Fairchild Engine & Airplane Corp.

In the Matter of FAIRCHILD AIRCRArr DIVISION OF FAIRCHILD ENGINE & AIRPLANE CORPORATION and INTERNATIONAL ASSN OF MACHINISTS (AFL) Case No. R-2j20 SUPPLEMENTAL DECISION AND ORDER May 30, 1949 - On May 13, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above- entitled proceeding,' directing intei° alia that an election by secret ballot be conducted among certain employees of Fairchild Aircraft Division of Fairchild Engine & Airplane Corporation, Hagerstown Maryland, herein called the Company, to determine whether they desire to be represented by International Association of Machinists (AFL), herein called the I. A. M., by Independent Aircraft Workers, Inc., unaffiliated, herein called the Independent, or by United Auto- mobile Workers of America, Aircraft Division, C. I. 0.,, herein called the C. I. 0., for the purposes of collective bargaining, or by none of these labor organizations. ' Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted among such employees on May 28, 1941, under the direction and supervision of the Regional Director for the Fifth Region (Baltimore, Maryland). No party having received a majority of the total ballots cast, the Board, on June 10, 1941, issued a Supplemental Decision and Direction of Election,2 directing that a second election be held among such employees, to determine whether they desire to be represented by the I. A. M., the Independent, or the C. I. 0., for the purposes of collective bargaining. Pursuant to the Supplemental Decision and Direction of Election, the Regional Director conducted an election by secret ballot among such employees on June 27, 1941. Again, no party received a ma- jority of the ballots cast. The Board, on July 15,1941, issued a Supple- 131 N L R B 8.33 2 32 N L R . B. 497. 41 N L. R. B, No. 108 552 FAIRCHILD ENGINE & AIRPLANE CORPORATION 553 mental Decision and Third Direction of Election,3 directing that a third election be held among such employees, to determine whether they desire to be represented by the Independent or the C. I. 0., for the purposes of collective bargaining, and that the name of the I. A. M. be dropped from the ballot because that organization had received the least number of votes cast. Pursuant to the Supplemental Decision and Third Direction of Election, an election by secret ballot was conducted on July 29, 1941, by the Acting Regional Director. On July 31, 1941, the Acting Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties a Report on Run- Off Election. As to the balloting and its results, the Acting Regional Director reported as follows : Total on eligibility list----------------- ------------------- 1135 Total ballots cast---------------------------------------- 1065 Total ballots challenged---------------------------------- - 0 Total blank ballots-------- ------------------------------- 5 Total void ballots ---------------------------------------- 3 Votes cast for Independent Aircraft Workers, Inc., unaffil- iated -------------------------------------------------- 572 Votes cast for United Automobile Workers of America, Air- craft Division ( C. I. 0.) -------------------------------- 493 On August 4, 1941, the C. I. O. filed objections to the Acting Re- gional Director's Report on Run-Off Election. On September 30, 1941, the Regional -Director issued a Report on Objections to Run- Off Election, copies of which were duly served upon the parties, in which he recommended that the Board direct a hearing on the objec- tions. On October 24, 1941, it appearing that the objections filed by the C. I. O. raised substantial and material issues with respect to the conduct of the ballot and the -Election Report, the Board, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered a hearing on the objections and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 24, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the I. A. M., the Independent, and the C. I. O. On November 6, 1941, the Re- gional Director issued and duly served upon the parties a notice postponing the hearing to December 4, 1941. Pursuant to such no- tice, a hearing was held on December 4, 5, 6, and 8, 1941, and January 14,15, and 16,1942, at Hagerstown, Maryland, before Josef L. Hektoen, 3 33 N L R. B. 455 _554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, the Independent, and the C. I. O. were represented by counsel, and the I. A. Al. by its representative; all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. - Upon the, foregoing record, the Report on Run-Off Election, the objections filed thereto, the Report on Objections to Run-Off Election, and the record previously made, the Board, acting pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, hereby makes the following : SUPPLEMENTAL FINDINGS OF FACT The C. I. O. objected, inter alia, that the Company interfered with the freedom of choice of its employees in selecting a collective bar- gaining representative by permitting the Independent to operate milk- vending machines, located in the Company's plants, and to distribute to the employees free milk therefrom during working hours. It is undisputed that it was an announced company rule that no union activity was to be permitted on company time or property, and that foremen were to remain strictly impartial. The