Union Parts Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1942

41 N.L.R.B. 1173 (N.L.R.B. 1942)

In the Matter of UNION PARTS MANUFACTURING COMPANY, INC. and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 15
Case No. R-3882.-Decided June 20, 1942
Jurisdiction : screw machine parts manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; immediate election directed notwith-
standing requests of one of the unions involved that it be postponed until certain
matters submitted to arbitration were settled ; election necessary.
Unit Appropriate for Collective Bargaining : all production and nonsupervisory
maintenance employees, including assistant foremen of the turret and hand
screw machine department, an inspector, certain drill-press operators, inspec-
tors of the turret and screw machine department, the shipping clerk, and the
assistant of the shipping clerk, but excluding watchmen, draftsmen, the chief
engineer, the messenger boy, certain named foremen, the truck driver, and the
foreman of the special production department.
Mr. Bertram Diamond, for the Board.
Mr. Louis Zaslo ff, of New York City, for the Company.
Mr. John T. Sullivan, of New York City, for the I. A. M.
Protter cC Bagley, by Mr. Julius F. Bagley, of Brooklyn, N.,Y.,
and Mr. Sidney Mason, of Brooklyn, N. Y., for the United.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
DECISION'
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Association of Machin-
ists, District No. 15, herein called the I. A. M., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Union Parts Manufacturing Company, Inc., Brooklyn,
New York, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
J. J. Fitzpatrick, Trial Examiner. Said hearing was held at Brook-
lyn, New York, on May 25, 1942. The, Board, the Company, the
I. A. M., and Local 1225, United Electrical, Radio and Machine Work-
ers of America, affiliated with the Congress of Industrial Organiza-
tions, herein called the United,' appeared, participated, and were
41 N. L. R. B., No. 212.
1173
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
afforded full opportunity to be heard, to examine and cross-examine
witnesses and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
On May 29, 1942, the Company filed a brief which the Board has.
considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Union Parts Manufacturing Company, Inc., a New York corpora-
tion, is engaged in the manufacture, sale, and distribution of screw
machine parts and related products at its factory in Brooklyn, New
York. From July 1 until December 31, 1941, the Company purchased
raw materials valued in excess of $50,000, approximately 75 percent
of which was purchased and shipped to it from points outside the
State of New York. During the same period, the Company sold
finished products valued at more than $145,000, approximately 80
percent of which was shipped to points outside the State of New York.
The Company employs approximately 150 non-supervisory production
and maintenance employees.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District No. 15, is a labor
organization affiliated with,the American Federation of Labor, admit-
ting to membership employees of the Company.
Local 1225, United Electrical, Radio and Machine Workers of
America, is a labor organization affiliated with the Congress of In-
dustrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company, the I. A. M., and the United stipulated at the hear-
ing that a question concerning representation has arisen for the reason
that on January 19 and February 9, 1942, respectively, the United and
the I. A. M. each requested recognition as the exclusive bargaining
agent of the Company's employees. The Company refused to accord
recognition to either labor organization and thereafter on February
18 and 27, 1942, respectively, entered into separate contracts with the
,United and the I. A. M., recognizing each labor organization as the
collective bargaining agent of its members.
UNION PARTS MANUFACTURING COMPANY", INC. 1175
A statement of the Regional Director introduced into evidence indi-
cates that the I. A. M. and the United each represents a substantial
number of employees in the unit hereinafter found to be appropriate.'
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 Company, the I. A. M., and the United stipulated at the
hearing that all production and non-supervisory maintenance em-
ployees of the Company; excluding watchmen, draftsmen, the chief
engineer, and the messenger boy, constitute a unit appropriate for
the purposes of collective bargaining.
There remains for consideration the specific composition of the
unit. The Company and the United request that the employees ap-
pearing immediately below be excluded from the unit on the ground
that they perform supervisory functions. The I. A. M. disputes the
supervisory status of those employees and urges their inclusion in
the unit.
William Hartmann is foreman of the multiple spindle automatic
screw machine department and directs the work of six or eight em-
ployees on the day shift. His principal task is to set up the
automatic machines and to ascertain that they are operating properly.
In addition, he receives job-work instructions from the superintend-
ent of the plant, lays out the work, instructs the machine operators in
their duties, sharpens tools, repairs and maintains the machines, and
supervises the production of the department. He performs no actual
production work on the machines, as they are operated by other
employees after Hartmann has set up the machines. Approximately
20 percent of his time is spent in supervisory work and 80 percent
in setting up machines, sharpening tools and repairing machines.
