The East Dayton Tool & Die Co.

National Labor Relations Board - Board Decisions

Nov 19, 1971

194 N.L.R.B. 266 (N.L.R.B. 1971)

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The East Dayton Tool & Die Company and East
Dayton and Hawker Tool Employees' Independent
Union of Dayton, Ohio, Non-Affiliated, Petitioner.
Case 9-RC-9156
November 19, 1971
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer James E. Murphy.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, by direction of the Regional Director for
Region 9, the case was transferred to the Board for
decision. Thereafter, the Employer, Petitioner, and
the Intervenor i filed briefs with the Board.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, including the
briefs filed herein, the Board finds:
1. The Employer, an Ohio corporation, is engaged
in the manufacture and sale of machine tools and dies
at its place of business in Dayton, Ohio. During the
past 12 months, a representative period, the Employer
manufactured and shipped goods valued in excess of
$50,000 directly from its Dayton, Ohio, facility to
points located outside the State. The Employer
conceded, and we find, that the Employer is engaged
in commerce within the meaning of the Act and that it
will effectuate the policies of the Act to assert
jurisdiction herein.
2. The labor organizations involved claim to
represent certain employees of the Employer. The
Intervenor contends, however, that the Petitioner is
not a labor organization within the meaning of
Section 2(5) of the Act and, even if it does qualify as a
labor organization, the petition should be dismissed
because the Petitioner is, in effect, the same organiza-
tion that affiliated with the Intervenor as found by the
Board in 190 NLRB No. 115 and, therefore, is without
standing to file the petition.
The Petitioner was recently organized by a group of
employees. It admits employees to membership and
was formed for the express purpose of representing
employees in collective bargaining. At present it has
no constitution or officers and is administered by a
four-man organizing committee. The parties stipulat-
ed that on or about July 1, 1971, the Petitioner
requested the Employer to recognize it as the
collective-bargaining agent for the Employer's pro-
duction and maintenance employees and that such
request was denied. We are satisfied, on the record as
a whole, that the Petitioner is a labor organization
within the meaning of the Act.2 Furthermore, the fact
that Petitioner's organizers were members of the
former independent union before its affiliation with
the Intervenor, and the fact that Petitioner adopted a
name similar to that of the former union and admits
to membership employees of the Employer do not
constitute the Petitioner the same labor organization
as the Intervenor, nor do they preclude the Petitioner
from filing the petition herein. We therefore deny the
Intervenor's motion to dismiss the petition as lacking
in merit.
3. A question affecting commerce exists concern-
ing representation of employees of the Employer
within the meaning of Section 9(c)(1) and Section 2(6)
and (7) of the Act.
4. The parties stipulated that a unit of all prod-
uction and maintenance employees, excluding the
designers, checkers, and detailers in the design room,
all office clerical employees, professional employees,
guards, and supervisors as defined in the Act is
appropriate. They differ, however, on the question of
including employee Joseph Cornor. The Intervenor
contends that Cornor should be excluded from the
unit because he is a sales trainee for a position as sales
engineer, a category which all parties stipulated
should be excluded from the unit. The Employer and
the Petitioner contend, however, that Cornor should
be included in the unit on the ground that he is
considered to be covered by the Employer's and
Intervenor's current contract.
Cornor was employed initially as a tool-and-die
maker. In mid-1969 he became a sales trainee and
since then has performed little or no manual labor.
Unlike the shop employees who are engaged princi-
pally in the fabrication of tools and dies and in the
maintenance of plant equipment, Cornor is now
engaged primarily in processing job orders and in
handling purchasing matters. He works under sepa-
rate supervision and from an office on the floor above
the Employer's production facilities. His conditions of
employment differ from the shop employees in
substantial respects. Cornor's hours of work are from
8 a.m. to 5 p.m. with an hour for lunch; the shop
employees work on a two-shift basis, 7 a.m. to 3:30
p.m. and 3:30 p.m. until midnight with only one-half
1 International Union of Electrical , Radio and Machine Workers , 2 N.L.R B v. Cabot Carbon Company, 360 U.S 203.
AFL-CIO-CLC, and its Local 668
194 NLRB No. 38
EAST DAYTON TOOL & DIE CO. 267
hour for lunch. Cornor enters his own hours of work
on a timecard; shop employees punch a timeclock. As
a sales trainee, Cornor is paid approximately 20
percent less than the highest paid toolmaker in the
shop, but he receives the same vacation and fringe
benefits as shop employees. It appears, though, that
Cornor has been considered as covered under the
contract, but since his status has come into question,
his dues have been held in escrow.
On the foregoing evidence it is clear that Cornor's
present duties and conditions of employment indicate
that his community of interest lies with the sales
engineers rather than with rank-and-file employees in
the bargaining unit. We would exclude him from the
unit , unless there is validity to the contention that his
past inclusion under the contract requires his present
inclusion in the unit.
The evidence is conflicting as to whether the
Intervenor had previously requested that Cornor be
removed from the bargaining unit. Cornor's inclusion
in the bargaining unit was initially based on his status
as a tool-and-die maker. There is some evidence that
the sales trainee position existed in the past, but there
is no evidence that the position was ever a subject of
collective bargaining. Furthermore, there is no evi-
3 Rish Equipment Company, 150 NLRB 1185, 1202; Garrett Supply
Company, 165 NLRB 561, 562. Cf. Montgomery Ward & Co., Incorporated
131 NLRB 1436.
4 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc, 156 NLRB 1236; N.LR.B. v. Wyman-Gordon Co., 394 U.S.
dence that Cornor's present conditions of employ-
ment, which differ so substantially from those of the
shop employees, were the subject of negotiations
between the Employer and Intervenor rather than
having been unilaterally established by the Employer
upon its designation of Cornor as a sales trainee
during the contract term. We cannot say, in these
circumstances, that simply because the parties consid-
ered him to be covered under their contract and
deducted dues payments, that fact constitutes an
agreement that the position of sales trainee was to be
considered part of a production and maintenance
unit. We conclude that Cornor as a sales trainee has
interests different from those of the production and
maintenance employees, and that he is properly
excluded from the unit.3
We find that the following employees of East
Dayton Tool & Die Co. constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: all production and
maintenance employees, excluding designers, check-
ers, and detailers in the design room, all office clerical
employees, sales engineer trainees, professional em-
ployees, guards, and supervisors as defined in the Act.
[Direction of Election4 omitted from publication.]
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the , eligible voters , must be filed
by the Employer with the Regional Director for Region 9 within 7 days of
the date of this Decision on Review. The Regional Director shall make the
list available to all parties to the election . No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed.