he a part of the agreement.
7 Matter of Kittinger Company , Inc. 65 N I. R B , 1215 , Matter of Hurley Machine
Division of Electric Household Utilities Corporation , 64 N L . R B 1181 ; Matter of
LV R Arthur & Company, Incorporated, 65 N L R B 1113. Matter of Packard Motor
Car Company . Toledo Diresion, 65 N L It B 1005 . Matter of Hussncan -Lepanier Com-
pany . 66 N. I. R B 1331
THE CLEVELAND WELDING COMPANY 227
tion and maintenance departments. The paint shop is actually a part
of the production line and is "sandwiched in" between the production
and assembly departments of the Company. The parts are conveyed
to the paint shop on conveyers, mostly; the parts are sprayed and
painted and striped by the paint shop employees, go through the dryer
and then go to the bicycle assembly. The paint shop is not separate
from the rest of the building and the working conditions and hours
of its employees are similar to those of the rest of the employees. The
pay scale in the paint shop is practically the same as that in the rest of
the plant. These painters are not considered in the same class as regu-
lar journeymen painters in the building trades, and there is evidence
that not too great skill is required to perform the tasks involved. In
other industries the Board has included painters in production and
maintenance units, or has permitted the employees self-determination
elections.,'
On the other hand, the Board has often found that the painters com-
prise a well-defined craft group and may constitute a separate appro-
priate unit .9 The paint shop has a separate foreman; painters are
paid at an hourly rate of pay, whereas machinists in the production
department are usually paid on piece work. The polishing shop is in a
somewhat similar position to the paint shop and it is represented by
the Metal Polishers as a separate unit. Furthermore, prior to the war,
(and technically during the war years, since the contract was still in
existence and there were in the paint shop six to eight employees), the
Federal Labor Union bargained for the employees of the paint shop.
Under the circumstances, our determination of the appropriate unit
will depend, in part, upon the desires of the employees themselves
expressed in the election hereinafter directed. If at such election, the
employees of the paint shop 10 select the I. A. M., they will thereby
have indicated their desire to constitute a single bargaining unit with
maintenance and production employees ; otherwise, they will have
indicated their desire to be a separate bargaining unit.
Matter of Master Industries , Inc, 63 N L. R B 521: Matter of The B F. Goodrich
Company , 59 N L R B . 1477; Matter of J. S Abercrombie Company , 58 N. L . R. B 1013,
Matter of Basic Magnesium, Incorporated , 55 N. L R B . 380 ; Matter of Kennecott
Copper Corporation , 51 N L . R. B 1140 ; Matter of Santa Fe Trails Transportation Com-
pony , 7 N L. R B 358, Matter of La Plant-Choate Manufacturing Co., Inc , 13 N. L. R B
1228 ; Matter of Hamilton Realty Corporation, 10 N L R. B 858 , Matter of Caldwell
Lawnmower Company, 14 N L R B 38. Matter of Coos Bay Lumber Company, 14
N. L R B. 1206 : Matter of Butler Motors , Inc, 28 N. L R B 1254 ; Matter of Mack-
International Motor Truck Corporation , 31 N L It. B 424 , Matter of Glidden Buick
Corporation, 32 N L R B 226 ; Matter of Gardner-Denver Company , 44 N. L. R. B 1192
9 Matter of Carbide and Carbon Chemicals Corporation , 56 N. L . R. B. 779 ; Matter of
Brown Shipbuilding Company, Inc, 60 N L R B. 196 , Matter of United States Cartridge
Company, 49 N. L . R B 77 , Matter of Atlas Powder Company , 41 N L R B 127 ; Matter
of Denver Automobile Dealers Association . 10 N L R B 1173
i0 At the hearing the I A. M. and the Federal Labor Union stipulated that any election
directed should be among the employees of the paint shop only.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall direct that the question concerning representation which
has arisen be resolved by an election" by secret ballot among all em-
ployees of the paint shop, excluding all salaried supervisors and other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status- of employees, or
effectively recommend such action, who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations arid 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 The Cleveland
Welding Company, Cleveland, Ohio, 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 Eighth 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 em-
ployees in the voting group described 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 elec-
tion, to determine whether they desire to be represented by Interna-
tional Association of Machinists, District 54, or by Federal Labor
Union No. 18671, AFL, for the purposes of collective bargaining, or
by neither.
'x The company representative testified that between 70 and 80 are employed in the
paint shop at the present time and that , when the plant is in full production , approxi-
mately 125 will be employed in that department Inasmuch as more than half of the
regular complement is now employed , we shall not delay our direction of an election