Sterling Engine Co.

Ill 'the Matter Of STERLING ENGINE COMPANY and UNITED AUTOMO- BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C.I.O. 1 1 Case No. R-3797.-Decided May 22, 1942 Jurisdiction : marine engine manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord petitioner recognition until certified by the Board ; contract entered into after notice of petitioner's claim to representation and filing of petition, no bar; eligibility determined by current payroll despite petitioner's request that payroll immediately preceding the date of the hearing be used; -election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, including employees of the shipping department, timekeepers, produc- tion clerks, and work on group leaders who do not have authority to hire or discharge or to recommend such action, but excluding supervisory employees who have authority to hire or discharge or to recommend such action, and office and plant protection employees ; stipulation as to Mr. Frank G. Raichle, of Buffalo, N. Y., for the Company. Mr. Kdward D. Flaherty, of Buffalo, N. Y., for the C. 1. 0. Mr. Herbert J. Schifjhauer, of Buffalo, N. Y., forthe Federated. Mr. Marvin C. Wa/el, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Automobile, Aircraft & Agri- cultural Implement Workers of America, C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen con- cerning the representation of employees of Sterling Engine Company, Buffalo, New York, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due no- tice before Peter J. Crotty, Trial Examiner. Said hearing was held at Buffalo, New York, on April 29, 1942. The Company, the C. I. 0., and Federated Industrial Union, herein called the Federated, ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence 41N L.Il.B,No 40 191 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Sterling Engine Company is a New York Corporation, engaged at Buffalo, New York, in the manufacture of marine engines. During 1941 the Company purchased raw materials valued at approximately $3,425,000, about 57 percent of which represented shipments received from points outside the State of New York. During the same period, the Company manufactured products valued at approximately $3,319,000. For the purpose of this proceeding, the Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED United Automobile, Aircraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and Federated Industrial Union are labor organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On April 30, 1941, the Company and the Federated entered into a collective bargaining agreement, recognizing the Federated as the sole bargaining agent "for the factory employees of the Company (except those who are supervisory employees with authority to hire or dis- charge or recommend such action, and watchmen)." The agreement was to remain in effect until May 1, 1942, and was to be automatically renewed from year to year thereafter unless terminated by either party upon at least 30 days' notice prior to the expiration date. On March 9, 1942, the C. I. O. advised the Company by letter that it represented a majority of the Company's employees 1 and requested a conference for the purpose of negotiating a collective bargaining agreement. On March 10 the Company advised the C. I. O. of the existence of its agreement with the Federated and refused to recog- nize the C. I. O. until the latter was certified by the Board. On March 17, 1942, the C. I. O. filed its petition herein. The Company and the Federated, on April 13, 1942, entered into a new agreement to remain in effect from that date to May 1, 1943. 1 The C. I. O. did not specify which classes or groups of employees it claimed to represent. STERLING ENGINE COMPANY 193 The Federated contends that the agreement of April 13, 1942, con- stitutes a bar to a present investigation and determination of rep- resentatives. However, inasmuch as notice of the C. I. O.'s claim was transmitted-to the Company, and the C. I. O.'s petition herein was filed, prior to the execution of the 1942 agreement, we hold that the contract executed on April 13, 1942, is not a bar to this pro- ceeding.2 A statement of the Regional Director,, introduced • in evidence at the hearing, shows that the C. I. O. represents' a substantial number of employees in the unit hereinafter found appropriate 3 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 In accordance with a stipulation of the parties, we find that all production and, maintenance employees of the Company, including employees of the shipping department, timekeepers, production clerks, and work or group leaders who do not have authority to hire or dis- charge or to recommend such action, but excluding supervisory em- ployees who have authority to hire or discharge or to recommend such action, and office and plant protection employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section,9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be, resolved by an election by secret ballot. , The C. I. O. requested that eligibility to vote be determined by the pay roll immediately preceding the date of the hearing, desiring thus to exclude employees who have been hired since that date. Neither the Company nor the Federated took any position with respect to the eligibility date. In the absence of a compelling reason for departing from our usual practice, we shall direct that the employees of the Company eligible to vote in the election shall be those in the appro- priate unit who were employed during the pay-roll period immediately 2 Cf Matter of Alabama Dry Doc! and Shipbuilding Co and Mobile Metal Trades Council, affiliated ioith the American Federation of Labor, 39 N L R R 994 3 The Regional Director reported that the C I 0 submitted 292 designation cards, 240 of which bore signatures which appeared to be genuine and corresponded to the names of persons within the requested unit appearing on the Company ' s pay roll of March 22 , 1942 One hundred'fifty -nine of the cards were dated in 1942 , 2 in 1941, and 79 were undated A witness at the hearing stated that . the Company employed between 550 a nd 575 employees on April 12 , 1942 The Regional Director further re- ported that the claims of representation of the Federated were not investigated because of its April 30,'1941, agreement with the Company. 463s92-42-vol 41-13 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD preceding the date of, the Direction of Election herein, subject to the limitations and additions set forth in the 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 Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Sterling Engine Company, Buffalo, New York, 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 of the Regional Director for the Third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV above, who were employed by the Company during the pay-roll period immedi- ately preceding the date of this Direction, including any such em- ployees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether they desire to be represented by United Automobile, Aircraft & Agri- cultural Implement Workers of America, C. I. O., or by Federated Industrial Union, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration, of the above Decision and Direction of Election. In the Matter Of STERLING ENGINE COMPANY and UNITED AUTOMOBILE, - AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O. Case No. R-3797 CERTIFICATION OF REPRESENTATIVES June 102, 1942 On May 22, 1942, the National Labor Relations Board issued its Decision and Direction of Election in the above-entitled proceeding.'- Pursuant to the Direction of Election an election by secret ballot was conducted on June 5, 1942, under the direction and supervision of the Regional Director for the Third Region (Buffalo, New York). On June 6, 1942, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regula- tions-Series 2, as amended, issued an Election Report, copies of which were duly served upon the parties. No objections to the con- duct of the ballot or to the Election Report were filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list___________________________________ 559 Total ballots cast________________________________________ 495 Total ballots challenged__________________________________ 5 Total blank ballots_______________________________________ 0 Total void ballots________________________________________ 1 Total valid votes counted_________________________________ 489 Votes cast for Federated Industrial Union________________ 208 Votes cast for United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. O_________________ 259 Votes cast for neither____________________________________ 22 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, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY CERTIFIED that United Automobile, Aircraft & Agricul- tural Implement Workers of America, affiliated with the Congress of 141 N.L.R B 191 41 N. L. R. B, No 40a. 195 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Organizations, has been designated and selected by a majority of all production and maintenance employees of Sterling Engine Company, Buffalo, New York, including employees of the shipping department, timekeepers, production clerks, and work or group leaders who do not have authority to hire or discharge or to recommend such action, but excluding supervisory employees who have authority to hire or discharge or to recommend such action, and office and plant protection employees, as their representative for the purposes of collective bargaining, and that pursuant to the provisions of Section 9 (a) of the National Labor Relations Act, United Auto- mobile, Aircraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, is the exclu- sive, representative of all such employees for the purposes of collec- tive bargaining, with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment.