Briggs Manufacturing Co.

In the Matter of BRIGGS MANUFACTURING COMPANY and AMALGAMATED 'PLANT, PROTECTION LOCAL UNION No. 114, UAW-CIO Case No. R-4914.-Decided April 23, 1943 Beaumont, Smith d HarrMis, by Mr. Percy J. Donovan, of Detroit, Mich., for the Company. Mr. Maurice Sugar, by Mr. Ernest Goodman, of'Detroit, Mich., for Local 114. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Amalgamated Plant Protection Local Union No. 114, UAW-CIO, herein called Local 114, alleging that a question affecting commerce had arisen concerning the representation of employees of Briggs Manufacturing Company, Detroit, Michigan, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Frederick P. Mett, Trial Examiner. Said hearing was held at Detroit, Michigan, on February 19 and 20, 1943. The Company and Local 114 appeared, participated, and were afforded full opportunity to be heard, to exam- ine, and cross-examine witnesses, and to introduce evidence bearing upon,the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Company, and Local 114 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 Briggs Manufacturing Company- is a Michigan corporation which owns and operates seven plants in the Detroit, Michigan, area, known as the Mack Plant, the Eight-Mile, Plant, the Hamtrack Plant, the Connor Plant, the Outer Drive Plant, the Vernor Plant, and the Mel- 49 N. L. R. B., No 10. 57 - 58 DECISIONS OP NATIONAL LABOR RELATIONS BOARD drum plant, at which it is engaged in the manufacture of war materials. In the course and conduct of the operation of these plants, a large per- centage of the raw materials used is purchased and shipped to the Com- pany from points outside the State of Michigan, and a' substantial portion of the finished products manufactured by the Company is trans- ported to purchasers outside the State of Michigan. The Company does not deny that it is engaged in commerce within the meaning of the National Labor Relations Act. -II. THE ORGANIZATION INVOLVED Amalgamated Plant Protection Local Union No. 114, UAW-CIO, is u labor organization, affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION By letter dated December 30, 1942, the president of Local 114 advised the Company that the International Union, United Automo- bile, Aircraft & Agricultural Implement Workers of America (UAW- CIO), herein called the International, represented a majority of all the plant-protection employees employed by the Company at its seven Detroit, Michigan plants_ and requested recognition as the bargaining representative of these employees. On January 4, 1943, the Company replied that it must deny the above request because of the provision in its current contracts with the International and its Locals Nos. 212 and 742, covering the production and maintenance employees at the Company's seven Detroit plants, which precluded the contracting unions from accepting for membership certain enumerated classes of employees including plant-protection employees. Thereafter, on January 6, 1943, Local-114 filed the petition in this proceeding. The Company contends that the contractual provision is a bar to this proceeding. Local 114, on the other hand, argues that the specific provision contained in the contracts in question does not constitute a bar. The Company is currently operating under collective bargaining contracts with the International and..its Locals 212 and 742 covering its production and maintenance employees at the seven plants involved in this proceeding. The current agreement between the Company and the International and its Local No. 212 covers the production and maintenance employees at six of the seven Detroit plants. It was executed on November 13, 1942, and by its terms is to remain in effect until November' 13, 1943, and from year to year thereafter in the absence of 30 days' notice by either party prior to any anniversary date, of a desire to amend or change. The current agreement between BRIGGS MANUFACTURING COMPANY 59 the Company and the International and its Local No. 742, which covers the Company's production and maintenance employees at its Connor Plant, was executed on November 16, 1942. It is to remain in effect until November 16, 1943, and from year to year thereafter, in the absence of 30 days' notice by-either party prior to any anni- versary date of a desire to amend or change. Each of these contracts contains a provision stating that "the Union agrees that it will not accept for membership direct representatives of the management, such as . . . plant 'protection employees . . ." The Company con- tends that the petitioning union, Local 114, being an affiliate of the International, is bound by this provision and is therefore estopped from seeking to represent the plant-protection employees. Although the-contracts referred to above were not signed by Local 114, we assume for present purposes that they are binding upon Local 114 as upon the International and its Locals 212 and 742 since Local 114 is a subordinate of the International l We also assume'that the contractual provision purportedly proscribes representation by, as well as membership in, Local 114. The issue becomes, therefore, whether employees 2 may be denied the privilege of selecting a par- ticular labor organization as their representative because that organi- zation has agreed in a contract with their employer not to represent them. We here reiterate the reasons set forth in the recent Packard case 3 which impel us to answer that 'question in the negative : The statute explicitly declares that it is the policy of the United States to mitigate and eliminate obstructions to the free flow of commerce "by encouraging the practice and procedure of col- lective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." Section 7 of the Act states that employees "shall have the right . . . to bargain col- lectively through representatives of their own choosing." In the face of such clear expression of public policy and the rights of employees, it would seem obvious that any agreement between an employer and a labor organization restricting employees in the selection of a bargaining agent and entered into when that organization was not authorized- to act as the representative of the employees whose rights are affected, is plainly in derogation of the rights accorded employees by the Act and cannot be given 1 The constitution of the International (Article VI, Section 9) provides that "all members of the Local Union are also members of this International Union and subject to the orders, rulings and decisions of this International Union and the properly con- stituted authorities of the same " 2 For reasons appearing below, we find that the plant-protection employees are employees within the meaning of the Act. ' Matter of Packard Motor Car Company and International Union, Union Automobile, Aircraft & Agricultural Implement Workers of America (UAW-CIO), Local No. 114, 47 N. L. R. B , 932. 60 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD effect. No provision in the Act permits the Board, the employer, or a ,labor organization not acting as the statutory representative of the employees whose rights are in issue, td prevent such em. ployees from exercising their right to bargain collectively in ,an appropriate unit through any bargaining agent whom they may desire to act as their exclusive representative. Accordingly, we find that the foregoing provision, contained in the contracts between the Company and the International and its Locals Nos. 212 and 742 is not a bar to this proceeding. A statement of the Regional Director, introduced in evidence at the hearing, indicates that Local 114 represents a substantial number of employees in the unit hereinafter found appropriate .4 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE. APPROPRIATE UNIT Local 114 contends that all plant-protection employees employed by" the Company at its seven Detroit plants, excluding chiefs and all other persons in a ` supervisory capacity who are on a salaried basis, and confidential clerks, comprise an appropriate unit. The Company- took no position with respect to inclusions or exclusions, but agreed that its seven Detroit plants should be considered as one unit for the purposes of collective -bargaining. However, the Company does contend that the plant-protection employees are not employees within the mean- ing of the Act and further, that collective bargaining is inconsistent with their status as civilian auxiliaries of the military police. The Company's plant-protection force consists of approximately 233 employees, all of -whom have recently been made civilian auxiliaries of the military police.' The Army has formulated certain employment standards applicable to the plant-protection employees. Nevertheless, these employees are hired and paid by the Company and in all essential respects the customary employer-einployee relationship is preserved. In view of these facts and for the reasons we have stated in similar cases, we find no merit it either of the •Company's,contentions.5 The supervisory staff of the Company's plant protection organiza- tion consists of the head chief who maintains his office at the Mack Plant, and has full authority over all plant-protection employees at 4 The report of, the Regional Director states that Local 114 submitted 107 application cards for membership in the International, dated between October 1, 1942, and January 20, 1943, bearing apparently genuine signatures of persons whose names appear on the Company's Detroit plant-protection pay roll of January 14, 1943, which contains the names of 233 persons employed in such capacity. 5 See Matter of Curtiss-Wright Corp and International Association of Machinists, D58- trict 76, A. F. L., 45 N. L It. B. 1268, and cases cited therein. BRIGGS MANTIUFACTURING COMPANY 61 each of the seven Detroit plants ; the head chief's two traveling aides who assist the.head"chief in the supervision of the plant -protection force, and the chiefs at each of the seven Detroit plants . - These super- visory employees are salaried employees while all other plant -protec- tion employees are hourly paid. We shall exclude the head,chief, his traveling aides, ' and the chiefs at each of the seven Detroit plants from the appropriate unit. Local 114 desires the unit to include the Sunday relief chiefs at each of the seven Detroit plants . The Sunday relief chiefs are regular plant-protection employees who act as relief chiefs on Sunday. They are hourly paid and exercise very little supervisory authority. We shall include the Sunday relief chiefs in the unit. , Local 114 urges that confidential clerks attached to the plant protection force at each of the seven Detroit plants should be excluded' from the'unit. These -confidential clerks are women whose duties are to type reports, under the supervision of the chief , f or transmission to the head chief at the Mack Plant. In view of their duties and func- tions we shall exclude the confidential clerks from the unit. We find that all plant,protection employees employed at the Com- pany's Mack Plant, Eight-Mile Plant, Hamtramck Plant, Vernor Plant, Connor Plant, Outer Drive Plant, and Meldrum Plant, includ- ing the Sunday relief chiefs , but excluding the head chief , the head chief's aides, the chiefs on the first, second , and third shifts at each plant, and the confidential clerks, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election, subject to the limitations and additions set forth in the Direction. 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 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Briggs Manufac- turing Company, Detroit, Michigan, an election by secret ballot shall, be conducted as early as possible , but not later than thirty (30) days 62 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Seventh Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Section 10, of said Rules and Regulations, among all employees of the Company in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation' or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Amalga- mated Plant Protection Local Union No. 114, UAW-CIO; for the purposes of collective bargaining. MR. GERARD D. REnLLY took no part in the consideration of the above Decision and Direction of Election.