C. H. Dutton Co.

National Labor Relations Board - Board Decisions

Mar 11, 1943

48 N.L.R.B. 27 (N.L.R.B. 1943)

In the Matter of C. H. D LITTON COMPANY and UNITED PAPER , NOVELTY
& Toy WORKERS INTERNATIONAL UNION, C. I. O.
Case No. R-4674'.-Decided March, 11, 1943
Jurisdiction : steam boilers and castings manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition; automatic renewal conti act, held no bar to
a determination of representatives, although no notice was given by contracting
parties prior to its renewal date and rival union's claim to representation was
given subsequent to the renewal date but prior to the expiration date, when
,contracting parties during the period following the notice given by the rival
organization and prior to the date when any renewed contract would have
become operative, entered into negotiations and contemplated that a new
agreement would be entered into supplanting the old ; election necessary.
,Unit' Appropriate for Collective Bargaining : (1) all employees working in the
boiler shop of the Company with specified exclusions; (2) all employees of the
Company exclusive of the boiler shop employees and other specifically named
categories ; determining factor desires of employees ; determination of,
dependent upon elections..,
Mr. Donald B. Sharpe, of Kalamazoo, Mich., for the Company.
Mr: Ralph E. Swagler, of New York City, for the United.
Mr. R. V. Farrenkopf, of Hammond, Ind., for tre Boilermakers.
Mr. John Kole, of Kalamazoo, Mich., for the Teamsters.
111r. Laois Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by-United Paper, Novelty & Toy Workers
International Union, C. I. 0., herein called the United, alleging that
a question affecting commerce had arisen' concerning the representa-
tion of employees-of C. H. Dutton Company, Kalamazoo, Michigan,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Harold A.
Cranefield, Trial Examiner. Said hearing was held at Kalamazoo,
Michigan, on December 16, 1942. At the commencement of the hear-
ing, the Trial Examiner granted motions 6f International Brother-
hood of Boilermakers, Iron Ship Builders, Helpers and Welders of
48 N. L. R. B, No. 7.
27
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Local 374, herein called the Boilermakers, and International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No. 7, herein called the Teamsters, to intervene.-
The Company, the United, the Boilermakers, and the Teamsters ap-
peared, participated, and were 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 January 9, 1943, the Board issued an order reopening the record
and remanding the proceeding for the purposes of further hearing.
Pursuant thereto a further hearing was held on February 13, 1943, at
Kalamazoo, Michigan, before Harold A. Cranefield, Trial Examiner.
The Company, the United, and the Boilermakers appeared, partici-
pated, and were 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 further hearing are
free from prejudicial error and are hereby affimed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
C. H. Dutton Company is a Michigan corporation with its principal
place of business at Kalamazoo, Michigan, where it is engaged in the
manufacture of steam boilers and castings. From July 31, to October
31, 1942, the Company used raw materials valued at about $160,000,
approximately 90 percent of which was shipped to it from points out-
side the State of Michigan. During the same period the Company
manufactured products valued at about $400,000, approximately 90
percent of which was shipped to points outside the State of Michigan.
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Paper, Novelty & Toy Workers International Union is a
labor organization affiliated with the Congress of Industrial Organiza-
tions, admitting to membership employees of the Company.
International Brotherhood of Boilermakers, Iron Ship Builders,
Helpers and Welders of America, Local 374, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
' The Teamsters intervened because it is a party to a contract with the Company. How-
ever, said contract does not cover any of the employees involved herein.
C. H. DUTTON COMPANY 29
III. THE QUESTION CONCERNING REPRESENTATION
On October 1, 1941, the Company and the Boilermakers entered into
an exclusive contract. The contract was for a term of 1 year and
provided that it should be renewed thereafter from year to year unless
30 days' notice was given by either party thereto prior to any annual
expiration date. No such notice was given on September 1, 1942, and
the contract was automatically renewed at that time. On September
9, 1942, the Boilermakers advised the Company that it desired that
negotiations be commenced with the view of entering into a new con-
tract. On September 10, 1942, the United notified the Company that
it claimed to represent a majority of the Company's employees, includ-
ing the employees covered by the Boilermakers' contract. On Septem-
ber 15, 1942, the Company advised the Boilermakers that inasmuch
as another labor organization was claiming to represent its employees
it could not discuss any contract terms with the Boilermakers until
the matter of representation was determined. The same day the Com-
pany advised the Michigan State Labor Mediation Board of its
problem. Sometime between September 15 and 25, 1942, a representa-
tive of the Michigan State Labor Mediation Board advised the Com-
pany that it would be proper for it to negotiate with the Boilermakers.
On September 25, 1942, the Company met with the Boilermakers at
which time the Boilermakers presented a proposed contract. No
agreement was reached at that meeting with respect to the new pro-
posals. On September 30, 1942,.the Company and the Boilermakers
again met, at which time the Company presented counterproposals. .
On October 29, 1942, the United filed its petition herein. On October
30, 1942, the Company terminated all negotiations with the Boiler-
makers because of the pendency of the petition. No new agreement
of any kind has been entered into between the Boilermakers and the
Company.
The Boilermakers contends that its contract of October 1, 1941, was
renewed on September '1, 1942, and constitutes a bar to a present deter-
mination of representatives and urges that the petition with respect to
the employees covered by the alleged renewed agreement be dismissed.
The Company stated at the further hearing that its position was
'strictly neutral and that it had no objection to the holding of an elec-
