The Liquid Carbonic Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1941

35 N.L.R.B. 674 (N.L.R.B. 1941)

In the Matter of THE LIQUID CARBONIC CORPORATION and INDEPEND-
ENT BEVERAGE MACHINERY BUILDERS UNION
Case No. R-2801.-Decided September 23, 1941
Jurisdiction : beverage machinery manufacturing industry.
Investigation and Certification of Representatives : existence of question: stip-
pulated; elections necessary.
Units Appropriate for Collective Bargaining : single or separate units compris-
ing (1) production and maintenance employees at the Company's Chicago
plant, including inspectors. but excluding clerical and supervisory employees,
time-study men, timekeepers, watchmen, plumbers, order fillers, and lay-out
men, and excluding all employees covered by existing written or oral contracts
between the Company and specified labor organizations, and (2) tool and die
makers, tool makers, metal pattern makers, apprentices, and grinders in the
mae'hine division; determination of, dependent upon elections.
Bell, Boyd and Marshall, by Mr. David A. Watts, of Chicago,
Ill., for the Company.
Mr. Phillip R. Davis, of Chicago, Ill., for'the Independent.
Mr. Louis Weiner and Mr. Mark Hopkins, of Chicago, Ill., for
district 50.
Mr. Roy E. Rogers and Mr. J. Hallstrom, of Chicago, Ill., for the
Pattern Makers.
Mr. Albert G. Fox, of Chicago, Ill., for the Sheet Metal Workers.
Mr. John Grzenia, of Chicago, Ill., for the Metal Polishers.
Mr. John Garvin, of Chicago, Ill., for the Operating Engineers.
Mr. Ted Kenney and Mr. Michael J. Sexton, of Chicago, Ill., for
the Carpenters. -
Mr. Robert J. Tormey, of Chicago, Ill., for the Firemen and
Oilers.
'Mr. Joseph Newman, of Chicago, Ill., for the Steamfitters.
Mr. Emory J. Smith, of Chicago, Ill., for the I. B. E. W. and the
Steamfitters.
Mr. Arthur A. Netrefa, of Chicago, Ill., for the Tool and Die
Makers.
Mr. James Sinclair, of Chicago, Ill., for I. A. M. Locals 48, 49, and
50.
Mr. J. A. Todd, of Chicago, Ill., for the Plumbers.
Mr. Stanley Cupinski, of Chicago, Ill., for Painters.
Mr. Herbert N. Shenkin, of counsel to the Board.
35 N. L. R. B., No. 148.
674
THE LIQUID CARBONIC CORPORATION 675
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On March 24, 1941, Independent Beverage Machinery Builders
Union, herein called the Independent, filed with the Regional Direc-
tor for the Thirteenth Region (Chicago, Illinois) an amended peti-
tion alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Liquid Carbonic
Corporation, Chicago, Illinois, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On July 11, 1941, 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 Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered
an investigation and authorized the Regional Director to conduct
it and to provide for an appropriate hearing upon due notice.
On July 14, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the
Independent, and upon other labor organizations claiming to repre-
sent employees directly affected by the investigation., Pursuant to
the notice, a hearing was held on July 25 and 26, 1941, at Chicago,
Illinois, before Stephen M. Reynolds, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. In addition to those served with
notice,2 the following labor organizations appeared at the hearing :
Die and Tool Makers, Lodge No. 113, District No. 8, International
, In addition to the Independent, the following labor organizations were served with notice
of hearing :
District 50, United Mine Workers of America, affiliated with the Congress of Industrial
Organizations , herein called District 50 , and the following American Federation of
Labor unions:
Pattern Makers League of North America, Chicago Association , herein called the Pat-
tern Makers ;
Sheet Metal Workers International Association , Local No. 115, herein called the Sheet
Metal Workers ;
Metal Polishers International Union Local No. 6, herein called the Metal Polishers;
International Union of Operating Engineers , Local No. 399, herein called the Operating
Engineers ;
Carpenters District Council of Chicago, herein called the Carpenters:
International Brotherhood of Firemen and Oilers Local No. 7, herein called the Fire-
men and Oilers ;
Steam Fitters Protective Association , Local 579, United Association of Plumbers and
Steamftters , herein called the Steamfitters ; and
Local B-134 , International Brotherhood of Electrical Workers, herein called the
I. B. E W.
2 Although served with notice Locals 705 and 723, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers , affiliated with the American Federation of
Labor , herein called the Teamsters, failed to appear at the hearing.
451270-42-vol 35-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association of Machinists, herein called the Tool and Die Makers;
Locals 48, 49, and 50, District No. 8, International Association of
Machinists, herein called I. A. M. Locals 48, 49, and 50; Chicago
Journeymen Plumbers, Local-130, United Association of Journeymen,
Plumbers, and Steamfitters, herein called the Plumbers; and Wood
Finishers Union, Local No. 611, 'Brotherhood of Painters and
Decorators, herein called the Painters.3 The Company and the labor
organizations mentioned above were represented by counsel or other
representatives and participated in the hearing. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made numerous rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner 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
1. THE BUSINESS OF THE COMPANY
The Liquid Carbonic Corporation, a Delaware corporation, is en-
gaged in the manufacture, sale, and distribution of bottling ma-
chinery, soda fountain and luncheonette equipment, chemicals and
flavoring extracts. The Company operates 28 plants in the United
States and 9 in foreign countries. This proceeding involves only the
employees at its Chicago, Illinois, plant. During the year 1940 the
total sales of the Chicago plant amounted to approximately
$12,000,000, of which 85 to 90 per cent represented shipments to points
outside the State of Illinois. During the same year, the Company
purchased raw materials having a value of several million dollars for
use at the Chicago plant. Approximately, half of these raw materials
were shipped to the Chicago plant from points outside the 'State , of
Illinois. The Company employs about 1,400 persons at the Chicago
plant.
H. THE ORGANIZATIONS INVOLVED
Independent Beverage Machinery Builders Union is an un-
affiliated labor organization, admitting to membership employees of
the Company.
District 50, United Mine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization,
admitting to membership employees of the Company.
The following unions are labor organizations affiliated with the
American Federation of Labor and admit to membership employees of
3 Although I. A. M. Locals 48, 49, and 50 and the Painters were represented at the hear-
ing, the record does not disclose what employees are claimed by these labor organizations.
THE LIQUID CARBONIC CORPORATION 677
the Company who come within their craft jurisdiction: Pattern
Makers League of North America, Chicago Association ; Sheet Metal
Workers International Association, Local No. 115; Metal Polishers
International Union, Local No. 6; International Union of Operating
Engineers, Local No. 399; Carpenters District Council of Chicago;
International Brotherhood of Firemen and Oilers, Local No. 7;
Locals 705 and 723, International Brotherhood of Teamsters,
Chauffeuis, Warehousemen, and Helpers; Steamfitters Protective
Association, Local 597, United Association of Plumbers and Steam-
fitters; Local B-134, International . Brotherhood of Electrical
Workers; Die and Tool Makers Lodge No. 113, District No. 8, Inter-
national Association of Machinists; Chicago Journeymen Plumbers,
Local 130, United Association of Journeymen Plumbers and
Steamfitters.
III. THE QUESTION CONG'ERNING REPRESENTATION
All parties stipulated at the hearing that the Independent, claiming
to represent a majority of the Company's production and maintenance
employees at the Chicago plant, had requested exclusive bargaining
rights from the Company on March 9, 1941, and that the Company
had refused to recognize the Independent as the exclusive bargaining
agency until it had been certified as such by the Board.
A statement of the Trial Examiner at the hearing, based upon an
examination of membership application cards, indicates that the Inde-
pendent, District 50, and the Tool and Die Makers, respectively, has
each been designated as bargaining representative by a substantial
number of the Company's employees within the units alleged by each
to be appropriate 4
We find that a question has arisen concerning the representation of
employees of the Company.
IN. 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,
4The`Trial Examiner stated : ( 1) that of 696 membership application cards of the Inde-
pendent, 690 cards appeared to bear genuine signatures and that 680 of the names of these
cards appeared on the Company 's pay roll of March 15, 1941 ; ( 2) that of 238 membership
application cards of District 50, 213 cards bore apparently genuine signatures and that 210
of the 238 cards bore the names of persons on the Company 's pay roll of March 15, 1941.
There are approximately 1,100 employees in the unit claimed to be appropriate by the Inde-
pendent and approximately 950 employees in the unit claimed to be appropriate by District
50. The Trial Examiner further stated that of 18 membership application cards submitted
by the Tool and Die Makers , all bore apparently genuine signatures and were the names of
persons on the Company 's pay roll for March 15, 1941 . There are 24 employees In the unit
claimed to be appropriate by the Tool and Die Makers.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. TIIE APPROPRIATE UNIT
At the hearing all parties stipulated that all production and main-
tenance employees at the Chicago plant of the Company, including
inspectors, but excluding clerical and supervisory employees; time-
study men, watchmen, and employees covered by existing written
agreements with craft unions affiliated with the American Federation
of Labor; and all employees covered by an existing oral agreement
with Local 126, District No. 8, International Association of Machin-
ists, affiliated with the American Federation of Labor, herein called
I. A. M. Local 126,° should be included in an appropriate collective
bargaining unit.
The parties are in dispute with regard to: (1) employees covered
by oral closed-shop contracts which the Company has with the Steam-
fitters and the I. B. E. W., respectively; (2) machine-division
employees claimed by the Tool and Die Makers; (3) a plumber;
(4) timekeepers; (5) set-up men; and (6) certain other miscellaneous
employees.
The Company has oral closed-shop contracts with the Steamfitters
and the I. B. E. W. similar to its written closed-shop contracts with
the other American Federation of Labor craft unions referred to
above. All parties except District 50 contend that the employees
covered by these contracts should likewise be excluded from the
industrial unit. District 50 contends that these employees should be
included in such unit.
District 50 argues that these oral contracts have no termination
dates and are too indefinite to warrant the exclusion of employees
covered by them from the industrial unit. However, for 4 or 5 years,
the Company has had with the Steamfitters and the I. B. E. W.
separate closed-shop arrangements evidenced by written memoranda.
Except that the contracts with the Steamfitters and I. B. E. W. are
oral, the collective bargaining arrangements between the Company
" The Company has written closed-shop contracts with the Pattern Makers, Sheet Metal
Workers, Metal Polishers , Operating Engineers , Carpenters , Firemen and Oilers, and the
Teamsters . These closed-shop contracts have been in force several years and are renewed
regularly. The Pattern Makers' contract covers 12 pattern makers and apprentices ; the
Sheet Metal Workers' contract covers 165 sheet metal workers, helpers and apprentices ;
the Metal Polishers' contract covers 24 polishers , buffers, helpers , and apprentices ; the
Operating Engineers ' contract covers 10 engineers ; the Carpenters ' contract covers 43 car-
penters ; the Firemen and Oilers' contract covers 13 firemen and oilers ; and the Teamsters'
contracts cover 29 chauffeurs and salesmen drivers.
9 Twenty-five road service men are covered by the oral closed-shop contract which the
Company has with I. A. M. Local 126.
THE LIQUID CARBONIC CORPORATION 679
and these American Federation of Labor unions are the same as those
between the Company and the other American Federation of Labor
unions having written contracts with the Company. As hereinabove
noted, all parties stipulated that employees covered by such contracts
be excluded from the industrial unit. We shall exclude the employees
covered by the Steamfitters and I. B. E. W. contracts from the
industrial unit.?
The Tool and Die Workers claim to represent 24 employees in the
machine division of the Company's Chicago plant. These employees
include tool and die makers, tool makers, metal pattern makers, ap-
prentices, and grinders. They work together as a group and are
physically separated by a wire partition from the other employees
about them. The Tool and Die Workers have no contract or other
bargaining relationship with the Company. When, shortly before
the -filing of the petition herein, it requested collective bargaining
rights from the Company it was informed that the Company would
not recognize the Tool and Die Makers as the representative of the
machine-division employees until the Board had certified it. District
50 contends that the employees in the machine division should be in-
cluded in the industrial unit. The Independent would exclude them
and the Company expressed no view on the matter. Under the cir-
cumstances, we find that the 24 machine divisiol3 employees claimed
by the Tool and Die Makers could function either as a separate unit
or as part of the industrial unit. We shall, therefore, direct that
an election be held among-the tool and die makers, tool makers, metal
pattern makers, apprentices, and grinders, to determine whether they
desire to be represented by the Tool and Die Makers, by District 50,
or by neither of these organizations. Upon the results of this elec-
tion will depend the appropriate unit. If these employees select a
bargaining representative other than the representative selected by
the employees in the plant-wide unit they will constitute a separate
and distinct appropriate unit. If they choose the same representative
as the employees in the _plant-wide unit they will be merged into a
single unit with such employees.8
The Plumbers contended at the hearing that one plumber on the
Company's pay roll should be excluded from any unit. This em-
ployee has been a member of the Plumbers for a number of years
and was supplied to the Company by the Plumbers. He does main-
tenance -plumbing at the Chicago plant. Whenever the Company
requires the services of additional plumbers they are hired through
the Plumbers. District 50 opposes the exclusion of the plumber from
the industrial unit. We shall exclude the plumber.
