Underwood Corp.

416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other hand, a majority of the professional employees vote against inclusion, they will not be included with the nonprofessional em- ployees. Their votes on the second question will then be counted to decide whether or not they desire to be represented by the Union in a separate professional unit. If a majority in either the professional unit alone, the nonprofessional unit alone, or the combined unit vote for the Union, the Regional Director conducting the elections directed herein is instructed to issue a certification of representatives to the Union for such unit or units. [Text of Direction of Elections omitted from publication in this volume.] UNDERWOOD CORPORATION (PACIFIC DISTRICT ) and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, CIO, PETI- TIONER. Case No. 20-RC-1678. May 29, 1952 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before David Karasick, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning, of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. The Employer moved that the petition be dismissed on the ground that subsisting contracts with the Associated Service Department Employees of U. E. F., herein called the Association,, constitutes a bar to this proceeding. The Petitioner opposed the motion on the grounds of defunctness and schism in the ranks of the Association, and on the further ground that the contracts were about to expire. We find merit in the last stated ground, and need not therefore con- sider the other reasons in opposition to the motion. As the contracts offered as a bar expired on May 1, 1952, we find that they do not con- stitute a bar to the petition. - The motion to dismiss the petition is hereby denied. 'No appearance at the bearing or request for intervention was made by anyone in behalf of the Association. 99 NLRB No. 77. UNDERWOOD CORPORATION 417 We find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer manufactures, sells, and services typewriters and other office and business machines on a Nation-wide scale, and for administrative purposes has divided its operations into six districts. In turn, these districts are subdivided into regions and branches. The Petitioner seeks to represent in a single unit all service employees in the Pacific District which comprises 11 of the Nation's westernmost States and parts of 3 others 2 The Employer contends that because of the vastness of the district, the great distances between its regions, and because past bargaining assertedly has been on a regional and branch basis, only such units are appropriate. The Petitioner indi- cated its willingness to represent separate regional units if the Board finds a single district-wide unit inappropriate. The parties also differ as to specific inclusions and exclusions discussed below. The Pacific District contains 10 regions, each with a main office at Butte, Montana; Denver, Colorado; El Paso, Texas; Los Angeles, San Francisco, and San Diego, California; Portland, Oregon; Salt Lake City, Utah; and Seattle and Spokane, Washington. Los Angeles, Portland, Salt Lake City, San Francisco, and Seattle have one or more branches within their respective regions. The Phoenix, Arizona, branch in the Los Angeles region, and the Sacramento, California, branch in the San Francisco region had formerly been regions, but had been reduced to branch status during the war period. Head- quarters for the Pacific District are in San Francisco. The regions and branches are operating units of the district for sales and service of the Employer's products in their localities, and administrative arms for the application of the Employer's business and labor relations policies. These policies are established at the Employer's national headquarters in New York City whence they are channeled to the local regional and branch units through the district headquarters in San Francisco. Thus, labor policies formulated by the Employer's personnel manager in New York City are communi- cated to the manager of the Pacific District who then imparts the poli- cies to the regional and branch managers and sees that they are uniformly administered. While the Employer asserted that the regions autonomously conduct their business and personnel activities, the record shows that such inde- pendence as they are permitted may be exercised only within the limits of the foregoing policies. The district manager is the superior to whom the regional managers report, and he has overriding authority 2 Included in the district are Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Utah, Arizona, New Me:dco, Colorado, and parts of Nebraska, Kansas, and Texas. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in matters pertaining to local labor policies as more fully explicated below in the discussion of the bargaining history. The regions and branches recruit employees locally and have authority to hire and dis- charge subject to approval at the district level which is generally; auto- matic. Similarly, all other changes in employees' status are initiated locally, but clearance and approval must first be obtained from the dis- trict so that final approval in these matters at New York City is re- duced to a formality. The Pacific District also operates as a focal point for transfer of equipment from one region to another to insure the availability of the Employer's products at regions where they are needed immedi- ately. For this purpose the district maintains a central inventory of accounting machines in the district. The district maintains a train- ing school at San