Louis Marx & Co.

National Labor Relations Board - Board Decisions

Jul 5, 1943

51 N.L.R.B. 72 (N.L.R.B. 1943)

In the Matter of Louis MARX & Co., (McMECHEN, W. VA. PLANT) and
INTERNATIONAL ASSOCIATION ' OF MACHINISTS , AFFILIATED WITH
A. F. L. and UNITED PAPER NovELTY & Toy WORKERS UNION, LocAL
149 (CIO)
Case No. I1-5508.-Decided July 5,1943
Mr. Archie B. Marcus, of New York City, for the Company.
Mr. Van B. Carter, of Huntington, W. Va., for the I. A. M.
Mr. D. K. Harris, of Cincinnati, Ohio, for the CIO.
Mr. Eugene R. T'itorrens, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Association
of Machinists, herein called the I. A. M.,' alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Louis Marx & Co. of W. Va.,2 McMechen, West Virginia,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Henry Shore,
Trial Examiner. Said hearing was held at Wheeling, West Virginia,
on June 7, 1943. The Company, the I. A. M., the United Paper
Novelty & Toy Workers International Union, Local 149 (CIO), herein
called the CIO, appeared, participated, and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
1 Since the institution of this proceeding, the I. A. M. has withdrawn from the American
Federation of Labor. 1
2 A motion nas made and granted to amend all documents and papers in the case to set
forth the name of the Company, as above.
51 N. L. R. B., No. 19.
72
LOUIS MARX & CO.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
73
Louis Marx & Co. of W. Va., a West Virginia corporation, is en-
gaged'in the manufacture-of ordnance for the United States Govern-
ment. The Company operates two plants in West Virginia, one at
Glendale and the other at McMechen. This proceeding involves only
the McMechen plant. For the 6-month period preceding the date of
the hearing, the Company used at the McMechen plant raw materials
valued in excess of $100,000, all of which came from sources outside
the State of West Virginia. During the same period, the Company
manufactured at its McMechen plant and sold finished products valued
in excess of $200,000, all of which were shipped outside the State of
West Virginia. The Company concedes that it is engaged in com-
merce within the meaning of the National Labor Relations Act, and
subject to the jurisdiction of the National Labor Relations Board.
II. THE ORGANIZATIONS INVCLVED
International Association of Machinists is a labor organization ad-
mitting to membership employees of the Company.
United Paper Novelty & Toy Workers International Union, Local
149, is a labor organization affiliated with the Congress of Industrial
Organizations, admitting to membership employees of the. Company.
III. THE ALLEGED APPROPRIATE UNIT
As stated above, the Company operates two plants, one at Glendale,
and the other at McMechen, a distance of about 21/2 miles apart.
Prior to the fall of 1942, the Company manufactured metal toys at
the Glendale plant and used its McMechen facilities as a warehouse
for the storage of finished products and for the storage of steel. In
February 1941, pursuant to a consent agreement, the Board con-
ducted an election among the Company's production and maintenance
employees, exclusive of foremen, and office, clerical, sales, tool makers,
and tool and machinist employees, but including the warehouse em-
ployees at the McMechen plant. As a result of the election, the
Company entered into an exclusive bargaining contract, dated May
12, 1941, with the' CIO. By its terms the contract covered "all pro-
duction employees with the exception of superintendents, foremen,
tool room employees, machinist employees, salesmen, office and clerical
help." 3 Without an election, the Company also entered into an ex-
By implicit understanding and application this and subsequent contracts between the
Company and the CIO hereinafter mentioned have been construed to cover workers at both
GlendsRe"and McMechen , including maintenance employees.
'74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusive bargaining contract, dated May 28, 1941, with the I. A. M.
covering tool room employees and machinist employees.4 In March
1942, the Company and the CIO entered into 'a new contract covering
the same bargaining unit as in their previous arrangement. The
contract, to be effective from February 28, 1942, and from year to
year thereafter unless either party gave 30 days' written notice of
desire to modify or terminate the contract, provided for subsequent
negotiations concerning wages in the event that the Company con-
verted its operations to war production. On May 28, 1942, the Com-
pany and the I. A. M. entered into a new contract covering its tool
room and machinist employees. This contract also provided for
subsequent negotiations as to wage rates upon discontinuance of pro-
duction of toys and conversion to war production. As a result of an
order of the War Production Board eliminating the manufacture of
toys, the Company proceeded to engage in the manufacture of shells
for the Army and the Navy at the Glendale plant in October 1942.6
On September 11, 1942, and November 9, 1942, the Company entered
into separate supplemental agreements respectively with the I. A. M.
and the CIO providing for wage. adjustments. The supplemental
agreement with the I. A. M. provided that it run until June 1, 1943,
and thereafter until revised upon 30 days' written notice given by
either party desiring change or revision. Prior to March 18, 1943,
the I. A. M. requested the Company.to bargain with respect to em-
ployees in the MeMechen plant hereinafter specified. The Company
declined to bargain on the basis of the unit requested by the I. A. M.
Thereupon the I. A. M. filed the present petition for investigation
and certification of representatives.6
In its petition as amended the I. A. M. alleges that "all tool makers,
die makers, machinists, maintenance repair mechanic's, apprentices
and helpers, grinders, welders and tool setters, exclusive of foremen
and all persons with supervisory authority higher than foremen" at
the McMechen plant constitute an appropriate unit. In terms of the
Company's pay roll, such unit essentially ' consists of the- tool-room
or tool repair room, the maintenance department, and the tool setters.
'At this time there were no employees at the McMechen plant falling within the unit
descrnb"d in the I A. M.'s contract. As hereinafter appears, the Company began to convert
its McMechen warehouse to a plant for the production of oidnance in October 1942 and
began production there in February 1943.
6 Shell production at the McMechen plant, after conversion from a warehouse and Installa-
tion of suitable machinery , began in February 1943.
6Subsequently , on March 31, 1943 , the Company entered into a contract with the CIO
covering all production and maintenance employees at the Glendale and MeMehen plants
with the exception of superintendents, foremen, toolroom employees , machinist employees,
and sales, office, and clerical help Since June 1, 1943, the Company has met with the
I. A. M. with respect to the execution of a new agreement and has expressed willingness to
negotiate an agreement for toolroom employees at both plants. However, in view of the
I. A. M.'s claim , as hereinafter set forth , that maintenance employees and tool setters at the
McMechen plant should be combined with McMechen toolroom employees as one unit, a new
agreement has not been reached.
LOUIS MARX & CO. 75
As of May 16, 1943, the Company had on its McMechen pay roll 12
employees in the tool room, 8 employees in the maintenance depart-
ment, and 27 tool setters.
The Company and the CIO contend that employees at the Glendale
and McMechen plants together constitute an appropriate unit and
that, in any event, the tool setters -.and the maintenance employees
should be regarded as part of the production and mainenance unit.
Both plants are under common management of one general manager
and one common superintendent, except that an additional superin-
tendent is in charge of the McMechen plant. Engineering services,
cost accounting, and labor relations are handled in common for the
two plants. Until 2 or 3 weeks prior to the hearing there was a
common pay roll for the two plants; at the time of the hearing there
was a separate pay roll for each plant, but both pay rolls were pre-
pared by the same office personnel. Wages, hours, employment, and
other working conditions are substantially the same at both plants.
A common seniority system prevails. Of approximately 309 em-
ployees at the McMechen plant, a maximum of 60 are new employees.
The remainder were formerly employed at the Glendale plant, the
Company having exhausted its seniority roster in filling its employ-
ment needs at the McMechen plant before hiring new employees.
There is interchange of workers between the two plants and some
employees, particularly maintenance employees, as hereinafter indi-
cated, work at both plants on a split-shift basis.
The tool room at the McMechen plant, containing 12 employees, is
located in a segregated part of the plant and has a separate foreman.
The work is chiefly done within the tool room. This room contains
the tool makers, grinders, machinists, their apprentices and helpers.
The amended petition also describes die makers and welders as in-
cluded, in the alleged appropriate- unit. There, are no die makers
presently employed at the McMeclien plant. The I. A. M. claims
only acetylene or electric welders and not spot welders doing produc-
tion work. The only acetylene or electric welder used in the Mc-
Mechen plant is carried on the Glendale plant pay roll and works at
both plants, dividing his time equally between the two plants.
The maintenance department consists of seven ordinary employees
and a foreman. Only the foreman and one other employee do main-
tenance or repair work on machines; the others do miscellaneous re-
pairing or work as handymen. Thus, aside from the work of the
foreman and the one other employee who do maintenance and repair
work on machines, there is no direct connection between the work of
9 No issue is raised with respect to toolroom employees as a separate unit since the CIO
claims no interest In such workers and the Company has not refused to recognize the I A. M.
on behalf of tooiroom employees.
'76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the maintenance department and the tool room employees or the tool
setters. Although carried on the McMechen pay roll, as indicated
above, the maintenance employees work at both plants.' Under their
contracts, the Company and the CIO have considered the six em-
ployees who do miscellaneous repair work as part of the production
and maintenance unit. The I. A., M. proposes, and the Company and
the CIO oppose, the inclusion of the maintenance foreman in the
alleged appropriate unit. Although the foreman repairs machines
in addition to acting as a supervisor of the other seven men, he is a
salaried employee in full charge of the maintenance department, and
has the power to hire and discharge employees.
The work of the 27 tool setters, 4 of whom were formerly Glendale
employees and the remainder new employees, consists of setting and
adjusting machine tools according to gauge set for the operation of
production machines. The tool setters, semi-skilled machinists, per-'
form their work in the production part of the plant on machines
which machine operators operate. A separate foreman, who reports
directly to the plant superintendent, is in charge of the tool setters.
The tool setters receive a higher rate of pay by approximately 5 per-
-cent than the machine operators, but not as high as the tool room
employees who are ptid considerably more than machine operators.
The Company employs die setters at the Glendale plant and tool
setters at the McMechen plant'since power press machines are used at
Glendale, and lathes at McMechen. Apart from the difference in
type of machines, the work of the die setters and of the tool setters
is similar. In prior bargaining between the Company and the CIO
the die setters have been included in the production and maintenance
group. The I. A. M. has never claimed to represent the die setters,
and has never attempted to organize them.
In view of all the circumstances, including particularly the history
of collective bargaining on a two-plant basis, the failure of the
I. A. M. to object to the inclusion in the production and maintenance
unit of die setters in the Glendale plant, a group comparable to the
tool setters, the fact that the tool setters work on the production floor
and have no direct relationship with the tool room emplyees or the
maintenance workers as set forth above, and the fact that most of the
employees in the maintenance department work in both plants, we are
of the opinion that the unit urged by the I. A. M. is inappropriate
for the purposes of collective bargaining, and we so find.
IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since, as set forth in Section III, above, the bargaining unit sought
to be established by the petition as amended is inappropriate for the
8 The record does not disclose what portion, of their time is spent at each plant.
LOUIS MARX & CO. 77
purposes of collective bargaining , we find that no question has been
raised concerning the representation of employees in an appropriate
bargaining unit. Accordingly, we shall dismiss said petition.
ORDER
Upon the basis of the above findings of fact, the National Labor
Relations Board hereby orders that the petition, as amended, for in-
vestigation and certification of representatives filed by International
Association of Machinists, be, and it hereby is, dismissed.