tion at this time to determine the bargaining representative of its
employees.
We conclude that the actions of the Boilermakers and the Company
between September 9 and 30, 1942, as set out above, constitute a waiver
by both parties of their right to assert that the, October 1, 1941, con-
tract was renewed and constitutes a bar to this proceeding. It is clear
that the parties during the period of negotiations following September
9 and prior to October 1, 1942, when any renewed contract would
'30 DECISIONS OF NATIONAIi LABOR RELATIONS BOARD
have become operative, and for some. time thereafter, contemplated
that a new agreement would be entered into supplanting the old.
They in effect therefore treated the September 9 notice by'the Boiler-
makers as timely and mutually waived the term of the 'old contract
providing that, in the absence of notice 30 days prior to October 1,
1942, the old contract would be renewed for another year.
Statements ,of the Regional Director and the Trial Examiner, intro-
duced into evidence during the hearings, indicate that the United
and the Boilermakers each represents a substantial number of
employees in the unit alleged by each 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 Boilermakers contends that all employees in the boiler shop of
the Company, excluding clerical and managerial employees, constitute
an appropriate unit. The United contends that all employees of the
Company, including employees claimed by the Boilermakers, but ex-
cluding clerical and managerial employees, employees covered by a
contract between the Company and the Teamsters, employees covered
by a contract between the Company and International Molders and
Foundry Workers Union of North America, Local 388, herein called
the Molders, and plant-protection employees, constitute an appro-
priate unit. The Company took no position with respect to the
appropriate unit or units.
The contract between the Boilermakers and the'Company covered
the employees claimed by the Boilermakers. , Evidence was intro-
duced at the hearing which tends to show the appropriateness of the
unit urged by the Boilermakers. On the other hand, evidence show-
ing the integrated nature of the Company's operations indicates the
propriety of including the employees in the boiler shop in a single
unit with the employees claimed by the United. In this situation, we
shall permit the scope of the bargaining unit or units to be determined
in part by the results of separate elections.
2 The Regional Director reported that the United presented 75 membership application
cards bearing apparently genuine signatures of persons whose names appear on the Com-
pany's pay roll of November 15, 1942. There are approximately 127 employees in the
unit urged by the United The Trial Examiner reported that the 'Boilermakers presented
evidence indicating that it represents 31 employees whose names appear on the Company's
pay roll of November 15, 1942. There are 63 employees in the unit claimed by the Boiler-
'makers. The Trial Examiner reported that the United presented 44 membership applica-
tion cards bearing apparently genuine signatures of persons whose names appear on the
Company's pay roll of November 15, 1942, and who are in the unit urged by the Boiler-
makers.
C. H. DUTTON COMPANY 31
On the basis of the entire record and in accordance with the fore-
going findings of fact, we shall order elections among the employees
of the Company within the groups described below :
(1) All employees working in the boiler shop of the Company,
excluding clerical and managerial employees , to determine whether
they desire to be represented by the United, or by the Boilermakers,
for the purposes of collective bargaining , or by neither.
(2) All employees of the Company, excluding clerical and mana-
gerial employees , employees presently covered b^ contracts between
the Company and the Teamsters and Molders, persons employed in
the boiler shop, and plant-protection employees, to determine whether
or not they desire to be represented by the United for the purposes of
collective bargaining.
As stated above, there will be no final determination of the appro-
priate unit or units pending the results of the elections . If the ma-
jority in each group selects the United they will together constitute
P. single appropriate unit. If the persons in the boiler shop choose
the Boilermakers that group will constitute a -separate appropriate
unit.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by elections by secret ballot among the em-
ployees who were employed during the pay-roll period immediately
preceding the date of the Direction of Elections herein, subject to the
limitations and additions set forth in the Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with C. H. Dutton
Company, Kalniazoo, Michigan, 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 Seventh Region, acting in this mat-
ter as agent for the National -Labor Relations Board, and subject to
Article III, Section 10, of said Rules and Regulations, among all em-
ployees in, the groups described below, who ,were employed during
the pay-roll period immediately preceding the date of this Direction,
32 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
including employees who did not work during such pay-roll period
because,they were ill or on vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who pre-
sent themselves in person at the polls, but excluding any who have
since quit or been 'discharged for cause:
(1)' All persons employed in the boiler shop of the Company, ex-
cluding clerical and managerial employees, to determine whether they
desire to be represented by United Paper, Novelty & Toy Workers
International Unior?, affiliated with the Congress of Industrial Or-
ganizations, or by International Brotherhood of ,Boilermakers, Iron
Ship .Builders, Helpers and, Welders of America, Local 374, affiliated
with the American Federation of Labor, for the purposes of collective
bargaining, or by neither.
(2) All employees of the Company, excluding clerical andmana-
gerial employees, employees presently covered by contracts between
the Company and the Teamsters and Molders, persons employed in
the boiler shop, and plant-protection employees, to determine whether
or not they desire to be represented by United Paper, -Novelty & Toy
Workers International Union, affiliated with the Congress of Indus-
trial Organizations, for the purposes of collective bargaining.