Kearney & Trecker Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1945

60 N.L.R.B. 148 (N.L.R.B. 1945)

In the Matter Of KEARNEY & TRECKER CORPORATION and INTERNATIONAL
UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA (UAW-CIO)
Case No. 1,9-R-673.-Decided' JanuaPy 19, 1945
Lam from, Tighe, Englehard c0 Peck, by Mr. Leon B. Lam from, of
Milwaukee, Wis., and Mr. C. F. Enroth, of West Allis, Wis., for the
Company.
Messrs. Max Raskin and Franklin E. Blake, of Milwaukee, Wis., for
the CIO.
Mr. George Gratz, of Milwaukee, Wis., and Mr. P. L. Siemiller, of
Chicago, Ill., for the IAM.
Messrs. D. C. Monte and Charles R. Kramp, of Milwaukee, Wis., for
the EIU.
Mr. G. Hallstrom, of Chicago, Ill., for the Pattern Makers.
Mr. Julius Kirle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly-filed by International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), herein, called the CIO, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Kearney & Trecker Corporation,' West Allis, Wisconsin,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before John R. Hill,
Trial Examiner. Said hearing was held at Milwaukee, Wisconsin, on
November 30, and December 1, 1944. The Company, the CIO, the
International Association of Machinists, District No. 10, A. F. of L.,
herein called the IAM, the Employees Independent Union at Kearney
& Trecker Corporation (CUA), herein called the EIU, and the Pattern
Makers League of North America; Milwaukee Association, A. F. of L.,
The Company was incorrectly designated in the petiiton and the Notice of Hearing
as "Kearney-Trecker Corporation ." This designation was amended at the hearing, -without
objection , to "Kearney & Trecker Corporation."
60 N. L. R. B., No. 28.
148
KEARNEY & TRECKER CORPORATION 149"
herein called the Pattern Makers,' appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on ,the
issues. At the hearing the Company moved to dismiss the petition, or
in the alternative, to have the election stayed until the cessation of
hostilities and the return of its employees in the armed services. Rul-
ing on the motion was reserved for the Board. For reasons stated, the
motion is hereby denied.3 The Trial Examiner's, -rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Subsequent to the hearing the Company filed a request with the Board
for oral argument. The request is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kearney & Trecker Corporation, a Wisconsin corporation, with its
plant located at West Allis, Wisconsin, is engaged in the manufacture
of milling machines and related parts. During the year 1943 the
Company used raw materials consisting of gray iron, steel castings,
and various other metals and materials, of an approximately value of
$13,000,000, approximately 50 percent of which came from points out-
side the State of Wisconsin. During the same period the Company
manufactured finished products of an approximate value of $50,000,000,
approximately 95 percent of which was shipped to purchasers out-
side the State of Wisconsin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UAW-CIO), affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
International Association of Machinists, District No. 10, affiliated
with the American Federation of Labor, is a labor organization ad-
mitting to membership employees of the Company.
Employees Independent Union at Kearney & Trecker Corporation,
affiliated with the Confederated Unions of America, is a labor organi-
zation admitting to membership employees of the Company.
2 The Pattern Makers was served with Notice of Hearing and appeared at the hearing
to protect its interests . The parties agreed to exclude the pattern makers and pattern
maker ' s apprentices from the appropriate unit and as a result thereof the Pattern
Makers evinced no furher interest in the hearing.
8 We have considered a similar contention in other cases and found it to be without
merit. See Matter of Mine Safety Appliances Co., Gallery Plant, 55 N. L. R. B. 1190.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the CIO as the
exclusive bargaining representative of certain of the Company's
employees until the CIO has been certified by the Board in an appro-
priate unit.4
A statement of a Board agent introduced into evidence at the hear-
ing, indicates that the CIO represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement that the appropriate unit
should comprise all the production and maintenance employees at
the Company's West Allis, Wisconsin, plant, including those em-
ployees listed in Appendix A, but excluding those employees listed
in Appendix B.6 - The parties disagree as to,the following specific
categories :
4 On May 12, 1942, the Company and EIU entered into a collective bargaining contract
which provided that it should be in force until 3 months after the declaration of an
armistice or peace with the Axis Powers. Neither the Company nor the EIU contends
that the presently existing contract constitutes a bar to a present determination of
represenatives
The Field Examiner reported that the CIO submitted 861 membership cards ; that the
names of 762 persons appearing on the cards were listed on the Company 's pay roll as
of September 22, 1944, which contained the names of 2,464 employees in the unit claimed ;
and that of the cards, 1 was dated in August 1941, 1 In January 1942, 7 in 1943, 199 from
January to June 1944, 304 from July to November 1944, and 250 were undated.
