MacKenzie Awning Co.

In the Matter Of MACKENZIE AWNING COMPANY and UPHOLSTERERS INTERNATIONAL UNION AND ITS AGENT, TENT, CANVAS & DISPLAY DECORATORS' UNION, LOCAL -#34, A. F. L. and UNITED RETAIL, WHOLESALE AND DEPARTMENT STORE EMPLOYEES OF AMERICA, C. I. O. aind LOCAL INDUSTRIAL UNION 98, UNITED CONSTRUCTION WORKERS, C. 1. 0. Case No. 7-RE-113.-Decided -July 20,1944 Messrs. Emmett E. Eagan, and Dwnean T. Mackenzie, both of De- troit, Mich., for the Company. Messrs. L,. K. Hougham., and George Horn, both of Detroit, Mich., for the A. F. L. . V ' 11 Mr. F„ra,'nklin H. Achterkirch of Detroit, Mich.,. for the United. - Mr. E. J. Shay, of Detroit, Mich., for the Construction Workers. Mr. David V. Easton, of counsel to the -Board., ' , DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by MacKenzie Awning Company, De- troit, Michigan,\ herein called the Company, alleging that' a question affecting commerce had arisen concerning the representation of its employees, the National Labor Relations Board provided for an ap- propriate hearing upon due'notice before Max Rotenberg, Trial Exam- iner. Said hearing was held at Detroit, Michigali, on June 17, 1944. The Company, Upholsterers International Union and its agent, Tent, Canvas, & Display Decorators' Union, Local #34, A. F. L., herein col- lectively called the A. F. L., United Retail, Wholesale and Depart- ment Store Employees of America, C. I. O., herein called the United, and Local Industrial Union 98. United Construction Workers, C. I. 0., herein called the Construction Workers, appeared, participated 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 made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. 57 N. L. R. B., No. 89. , 489 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY ,i MacKenzie Awning Company, a Michigan corporation with its principal place of business located in Detroit, Michigan , is engaged in the manufacture of canvas coverings and the manufacture and erection of awnings. During the 12-month-period preceding June 17, 1944, the Company purchased raw materials for manufacturing pur- poses valued at approximately $100,000, of which approximately 75 percent was received from points outside the State of Michigan. Dur- ing, the same period the- Company produced finished products valued at approximately $185,000, of which about 75 percent was shipped to, points outside the State of Michigan. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act:. . II. THE ORGANIZATIONS INVOLVED Upholsterers International Union and its agent, Tent, Canvas, & Display Decorators'. Union, Local #34,'both affiliated with the Ameri- can Federation of Labor, are labor organizations admitting to mem- bership employees of the Company. United Retail, Wholesale and Department Store Employees of America, and Local Industrial Union 98, United Construction Work- ers, both affiliated with the Congress of Industrial Organizations, are labor organizations admitting to membership employees of, the Com-, pany. ' III. THE QUESTION CONCERNING REPRESENTATION On October 27, 1943, the Company 'and `the A. F. L. executed a collective bargaining agreement covering certain of the former's em- ployees. This agreement, by its terms, expired on May 1, 1944. How- ever,', it contained a clause providing for its renewal for a year, in the absence of notice to change any or all of its' terms given by either party at least 60 days prior to its date of expiration. - On February 28, 1944, the A. , F. L. requested a conference for the purposes of dis- cussing certain changes in the contract. 'On' the same date the Com- pany served upon the A. F. L. notice of intention 'to terminate. 'On April 28,:1944,, the Construction Workers apprised the Compiny of, its claim to represent certain of 'the latter's employees. , A "similar claim respecting other employees of the Company was made by the United on April ' 29. In view, o ,f conflicting claims regarding the' i 1, .MACKENZIE,AWNING, COMPANY, 491 representation of its employees, the Company, on May 13, filed the petition herein. A- statement' of a Field Examiner for the Board, introduced into evidence at the hearing, indicates, that' the labor, organizations in- volved herein represent a substantial number of employees_ in the respective units sought by them." 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 The A. F. - L. contends that all employees of the Company, includ- ing journeymen erectors, but excluding office clerical employees, sales men, and-all supervisory employees, constitute an appropriate unit.2 The United contends that all inside shop employees of the Company, excluding `employees in the erection department, office clerical em- ployees,-salesmen,, and supervisory employees, constitute an appro- priate unit; the Construction Workers contends that all employees in the erection department, including journeymen erectors, but- ex- cluding office clerical employees, salesmen, supervisory employees, and .all other employees of the Company, constitute an appropriate unit. The Company takes no position with respect to the appropriate unit. The record indicates that the Company has been bargaining col- lectively with the A. F. L. since 1941, with respect to the employees in the unit which the latter urges as appropriate. The'combined units of the labor organizations affiliated with the C. 1. D. are composed of the same employees whom 'the A. F. L. seeks' to represent as a single -unit. Despite some evidence to the effect that the units- pro- posed by the United and the Construction Workers might lie -appro- priate, we are of the opinion that the past collective bargaining his- tory of the Company, indicating the feasibility of ' a 'single unit, is controlling in this proceeding. 1 The Field Examiner 's statement, using only those designations containing names of persons appearing on the Company 's pay roll of May 19, 1944, may be summarized by. the following chart : ' Number of 'Designations submitted by-- Unit employees engaged therein A F L. United - Construc- tion workers --------------- -- ------ '27 18 7 5 United--------- 13 11 7 0 Construction 14 7 0 5 ' This unit is similar to that contained in the contract of October 27, 1943, between the Company and the A. F. L '492 DECISIONS, OF NATIONAL LABOR .RELATIONS BOARD Accordingly, we'find-that all employees of the Company, including journeymen erectors, but excluding office clerical employees, sales- men, 'and all supervisory employees with authority to hire; promote, discharge, discipline, 'or otherwise effect changes in the status of, em- ployees„or effectively recommend such action, constitute a unit appro- priate for-the purposes of collective bargaining withni the meaning of-Section 9'"(b) of the.Act. I V. THE DETERMINATION - OF REPRESENTATIVES As previously rioted, the combined units sought by the United and Construction Workers embrace the employees sought by the A. F. L. as a single unit. At the hearing they Construction Workers and the United agreed, in the event the unit sought-by the A. F. L., were found to be appropriate, to appear jointly on the ballot as the "C. I. O." Under these circumstances,'we shall direct that the question concern- ing representation which has arisen be resolved by an election by secret ballot among the employees 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 additions set fbrth'in the Direction, to determine whether they desire to be, represented by, the- A. F. L., or by the C. I. 0., or by neither of these organizations.3 ' . 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, it is hereby DIRECTED that, as part of the investigation to ascertain represents-' tives for the purposes of collective bargaining with MacKenzie Awning Company, Detroit, Michigan, an election by secret ballot shall be con- ducted 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 Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found oundapproprin Section IV, above, who were -' a 'Since no contract exists at the present time between the A F. L. and the Company, the foi mer 's objection to the direction of an election is without merit The A. F. I;.-contended that eligibility to vote in the election should be determined as of the pay-roll period imm4'diately preceding May 1, 1944 ; the United and the Con- struction Workers contended that eligibility should be determined as of the _date of the hearing. None of the labor organizations - offered reasons In support of its 'contention sufficient to warrant a departure from our customary procedure. v f MACKENZIE AWNING COMPANY . 493 employed during the pay-roll period immediately preceding 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 those employees who have since quit or been discharged for cause , and have not been rehired or reinstated prior to the date of the election, to de- termine whether they desire to be represented by Upholsterers Inter- national Union and its agent , Tent, Canvas , & Display Decorators' Union, Local #34, affiliated with the American -Federation of Labor, or by the C. I. 0.,4 for the purposes of collective bargaining, or by neither. * Should the C. I . O. win the election , it will be certified as "United Retail, Wholesale' and Department Store Employees of America, and Local Industrial Union 98, United Constiuction Workers , both affiliated with the Congress of Industrial Oigamzations."