Champion Motors Co.

In the Matter Of CHAMPION MOTORS COMPANY, EMPLOYER and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, CIO, PETITIONER Case No. 18-R-1641.-Decided February 6, 1947 Messrs. Edward J. Callahan and E. T. Iserman, both of Minneapolis, Minn., for the Employer. Messrs. Douglas Hall, Kenneth J. Enkel, and Clarence Hathaway, all of Minneapolis, Minn., and Mr. Henry Paull, of Duluth, Minn., for the Petitioner. Mr. Thomas 0. Kachelmacher, of Minneapolis, Minn., for the I. A. M. and the Teamsters. Mr. Thomas 0. Kachelmacher, of Minneapolis, Minn., and Messrs. Earl Martin and Alexander Burns, both of St. Paul, Minn., for the Iron Workers. Mrs. Platonia P. Kaldes, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS Upon a petition duly filed, hearing in this case was held at Minne- apolis, Minnesota, on November 7 and 8, 1946, before Stanley D. Kane, hearing officer. With the exception hereinafter noted, the hearing officer's rulings made at the hearing are free- from prejudicial error and are hereby affirmed. At the hearing, Receiving Clerks, Warehouse and Inside Employees Local No. 988, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, herein called the Teamsters, moved to intervene in these proceedings. The Trial_ Examiner denied the motion. The Trial Examiner's ruling is hereby overruled and the motion for intervention granted.' Upon the entire record in the case, the National Labor Relations Board makes the following : 1 The Teamsters' motion to intervene was made for the purpose of requesting a place on the ballot and was premised upon the withdrawal in its favor of the International Associa- tion of Machinists , herein called the IAM, a labor organization which claimed to represent employees of the Employer. In view of the fact that the IAM ceded its interest to the Teamsters, we will permit the Teamsters to appear on the ballot. 72 N. L. It. B., No. 80. 436 CHAMPION MOTORS COMPANY RNDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 437 Champion Motors Company, a Minnesota corporation, is a wholly owned subsidiary of the Flour City Ornamental Iron Company en- gaged at Minneapolis, Minnesota, in the manufacture of outboard motors. In the course of its operations the Employer annually pur- chases raw materials from out-of-State sources valued in excess of $50,000 and annually ships finished products to out-of-State con- sumers valued at more than $50,000. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. U. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local 535, herein called the Iron Workers, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. Receiving and Shipping Clerks, Warehouse and Inside Employees, Local 988, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Teamsters, is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION In 1943, Flour City Ornamental Iron Company, herein called Flour City, the parent company of the Employer, acquired the licensing rights to manufacture the Champion line of outboard motors presently manufactured by the Employer. At this time, it operated, in Minne- apolis, Minnesota, a large plant located at 27th Avenue South which, in accordance with the war program, it had converted from a plant producing its peacetime products of ornamental and architectural iron works to one producing munitions of war. Upon acquiring the licens- ing rights for the manufacture of Champion motors, it set aside one portion of its plant for the conduct of experimental work upon such motors, and employed for that purpose approximately 50 employees. All such employees were covered by the collective bargaining con- tracts entered into during this period by Flour City and the Iron Workers. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the latter part of 1945, Flour City began the construction of a new plant at which it intended to conduct Champion motors production operations. The new plant, completed in the latter part of June, 1946, is located on Stinson Boulevard, 2 or 3 miles from the 27th Avenue plant. On May 14, 1946, prior to the completion of the new plant, Flour City and the Iron Workers had entered into a new collective bargain- ing agreement covering "all employees in or about the Company's [Flour City's] shop or shops," which agreement was effective initially for a 1-year period beginning June 1, 1946.2 - On July 8, 1946, Flour City transferred the bulk of its Champion operations to the new plant, and commenced the production of Cham- pion motors on a large scale. On or about July 25, 1946, the Iron Workers and Flour City executed an agreement specifically covering the employees at the new plant. This agreement named the Cham- pion Motors Company, herein referred to as Champion, as the Employer,' and, although similar in most respects, including expira- tion terms, to the May 14 contract covering the Flour City plant on 27th Avenue, unlike the latter contract, it describes job classifications in greater detail and makes particular provision for the reciprocal seniority rights of employees transferred from the Flour City plant to the Champion plant. On August 14, 1946, the Petitioner wrote to Flour City requesting recognition as the collective bargaining representative of employees at the Champion plant. On the same day, Flour City replied, refusing recognition because "our shop is under contract with [the Iron