Francisco exclusively for the service employees in its regions. Employees in all other of the Employer's districts are sent for training to the Employer's school at Hartford, Connecticut. The manager of the Pacific District testified that the district is further distinguished from other districts by the fact that its geographic boundaries form a natural division. All service employees in the district have similar skills and duties and are readily interchangeable. While interchange between branches within regions is not uncommon, there are only infrequent instances of interchange between servicemen of different regions in the district. Such interchange or permanent transfer may be accomplished' with- out loss of seniority. Servicemen in the regions and branches gen- erally work in their home offices or in the areas adjacent to their offices, but the accounting machine servicemen travel throughout the entire regions in which they work. Regional or branch units within the Pacific District might well be appropriate, particularly in view of the distances separating them, the degree of local autonomy which they may exercise and the infre- quent interchange of service employees between regions. On the other hand, there are factors pointing toward the appropriateness of a dis- trict-wide unit. These are the facts : That the district is an administra- tive subdivision of the Employer's operations; the similarity of skills, duties, and working conditions referred to hereinafter for all service employees in the district; and the several elements of centralization including the fact that the district is headed by a manager who im- poses uniform operating and labor relations policies for the entire district. We shall consider all these factors in the light of the following bar- gaining history. The Association was formed in 1941 as an independent union to represent the service employees of the district in bargaining with the Employer. In a representation petition filed that year with the Board, UNDERWOOD CORPORATION 419 the Association requested a single district-wide unit of service em- ployees, but subsequently the Association agreed to submit to the Employer's insistence that these employees be represented in separate regional units, and withdrew the petition. Thereupon, the parties came to terms and in 1942 executed separate contracts for each of the 12 regions in the district except San Diego in which the Association did not represent a majority. In 1943, as a result of a cross-check in the regions, it was determined that the Association had lost its ma- jorities in Denver, Phoenix, and Spokane, but had gained a majority in San Diego. Accordingly, separate contracts were executed that year for the regions represented by the Association. In 1944, upon a showing of majority in Phoenix, a contract was again executed for that region. In 1946 or 194:7 and in 1950 the Association's majorities were reestablished in Spokane a-d Denver, respectively, and separate contracts were thereupon executed for these regions. Thus, the last contracts between the Employer and the Association, dated May 23, 1950, consist of separate documents for each of the district's 10 regions and for the Phoenix and Sacramento branches which, as noted above, had formerly been regions. Bargaining between the Employer and the Association has always been at San Francisco. There have never been negotiations at the regional or branch levels. The Employer has repeatedly been repre- sented in bargaining by its attorney who acted upon advice from the Employer's New York headquarters. The manager of the district has also attended bargaining conferences, but his function was limited to furnishing information to the attorney. The Association also has been represented by its attorney plus the Association officers.3 No local manager from any of the regions or branches ever attended or in any manner participated at the bargaining sessions." Similarly, no representatives from the individual regions and branches partici- pated in bargaining in behalf of the service employees in these locali- ties. Although the Association members in the regions customarily advised the Association officers by mail as to their bargaining views in advance of negotiations, the Association attorney and officers had full authority to conclude agreements in behalf of all district service employees without their advice or consent. Upon agreement as to terms by the negotiators at the periodic bargaining sessions, the Employer customarily prepared separate documents embodying these terms for the appropriate regions and branches. These documents were then simultaneously signed by the district manager for the Employer, and by the president and secre- 'The Association appears never to have had a constitution or bylaws . Because the District headquarters are located in San Francisco , it became the Association's practice to choose its officers from the membership in that area. * It seems evident from the record that none of the regional or branch managers have ever had any part in concluding bargaining terms for the employees under them. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tary-treasurer of the Association for the latter. During the period 1942 to 1946 the local regional and branch managers signed the par- ticular contracts for their operating units, and a shop committee in each region likewise signed its particular contract. Beginning, with the 1947 contracts, signatures by the local managers and shop com- mittees were eliminated, and the contracts henceforth were signed only by the district manager and the Association officers .5 Except for differences in wage scales for some of the regions based on cost of living indices, and special holidays recognized by the Em- ployer for its employees in certain States of the district, terms and working conditions for all service employees in the district achieved through bargaining have been identical. The 1950 contracts elimi- nated the several wage scales and set up one scale for the coastal re- gions, and another uniform scale for the inland regions. Before 1944 not all, though most, contracts had the same beginning and expiration dates, but since then all contracts have been identical in these as well as other respects. The Employer contends that because of its repeated insistence be- fore agreement as to the several bargaining contracts that the appro- priate units be limited to the regions or branches,6 the Association's submission to these demands, and the signing of separate contracts for regions or branches, a pattern of bargaining has been established on a regional and branch basis. The Petitioner, on the other hand, took the position at the hearing that the above-related facts indicate that bargaining was keynoted by the negotiation of one contract for all service employees in the district thereby establishing a pattern of bargaining for these employees in a district-wide unit.' There are, as the Employer contends, certain external indicia of regional and branch bargaining. We are satisfied, however, that the factors supporting a conclusion that bargaining has in substance been on a district-wide basis outweigh these indications. In the circum- stances of this case, we regard the apparent agreement of the parties to bargain for multiple units as the superficial observance of a condition which was nullified by the actual bargaining conduct of the parties. Apart from the formalities involved in the verbalization as to separate units, and the reduction of the bargaining terms to separate, albeit uniform, contracts, the mechanics of bargaining and the resultant "Except for the San Francisco region, no other regions or branches in the district appear to have formed their own locals. The San Francisco local was abandoned in 1949. While there seem to have been shop committees at the local,levels during the first years of the Association's existence, they too appear to have been discontinued. 6 The Employer concedes that there was no discussion regarding this issue in the negp- tiation of the last contracts in 1950, but asserts that the understanding of the parties n this point was sufficiently clear to obviate the necessity of discussion. 7 Charles It. Chester , president of the Association in 1946 and an executive board member since then, testified that during negotiations discussion centered on only one contract. UNDERWOOD CORPORATION 421 agreements in essence preserved the character of single unit bargain- ing. The recurrent negotiation at one time and place of agreements for all service employees in the district by negotiators for each side whose power to make binding commitments did not depend upon the advice, consent, or ratification of the regions, branches, or employee groups on these levels, the nonparticipation by local representatives in any phase of bargaining, the consummation of virtually identical terms for all service employees in the district, and the exclusive sign- ing, at least since 1947, of all contracts by the district manager for the regions and branches and the Association's officers for all the serv- ice employees in the district, convinces us that the real spirit and effect of the bargaining was along the lines of a single district-wide unit, and not on the basis of multiple regional and branch units." We find that the bargaining history between the Employer and the Association has established a fixed pattern of bargaining on the basis of the district as the appropriate unit, and that the service department employees of the Employer's Pacific District may appropriately be represented, in accordance with the Petitioner's primary request, in a single dis- trict-wide unit. There remain for consideration the specific inclusions or exclusions. The Employer would exclude from the appropriate unit as supervisors individuals classified as mechanical supervisors, delivery and shipping supervisors, and parts stock clerk supervisors. The Petitioner con- tends that they are rank-and-file employees and should be included in the unit. As the record contains unrefuted testimony that they have authority effectively to recommend the hiring and discharge of employees, we find that these individuals are supervisors within the meaning of the Act and shall exclude them from the unit. We find that all service department employees of the Underwood Corporation in its Pacific District excluding the instructor of the Pacific District Service School, secretaries of branch service managers, branch, service managers, assistant branch service managers, service supervisors, mechanical supervisors, delivery and shipping super- visors, parts stock clerk supervisors, and all other supervisors within the meaning of the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the, Act. [Text of Direction of Election omitted from publication in this volume.] g Basalt Rock Company, Inc., 96 NLRB 1058 ; Bethlehem-Fairchild Shipyard, Incor- porated, 58 NLRB 579; cf. Holland Furnace Company, 95 NLRB 1128 , where the Board held that there had not in fact been Nation -wide bargaining in that case despite the execution in the past of a Nation-wide contract , and found appropriate a unit lesser in scope. 215233-53-28