Johnston City Foundry & Machine Works, Inc.

National Labor Relations Board - Board Decisions

Dec 10, 1947

75 N.L.R.B. 475 (N.L.R.B. 1947)

In the Matter of JOIINSTON CITY FOUNDRY & MACHINE WORKS, INC.,
EMPLOYER and INTERNATIONAL MOLDERS & FOUNDRY WORKERS
UNION OF NoRTII AMERICA, A. F. L., PETITIONER
Case No. 10-R-P765.-Decided December 10, 1947
Air. Clarence W. 13ralley and Miss M. A. Ross, both of Johnson
City, Tenn., for the Employer.
Mr. Claude L. Dudney, of Chattanooga, Tenn., and Mr. E. F. Dean,
of Johnson City, Tenn., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Johnson
City, Tennessee, on August 8, 1947, before Charles M. Paschal, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 1
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE EMPLOYER
Johnson City Foundry S, Machine Works, Inc., a Tennessee corpo-
ration, is engaged in the manufacture, assembly, sale, and distribution
of grey-iron, machine parts, structural steel products, ornamental and
miscellaneous iron works, and related products at its plant in John-
son City, Tennessee. During the past year, the Employer purchased
raw materials valued in excess of $100,000, of which 33 percent was
shipped from points outside the State of Tennessee. During the
same period, the Employer sold finished products valued in excess
of $500,000, of which approximately 15 percent was shipped to points
outside the State.
' The Employee ' s motion to dismiss the petition on the ground that the Petitioner has
failed to comply with the filing requirements in Section 9 (f) and ( h) of the Act is denied
inasmuch as the Petitioner has in fact complied with these requirements.
75 N. L. R. B., No. 60.
475
-476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED 2
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of the employees in the unit sought herein
on the ground that the Board's certification of the United Construction
Workers, U. M. W. A., herein called the UCW, on November 26, 1946,
constitutes a bar to this proceeding. It further contends that this peti-
tion should be dismissed because the UCW's certification is protected
by Section 103 of the Act, as amended.3 Inasmuch as the anniversary
date of the UCW's certification has now passed, it is unnecessary for
us to pass upon the merit of these contentions. Accordingly, we find
that there is no bar to a present determination of representatives.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Employer's plant at Johnson City, Tennessee, is operated in 4
departments : a foundry, a structural steel shop, a machine shop, and
an ornamental iron works shop. The Petitioner, seeks a unit of all
workers in the foundry, including molders, coremakers, molder help-
ers, coremaker helpers, molder and coremaker apprentices, chippers,
chipper helpers, cupola tenders, cupola charges, shake-out men, ma-
chine molders, grinders, and general foundry laborers, but excluding
crane operators, pattern makers, flask makers, watchmen, clerical
employees, and all supervisory employees. The Employer's primary
position is that a plant-wide unit is appropriate, as previously found
2 The United Construction Workers, U. AT w A, was served with a copy of the Notice
of IIearing , but it failed to appear at the hearing
i Sec. 103, effective August 22, 1947, provides as follows :
No provisions of this title shall affect any certification of representatives or any
determination as to the appropriate collective-bargaining unit, which was made under
section 9 of the National Labor Relations Act prior to the effective date of this title
until one year after the date of such certification or if in respect of which a collective-
bargaining contract was entered into prior to the effective date of this title , until the
end of the contract period, of until one year after such (late, whichever first occurs
JOHNSON CITY FOUNDRY & MACHINE WORKS, INC. 477
by the Board.4 Its alternative position is that pattern makers, flask
makers, and crane operators should be included, if the Board should
find appropriate a unit of foundry workers.
It appears that no effective bargaining resulted from our prior de-
termination as to the appropriate bargaining unit.-5 In such a case,
especially where the certified labor organization has failed to appear
at the hearing or otherwise to voice an objection, as in the present case,'
we do not hold our prior unit finding to be controlling.?
The foundry and the structural steel shop are located in separate
buildings; the remaining departments are housed together. All 3
buildings are in the same general area. The foundry employs about
40 of the 120 employees in the plant. Under the general supervision
of a superintendent and assistant superintendent, there is a foreman
for each of the 4 departments. The foremen have authority to hire
and discharge. All employees are paid on an hourly basis and have
the same general conditions of employment. No appreciable inter-
change of employees takes place between the foundry and the other
departments. Of the total amount of raw material used in the machine
shop, 25 to 30 percent represents castings forwarded from the foundry
for further processing; similarly, 5 percent of the ornamental iron
shop's raw materials consists of castings forwarded from the foundry;
and no such castings are forwarded from the foundry to the structural
steel shop.
Under these circumstances, we find that the foundry employees, as
a homogeneous group, constitute an appropriate unit.8
As indicated above, the parties disagree with respect to the following
classifications, which the Petitioner would exclude because, it asserts,
they are traditionally claimed by other craft organizations :
Pattern maker and flask maker: The record shows that there is one
employee in each of these categories.9 The pattern maker is a rela-
tively high-paid skilled employee who, constructs patterns for the
molders to make castings. The flask maker, however, is considered
4In Matter of Johnson Caty Foundry it Machine Works, Inc., 71 N. L. R B. 825, the
Board certified the UCW to represent all production and maintenance employees of the
Employer , including truck drivers and watchmen , but excluding office, technical and admin-
istrative employees , and all supervisors.
5 The parties stipulated at the hearing that , since its certification by the Board on No-
