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National Labor Relations Board v. Conlon Brothers Manufacturing Co.

February 19, 1951


Author: Swaim

Before MAJOR, Chief Judge, DUFFY and SWAIM, Circuit Judges.

SWAIM, C.J.: This case comes to this Court on a petition of the National Labor Relations Board for the enforcement of its order issued against the respondent, Conlon Brothers Manufacturing Company, January 16, 1950. The respondent is an Illinois corporation engaged in the manufacture of washing machines. In June of 1948 the Washing Machine Workers' Union, hereinafter called the Union, filed a petition with the National Labor Relation Board requesting the Board to certify the Union as the bargaining representative for a unit composed of all "production, maintenance and shop employees" at respondent's plant, excluding supervisors and office employees.

The respondent at a hearing before the Board objected to the plant-wide unit sought by the Union and insisted that the Board should establish three separate bargaining units, one for its "production employees," another for its "shop employees," and a third for its part-time workers. The Board found and held that a single unit consisting of all of respondent's employees, other than office and supervisory employees, would be appropriate for the purpose of collective bargaining.

The respondent admits that it refused to bargain with the representatives of the Union, but seeks to excuse itself on the grounds - (1) that the bargaining unit designated by the Board was not appropriate, and (2) that the election was improperly conducted.

We are not impressed with the contention of the respondent that the unit found and designated by the Board was not appropriate for bargaining purposes. The record indicates that at the time of the election there was a total of approximately 44 employees working for the respondent. Thirteen of these employees were students who were going to school and were only working a portion of the time which the other employees worked. The respondent designated the majority of its employees who actually assembled the machines and performed the manufacturing operations, as "production employees." The respondent classed as "shop employees" those employees who did janitor service or operated hand trucks, trucking material and supplies from one place to another in respondent's plant, and also placed in this class the "maintenance employee" who kept the various machines in condition to operate, and also did general repair work in the plant. The respondent insisted that there should be three separate bargaining units among its employees: production employees, shop employees and parttime employees. The evidence indicates, however, that whenever the occasion demanded the production and shop employees were used interchangeably on whatever needed to be done to carry on respondent's work, and it was also indicated that while most of the part-time employees were engaged in the production work, one of the part-time employees was used most of the time as a shop employee.

It was shown that respondent's full-time employees are scheduled for eight hours a working from 8 a.m. until 4:30 p.m., with time out for lunch between 12 and 12:30 p.m. Some of the part-time employees worked from 8 o'clock in the morning until noon, while others worked from 1 o'clock, 1:15 or 2 o'clock until 4:30 p.m.

All of the employees are paid weekly on an hourly basis. The production employees are paid an hourly rate of from $1.00 to $1.25; the shop workers of from $1.00 to $1.05; the maintenance man a rate of $1.15 to $1.35; and the part-time workers a rate of from $.90 to $1.10 per hour.

Respondent's plant, in which all of its employees work, is located in a two-story building, the two stories being connected by an automatic elevator.

It was further shown that Rudolph P. Wolchina, the manager of respondent's plant, Tom Conlon, respondent's president, and Walter Conlon administer the policy with regard to the wages of all respondent's employees. Wolchina also testified that Galavan, respondent's superintendent, assigns the work, sees that everything is lined up and handles the complaints and grievances of all the employees.

Under the above facts we cannot disturb the decision made by the Board under the authority of Section 9(b) of the National Labor Relations Act. That sub-section provides that:

"The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of sections 151-166 of this title, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit or subdivision thereof." 29 U.S.C.A. ยง 159(b).

We cannot say that the action of the Board here in so designating the unit for bargaining purposes, under the facts shown above, was arbitrary, capricious or unreasonable.

On September 30, 1948, the Board ordered an election to be held within thirty days from that date. Pursuant to this direction of the Board, the Regional Director scheduled an election to be held at the plant of respondent for October 27, 1948, between the hours of 11:45 a.m. and 12:15 p.m. and between 1:00 p.m. and 1:30 p.m. On the date of the election the agent of the Board did not appear for the election until 12:30 p.m., and, because some of the part-time workers had then left the plant, he determined to hold the election on the following day during the same hours and at the same place "and so informed the parties". At the election held on the next day, October 28, forty-two of the approximately forty-four employees participated in the election. Two of the ballots were not counted, one ballot being void and the vote of one employee being challenged. Of the remaining forty ballots, twenty-one were cast for and nineteen against the Union. After the election representatives of the Regional Director, the respondent and the Union all certified to a tabulation of votes and also signed a written certificate which stated that the counting and tabulating were fairly and accurately done, that the secrecy of the ballots was maintained, that the results were as indicated by the tally and that "such balloting was fairly conducted, that all eligible voters were given an opportunity to vote their ballots in secrecy, and that the ballot box was protected in the interest of a fair and secret vote."

On November 4, 1948, the respondent not having filed any objection to the election within the five days allowed for such objections by the Board's rules and regulations, the Regional Director certified the Union as ...

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