Yellow Truck & Coach Manufacturing Co.

In the Matter of YELLOW TRUCK & COACH MANUFACTURING COMPANY and UNITED ORGANIZATION OF PLANT PRODUCTION EMPLOYEES Case No. R--3321.Decided February 19, 1942 Jurisdiction : truck and passenger coach manufacturing industry. Investigation and Certification of Representatives : existence of question : com- pany refuses to recognize union as exclusive representative of plant protection employees until certified by the Board ; election necessary. Unit Appropriate for Collective Bargaining : all plant protection employees ex- cluding sergeants, lieutenants, captains, chiefs, and other supervisory employees. Definition : patrolmen are employees within the meaning of the Act. Mr. Harold A. Crane fiield and Mr. Jerome 17. Brooks, for the Board. Mr. Henry M. Hogan, by Mr. Robert C. Carson, of Detroit, Mich., for the Company. Mr. Maurice Sugar, by Mr. Ernest Goodman and Mr. Harry H. Anbender, of Detroit, Mich., for the United. Mr. Frederic B. Parkes, 2d, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 6, 1941, United Organization of Plant Protection Employees, herein called the United, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Yellow Truck & Coach Manufacturing Company, Pontiac, Michigan, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 14, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 39 N. L. R. B., No. 3. 14 YELLOW TRUCK & COACH MANUFACTURING COMPANY 15 On November 15, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the United. Pursuant to notice, a hearing was held on November 21 and 22, 1941, at Detroit, Michigan, before A. Bruce Hunt, the Trial Ex- aminer duly- designated by the Chief Trial Examiner. The Board, the Company, and the United were represented and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing, the Company moved that the petition be dismissed on the grounds that (1) the plant pro- tection employees do not constitute an appropriate unit, (2) the plant protection employees are not employees within the meaning of the Act, (3) the United is not a labor organization but is a sham organi- zation, in reality a part of United Automobile Workers, affiliated with the Congress of Industrial Organizations, herein called the UAW-CIO, and (4) accordingly, a question concerning representa- tion does not exist. The Trial Examiner reserved ruling on the motion for the Board. For reasons appearing below,-the motion is hereby denied. During the course of the hearing, the Trial Examiner made various rulings on other motions and on objections to the ad- mission of evidence. The Board has considered the 'rulings of the Trial Examiner and finds that iio prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was,held before the Board on December 11, 1941, at Washington, D. C. The Company and the United were represented and presented argument. On December 8 and 9, 1941, respectively, the Company and the United filed briefs, which the Board has considered.' Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Yellow Truck & Coach Manufacturing Company, a Maine corpo- ration, is engaged in manufacturing and assembling trucks and pas- 1 On December 29, 1941 , the Combany filed with the Board a letter setting forth action taken, pursuant to orders from war and navy officials , to protect the plant since the date of oral argument ; photostatic copies of such orders were attached to the letter. The Company is taking the following steps-to protect its plant ( 1) the plant protection force will be increased from 83 to 121 men as soon as possible; (2) the entire plant protection force will he deputized under the City Police Department of Pontiac , Michigan , will be armed, and will be trained in the use of firearms; (3) all employees have been fingerprinted and are not permitted to enter the plant unless they are wearing a photographic badge ; (4) all aliens working in the plant are being watched by plant protection employees ; (5) visitors are closely watched ; (6) plant property is being fenced and screened ; and (7 ) searchlights and floodlights are being installed On January 5, 1942 , the United filed with the Board an affidavit in reply to the Company's letter In reaching its decision , the Board has considered both documents. 448105-42-vol 39 3 16 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD stinger coaches and replacement and service parts therefor at its plants in'Pontiac, Michigan. ^ Approximately 59 percent in value of the productive materials, including raw material and fabricated, or partially fabricated articles used in the manufacturing operations of the Company, are obtained from* sources outside the State of Mich- igan. Approximately 94 percent in value of the products of the Com- pany are' shipped, upon completion, to points outside the ' State of Michigan. The Company employs approximately 10,900 employees. II. THE ORGANIZATION INVOLVED I - ' United Organization of Plant Protection Employees is an unaffill- 'ated" labor organization, admitting employees of the Company to membership. " III. "THE QUESTION CONCERNING REPRESENTATION On several occasions prior to'the filing of the petition herein, vari- ous members''of the United, when discussing personal grievances with the Company, requested that the Company recognize the United as 'the 'statutory -representative of the plant protection employees. The' Company', in each instance, refused. In a letter dated October 1, 1941,' the United formally requested recognition. The Company, replying by 'letter on October 15, 1941, refused to negotiate with the United until that organization had been certified by the Board. A statement of the Regional Director introduced into evidence at the hearing'shows that 'the United represents a substantial number of employees in the unit hereinafter found to be appropriate.2 We find that a question has arisen concerning the representation of employees of the' Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that,the question concerning representation which has arisen, occurring in connection with,the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to, lead to labor disputes burdening and obstructing commerce and'the free flow of commerce. i', 2 The United submitted to the Regional Director 45 application cards, dated between' October 3 and 7, 1941. The Regional Director reported that the signaures were apparently genuine and were the names of 45 persons on the Company's pay roll of November 1, 1941. As of, November 1, 1941, there were 65 employees within, the unit found below to be 'appropriate. • • ' , YELLOW TRUCK & COACH MANUFACTURING COMPANY 17 V. THE APPROPRIATE UNIT The United contends that all plant protection employees of the Company, excluding sergeants, lieutenants, captains, chiefs, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The Company denies the appropriateness of the unit proposed by the United, insists that the plant protection employees are not employees within the meaning of the Act, and urges the dismissal of the petition.3 The plant protection force is divided into three shifts which are rotated weekly among the Company's 5 plants in and around Pontiac, Michigan. 'The various posts or assignments are also rotated within each shift periodically so that the patrolmen in the course of time work at each of the Company's plants. The plant protection de- partment is supervised- by a chief, captain, lieutenant, and several sergeants. Approximately 7 patrolmen are under the direct super- vision of each sergeant. The chief duties of the patrolmen are to protect the property of the Company, and also that of the Company's t,lnployees and of the United States Government; to check employees and vehicles in and out of the plant; to keep out unauthorized visitors; to report safety hazards; to check all damage of machinery; and to report violations of the disciplinary and safety regulations of the Company. Grievances frequently arise from action taken by the Company pursuant to infractions of Company rules reported by the patrolmen. On occasion patrolmen may be required to testify be- fore the grievance committee. The patrolmen also check products manufactured by the Company as they leave the plant to ascertain if they correspond to the "check-out slip" and conform to the order or bill of sale. The Company contends that the patrolmen. are not employees within the meaning of the Act since the inherent nature of their, duties stamps them as representatives of management.4 We find this posi- s The Company further contends that the United is not a bona fide labor organization, but is a sham organization created by the UAW-CIO to circumvent a contract in which the UAW-CIO is recognized by the Company as the statutory representative for the production and maintenance employees at the Company's plants , excluding inter eltie, the plant pro- tection employees. It appears that the United has been assisted in its organizational efforts by the UAW-CIO That fact, however, is not material since we found that the Union is clearly a bona fide labor organization within the meaning of Section 2 (5) of the Act and is presently seeking certification as collective bargaining representative of' the protection employees 4 The Company also contends that the patrolmen are part of its labor relations staff for the reason that they may be called upon to testify before the grievance committee in regard to grievances arising from action taken by the Company 'pursuant to violations of Company rules reported by the patrolmen We find this contention to be unpersuasive since the record shows that the patrolmen merely report facts in respect to infractions of Company rules, as any other employee might be requested to do on occasion, and they neither make recommendations nor advise the management as to the appropriate disposition of grievances t 1S DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion untenable. Clearly the relationship between the Company and the patrolmen is that of employer and employee. The patrolmen are a small group of employees working under the supervision of the chief, captain, lieutenant, and sergeants. We find nothing in the duties of the patrolmen set forth above to warrant depriving them of the rights to self-organization and collective bargaining guaranteed employees under the Act.' They clearly have no part in the deter- mination of Company policy regarding discipline or safety. We find that the patrolmen are employees within the meaning of Section 2 (3) of the Act and are entitled to its benefits. The Act confers