Workers]." On August 18, 1946, the petition herein was filed. The Employer and the Iron Workers urge that a present determi- nation of representatives is barred by the existing contract. Although they allege that the July 25 agreement merely supplemented the May 14 agreement to have it cover the operations of the new plant, they further claim that even if the July 25 agreement is considered to be a separate contract it would nevertheless constitute a bar to the pro- ceeding, because it was executed in advance of any rival claim. Assuming, as contended by the Iron Workers and the Employer, that the July 25 agreement was merely a supplement to,the May 14 contract, the latter may not be considered a bar to a present determina- tion of representatives inasmuch as that agreement was executed in advance of operations at the new plant and at a time when only 75 2 The Iron workers' prior contract expired May 31, 1946. s Although at this time Champion had not yet been incorporated, Flour City was em- ploying the name "Champion Motors Company" as a trade name, and on August 28, 1946, Champion Motors was separately incorporated as a wholly owned subsidiary of Flour City, and acquired all the assets, liabilities, and obligations of Flour City in respect to Champion operations. CHAMPION MOTORS COMPANY 439 employees out of a total of 351 in the unit hereafter found appropriate had been employed.4 However, we are of the opinion that the July 25 agreement must be regarded as a separate contract and that the issues must be decided upon that basis. We note, in this connection, that the May 14 agreement makes no provision fora supplemental contract upon the opening of the new plant; that the July 25, agreement is com- plete in itself, names a new corporation as the Employer, contains provisions applicable only to Champion employees, and otherwise contains no language to indicate that it was intended merely to supplement the May 14 contract. The record shows that on or about July 25, when the Champion contract was executed, there were employed within the unit hereafter found appropriate a total of 154 employees,' or about 44 percent of the total complement of 351 employees within the unit at the time of the hearing,e and that, at the time of execution it was not possible to foresee the period of time when the full complement of employees would be engaged. Although the Board, upon a proper petition would have directed an election at the time the July 25 contract was executed, we would have provided for the contingency that the unit might double in size within a period less than the 1-year period following certifica- tion during which we would normally refuse to entertain a new peti- tion? Under such circumstances, we would have afforded the em- ployees an opportunity to change representatives so selected within a period of less than 1 year, but not before the expiration of 6 months from the date a certification was issued, upon proof that the unit had more than doubled and that a substantial number of employees in the expanded unit had evidenced a desire to change representatives s So here, while no certification, but only a contract, is involved, the recog- nition of, and the execution of a contract with a labor organization at a time when less than 50 percent of the full complement within a unit is employed should not bar a determination of representatives 6 months thereafter when the personnel has more than doubled.9 In the instant case, the number of employees within the unit hereafter 4 See Matter of National Fireproofing Corporation, 69 N. L R B. 873; Matter of Chicago Flexible Shaft Company, 60 N. L. R. B. 848; Matter of Sinclair Rubber Company, 57 N L. R B 800. ° Of the 154 employees, 104 were working at the Champion plant and 50 at the 27th Avenue plant of Flour City. ° Of the 351 employees 'engaged by the Employer, 326 were engaged at the Employer's plant and 25 were engaged at the 27th Avenue plant of Flour City. 4 See Matter of Aluminum Company of America, 52 N L. It. B 1040; Matter of Westing. house Electric Co., 38 N L R B 404. 8 Matter of Aluminum Company of America, supra, footnote 7 Inasmuch as we antici- pated that a contract might follow our certification, we intended that a contract so reached would not bar the entertainment of a new petition 6 months after certification. ° Cf. Matter of Miller Meters, Inc, 71 N L IT. B. 1331, where we held that a contract barred a determination of representatives at a time when the unit had less than doubled in size but no change had occurred in the scope and character of the unit. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found appropriate is now more than double that at the time the contract was executed ; approximately 6 months have elapsed since the relations of the parties were stabilized; and the petitioning union has evidenced its representation of a substantial number of employees within the expanded unit. Accordingly, we find that the contract of July 25 is no bar to a present determination of representatives. We find, further, that a question affecting commerce has arisen con- cerning the representation of employees of the Employer , within the meaning of Section 9 ( c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit comprised of Champion employees in the classifications hereafter set forth who presently perform their duties at the Champion plant and those who, while presently perform- ing their duties at Flour City's 27th Avenue plant, will eventually be transferred to the Champion plant: all production and maintenance employees, all service and cleaning employees engaged in the manu- facture and fabrication of products or in maintenance, service and cleaning work, including working foremen who work with tools, instruments or machinery but who do not posse'ss authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, but excluding truck drivers, draftsmen, employees engaged in clericil work, execu- tive employees and all or any other supervisory employees. The Employer and the Iron Workers agree generally to the specific com- position of the unit but object to the confinement of the unit to Cham- pion employees. They claim that the unit should be comprised of employees of both Champion and Flour City. Although the record shows that Flour City and Champion have common corporate officers and that the latter is wholly owned by the former, it does not establish that the interests of their respective em- ployees are sufficiently interrelated to warrant a finding that employees of both must necessarily constitute a single unit. On the contrary, the separability of Champion employees is established not only by the undisputed evidence that they are employed by a separate corpora- tion having its own pay roll and producing materials not produced by Flour City and not dependent upon Flour City's products, but also by the fact that the employees of Champion are under separate supervision from employees of Flour City, are not interchanged with the employees of Flour C'ity,'° and are physically separated from 10 Although , upon the opening of the Champion plant, Flour City transferred many of its employees to that plant , and, on occasion interchanged the employees at the two plants to a small extent , the substantial proportion of all employees now engaged by Champion are employees who have not previously worked for Flour City and no interchange of em- ployees is contemplated in the future. CHAMPION MOTORS COMPANY 441 the latter's employees by several miles.11 Moreover, the separability of Flour City and Champion employees for bargaining purposes has been recognized by the negotiation of a new agreement covering em- ployees at the Champion plant only. Under all the circumstances above set forth, we are of the opinion that the employees of Champion constitute a separate appropriate bargaining unit. While, as we have indicated, the parties are in agreement as to the inclusion or exclusion of certain classifications of employees, it appears that some question exists as to the inclusion of a warehouse employee employed and paid by Champion, who performs his duties at a ware- house located some distance from the Champion plant and used by both Flour City and Champion. The Petitioner would exclude him on the ground that he is permanently assigned to the warehouse. The Iron Workers took no-position with respect to his inclusion or exclu- sion from a unit confined to Champion employees, but claimed he should be included in the broad two-employer unit it alleged to be appropriate. The Employer assumed a neutral position. Inasmuch as he is the only warehouse employee of Champion and performs duties relating to Champion operations, we shall include him in the unit. We find that all employees of Champion Motors Company in the following classifications constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act: 12 all production and maintenance employees, all service and cleaning employees engaged in the manufacture and fabrication of products or in maintenance, service and cleaning work, including the warehouse employee and working foremen who work with tools, instruments or machinery, but who do not possess authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, but excluding truck drivers, draftsmen, employees engaged in clerical work, executive employees, and all or any other supervisory employees who possess authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the the purposes of collective bargaining with Champion Motors Com- pany, Minneapolis, Minnesota, 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 11 The few employees of Champion presently working at Flour City's 27th Avenue plant will be transferred to the Champion plant. 12 Included within the unit are all employees of Champion presently performing their duties at Flour City's 27th Avenue plant. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Regional Director for the Eighteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations-Series 4, 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 employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and in- cluding employees in the armed forces of the United States who pre- sent 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 determine whether they desire to be represented by United Electrical, Radio and Machine Workers of America, CIO, or by International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, Shop- men's Local 535, AFL, or by Receiving and Shipping Clerks Whole- sale and Inside Employees, Local 988, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, for the purposes of collective bargaining, or by none of these three. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.