Of'the men under his supervision, two set up similar machines and
sharpen tools subject to Hartmann's instructions, one or two measure
and adjust machines, and three operate machines. Hartmann has
authority to employ and discharge the employees who work under
his supervision. Since Hartmann's duties are clearly supervisory in
nature, we shall exclude him from the unit. ,
1 The I. A M submitted to the Regional Director 147 application cards dated between
January 1 and February 28, 1942. The Regional Director stated that all signatures
appear to be genuine and original and that 131 of these signatures are the names of
persons on -the Company's pay roll of April 27, 1942. The United submitted to the
Regional Director 164 authorization cards dated as follows : 27 between March 1 and
April 30, 1941; and 137 betwecn October 1, 1941, and February 28, 1942. The Regional
Director stated that all signatures appear to be genuine and original and that 91 of these
signatures are the names of persons on the Company's pay roll of April 27, 1942 As
of that date there were approximately 218 employees within the unit found below to
be appropriate.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Wolters is foreman of the single spindle automatic screw
machine department on the day shift ; supervising the work of six or
eight men. His duties and authority are identical in scope to Hart-
mann's , discussed above; the sole distinction is that each works with
a different type of machine . Wolters may also employ and discharge
the employees working under his supervision. We find Wolters to
be a supervisory employee and shall accordingly exclude him from
the unit.
Zygmunt Milwicz is foreman of the drill press and milling machine
department and directs the activities of between 10 and 15 em-
ployees. He spends 10 or 20 percent of his time in supervisory work;
approximately 60 percent in setting up machines , sharpening tools,
and maintaining machines ; and 10 or 20 percent in actual production
work, operating the machines. He has authority to employ and dis-
charge employees working under his supervision. It is clear that
Milwicz's duties are supervisory in nature and we shall accordingly
exclude him from the unit.
John Kozienko is foreman of the turret and hand screw machine-
department and is responsible for both the day and night shifts in
that department , which comprises approximately 40 employees. He
works during the day. He sets up machines, assigns men to the
machines, and instructs the men in the operation of the machines.
If a machine breaks he either repairs it himself or assigns an assistant
to do the work. About 10 percent of his time is spent in supervisory
work and 90 percent in setting up and maintaining machines and in
sharpening tools. He has authority to hire and discharge employees
of his department . Since Kozienko is a supervisor , we shall exclude
him from the unit.
Ferdinand Nowotony is foreman of the day shift in the finishing
department. The employees of that department operate small ma-
chines and hand tools used in the final stage of the manufacturing
process. About 15 or 20 employees work under his direction. Ap-
proximately 60 percent of his time is devoted to production work;
20 percent to setting up and maintaining machines; and 20 percent
to supervisory duties. He has authority to hire and discharge em-
ployees of his department. Although Nowotony spends a substantial
amount of his time in production work, he, nevertheless , is clearly the
supervisor ' of the day shift employees of the finishing department
and we shall accordingly exclude him from the unit.
Edward Wozniak is foreman of the tool -making department, which
employs between five and seven men. He assigns jobs to the men and
supervises their work . About 75 percent of his time is spent in
making tools and 25 percent in directing the work of his department.
He has authority to employ and discharge the employees subject to
UNION PARTS MANUFACTURING COMPANY, INC. 1177
his control. Wozniak's duties and authority are clearly supervisory
in nature and we shall accordingly exclude him from the unit.
Max Kurlandski is foreman of the inspection department which
employs between 2 and 10 employees, depending upon the amount
of work being produced. After the products of the Company are
manufactured, they pass to the inspection department where they
are carefully measured. Kurlandski spends from 80 to 90 percent of
his time in inspection work and the remainder in such supervisory
duties as assigning work and checking upon the activities of the
employees of the inspection department. Although he has no au-
thority to employ or discharge employees of his department, he may
recommend that the Company hire or discharge such employees.
Since Kurlandski appears to be the chief, if not the only, supervisory
employee of the inspection department, we shall exclude him from
the unit.
The parties are likewise in disagreement as to the supervisory
status of the following employees whom the United would exclude
and whom the Company and the I. A. DI. would include in the unit :
Antonie Huchla and Antony Pekala are assistant night foremen
of the turret and hand screw machine department. They adjust
machines, sharpen tools, and perform production work. Huchla
spends 90 or 95 percent of his time in production work and Pekala
is similarly engaged 85 percent of his time. Neither Huchla nor
Pekala has authority to hire or discharge night shift employees, but
it appears that Pekala may recommend such action to the foreman
of the department. In view of the fact that they are engaged almost
exclusively in production work, we shall include Huchla and Pekala
in the unit.
John Grzebyckc is the assistant foreman on the day shift of the
turret and hand screw machine department. He is engaged in setting
up some of the less complex machines, in production work, and in
such special work as strew machine and milling machine jobs.' Ap-
proximately 50 percent of his time is consumed in setting up special
jobs, sharpening tools, and maintaining machines; 10 or 15 percent
in explaining work and giving orders to machine operators; and the
remainder in production work. It appears that Grzebyck has author-
ity to recommend the employment and discharge of employees to the
foreman of his department. Since Grzebyck's duties and authority
are supervisory only to a small extent and since the principal super-
visory functions for the department are exercised by Kozienko, dis-
cussed above, we shall include Grzebyck in the unit.
Walter Kronich, Alexander Silun,' and Stephen Mlynarczyk.
Kronich is presently employed as an inspector in the multiple and
single spindle automatic screw machine departments. He checks all
1178 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machines to ascertain that their production meets the specified
measurements. He has no authority -to hire or discharge employees
of the department or to recommend such action. Until February
1942, he was foreman on the night shift of the drill press department.
Silun and Mlynarczyk are drill-press operators. Prior to February
9, 1942, Silun was in charge of the night shift. Mlynarczyk was an
assistant foreman for a period of approximately 6 weeks prior to
February 9, 1942. They were transferred to their present positions
after the Company fulfilled production on a large contract. It ap-
pears that the Company has no expectancy of returning Mlynarczyk
to the position of assistant foreman in the near future. The United
urges the exclusion of these employees for the reason that in their
former positions they had authority to hire and discharge employees.
The fact that they may have possessed supervisory duties and author-
ity at one time is not sufficient to warrant their exclusion from the
unit. Since their present duties are within the production and
maintenance classification, we shall include Kronich, Silun, and
Mlynarczyk in the unit.
Kenneth Bienkowski and Stanislaw Akst are inspectors of the
turret and screw machine department. They are engaged in work simi-
lar to that performed by Kronich, whom we have included within the
unit. Neither Bienkowski nor Akst has authority to employ or dis-
charge employees of their departments. Since their duties are a
functional part of the production process, we shall include Bien-
kowski and Akst in the unit.
Richard Polenzski is foreman of the special production department,
which consists of about 10 or 12 employees engaged in making, f in-
ishing, polishing, and preparing small parts for assemblage. Pol-
enski devotes approximately 60 percent of his time to production
work and 40 percent to supervisory duties. He has authority to
recommend employment and discharge of employees of his depart-
ment. The record discloses that his present position will terminate
in June upon the fulfillment of a large contract and that he will then
be transferred to bench or inspection work. We are of the opinion
that Polenski should be excluded if, at the close of the pay-roll period
by which eligibility to vote is determined, he is employed as a fore-
man, since his duties and authority in that position are clearly super-
visory; but on the other hand if at that time he is employed in
production or maintenance work, he should be included in the unit.
His inclusion or exclusion from the unit will therefore be determined
by his employment status 'shown by the pay roll used to determine
eligibility to vote in the election.
The United would include, and the Company and the I. A. M.
would exclude from the unit, the truck driver, shipping clerk, and
UNION PARTS MANUFACTURING COMPANY, INC. 1179
the latter's assistant. The truck driver spends the major.portion
•of his time in delivering products to customers and hauling materials
to the plant. He is, engaged approximately 5 hours each week in
the shipping room and de-greasing department. The I. A. M. urges
his exclusion for the reason that he is within the jurisdiction of an-
,other affiliate of the American Federation of Labor., We are of the
opinion that he does not perform a sufficient amount of production
work to bring him within the unit and shall accordingly exclude
the truck driver from the unit.
The shipping clerk and his assistant gather work from the factory,
count the various items, and prepare them for shipment. The assist-
ant spends 60 or 70 percent of his time in the shipping room and
the remainder in the de-greasing department which removes the
oil covering products when they emerge from the machines. Since
the functions of these employees are closely related to the production
process, we shall include the shipping clerk and his assistant in
the unit.
We find that all production and non-supervisory maintenance em-
ployees of the Company, including Antonio Huchla, Antony Pekala,
John Grzebyck, Walter Kronich, Alexander Silun, Stephen Mlynar-,
czyk, Kenneth Bienkowski, Stanislaw Akst, the shipping clerk, and
the assistant of the shipping clerk, but excluding watchmen, drafts-
men, the chief engineer, the messenger boy, William Hartmann, John
Wolters, Zygmunt Milwicz, John Kozienko, Ferdinand Nowotony,
Edward Wozniak, Max Kurlandski, the foreman of the special pro-
duction department,2 and the truck driver, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
i
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The
Company and the I. A. M. desire an immediate election but the
United requests that the election.be postponed until certain matters
which are now under arbitration, or are about to be submitted to
arbitration, are settled. In December 1941, and the first part of
1942, the United filed charges of unfair labor practices against the
Company but subsequently withdrew the charges pursuant to an
agreement made by the Company and the United in settlement of
those charges. The agreement provided, inter alia, that (1) a labor
organization should be disestablished, (2) the question of 18 dis-
2 The position occupied by Polenski at the time of the hearing.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory discharges should be submitted to arbitration, and (3)
members-only contracts should be negotiated by the Company with
the United and the I. A. M. As indicated previously, the Company
entered into a members-only contract with the United on February
18, 1942, and into a similar contract with the I. A. M. on February
27, 1942. The terms of the contracts are identical and provide, inter
alia, that (1) the Company recognizes each organization as the col-
lective bargaining agent for its members; (2) negotiations for the
purpose of arriving at the terms of a collective bargaining agreement
should commence immediately; (3) if the parties are unable to con-
clude such an agreement within 10 days from the date of execution
of the members-only contract, the matter should be submitted to arbi-
tration; (4) all lay-offs and rehirings should be made upon the basis
of seniority and capability; (5) and if grievances arise from such
lay-offs and rehirings, the matter should be submitted to arbitration.
In' February 1942, the Company laid off 'approximately 80 employees,
of whom 4 have subsequently been rehired. With regard to the 18
employees who were discriminatorily discharged, an arbitration
award has been made, settling the matter. However, the Company
and the United were unable to reach an agreement on the wage scale
and other terms for the collective bargaining agreement provided
for in the members-only contract and the United has grievances in
regard to the lay-offs and rehirings. These latter matters have been
referred to the arbitrator by the United, pursuant to the contract.
The United contends that it will be prejudiced if an election is held
before these matters are settled. We find the reasons for postpone-
ment of election advanced by the United to be unpersuasive since
the parties stipulated at the hearing that the former employees on
the preferential list for reinstatement who have not refused offers of
reemployment shall be eligible to vote in the election and since the
Company and the I. A. M. have not reached a collective bargaining
agreement pursuant to the terms of'the members-only contract.
The preferential list for reinstatement is composed of the employees
who were laid off in February 1942. In accordance with the stipu-
lation of the parties, we find that such employees who have not
refused offers of reemployment shall be eligible to vote-in the election.
Pursuant to the desires of the parties and our customary practice,
we shall direct that the persons eligible to vote in the election shall
be those in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of
Election herein and these appearing on the preferential list for
reinstatement who have not refused offers of reemployment, subject
to the limitations and additions hereinafter set forth in the Direction.
UNION PARTS MANUFACTURING COMPANY, INC. 1181
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DMECTED that, as part of the investigation to determine representa-
tives for the purposes of collective bargaining with Union Parts
Manufacturing Company, Inc., Brooklyn, 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 Second
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, among the employees in the unit found appropriate in
Section IV, above, who were employed by the Company during the
pay-roll period immediately preceding the date of this Direction,
and those appearing on the preferential list for reinstatement who
have not refused offers of reemployment, including any such em-
ployees who did not work during that 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 any who
have since quit or been discharged for cause, to determine whether
they desire to be represented by International Association of Machin-
ists, District No. 15, affiliated with the American Federation of Labor,
or by Local 1225, United Electrical, Radio and Machine Workers of
America, affiliated with the Congress of Industrial Organizations,
for the purposes of collective bargaining, or by neither.