vember 26 , 1946 , the UCw has never bargained with the Employer , or made any attempt
of any kind to meet or confer with the Employer
Moreover , it is noted that the parties were in agreement as to the appropriate unit in
the prior proceeding , so that the Board's finding on that issue was in essence based upon
their consent, rather than an adjudication of a controversy.
7 Matter of Bethlehem Steel Company, 64 N. L . R. B. 352, 354 ; cf. Matter of C. A. Dun-
ham Company, 74 N. L R. B 212
8 Matter of C. A. Dunham Company, 74 N. L. R. B. 212 , ef. Matter of International Shoe
Company, 74 N L. It. B. 464.
1 John Hartley and Walter Morris , respectively.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unskilled and is paid at approximately the same rate as are similarly
unskilled foundry employees. His duties are to construct the flasks
which are used to make the molds. Both employees work in the
pattern shop, which is located in a separate building attached to the
foundry, but which is supervised by the foundry foreman. The Peti-
tioner does not admit to membership pattern makers, but it does some-
times admit flask makers. We shall exclude the pattern maker, whose
standing as a member of a distinct and highly skilled craft sets him
apart from the foundry employees. However, except for the separate
location, there is little to distinguish the interests and conditions of
employment of the flask maker from other unskilled employees of the
foundry, and we shall, therefore, include hint.
Crane operators : One such operator is employed full time during the
'day; one other operator is employed in this capacity for 2 hours at
night and as a sand-cutter for the remaining 5 hours. Their job of
assembling various raw materials in cupolas is not considered skilled.
The record shows that the day operator works under the supervision
of the foundry foreman and exercises no supervisory authority himself.
The night operator, however, "looks after" 4 other employees who are
there with him, but possesses no authority to hire, discharge, or disci-
pline these employees, or effectively recommend such action. We find
that the crane operators do not responsibly direct other employees;
and we are of the opinion that their interests are substantially similar
to those of the other foundry employees. We shall, therefore, include
o them.
We find that all foundry workers of the Employer, including mold-
ers, coremakers, molder helpers, coremaker helpers, molder and core-
maker apprentices, chippers, chipper helpers, cupola tenders, cupola
charges, shake-out men, machine molders, grinders, flask makers, crane
operators, and general foundry laborers, but excluding pattern makers,
watchmen, foundry foremen, clerical employees, and all supervisors
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
At the hearing, some question was raised with respect to the voting
eligibility of the following employees, all of whom are included in the
unit for purposes of collective bargaining to the extent that they hold
foundry jobs : 10
10 At the hearing, the problem as to these employees was discussed in terms of their inclu-
sion in the "unit." It is apparent, however, that they are foundry workers and are included
in the unit as such, at least part time The only seal question,'therefore, is ,Nhether they
are eligible to participate in the selection of a collective bargaining representative for the
foundry workers.
JOHNSON CITY FOUNDRY & MACHINE WORKS, INC. 479
Willard Davis, who spends 4 hours of the day performing the duties
of a chipper helper and 4 hours hauling coke to the foundry from the
yard.
Herbert Head, who spends 45 minutes of each hour as a shake-out
man and the remaining time leaking the rounds as a night watchman.1'
Dave Leach, who is regularly employed as a molder but who supple-
ments his earnings by acting as a watchman on holidays.
Frank Campbell, who is employed as a helper in the foundry 4 hours
of the work day and spends the remainder of the day hauling coke to
the foundry.
Ernest Smith, who supplements his full time employment in the
foundry by working as a night watchman on Saturdays.
The above-named employees, who spend at least 50 percent of their
time working in the foundry, clearly have a substantial interest in the
employment conditions of the foundry and in the outcome of the elec-
tion. We find, therefore, that they are eligible to vote.-
Dallas Miller, who is classified as a molder-trainee and yardman and
is required to serve an apprenticeship of 1,000 hours in each capacity.
At the time of the hearing he was employed in the yard where he
"'[got] up iron for the cupola." It is apparent that this employee is
primarily a folmclry worker, and that his training assignment to .t job
outside the foundry proper, if that assignment is not already com-
pleted, is in the nature of a temporary detail. We shall permit him to
vote in the election.13
• Brady Hughes, who is employed as a night watchman for 5 hours
each work day and as a sand-cutter for the remaining 2 hours. This
employee's primary occupation is clearly that of night watchman and
we find that he is, therefore, ineligible to vote 14
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot, subject
to the limitations and additions sit forth in the Direction.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Johnson City Foundry & Ma-
chine Works, Inc., Johnson City, Tennessee, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
11 All the watchmen at the plant perform the limited duties of protecting property from
fire and theft. They are not armed or deputized, and have no authority over other
employees.
12 Matter of Swift and Company, 58 N. L. R. B 657, 661.
13 See Matter of Quick Industries, Incorporated, 71 N. L R. B 949 ; Matter of Seruel, Inc ,
58 N. L. R. B 5.'
11 Matter of Marcellus M. Murdock, 67 N. L. R B 1426, 1427.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Tenth Region, and subject
to Sections 203.61 and 203.62, of National Labor Relations Board Rules
and Regulations-Series 5, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to de-
termine whether or not they desire to be represented by International
Molders & Foundry Workers Union of North.America, A. F. L., for
the purposes of collective bargaining.