The General Excavator Co.

National Labor Relations Board - Board Decisions

Sep 29, 1938

8 N.L.R.B. 1363 (N.L.R.B. 1938)

In the Matter of THE GENERAL EXCAVATOR COMPANY and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, LOCAL 1281 (A. F. OF L.)
Case No. B-1006.-Decided September 29, 1938
Excavating Machinery Manufacturing Industry-Investigation of Representa-
tives: controversy concerning representation of employees : refusal of employer
to recognize petitioning union as exclusive representative prior to Board deter-
mination of exclusive representative-Unit Appropriate for Collective Bargain-
ing: all hourly and piece-work rate employees , excluding main-office employees;
no controversy as to-Representatives : proof of choice : comparison of member-
ship cards of union with employment records of the Company-Certification of
Representatives : upon proof of majority representation
Mr. Max W. Johnstone, for the Board.
Mr. Ben T. Wiant, of Marion , Ohio, for the Company.
Mr. A. G. Skundor, of New Castle, Pa., for the I. A. M.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On May 23, 1938, International Association of Machinists, Local
1281, A. F. of L., herein called the I. A. M., filed with the Regional
Director for the Eighth Region (Cleveland, Ohio) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of The General Excavator Company,
Marion, Ohio, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On July 9, 1938, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On August 23, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
I. A. M. Pursuant to the notice, a hearing was held on September 1,
8 N. L. R. B., No. 163.
117213-39-87 1363
1364 NATIONAL LABOR RELATIONS BOARD
1938, at Marion, Ohio, before Thomas S. Wilson, the Trial Examiner
duly designated by the Board. The Board, the Company, and the
I. A. M. were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all the parties. During the course of the hearing, the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence. The Board has reviewed these rulings and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Upon- the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is an Ohio corporation having its plant and princi-
pal office at Marion, Ohio, and branch offices at Philadelphia, Penn-
sylvania, and Ridgefield, New Jersey. It is engaged in the manufac-
ture and sale of excavating machinery. Raw materials purchased
during 1937 amounted to the stun of $600,000, 25 per cent of this
amount being obtained from without the State of Ohio. $980,000 was
obtained from sales of the finished product of the Company in 1937.
Approximately 95 per cent of these products were shipped out of the
State of Ohio and sold through distributors and dealers located in
25 different States of the United States.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Local 1281, A. F. of L.,
is a labor organization affiliated with the American Federation of
Labor, admitting to membership all the hourly and piece-work rate
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 5, 1938, A. G. Skundor, a representative of the I. A. M.,
sent a letter to the general manager of the Company enclosing a draft
of a proposed agreement between the I. A. M. and the Company and
requesting a conference for the purpose of discussing the matter. As
a result of this letter, a conference was held on May 13, 1938, between
E. W. Barnhart, general manager of the Company, and a committee
of the I. A. M. The committee requested exclusive recognition as
the bargaining representative of all the hourly and piece-work rate
employees of the Company. Barnhart stated that there were certain
questions in the proposed agreement that the Company wished to
consider further and that he would give the committee an answer
within a few days.
DECISIONS AND ORDERS 1365
On May 21, the I. A. M. received a letter from H. E. Bracy, attor-
ney for the Company, stating generally that the Company was un-
willing to recognize the I. A. M. as the bargaining representative of
the hourly and piece-work rate employees until a determination of the
appropriate unit and a certification of the I. A. M. as the representa-
tive of a majority of the employees within such unit had been made
by the Board.
We find that a question has arisen concerning representation of
employees of the Company.
1V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
At the hearing, the I. A. M. claimed that all the hourly and piece-
work rate employees, excluding main-office employees, constitute a
unit appropriate for the purposes of collective bargaining. It was
stipulated by counsel for the Company at the hearing that the unit
claimed by the I. A. M. is appropriate. The I. A. M. admits to mem-
bership such employees, and we see no reason to depart from the
desires of the parties. -
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing, a list dated June 21, 1938, taken from the employ-
ment records of the Company, and showing 65 employees in the
appropriate unit on that date, was introduced in evidence. It was
agreed between the parties that the force of employees was substan-
tially the same at the time of the hearing. The attorney for the
Company stipulated that the determination of representatives by the
Board could be made from the comparison of the membership cards
in the I. A. M. with such list. A comparison of the membership cards
of the I. A. M. which were introduced in evidence with the list of
employees discloses that 39 of the employees in the appropriate unit
had designated the I. A. M. as their representative for the purpose
of collective bargaining.
1366 NATIONAL LABOR RELATIONS BOARD
We find that the I. A. M. has been designated and selected by a
majority of the employees in the appropriate unit as their repre-
sentative for the purposes of collective bargaining. It is, therefore,
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining and Ave will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The General Excavator Company, Marion.
Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. The hourly and piece-work rate employees of the Company at
its Marion, Ohio, plant, excluding main-office employees, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
3. International Association of Machinists, Local 1281, A. F. of L.,
is the exclusive representative of all the employees in such unit for
the purposes of collective bargaining, within the meaning of Section
9 (a) of the National Labor Relations Act.
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
IT IS HEREBY CERTIFIED that International Association of Machin-
ists, Local 1281, A. F. of L., has been designated and selected by a
majority of the hourly and piece-work rate employees of The General
Excavator Company, Marion, Ohio, excluding main-office employees,
as their representative for the purposes of collective bargaining and
that, pursuant to the provisions of Section 9 (a) of the Act, Inter-
national Association of Machinists, Local 1281, A. F. of L., is the
exclusive representative of all such employees for the purposes of
collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
MR. DONALD WAKEFIELD SMITH took no part in the consideration of
the above Decision and Certification of Representatives.