evidence shows, however, that this rule was not always followed with respect to -the Independent. On July 18, 1941, 11 days prior to the final election, the vice president and 2 members of the Independent solici- ted funds from the employees in one of the plants, purchased 200 bottles of milk from a local dairy company, placed signs upon the milk-vending machines in the plant reading, "Have a drink on the I. A. W. [the Independent]," and left the machines open so that employees could obtain free milk. The entire incident took more than an hour. The vice president of the Independent testified, and we find, that when the bottles of milk were placed in the machines, a "mad scramble" ensued. Despite these events, the Company alleged that it had no knowledge of the incident until long after it occurred. Other witnesses, however, asserted that foremen and guards were present in the departments where the machines were situated, but made no effort to interfere 4 We find that the Independent was permitted to operate the milk-vending machines and to distribute to A similar incident on a smaller scale, occurred on the same day in another plant of the Company at Hagerstown. FA,IRCMLD ENGINE & AIRPLANE . CORPORATION 555 the employees free milk therefrom, without hindrance from the Com- pany's supervisory staff. In addition, the credible evidence shows that Foremen Glenn A. Divilbiss and Isaac D. Ward, during working hours, solicited member- ships for the Independent and indicated, their opposition toward the C. I. O. Furthermore, we are convinced from the record that various employees who were members of the Independent were also permitted to solicit, to leave their place of work, and to campaign in behalf of the Independent with the tacit approval of the Company's supervisors and foremen who observed them. It does not appear that these privileges were extended to members of the C. I. O. or the I.A.M. I We find that the Company, by the above-described acts, inter- fered with the conduct of the last election and thereby prevented a free choice of representatives by its employees. Moreover, upon charges filed by the C. I.' O.6 and the I. A. M., the Board, on October 24, 1941, issued a complaint, alleging that the Company had engaged in certain unfair labor practices. In our Decision and Order in that case, issued this days we have found that prior to the elections which the Board previously conducted herein, the Company had committed unfair labor practices, within the mean- irig of Section -8 (1) of the Act, by permitting and assisting the Independent to solicit-members, collect dues, and electioneer on com- pany time and property while denying similar privileges to the C. I. O. and the I. A. M., and by advising its employees to join the Independent and warning them against becoming or remaining mem- bers of the C. I. O. or the I. A. M. We are consequently unable to certify the Independent as the freely chosen representative of the Company's employees. For the foregoing reasons, we are compelled to set aside and vacate the elections in this proceeding. The circumstances do not warrant us to direct a new election in this case. The original petition herein was filed on January 30, 1941, almost 16 months ago. Because of the inability of any union to obtain a majority, it was necessary to conduct 3 elections. The last election was held on July 29, 1941, and, for the reasons hereinabove set forth, a lawful collective bargaining representative has not yet been chosen. -While, in the last election, there were 1135 employees eligible to vote, on December 28, 1941, there were approximately 3,500 eligible voters, according to figures submitted by the Company. A representative of the Company declared at the hearing that its per- " The original charge was filed on August 5, 1941. See, Matter of Fairchild Engine and Airplane Corporation and United Automobile, Aircraft and Agricultural Implement Workers of America, C. 1 0., etc, 41 N. L. R B 521. i 556 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD sonnel would be still further augmented. Moreover, at the time of the hearing on the objections, construction of a new plant was in .progress. Under the circumstances, we shall dismiss the petition herein, without prejudice to the filing of a new petition or to the consideration of any pending petition.' ORDER 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, and pursuant to National Labor Relations Board Rules and Regulations-Series 2, as amended, IT IS HEREBY ORDERED that the elections previously held herein be, and they hereby are, vacated and set aside ; AND IT IS FURTHER ORDERED that the petition for investigation and -certification of representatives filed herein by the International As- sociation of Machinists be, and it hereby is, dismissed without preju- dice to the filing of a new petition or to,the consideration of any pending petition. 7 Cf. Matter of Minneapolis-Honeywell Regulator Company and Minneapolis Printing Pressmen & Assistants Union No. 20, afitiated with I P. P. & A V. of N. A, A F. of L etc, 40 N. L. R B. 633; Matter of Pilpt Radio Corporation and United Electrical & Radio Workers of North America, 36 N. L. R. B 1045 ; Matter of J. 1. Case Company and Farm Equipment Workers' Organizing Committee , etc, 36 N. L. R. B. 614