National Labor Relations Bd. v. Underwood Mach. Co.

• Decision Date: 11 January 1950
• Docket Number: No. 4427.,4427.
• Citation: 179 F.2d 118
• Parties: NATIONAL LABOR RELATIONS BOARD v. UNDERWOOD MACHINERY CO.
• Court: U.S. Court of Appeals — First Circuit

179 F.2d 118 (1949)

NATIONAL LABOR RELATIONS BOARD v.UNDERWOOD MACHINERY CO.

No. 4427.

United States Court of Appeals, First Circuit.

December 20, 1949.

Rehearing Denied January 11, 1950.

Marcel Mallet-Prevost, Attorney, Washington, D. C.(David P. Findling, Associate General Counsel, Ruth Weyand, Assistant General Counsel, and Harvey B. Diamond, Attorney, all of Washington, D. C., with him on brief), for petitioner.Maurice Epstein, Boston, Mass. (Benjamin E. Gordon and Gordon & Epstein, of Boston Mass., with him on brief), for respondent.

Before MAGRUDER, Chief Judge, and WOODBURY and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

The National Labor Relations Board filed its petition for enforcement of two orders issued against respondent, here consolidated for argument.The orders required respondent to cease and desist from refusing to bargain collectively with a designated union; from discouraging membership therein; and from interfering with, restraining, or coercing its employees in the exercise of their right to self-organization.They further required respondent to bargain collectively upon request with a designated union; to offer, when work was available, full reinstatement to his former position, or one substantially equivalent, to a certain employee; immediate reinstatement to their former positions to two other employees, all without prejudice to their seniority and other rights and privileges; to make whole these employees for any loss of pay suffered by reason of respondent's discrimination against them; and to post notices notifying all of its employees of its compliance with the foregoing.

Respondent, located in Boston, Massachusetts, is engaged in the manufacture of specially constructed machinery of all types; and its contracts with its customers often provided that it would design machinery to satisfy certain requirements in a customer's plant, build the machinery, erect it on the premises, commence its operation, and then turn it over to the customer.

The employees of respondent were distributed among three departments — the machine shop, plate shop, and erection and maintenance department.

The machine shop employs machinists, machine operators, and jig and fixture builders.Their duties are to machine the products ordered from respondent, a substantial portion of which goes to the plate shop for further assembly.

The plate shop, which consists of mechanics, layout men, and welders, fabricates and assembles sheet, plate, and structural steel products, including the material produced in the machine shop.

The erection and maintenance department includes millwrights, electricians, carpenters, and mechanics.This department is responsible for all maintenance and repair work necessary at respondent's plant.The employees in this department also install or erect at the plants of respondent's customers the machinery built by respondent according to customers' specifications.The work of installing machinery in the plants of respondent's customers is usually referred to as outside work, and the maintenance work in and around the plant is called inside or maintenance work.

Employees of the erection and maintenance department, in connection with erection of machinery, work away from the plant for varying periods of time, and sometimes take out-of-town trips.Occasionally men from the other departments of the plant go with the crew from the erection and maintenance department to assist in the erection and installation of the machinery, and sometimes additional men are hired to supplement the crew.Employees in the erection and maintenance department are the only maintenance workers employed by respondent; and when they are not on outside work, they are engaged in the maintenance of respondent's premises and machinery.On August 15, 1944, the International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, hereinafter called the union, filed a petition for investigation and certification of representatives for a unit composed of all production and maintenance employees, including shipping employees, and excluding executives, supervisors, office clerical employees, and guards.

The Board thereafter conducted a hearing on the union's petition.At the hearing, respondent company contested the unit requested by the union, asserting that the employees of the erection and maintenance department should be excluded from the unit embracing the production employees of the machine shop and plate shop.After a consideration of the facts, the Board found that the appropriate unit for the purpose of collective bargaining would be either: (a) the more inclusive unit, as proposed by the union, or (b) a unit of production employees, as proposed by respondent company.

The Board pointed out that the erection and maintenance employees had an obvious community of interest with the production employees, and that the erection and installation function appeared to be an integral part of production of the company's custom-made items.The Board, therefore, decided to ascertain the wishes of the erection and maintenance employees in the matter before making its final unit determination.In its decision and direction of elections, the Board ordered separate elections among the two employee groups, and stated that it would await the results of the elections before determining the appropriate unit.The Board further declared that if the union secured a majority of the votes cast by the production group only, it would find that that...