Gemmer Manufacturing Company

In the Matter of GEMMER MANUFACTURING COMPANY and INTERNA- TIONAL UNION, UNITED AUTOMOBILE `YORKERS OF AMERICA, LOCAL No. 80 Case No. R-1,304.-Decided April 29,1939 Automobile Parts Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : refusal of employer to recog- nize union as exclusive representative of all the employees-Unfit Appropriate for Collective Bargaining : hourly rated production employees and gang leaders excluding all other salaried employees , office employees, watchmen , superin- tendents, foremen, assistant foremen, and executive employees-Representatives: proof of choice : comparison of pay roll with union cards -Certification of Rep- resentatives: upon proof of majority representation. Mr. Charles F. McErlean, for the Board. Goodenough, Voorhies, Long & Ryan, by Mr. Paul Franseth, of Detroit, Mich., for the Company. Mr. Ernest Goodman, of Detroit, Mich., for the Union. Mr. Theodore W. Kheel, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On November 14, 1938, International Union, United Automobile Workers of America, Local No. 80, herein called the Union, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Gemmer Manu- facturing Company, Detroit, Michigan, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On February 1, 1939, the National Labor Relations Board, herein called the Board, acting pusuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 12 N. L. R. B., No. 68. 584 GEMMER MANUFACTURING COMPANY 585 On February 13, 1939, the Regional Director issued a notice of bearing, copies of which were duly served upon the Company and upon the Union. Pursuant to the notice, a hearing was held on March 2 and 3, 1939, at Detroit, Michigan, before Edward Grand- ison Smith, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and 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 several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Company, a Michigan corporation, is engaged in the manufac- ture, sale, and distribution of steering gears for automobiles, trucks, and boats. Its office, principal place of business, and manufacturing plant are all located in Detroit, Michigan. For the year 1938, the Company's receipts from sales totaled $1,876,889. Of this amount, 19.67 per cent came from sales of merchandise shipped outside the State of Michigan. During the same period, the Company spent $1,154,000 for raw materials. Of this amount, from 40 to 50 per cent was expended on raw materials shipped to the Company from sources outside the State of Michigan. II. THE ORGANIZATION INVOLVED International Union, United Automobile Workers of America, Local No. 80, is a labor organization admitting to its membership all employees of the Company except employees who have the right to hire, discharge, or discipline other employees. M. THE QUESTION CONCERNING REPRESENTATION During several years of negotiations, the Company continuously refused to recognize the Union as the representative of all the em- ployees. Shortly prior to the date of hearing, the Company offered to enter into a contract with the Union which would provide as follows : The Company recognizes the Union as the bargaining agency for its members who are employees of the Company on matters 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of wages, hours, and conditions of work. During the term of this agreement the Company will not bargain in relation to matters covered by this agreement with any other organization or group of employees unless required to do so by law. The Company introduced evidence to prove either that the Union had accepted the contract or might accept it at a meeting of its mem- bership to be held on the week end following the date of hearing. It also argued that for all practical purposes the above-cited clause gave the Union the recognition required by the Act and therefore the Board should dismiss the petition. Section 9 (a) of the Act provides : "Representatives designated or selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit...." In view of this provision in the Act, the clause presents no bar to the petition. Despite the limitation placed on the Company's right to bargain with other organizations as to the matters covered by the proposed contract, it is apparent that the Company has not offered to accord the Union the recognition which the Act guarantees to a labor organization that represents a majority of employees in an appro- priate unit. Exclusive recognition is withheld and a contract grant- ing less than exclusive recognition cannot operate to estop the Union from asserting its right to such recognition under the. Act We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT It was stipulated and agreed by all parties in interest, and we find, that all the hourly rated employees and gang leaders of the Company, excluding all other salaried employees, office employees, watchmen, superintendents, foremen, assistant foremen, and all other supervisory and executive employees, constitute a unit appropriate for the pur- 'Matter of White Sewing Machine Corporation and United Electrical, Radio and Machine Workers of America, Local 721, 10 N L R. B. 802. GEMMER MANUFACTURING COMPANY 587 poses of collective bargaining and that said unit will insure to em- ployees of the Company the full benefit of their right to self -organiza- tion and to collective bargaining and otherwise effectuate the policies of the Act. VI. TIIE DETERMINATION OF REPRESENTATIVES The pay roll of January 8, 1939, and the Company's seniority list were both introduced into evidence. The pay roll contained the names of 502 employees within the appropriate unit and the seniority list, the names of 580. The Union introduced into evidence cards signed by employees of the Company designating the Union as their representa- tive. The Company's personnel manager, together with a representa- tive of the Union and the Board, compared the signature on each card with the signature of the same employee on the Company's employ- ment cards. At the completion of this comparison, the Company's attorney admitted that the signatures appeared to be genuine. While the Company did not contest the authenticity of the cards, it urged that an election be directed on the ground that the cards, which were revocable powers of attorney, had been signed at a time too long prior to the date of hearing. The majority of the cards were signed on or about November 9, 10, and 11, 1938, and the remainder at later dates. We do not find that this argument has merit. No evidence was introduced to prove that any employee had revoked his designa- tion. The persons who obtained the signatures to the cards were cross-examined by the Company's attorney as to the circumstances under which the signatures were secured. In the absence of proof to the contrary, we are of the opinion that the employees who signed the designations continue to desire the Union to represent them.2 A comparison of the cards with the pay roll of January 8, 1939, and the seniority list shows that 339 employees within the appropriate unit have designated the Union as their bargaining agency. It is clear, therefore, that a majority of the employees of the Company within the appropriate unit desire the Union to represent them for such purposes. We find that the Union has been designated and selected by a majority of the employees in the appropriate unit as their representa- tive for the purposes of collective bargaining. It is, therefore, the exclusive representative of all the employees in such unit for the pur- poses of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : 2 Cf. Matter of Richfield Oil Corporation and Marine Engineers Beneficial Association No. 79, 7 N. L. R. B. 639. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Gemmer Manufacturing Company, Detroit, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The hourly rated production employees and gang leaders but excluding all other salaried employees, office employees, watchmen, superintendents, foremen, assistant foremen, and all other supervisory and executive employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. International Union, United Automobile Workers of America, Local No. 80, is the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES 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, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that International Union, United Automo- bile Workers of America, Local No. 80, has been designated and selected by a majority of the hourly rated production employees and gang leaders of the Gemmer Manufacturing Company, Detroit, Michi- gan, excluding all other salaried employees, office employees, watch- men, superintendents, foremen, assistant foremen, and all other super- visory and executive employees, as their representative for the pur- poses of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, International Union, United Automobile Workers of America, Local No. 80, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.