7 There are 28 employees covered by the Steamfitters' contract ; the I. B. E. W. contract
covers 18 maintenance electricians.
8 Matter of Ford Motor Company, a Delaware corporation and International Union, United,
Automobile Workers of America, of ha ted with the C. 1 0, 30 N. L R. B. 985.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are 18 timekeepers and 15 assistant timekeepers employed
in various departments of the plant. They keep daily time records
and records-of bonuses under the supervision of foremen in 'various
departments to which the timekeepers and their assistants are as-
signed. District 50 contends that timekeepers should be excluded
from the industrial unit while the other interested parties want them,
included. Since the duties of the timekeepers are clerical in nature;
we shall exclude them from the industrial unit.
District 50 contends that an employee listed as an order filler in
the stockroom should be excluded from the industrial unit. All
other parties want him included. Since the work of the order filler
is clerical in nature, we shall exclude him from the industrial unit.
Palma, an employee in the liquid-carbonic department, who is
classified by the Company as a layout man, occupies and shares an
office with the foreman of the liquid-carbonic department and serves
as his assistant. Palma's work consists in arranging various mate-
rials so as to facilitate their use by others when needed. The parties
took no position with regard to the inclusion or exclusion of Palma
from the industrial unit. We shall exclude him.
' Ten employees in the machine shop are classified as set-up men.
They set up machines for use by other employees or assist such
employees in setting them up. They have no authority to hire or
discharge. Their rate of pay is approximately the same as that of
regular machine operators. Some set-up men earn less pay than
regular machine operators. While occasionally the set-up men
transmit instructions to machine operators, the machine shop foreman
has complete authority over the employees in the machine shop, and
the set-up men act in this capacity only under the direction of the
machine shop foreman. District 50 would exclude set-up men from
the industrial unit; the other'parties want them included. In view
of the slight degree of supervisory authority possessed by the set-up
men and since their work is comparable to that of ordinary produc-
tion workers, we shall include them in the industrial unit.
Two employees are listed on the Company's pay roll as experi-
mental workers on machinery. They are former assemblers who
have been reclassified. District 50 wants them excluded from the
industrial unit. No reason appears in the record in support of this
contention. The other parties want the experimental men included
in the industrial unit. We shall include them.
District 50 contends-that the duties of Louis Frandsen, Gus Lund.
strom, Otto Jacob, John Forsberg, and Ed Witt, employees in the
liquid-carbonic department, are supervisory in nature and that they
should be excluded from the unit. There are 46 employees in the
liquid carbonic department, including 7 persons who admittedly are
THE LIQUID CARBONIC CORPORATION 681
supervisors. In general the 5 employees in question are old em-
ployees who spend a portion of their time instructing other
employees in their work and the remainder of their time doing pro-
duction work. They have no authority to hire or discharge or to
recommend hiring or discharging. We shall include Louis Frand-
sen, Gus Lundstrorn, Otto Jacob, John Forsberg, and Ed Witt in
the industrial unit.
We find that all production and maintenance employees at the
Chicago plant of the Company, including inspectors, but excluding
clerical and supervisory employees, time-study men, timekeepers,
watchmen, plumbers, order fillers, and lay-out men, and excluding
all employees covered by existing written or oral contracts between
the Company and the following labor organizations, respectively, the
Pattern Makers, the Sheet Metal Workers, the Metal Polishers, the
Operating Engineers, the Carpenters, the Firemen and Oilers, the
Steamfitters, the I. B. E. W., the Teamsters, and I. A. M. Local 126,
may properly constitute a unit appropriate for the purposes of col-
lective bargaining. As indicated above, the tool and die makers,
tool makers, metal pattern makers, apprentices,- and grinders in the
machine division may or may. not be included within such unit
depending upon the results of an election which we shall direct.
