W. R. Arthur & Co., Inc.

In, the Matter of W. R. ARTHUR & COMPANY, INC., EMPLOYER and UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, PETITIONER Case No. 13-R-3629.-Decided August 21,1946 Messrs. Earl H. Cannon and Glenn W. Stephens, both of Madison, Wis., for the Employer. Mr. Harry Lehnert, of Rockford, I11., and Mr. Clifford R. Porter, of Janesville, Wis., for the Petitioner. Padway & Goldberg, by Mr. Alfred G. Goldberg, of Milwaukee, Wis., and Mr. Harold A. Becker, of Janesville, Wis., for the AFL. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND ORDER Upon a petition duly filed, hearing in this case was held at Janes- ville, Wisconsin, on June 18, 1946, before Gustav B. Erickson, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the AFL moved to dismiss the petition. For reasons set forth in See-, tion III, below, the motion is hereby granted. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer is an Illinois corporation with its principal office in Janesville, Wisconsin. It is engaged in the business of transporting new automobiles and trucks from the General Motors Chevrolet plant in Janesville to various points in the Middle West. In connection with its operations, the Employer maintains a shop in Janesville for repair and maintenance of its equipment. During 1944, the Employer's re- ceipts from shipments between the various States of the United States were in excess of $50,000. During the same year, the Employer's re- ceipts from the operation of the shop for repairs on equipment other than its own were in excess of $50,000. 70 N. L. R. B., No. 22. 230 W. R. ARTHUR & COMPANY, INC. 231 The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 579, herein called the AFL, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION Prior to 1942, the Employer employed three general types of em- ployees, drivers.who drove the vehicles to be delivered, yard employees who worked in the yard parking and inspecting such vehicles and performing related functions, and shop employees who worked in the shop maintaining the Employer's own equipment. Since 1937 the Employer and the AFL have had collective bargaining contracts cover- ing all three types of employees. In 1942, because of the Employer's conversion from peacetime to'wartime operations, the, yard as such was closed down. In 1945, the Petitioner filed a petition' requesting establishment of a unit composed of the Employer's shop employees, excluding drivers and supervisors. The Board, after a hearing, found "that all the Company's shop employees-at Janesville, Wisconsin, excluding drivers, the superintendent, foremen and any other supervisory em- ployees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recom- mend such action, constitute a unit appropriate for the purposes of collective bargaining," and directed an election to be held within that unit., In the subsequent election, which was held on April 2, 1946, the Petitioner was victorious and was accordingly certified on April 17, 1946, as the exclusive bargaining agent for the employees within the unit described above. In the interim between the hearing and the election the Employer had reconverted and had reopened its yard. Following its certification, the Petitioner submitted to the Em- ployer a proposed collective bargaining contract covering both shop and yard employees. The Employer, although recognizing its obliga- tion to bargain with the Petitioner on behalf of shop employees, de- clined to bargain for the yard employees on the grounds that such ' Matter of TV. R. Arthur d Company, Incorporated, 65 N. L. R. B. 1113. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were not included within the unit found appropriate by the Board. On April 3,'1946, the day following the election, the Employer signed two collective bargaining contracts 7 with the AFL recognizing the AFL as "the sole bargaining agent for all drivers and helpers of the Employer, as well as other employees coming within the jurisdic- tion of the Union." 3 At the same time the contracting parties executed two "riders" to the contracts, the first providing for a termi- nation date of November 15, 1947, and the second setting a wage rate scale for yard employees. It is conceded that these agreements do not cover shop employees, since the Board has set up a separate unit of shop employees and certified the Petitioner as their sole bargaining agent. However, the AFL contends that yard employees are covered by these contracts, inasmuch as the unit established by the Board did not include them. It argues, therefore, that the agreements are an effective bar to a present election among yard employees. With this contention we agree. The language used in our previous decision, and repeated in the Certification of Representatives, is unambiguous. The unit there described was clearly limited to shop employees only, and cannot be stretched to cover yard employees. The Petitioner asks us to find that yard employees are a part of the unit previously found to be appropriate, and to certify it as the exclusive bargaining agent for both shop and yard employees. In other words, the Petitioner contends that, since our finding of ap- propriate unit did not specifically exclude yard employees, we should determine that yard employees as well as shop employees are included. In support of its position, it points out that three yard employees voted in the election without challenge.4 The record discloses that the three employees in question were working in the shop at the time of the hearing. They were" transferred from the shop to the yard when the yard reopened, and were therefore employed in the yard when the election was held. It does not appear, however, that their ,changed status was brought to the attention of any agent of the Board. , We attach little importance to their voting in the election without challenge. Balloting by possible ineligible employees can- not in any way affect a decision issued before the election took place. The fact that the Employer was completely without yard, employees at the time of the hearing indicates that we did not intend to include such employees in the unit which we found to be appropriate. 2 One contract concerned driveway operations and the other concerned truckaway opera- tions Both contracts were negotiated on a national scale by the AFL and the National Automobile Transporters Association (of which the Employer is a member). a All of the Employer's employees except dispatchers and supervisors come within the jurisdiction of the AFL ' The Petitioner 's representative testified that he did not object to the names of these three employees appearing on the eligibility list because he thought that yard employees were included in the unit. 9 W. R. ARTHUR & COMPANY, INC. 233 We find that the contracts referred to above effectively bar a present determination of representatives . We shall, therefore, dismiss the. petition without prejudice to the Petitioner 's right to file a new peti- tion at a reasonable time prior to the expiration date of the existing contracts between the Employer and the AFL. b ORDER Upon the basis of the foregoing findings of fact, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of W. R . Arthur & Com- pany, Inc., Janesville, Wisconsin, filed by United Automobile , Aircraft and Agricultural Implement Workers of America, UAW-CIO, be, and it hereby is, dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order.