upon employees the right to self-organization and to collective bargaining through representatives of their own choosing. The patrolmen Have organized as a group separate and apart from the production and maintenance workers. A substantial number of the patrolmen _appear to have'accepted membership in the United, and no other organization seeks to represent them. We find unpersuasive the Company's argument that the organization of the patrolmen for collective bargaining purposes will lessen their effi- ciency. We see no reason why the request for a unit of patrolmen should not be granted.6 We find that all plant protection employees of the Company, ex- cluding sergeants, lieutenants, captains, chiefs, and other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. In accordance with the desires of the parties and our usual practice, we shall direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were em- ployed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and addi- tions hereinafter set forth in the Direction. Upon the basis of' the above findings of fact and upon the entire record in the case, the Board makes the following : " We are not here concerned with the propriety of the inclusion of this group of employees in the same bargaining unit with other employees performing different functions , which would present-a separate issue 6 See Matter of Chrysler Corporation and United Protective Workers of America, 36 N L R B 593 ; Matter of R C A Manufacturing Company, Inc. and United Electrical, Radio and Machine Workers of America, Local 103; 30 N . L R B. 668; Matter of West- inghouse Electric t Manufacturing Company and Local 724, United Electrical, Radio d Machine Workers of America, affiliated with C 1 0 , 28 N. L R B 799. YELLOW TRUCK & COACH MANUFACTURING COMPANY CONCLUSIONS or LAIN' - 19 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Yellow Truck & Coach Manufacturing Company, Pontiac, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.' 2. All plant protection employees of the Company, excluding ser- geants, lieutenants, captains, chiefs, and other supervisory employ- ees, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act. 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by' the Board to ascertain representatives for the purposes of collective bargaining with Yellow Truck & Coach Manufacturing Company, Pontiac, Mich- igan, 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 Di- rector for the Seventh Region, acting ill this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all plant protection employees of the Company, who were employed during the pay-roll period im- mediately preceding the date of this Direction, including all employ- ees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding sergeants, lieutenants, captains, chiefs, other supervisory employees, and em- ployees who have since quit or been discharged for cause to determine whether or not they desire to be represented by United Organiza- tion of -Plant Protection Employees for the purposes of collective bargaining. In the Matter Of YELLOW TRUCK & COACH MANUFACTURING COMPANY and UNITED ORGANIZATION OF PLANT PROTECTION EMPLOYEES Case No. R-3321 CERTIFICATION OF -REPRESENTATIVES March 31, 1941 ,On February 19, 1942, the National Labor Relations Board issued its Decision and Direction of Election in the above-entitled proceed- ing? )Pursuant to the Direction of Election, an election by secret ballot, was conducted on March 12, 1942, under the direction and supervision of the Regional Director for the Seventh Region (Detroit, Michigan). On March 16, 1942, the Regional Director, acting pur- suant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties his Election Report. No objections to the conduct of the ballot or to the Election Report were filed by any of the parties. As to' the balloting and the results thereof, the Regional Director reported as follows : Total on eligibility list-------------------------------------- 97 Total ballots cast------------------------------------------- 94 Total ballots challenged------------------------------------- 0 Total blank ballots------------------------------------------ 0 Total void ballots------------------------------------------- 0 Total valid votes cast--------------------------------------- 94 Votes cast for United Organization of Plant Protection Em- ployees--------------------------------------------------- 52 Votes cast against United Organization of Plant Protection Employees----------------------------------------------- 42 By virtue of and pursuant.to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that United Organization of Plant Protec- tion Employees has been designated and selected by a majority of all plant protection employees of Yellow Truck & Coach Manufacturing 139 N. L. R. B 14. 39 N. L R. B., No. 3a. 20 YELLOW TRUCK & COACH MANUFACTURING COMPANY 21 Company, Pontiac, Michigan, excluding sergeants, lieutenants, cap- t ains, chiefs, and other supervisory employees, as their representative for the purposes of collective bargaining, and that pursuant to the provisions of Section 9 (a) of the National Labor Relations Act, United Organization of Plant Protection Employees is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment.