Bendix Aviation Corp.

In the Matter of BENDIX PRODucTS DlvlsioN or BENDIX AVIATION CORPORATION and PATTERN MAKERS LFLaoui OF NORTH AMERICA, SOUTH BEND ASSOCIATION, AFFILIATED WITH THE A. F. OF L. Case No. R-3026. Decided February 01, 194,2 Jurisdiction : automobile and aircraft parts manufacturing industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord union recognition until certified by the Board ; election nec- essary. Unit Appropriate for Collective Bargaining : election' directed among pattern makers to permit them to determine whether or not they desire to constitute a separate unit or remain a part of an industrial unit Mr. Marvin A. Heidt, of South Bend, Ind., for the Company. Mr. Joseph A. Padway, by Mr. Henry Kaiser, of Washington, D. C., and Mr. Roy E. Rogers, of Hammond, Ind., for the League. Mr. Oliver A. Switzer, of South Bend, Ind., for the U. A. W. Mr. Charles W. Schneider, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 21, 1941, Pattern Makers League of North America, South Bend Association, affiliated with the American Federation of Labor, herein called the League, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Bendix Products Division of Bendix Aviation Cor- poration,) South Bend, Indiana, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c)' of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 8, 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 x As amended at the hearing with respect to the name of the Company. 39 N. L. R B, No 18. 81 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an investigation and authorized the Regional Director to conduct it, and to provide for an appropriate hearing upon due notice. On September 9, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the- Company, the League, and also upon Bendix Local No. 9, United Automobile, Aircraft, and Agricultural Implement Workers of America, C. I. 0., herein called the U. A. W., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on September 17, 1941, at South Bend, Indiana, before Lester Asher, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the League, and the U. A. W. -were represented by counsel or duly authorized representatives 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 course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Exam- iner, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on November 13,'1941. The League and the U. A. W. were represented by counsel and participated in the argument. The U. A. W. filed a brief 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 Bendix Aviation Corporation, of which the Bendix Products Di- vision is a part, is a corporation organized under the laws of the State of Delaware. The Bendix Products Division has its principal office and plant in South Bend, Indiana, where it is engaged in the manufacture, sale, and distribution of automobile and aircraft parts consisting principally of carburetors, brakes, and parts therefor. Between January 1 and September 1, 1941, the Bendix Products Division purchased raw materials consisting of steel, zinc, brass, aluminum, scrap iron, coal, oil, salt, acid, sand, brick, and lumber, totaling approximately 52,232,000 pounds, of which about 13,952,000 pounds were obtained from sources outside the State ofI Indiana. During the same period the Division manufactured, sold, and dis- tributed finished products weighing approximately 29,274,000 pounds. Of the total volume of goods produced during'that period, approx- i BENDIX AVIATION CORPORATION 83 imately 22,486,000 pounds were shipped to points outside the State of Indiana. The Division employs over 7,000 persons. II. THE ORGANIZATIONS INVOLVED Pattern Makers League of North America, South Bend Associa- tion, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. Bendix Local No. 9, United Automobile, Aircraft, and Agricul- tural Implement Workers of America, is a labor organization affili- ated with the Congress of Industrial Organizations, admitting to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION The Company has consistently refused upon request, to recognize the League as collective bargaining representative of the Company's pattern makers; without certification by the Board. Both unions submitted evidence that they represent a substantial number of employees within the unit alleged by the' League 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. V. THE APPROPRIATE UNIT The League claims that a unit composed of the pattern makers and apprentices, but excluding supervisors, and checkers and lay-out men who are not pattern makers, is appropriate for the purposes 2 The League submitted to the Regional Director 10 undated membership cards, all bearing apparently genuine original signatures , which were the names of persons on the Company's August 6, 1941 , pay roll. The August 6 pay roll showed 14 employees in the unit alleged by the League to be appropriate. The U. A. W. submitted to the Regional Director a "certified list of the names of dues- paying members" employed in the League's unit This list contained 10 names, of which 3 are noted as delinquent and 1 as having paid no dues . All 10 are the names of persons on the August 6 pay roll. Six of the names on the August 6 pay roll are claimed as members by both unions. From testimony adduced at the hearing , it appears that six employees within the - League's unit resigned their membership in the U. A. W. on July 1, 1941. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,of collective bargaining. The U. A. W. contends chat such a unit is inappropriate for the reason that the appropriate unit is plant-wide. The Company takes no position with reference to the dispute. So far as appears from the record, the first labor organization among the Company's employees was a Federal Union which was chartered by the American Federation of Labor on July 28, 1933.3 From September 1933 to October 1, 1935, when the Federal trans- ferred its affiliation to the C. I. O. and became the U. A. W., the Company dealt with the Federal as the bargaining representative of its members only in a unit covering substantially all the Company's hourly paid employees.4 Thereafter the Company bargained with' the U. A. W., also for members only. Up to ,that time, except for an apparently short-lived 'Employees Association, no other labor organization appeared in the plant. In 1936, however, the League began to organize pattern makers in the South Bend area. Several of the Company's pattern makers joined and became charter members of the South Bend Association, which was chartered by the League on October 1, 1936. Rogers, District Secretary-Treasurer of the League, testified that by the summer of 1937 a majority of the Company's pattern makers were members of the League. On June 28, 1937, the U. A. W. filed a petition for certification as bargaining representative of the Company's hourly-paid employees, with certain exceptions. Hearings were held on this petition from August 2 to August 4, 1937. The League was not served with notice of the proceedings. Some weeks after those hearings, a representa- tive of the League appeared at the Regional Office of the Board to file a petition requesting separate representation for the pattern makers, at which time (the League contends) it received its first knowledge of the proceedings. The petition which the League then filed 'was subsequently dismissed without hearing.,' On September 16, 1937, the Board, on the basis of a pay-roll check by the Company and the U. A. W., certified the U. A. W. as exclu- sive representative of the hourly paid employees of the Company, including apprentices, factory clerks, and time checkers, but exclud- ing other clerical workers and supervisory employees.s This unit included the pattern makers. 3 See Matter of Bendix Products Corporation and Local 9, International Union, Unitea Automobile Workers of America, 1 N L R. B 173 - 4 The Company issued unilateral memoranda and statements of policy embodying agree- ments reached as a result of this bargaining, but apparently no bilateral signed contracts resulted , January 12, 1938, Matter of Bendix Products Corporation and Pattern Makers' Asso- ciation of South Bend Case No XIII-R-153. 6 Matter of Bendix Products Corporation and International Union, United Automobile Workers of America, Bendix'Local No 9, 3 N L R. B 682 BENDIX AVIATION CORPORATION 85 However, there is no definite evidence in the record before the 'Board of any exclusive bargaining agreement between the Company and • the U. A. W. until September 11, 1939, when a contract was signed recognizing the U: A. W. as exclusive representative of all hourly paid employees, excluding superintendents, foremen, assistant foremen, time-study, administrative office and salaried employees. This contract was renewed on November 15, 1940, effective for 1 year and to continue thereafter until either party should give 60 days' notice of a desire to amend it. In the meantime, on August 13, 1938, the League filed another peti- tion for certification which was dismissed on October 7, 1939, after hearing,7 and on July 21, 1941, it filed the present petition. During this entire period the League maintained its identity as a labor organization in the plant, and resisted the efforts of the U. A. W. to secure additional membership in the pattern-makers group. Pressure was brought to bear in the fall of 1937 on 7 com- pany pattern makers who were not U. A. W. members, to force them to join that union, and League members were escorted to work by plant, police. Despite a similar occurrence in 1939 they continued to maintain their affiliation with the League, and persistently demanded separate representation. Prior to the sign- ing of each contract,with the U. A. W. the League objected to the inclusion of the pattern makers in the agreements. On Septem; ber 2, 1939, in a letter to the Company, the League stated that it was informed that the U. A. W. had called a strike to secure a closed- shop contract; protested the negotiation of such an agreement; and denied that the pattern makers were participating in the strike. Again, on December 11, 1939, the, League mailed to the Company a petition signed by 9 of the Company's 13 pattern makers requesting that the Company meet with the League as their bargaining repre- sentative. In an accompanying letter the League repeated its demand for recognition. In addition, there were other demands for bargaining recognition each year up to the present time. The Com- pany refused every such request. Despite the refusal of recognition, Heidt, the Company's Director of Industrial Relations, had a num- ber of conferences with Conrad, a pattern maker employed by the Company and also business agent of the League, with respect to cer- tain grievances of pattern makers 8 Although the U. A. W. insists that such negotiations did not constitute bargaining, and contends that Conrad had a personal interest in some of the grievances, Con- 4 Matter of Bendnx *Products Corp. and Pattern Makers Association of South Bend, 15 N. L R. B 965. 8 Heidt stated at the hearing that although he conferred with Conrad on a number of occasions with reference to pattern makers' grievances , Conrad was recognized only as an individual and not as a representative of any group of pattern makers. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rad's activities resulted in improved conditions for other pattern makers than himself., As a consequence of one of his discussions with the Company, a wage differential between wood and metal pattern makers which had been established by the Company with the consent of the U. A. W., was discontinued. Conrad's intervention also pre- vented the lay-off of 1 of the men. He was consulted with reference to supplying pattern makers and with reference to starting wages, and even with respect to personnel problems among the pattern makers. In view of all the circumstances, we are of the opinion that the considerations are sufficiently balanced to make the desires of the pattern makers themselves controlling in our determination of the type of unit through which they shall bargain.9 The history of em- ployee organization within the • Company, the 1937 certification of the U. A. W. as the representative of the industrial unit, the 1939 dismissal of the League's petition for a separate pattern makers' unit, the U. A. W.'s exclusive bargaining contract with the Company, and the benefits which the pattern makers and other employees have received alike as a result of U. A. W. bargaining, all indicate the appropriateness of an industrial unit including the pattern makers. On the other hand, the industrial unit was established without the acquiescence of the pattern makers and without notice to the League. The League had filed its first petition for certification 1° prior to the time the U. A. W. obtained its first exclusive recognition contract. Furthermore, the League had maintained and even extended its mem- bership among the pattern makers for nearly 5 years despite the lack of formal recogntion. The pattern makers have resisted strong pres- sure to abandon the League and to join the industrial unit and have made unceasing efforts to secure separate representation. All these circumstances are strongly persuasive of the appropriateness of a separate unit of pattern makers. Accordingly we shall direct an election among the pattern makers and apprentices of the Company to determine whether they desire to be represented by the League or by the U. A. W. or by neither. If the majority of these employees chooses the League, they shall con- stitute a separate unit for bargaining purposes; if a majority chooses the Industrial, the petition will be dismissed and the pattern makers will remain a part of the industrial unit. 'Matter of Globe Machine and Stamping Company and Metal Polishers Union, Local No. 3, et at., 3 N. L. R. B . 294; see Matter of The Maryland Dry Dock Company and Baltimore Assn. Pattern Makers, Pattern Makers' League of North America , 23 N. L. R. B. 917; Matter of General Electric Company and Pattern Makers' League of North America, A. F L, 29 N. L. R. B. 162; Matter of Sullivan Machinery Company and International Union, United Automobile Workers of America, C. I. 0, 31 N. L. R. B. 749; Matter of Mullins Manufacturing Corporation and Pattern Makers League of North America, 31 N. L. R. B 532; Lakey Foundry and Machine Company and Pattern Makers Association of Muskegon, 34 N. L. R. B 677 10 November 4, 1937. BENDIX AVIATION CORPORATION 87 The League has requested 'exclusion of checkers and `lay-out men who are not pattern makers. It appears that there is but one such checker and lay-out man. He is engaged' in checking sample cast- ings. Since the' record discloses that he is not a pattern maker and is not eligible for membership in- the League, he will be excluded from the election unit. The League also requested the exclusion of supervisors and in accordance with our usual practice we shall . exclude supervisors from the voting unit. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has. arisen can best be resolved by an election'by secret ballot. We shall direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit employed during the pay-roll period immediately preceding the date of this Direction of Election, subject to the limitations and additions 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 : CONCLUSION OF, LAW A question affecting commerce has arisen concerning the repre- sentation of employees of Bendix Products Division of Bendix Avia- tion Corporation, South Bend, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations 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, 49 Stat. 449, 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 Bendix Products Division, of Bendix Aviation Corporation, South Bend, Indiana, 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 (Chicago, Illinois) act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all pattern makers and pattern-maker apprentices who were employed by the Company during the pay-roll period immediately 88 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD preceding the date of this Direction of Election, including employees 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 checkers and lay-out men who are not pattern makers, and 'supervisory employees, .and those who have since quit or been discharged for cause, to de- termine, whether they desire to be represented by Pattern Makers League of North America, South Bend Association, affiliated with the American Federation of Labor, or by Bendix Local No. 9, United Automobile, Aircraft, and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. Mr. GERARD D. REILLY concurring : I concur in the foregoing decision. In 1937,11 when the Board first determined the unit appropriate for collective bargaining by em- ployees of the Company, the League, although it had membership among the Company's pattern makers, received no notice of the pro- ceeding and was not a party -thereto. At the hearing before the Board in that case the parties were agreed that the appropriate unit should include all hourly paid employees among whom were the pat- tern makers. The appropriateness of a separate unit of pattern makers was not in issue. In 1939,12 when the Board considered a petition for a separate unit of pattern makers, the majority opinion 13 calling attention to the original determination of the unit dismissed the petition ipso facto. In other words, there was no discussion of the merits of a separate craft unit for pattern makers. While I am not convinced by the record -in the instant case that the Board erred in its prior decisions holding that a plant unit was the appropriate one for collective bargaining in this particular Division of Bendix Aviation Corporation, I concur in the result reached by my colleagues. Therefore, this is the first case-in which the Board has considered the respective contentions of the advocates of craft and industrial unionism in this plant. , - Under such circumstances, I think the Board should reexamine the issue, considering such factors as the prevailing custom in the indus- 11In the Matter of Bendix Products Corporation and International Union, United Auto- mobile Workers of America, Bendix Local No. 9, 3 N. L R. B 682. 1' In the Matter of Bendix Products Corp. and Pattern Makers Association of South Bend, 15 N. L R. B. 965 , 13 In a dissenting opinion, Chairman Madden disagreed with the dismissal on the ground that the facts warranted an election giving the pattern makers their choice of bargaining, either through their craft representatives or the representatives of the U A W , pursuant to the doctrine of Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3, et al., 3 N. L. R. B. 294. BENDIX AVIATION CORPORATION 89 try, the history of previous collective bargaining, and other relevant matters. See Matter of Bethlehem Steel Company (Shipbuilding Division), et al 14 In this case, the, facts presented are too closely balanced to pronounce a judgment in favor of either contention. I therefore concur with the course the majority has adopted in letting the pattern makers themselves determine whether they wish to be represented by the organization designated by the entire plant unit or to bargain through their own craft representatives. " 33 N L R. B. 1064. In the Matter of BENDIX PRODUCTS DIVISION OF BENDIx AVIATION COR- PORATION and PATTERN MAKERS LEAGUE OF NORTH AMERICA, SOUTH BEND ASSOCIATION, AFFILIATED WITH THE A. F. OF L. Case No. R-3026 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES March, 28, 1942 On February 21, 1942, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceedings.' 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 Thirteenth Region (Chicago, Illinois), among the pattern makers, and pattern-maker apprentices, but exclud- ing checkers and lay-out men who are not pattern makers, and also excluding supervisory employees, of Bendix Products Division of Bendix Aviation Corporation, South Bend, Indiana, herein called the Company. On March 13, 1942, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued an Election Report, copies of which were duly served upon the parties. No objections to the conduct of the ballot or the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Number eligible------------------------- --------------------------------------------- 13 Number of ballots cast --------------------------- 13 Number of blank ballots_____________________________________ _0 Number of void ballots______________________________________ 0 Number of ballots challenged ( not opened ) -------------------- 0 Number of valid ballots counted ------------------------------ 13 Number of valid ballots necessary for majority ---------------- 7 Number of valid ballots cast for Pattern Makers League of North America, South Bend Association A. F. L------------------- 10 139 N. L. R. B. 81. 39 N. L. R. B., No. 18a. 90 BENDIX PRODUCTS DIVISION 91 Number of valid ballots cast for Bendix Local No. 9, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, C. I 0------------------------------------------ 3 Number of valid ballots cast for neither----------------------- 0 Upon the basis of the entire record, the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The pattern makers and pattern-maker apprentices employed at the South Bend, Indiana, plant of the Company, excluding checkers and lay-out mdn who are not pattern makers, and also excluding super- visory employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. 2. Pattern Makers League of North America, South Bend Associa- tion, affiliated with, the American Federation of Labor, has been desig- nated and selected by a majority of the employees in the unit described in paragraph 1, above, as their representative for the purposes of col- lective bargaining, and is the exclusive representative of all such employees within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES 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, 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 IIEdiEBY CERTIFIED'that Pattern Makers League 'of North Amer- ica, South Bend Association, affiliated with the American Federation of Labor, has been designated and selected by_a majority of the pattern makers and pattern-maker apprentices of Bendix Products Division of Bendix Aviation Corporation, South Bend, Indiana, but excluding checkers and lay-out -men who, are not pattern makers, and also exclud- ing supervisory employees, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Na- tional Labor Relations Act, Pattern Makers League of North America, South Bend Association, affiliated with the American Federation of Labor, 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. U.