We shall, therefore; make no final. determination of the appropriate
unit or units pending an election to be conducted among such em-
ployees. , - - - _
VI. THE DETERMINATION OF REPRESENTATIVES
In addition to the separate election we have heretofore decided to
conduct, - we find that the question concerning representation which
has arisen emong the employees in the industrial unit can best be
resolved by means of an election by secret ballot. We shall direct
that -the employees in such unit shall decide whether they desire to
be represented for collective bargaining purposes by the Independent,
by District 50, or by neither.
We shall further direct that all employees of the Company at the
Chicago plant in the units set forth above who were employed by the
Company during the pay-roll period immediately preceding the date
of the Direction of Elections herein, subject to such limitations and
additions as are set forth in the Direction, shall be eligible to vote.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following : -
CONCLUSION OF LAW .
A question affecting commerce has arisen concerning the represen-
tation of employees of The Liquid Carbonic Corporation, Chicago;
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Illinois, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
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 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Liquid Carbonic Corporation, Chicago, Illinois, elections
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 Rela-
tions Board, and subject to Article III, Section 9, of said Rules
and Regulations :
1. Among all tool and die makers, tool makers, metal pattern
makers, apprentices, and grinders in the machine division at the
Chicago plant of the Company who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing employees who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
employees who have since quit or been discharged for cause, to
determine whether they desire to. be represented by Die and Tool
Makers Lodge No. 113, District No. 8, International Association of
Machinists, affiliated with the American Federation of Labor, by
District 50, United Mine Workers of America, affiliated with the
Congress of Industrial Organizations, for the purposes of collective
bargaining, or by neither;
2. Among all production and maintenance employees of the Com-
pany at the Chicago plant who were employed during the pay-roll
period immediately preceding the date of this Direction, including
inspectors and employees who did not work during such pay-roll
period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off,
but excluding tool and die makers, tool makers, metal pattern makers,
apprentices, and grinders in the machine division; clerical and super-
visory employees, time-study men, timekeepers, watchmen, plumbers,
order fillers, lay-out men, and excluding all employees covered by
existing written or oral contracts between the Company and the
THE LIQUID CARBONIC CORPORATION 683
several labor organizations hereinabove referred to in the Decision,
and employees who have since quit or been discharged for cause, to
determine whether they desire to be represented by Independent
Beverage Machinery Builders Union, or by District 50, United Mine
Workers of America, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining, or by
neither.
[SAME TITLE]
SUPPLEMENTAL DECISION
AND
AMENDMENT TO DIRECTION OF ELECTIONS
October 8, 1941
On September 23, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Elections in
the above-entitled proceeding, in which the Board directed two elec-
tions among employees in the Chicago, Illinois, plant of The Liquid
Carbonic Corporation, herein called the Company, one in a plant-
wide unit, with certain exclusions, and the other among certain em-
ployees in the machine division of the Chicago plant. In the plant-
wide election, the employees of the Company were to select as their
collective bargaining representative Independent Beverage Machin-
ery Builders Union, or District 50, United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, herein
called District 50, or neither of these unions. In the machine-divi-
sion election, the employees there concerned were to select between
Die and Tool Makers Lodge No. 113, District No. 8, International
Association of Machinists, affiliated with the American Federation
of Labor, or District 50, or neither of these unions.
On September 25, 1941, District 50 filed a motion with the Board
to have its name withdrawn, without prejudice, from the ballot in
these elections. This motion is hereby granted, and the Board here-
by amends its Decision and Direction of Elections of September 23,
1941, in the above-entitled case by (1) striking from the first para-
graph of the Direction the following words : "whether they desire
to be represented by Die and Tool Makers Lodge No. 113, District
No. 8, International Association of Machinists, affiliated with the
American Federation of Labor, by District 50, United Mine Workers
of America, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining, or by neither"; and substi-
tuting therefor the following words : "whether or not they desire to
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be represented by Die and Tool Makers Lodge No. 113, District No. 8,
International Association of Machinists, affiliated with the American
Federation of Labor, for the purposes of collective bargaining"; and
(2) by striking from the second paragraph of the Direction the fol-
lowing words : "whether they desire to be represented by Independent
Beverage Machinery Builders Union, or by District 50, United Mine
Workers of America, affiliated with the Congress of Industrial Or-
ganizations , for the purposes of collective bargaining, or by neither"
and substituting therefor the following words : "whether or not they
desire to be represented by Independent Beverage Machinery Build-
ers Union, for the purposes of collective bargaining."
35 N. L . R. B., No. 148a.