Henry Weis Manufacturing Co., Inc.

In the Matter Of HENRY WEIS MANUFACTURING COMPANY, INCORPO- RATED and UNITED PAPER , NOVELTY & Tor WORKERS INTERNATIONAL UNION-C. I. O. Case No. R-50414.-Decided May 5, L9.43 Mr. Verne G. Cawley, of Elkhart, Ind., for the Company. Mr. Leonard Shaw and Mr. Nicholas C. Vratric, of Elkhart, Ind., for the C. I. O. Mr. Thomas V. Happer, of Elkhart, Ind., for the Association. Mr. Joseph E. Cub bins, of counsel to the Board., DECISION AND DIRECTION' OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Paper, Novelty & Toy Workers International Union, affiliated with the C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen con- cerning the representation of employees of Henry Weis Manufactur- ing Company, Incorporated, Elkhart, Indiana, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon clue notice before David Karasick, Trial Examiner. Said hearing was held at Elkhart, Indiana,,on March 23, 1943. The Company, the C. I. 0., and Weis' Employees' Asso- ciation, unaffiliated, herein called the Association, appeared, par- ticipated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings mad e at the hearing are free from prejudicial error and are hereby affirmed. The Company and the Association filed briefs on April 5, 1943, 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 Henry Weis Manufacturing Company, Incorporated, an Indiana corporation, with its general office and plant at Elkhart, is engaged x In its brief, the Association requested permission to argue orally before the Board. The i equest is hereby denied , 49 N. L R. B, No. 71.' 511 i 512, DEaISIONS OF' NATIONAL LABOR RELAT1ON,S BOARD ,in the manufacture and sale of 'shower cabinets and metal compart- ments. - The Company's purchases of raw materials, during the year 1942, amounted to approximately $250,000, 75 percent of which was shipped. to its plant from sources outside, the State of Indiana. During the same period the Company's sales amounted to approxi- mately $850,000, approximately 90 percent of which was shipped to points outside of the State of Indiana. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United. Paper, Novelty & Toy Workers International Union, affili- ated with the Congress -of Industrial Organizations, and Weis' Employees' Association, unaffiliated, are labor organizations admit- ting to-membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 22, 1941, the Association requested the Company to recognize it as the bargaining agent for the Company's employees. Following a check of the Association's membership cards against the pay roll the Company issued to the Association a certificate of recog- nition on February 5, 1941, recognizing the Association as the repre- sentative of its members until February 5, 1942. Shortly thereafter a memorandum agreement was entered into by the parties. On Janu- ary 29; 1942, the Company again issued a certificate of recognition to the Association, after a check of the Association's membership cards against a pay roll of the Company had revealed that the Association represented a majority. On February 20, 1942, the par- ties entered into an exclusive bargaining contract which was to be in effect to and including January 28, 1943. On January 25, 1943, the Company again issued a certificate of recognition to the Associa- tion, recognizing, it as the exclusive representative for a period of 1 year, beginning January 29, 1943. On this occasion, however, no check was made of the Association's membership against the Com- pany's,pay roll for the purpose of determining whether or not the Association continued to represent a majority.2 On or about Febru- ary 18, 1943, the Company and the Association signed an exclusive bargaining contract, dated January, 27, 1943. On February 3, 1943, the C. I. O. requested the Company to rec- ognize it as the exclusive representative of its employees. The Coln- 2-The president of, the Association testified , after checking membership ' cards of the Association , that it represented 43 of the 47 employees in the appropriate unit on January X25, 1943. ' In the recognition agreenfent the Company stated it assumed the truth of the statement made to it by the Association 's representatives that "a big majority " of the em- ployees in the unit were up to date or in advance in their dues payments , and conse- quently the Company would not require the Association to submit its records for verifica- tion, "as was done last year." _ HENRY `VEIS MANUFACTUURING COMPANY, INIc. 513 pany denied this request stating that it had already recognized the Association as-such representative. The Company and, the -Association argue that the written certifi- cate-of recognition is tantamount to a written collective bargaining contract and that, since it was executed prior to the assertion of any claim by the C. I. O. and when the Association represented a major- ity of the employees, it should operate as a bar to 'a determination of representative at' this time. We do not accept this contention. While a written recognition agreement is a customary and desirable preliminary step in the collective bargaining process, it cannot be regarded as an effective substitute for the signed collective bargaining agreement embodying terms and conditions of employment. As we stated in the recent Eicor case,3 "experience has indicated that true stability of labor relations is not attained until collective agreements have 'been reduced to writing and signed." The 'recognition of a labor organization as the exclusive bargaining agent, whether made orally or in writing, does not alone achieve the objective of collective bargaining-"an agreement . . . as to wages, hours and working conditions evidenced by a signed contract or statement in writing" a- which indicates that relations have been stabilized. It is the further contention of the Company and the Association that the Board has heretofore held that a recognition agreement alone operates as a bar to a determination of representatives. In the first Adam c Westlake