The IAM submitted 241 cards ; the names of 230 persons appearing thereon were listed
on the Company's pay roll as of September 22, 1944, and of the cards, 11 were dated in
dune 1944, 20 from July to November 1944, and 199 were undated. At the hearing the
IAM submitted an additional 251 cards, of which 6 were dated in May 1944, 5 in Septem-
,ber 1944, 51 in October 1944, and 189 in November 1944 The CIO also submitted at
the hearing an additional 50 cards, of which 47 were dated in November 1944, and 5 were
undated The Company objected to the admission of these additional cards in evidence on
the ground that the cards liad not been checked against the pay roll. We find the ob-
jection of the Company to be without merit. As we have frequently stated, authorization
of membership cards are required not as proof of the precise number of employees who
desire to be represented by a labor organization, or as a basis for determining the appro-
priate representative, but simply to provide a reasonable safeguard against the indiscrimi-
nate institution of representation proceedings by labor organizations which might have
little or no membership in the unit claimed to be appropriate. See Matter of Sylvania
Electric Products, Inc, 59 N. L. R. B. 1298
The EIU relies on its contract as proof of its representation Interest.
e Altliough the Company does not contend that its contract with the EIU is a bar to
an election in the instant proceeding, it, nevertheless, maintains that the Board has no,
authority to alter the unit as fixed by the contract between the Company and the EIU
and that any such alteration would deprive the Conipariy of property without due process
of law. We find no merit to this contention. The existence of a previous contract does
not necessarily fix the appropriate bargaining unit, but is merely one element in' the
total situation to be considered along with many other relevant factors. See Matter of Clyde
Mallory Lines, 15 N. L. R. B. 1008.
0
KEARNEY & TRECKER CORPORATION 151
Plant lay-out men. The Company employs two plant lay-out men
nn the plant-maintenance department (Department 74), who are
,paid on an hourly basis, and spend approximately 60 percent of their
time over a drafting board in the office of the general foreman of
the plant maintenance department, where they prepare drawings,
indicating the location of the machinery in the plant, and sketches
and specifications for alterations to the building. The remaining 40
,percent-of their time is spent taking measurements in the plant to
assist them in the making of these drawings. The CIO and the
Company would exclude them, while the IAM and EIU would include
them. Since the duties of these plant layout men appear to be similar
to those of the draftsmen in the engineering department whom the
parties would exclude, we shall exclude them.
Sign painters and sign hanger (Sign Painting Department-De-
partment 88). The Company employs two sign painters and one sign
hanger in the sign painting department from the IAM and EIU would
include; the CIO exclude, while the Company takes no position.
These employees are hourly rated. They paint and supply signs for
the War Production Drive Committee to stimulate war production
within the plant. Two of these employees were transferred from
other departments for this work, while the third was hired from the
outside. Although the outline of their work is given to them by the
War Production Drive Committee, they receive authorization for their
supplies and material from the head of the sign painting department
who is also head of the safety division and the management member of
the War Production Drive Committee. The Company also employs
production (spray) painters and painters in the plant 'maintenance
department whom the parties have agreed to include. We are of the
opinion that the interests of the sign painters and the sign hanger are
similar to those of the other painters, whom the parties agreed to in-
clude; we shall include them.
Time clerks. The, Company employs 22 time clerks 7 in its various
departments who work at desks adjacent to the foreman's office, check
and keep the time of the production employees, are paid on a salaried
basis, and are responsible to the paymaster who is the head of the pay-
roll department. Their duties are almost exclusively clerical. The
CIO and IAM would include them, while the EIU and the Company
would exclude them. We shall exclude them.8
Receiving clerks (Receiving and Stores Department-Department
60). The Company employs two receiving clerks who work in the
office of the general foreman, to whom they are responsible; are paid on
4 The terms time clerks and timekeepers appear to be used synonymously in the
record.
8 See Matter of Ingersoll 'Millinq Machine Company, 59 N L R B 251 ; Matter of
Sullivan Drydock & Repair Corporation, 56 N L R B 582
•,
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a salaried basis', and whose duties are concerned entirely with the paper
work necessary to the proper receipt of material. The CIO and IAM
would include them, while the Company and EIU would exclude them.
We shall include-them.,,
Shipping clerk (Department 50). The Company employs one ship-
ping clerk whom the CIO, IAM, and EIU would include and the
Company exclude. He is on the shipping department pay roll, is paid
on an hourly basis, and performs the customary duties of such an em-
ployee, including determination' of the type of packing= required' and
the method of shipment. While the shipping clerk receives instruc-
tions from and is responsible to the traffic manager, he performs sub-
stantially all of his duties in the shipping department, going to the
traffic manager's office solely to impart or receive information pertain-
ing to bills of lading or other shipping papers.1° Although the Board
has stated that it will include clerical employees in a unit comprised
primarily of production and maintenance employees where it appears
that they work in the plant and are in close contact with and under
the same supervision as the latter," it did not intend to.indicate thereby
that the criteria thus adopted are the sole prerequisites to such in-
clusion. Where the duties and interests of clerical employees, are
more closely aligned to those of the production employees than to the
office clerical employees, the propriety of including them in the unit
is not necessarily offset by the fact that they fall generally under office
supervision. We are of the opinion that the duties of the shipping
clerk, like those of the receiving clerks whom we have above included,
are sufficiently identifiable with those of the production and mainte-
nance employees to warrant his inclusion in the same unit; we shall
include him.
Indentured apprentices (except pattern maker's apprentices).
The Company employs 20 indentured apprentices who are in training
to become journeymen mechanics. These apprentices are minors em-
ployed by the Company under contracts of indenture subject to the
approval of the State Industrial Commission of Wisconsin, are ro-
tated throughout various departments in the plant, attend schools of
instruction, are paid more than the minimum wages prescribed by
the State Industrial Commission, and participate in the Company's
incentive wage plan. These apprentices are under the direction of
the departmental foremen as to machine operation instructions and _
work, but not as to discipline, which is retained by the apprentice
supervisor and the general foreman. The CIO and the IAM would
0 See Matter of Goodman Manufacturing Company , 58 N. L R. B. 531.
'0 While the present shipping clerk's precedessor was on the office pay roll , his duties
included elements in addition to those of the present shipping clerk. These additional
duties have since been assumed by the assistant traffic maanager.
11 See footnote 9, supra.
11
KEARNEY & TRECKER CORPORATION 153
include them, while the EIU and the Company would exclude them.
We shall include them.12
Power plant employees. The Company employs eight operating
engineers, three firemen, and one helper in the power plant, under the
supervision of the chief.engineer who has been excluded by agreement'
of the parties, are on the salaried or office pay roll, and have not been
previously bargained for by the EIU. The operating engineers main-
tain the power plant equipment, including the stokers, furnaces, com-
pressors, and generators. The firemen whose duties are confined to
the operationnof the boilers, check the hoppers, the coal, the pressure
and water level. They are assisted by the helpers. The Company
would exclude them solely because they are paid on a salaried basis.
The CIO and the IAM would include them, while the EIU would
exclude them. We are of the opinion that the interests of the power
plant employees in the instant proceeding lie with the production and
maintenance employees. Accordingly, we shall include them.
We find that all production and maintenance employees of the Com-
pany's West Allis, Wisconsin, plant, including indentured appren-
tices (except pattern maker's apprentices), power plant employees,
sign painters and the sign hanger (Department 88), receiving clerks
(Department 60), shipping clerk (Department 50), and those em-
ployees listed in Appendix A, but excluding plant lay-out men (De-
partment 74), time clerks, employees listed in Appendix B, and all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning
of Section 9 (b) of the Act. -
V. THE DETERMINATION OP REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
The Company contends that, contrary to the present practice of the
Board, provision be made for balloting by former employees now in
the military services. For reasons stated in the Mine Safety Appli-
ances Co. case,13 we reject this contention.
1 2 See Matter of Allis -Chalmers Manufacturing Company, 54 N. L. R. B. 1487.
13 See footnote 3, supra.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company employs two Marquette University engineering stu-
dents working on a part-time basis, as distinguished from those work-
ing under a cooperative arrangement whom the parties have agreed
to exclude.14 The parties are in agreement, and we find, that these
part-time employees have a sufficient interest in the results of the
election to justify their participation therein. Accordingly, we find
them eligible to vote.
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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Kearney & Trecker
Corporation, West Allis, Wisconsin, 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 Thirteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the em-
ployees 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 part-time students; employees who did not
work during the said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, to determine whether they desire to be represented
by International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO), or by International
Association of Machinists, District No. 10, A. F. of L., or by Employees
Independent Union, for the purposes. of collective bargaining, or by
none of said organizations.15
CHAIRMAN MILLIS 'took no part in the consideration of the above
Decision and Direction of Election.
14 See Appendix B.
15 The CIO , IAM, and EIU requested that they be designated on the ballot as set forth
above The request is hereby granted.
KEARNEY & TRECKER CORPORATION 155
APPENDIX A
Alignment Scrapers
Arbor Press Operators
Box Makers
Cable Splicers
Chippers
Cranemen
Crane Operators (Yard)
Disc Grinders
Electricians
Fillers
Garage Mechanics
Helpers
Heat Treaters
Inspectors
Janitors
Laboratory Helpers
Machine Cleaners
Machine Oilers
Machine Repairmen
Material Controller (Department
21)
Nick Grinders (Gears)
Painters (Spray)
Production Clerk (Department
20)
Platers
Pattern Storage Helpers (Depart-
ment 68)
Sanders
Shot Blasters
Sawmen
Set-up Men
Shipment Checkers (Department
50)
Shop Clerks (Departments 35, 42,
and 44)
Stock Order Clerks (Department
63)
Straightening Press. Operators
Testers
Tool Keepers
Tool Makers (Bench)
Tractor Drivers
Truck Drivers
Washing Machine Operators
Arbor Inspectors
Assemblers
Bench Hands ( Machine Shop)
Blacksmiths
Burr Filers
Carpenters
Chip Disposal Employees
Crane Inspectors
Crane Repairmen
Firemen (Department 60)
Gear Inspectors
Group Leaders
Hitchers
Induction Hardening Machine
.Operators
Jig Room Clerks ( Department 64)
Lay-Out Men ( Departments 28
and 62)
Machine Flushers
Machine Operators
Material Handlers
Millwrights
Painters ( Brush)
Plumbers & Steamfitters
Polishers
Pattern Clerk ( Department 68)
Pattern Shellacker (Department
68)
Sand Blasters
Salvage Inspectors -
Scrapers
Sheet Metal Workers
Shipment Packers
Sweepers
Stock Control Clerks (Depart-
ment 60)
Stationary Grinder Operators
Straighteners ( Department 30)
Tool Grinders
Toolroom Machine Operators
Truckers ( Electric)
Truckers (Hand)
Washing Booth Employees (De-
partment 42)
Welders
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APF%NDIX B-
Allemployees employed in the following Departments:
77 (Engineering)
79 (General Factory)
80 (Purchasing) -
81: (Cost and Payroll)
82 (Methods and Standards)
83 (Planning)
84 (Safety)
85 (Sales)
Office Clerical Employees 16
85A (Traffic)
85B (Production Service)
86 (Administrative)
87 (Personnel
Relations)
87 (Medical)
and
88 (Employment)
89 (Sub-contract)
Industrial
Pattern Makers and Pattern Maker's Apprentices
Expediters
Students employed under co-operative agreement with Marquette
University Engineering School
Apprentice Supervisor (Department 78)
Tool Supervisor
Chief Engineer (Department 69-Power Plant)
General Foremen
Assistant Foremen
11 Listed as office employees are engineers , draftsmen, secretaries , stenographers, ac-
countants , bookkeepers , bookkeeping machine operators , general office machine operators,
general office clerks, cost clerks, file clerks, production clerks, pricing clerks, purchasing
clerks, sales correspondent , technical servicemen, telephone operators , time-study engineers,
tool designers , traffic clerks , typists, billing clerks, Personnel Department men, general
supervisory group and management.