case 5 we dismissed a petition based upon a claim to representation which was first made after written exclusive recognition for a unit including the employees claimed by the peti- •tioner had been granted. While the case appears to be authority for the view urged upon us here, the Board did not there lay down a rule that a grant of exclusive recognition (assuming a majority in an appropriate unit) of itself is sufficient to preclude an election. In the second case," the petitioner requested recognition on Septem- ber 30, 1941, after exclusive recognition had been granted another organization, upon proof of majority, on September 29, 1941. The Board expressly rejected the contention that the recognition agree- ment operated as a bar stating : - - We do not find, as urged by the Company and the Association, that either the recognition accorded the Association on Septem- ber 29, 1941, or the contract of October 21, 1941, executed after the petition was filed, constitute a bar to an investigation of representatives. 'Matter of Eicor, Inc and District No 8, International Association of Machinists, A. F. of L., 46 N. L R B, 1035 4 H J Heinz Co. v. N L. R. B, 311 U. S. 514. 6 Matter of The Adams & Westlake Company and Lodge x-1344, International Association of Machinists, 30 N L R B 1222. "Matter of Thee Adams & H'esttalce Company and United Automobile, Aircraft and Agri- cultural Implement Workers of America, C. I. 0., 37 N. L. R. B. 829. 514 DWISIONS OF NATIONAL LABOR RELATIONS BOARD The Board dismissed the petition because of the inadequate repre- sentation showing made by the petitioning organization.', 'Be ' cause, a recognition agreement alone does not achieve the desired stability in labor relations, we find that the written recognition accorded the Association on January 25, 1943, is not a bar to a deter- mination of representatives.' To the extent that the decision in the first Adam cC Westlake case is inconsistent herewith,' it is overruled. . Membership cards, submitted by the C. I. O. to the Trial Exam- iner at the hearing, indicate that the C. I. O. represents a substantial number of employees in the unit hereinafter found to be appropriate.,, 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 i I The parties agree that all production 'and maintenance employees should be included in the bargaining unit.10' They also agree that foremen and office employees should be excluded from the unit. How- ever, there is a controversy over three employees classified as super- visors ; the C. I. O. would include them, whereas the Company and the Association would exclude them. The record shows that the three employees in dispute were made supervisors by the Company about the middle of March 1943. They have supervisory authority over a small number of employees at the present time but, as a result of an expansion program, it is antici- pated that they will in the future have supervision over a larger number of employees. In view°of the fact that the three supervisors direct' the work of other employees and since their title indicates' that they have supervisory authority, we shall exclude them from the unit. Accordingly, we find that all production and maintenance employ- ees, including leadmen, but excluding supervisors, foremen, and office employees, constitute a unit appropriate for the purposes of-collective bargaining, within, the meaning of Section 9 (b) of the Act. ' The showing at the time recognition was requested was 26 percent of the employees in the unit alleged to be appropriate, whereas the recognized union had -demonstrated that it had as paid-up members 63 percent of the employees prior to receiving recognition. 8 The contract signed on or about February 18, 1943, obviously is not a bar, since it was, executed after the C. I 0. had made its claim. 0 The C. I. 0. submitted 37 membership cards, all of which bear apparently genuine signatures, and 35 of which bear the names of persons whose names appear on the Com- pany's pay roll of March 13, 1943; the pay roll contains the names of 52 employees in the appropriate unit The cards were signed as follows, I on January 2, 1943; 22 on Febru- ary 2. 1943 , 2 on February 4, 1943 ; 10 on F ebruai y 3, 1943 , and 2 undated i° The Conipaiiv expects to halve an employee classification of ` leadmen" within the next 30 or 60 days. Such employees will be assigned to help train new employees, with whom they ii ill work They will have no disciplinary authority or power to recommend hire or discharge The parties agreed and we find, upon these facts, that leadmen, if any, will be deemed included in the unit HENRY WEIS MANUFACTURING COMPANY, INC. 515 V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot. The Company and the Association urge that eligibility to vote be determined as of January' 20, 1943, the date upon which oral recognition was accorded the Association, because the Company anticipates hiring some tem- porary employees. The C. I. O. requests that a current pay roll be used. Although the Company expects to hire approximately 25 to 125 new employees, the record does not establish whether they will be temporary or not, in view of 'the- uncertainty respecting further orders beyond August 1943. We shall therefore, adopt our usual practice and direct that those eligible to vote shall be the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election herein, subject to the limitations and additions set forth in said 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 foe the purposes of collective bargaining with Henry Weis Manufacturing Company, Incorporated, Elkhart, Indiana, an elec- tion 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 Thir- teenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employ- ees 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 they desire, to be repre- sented by United Paper, Novelty & Toy Workers International .Union, C. I. 0., or by Weis' Employees' Association, unaffiliated, for the purposes of collective bargaining, or by neither. O 531647-43-vol. 49-34