The Douglas Aircraft Co., Inc.

In the Matter of THE DOUGLAS AIRCRAFT CO., INC., THE DOUGLAS AIRCRAFT Co., 'INC., EL SEGUNDO DIVISION and UNITED AIRCRAFT WELDERS OF AMERICA (INDEPENDENT) Case No. R-1427.-Decided October 18, 1939 Aircraft and Parts Manufacturing Industry-Investigation of Representatives: refusal by employer to bargain until previous suggestion of Regional Director, to the effect that there be no bargaining pending determination of certain Board proceedings, be ordered inoperative by Board-Unit Appropriate for Collective Bargaining : all employees who are engaged during more than 50 per cent of their working time as oxy-acetylene, oxy-hydrogen , and electric are welders employed to do fusion welding, as gas torch cutters, and as helpers and apprentice welders ; history of organization of employees in mentioned classifications by petitioning union in aircraft plants throughout southern Cailfornia ; functions, training, wages of said employees discussed ; mentioned classifications constitute well-defined group appropriate for collective bargaining ; no showing of mem- bership at employer's plants by rival union claiming industrial unit to be appropriate, consequently not much weight given to such hypothetical unit; separate unit for each of two plants of employer , in view of express preference of employer and no disagreement therewith by petitioning union ; foremen and those in supervisory capacity excluded-Representatives : testimony by officer of petitioning union concerning majority representation ; authorization cards signed by some employees introduced in evidence-Elections Ordered: at each of two plants of employer. Mr. William R. Walsh, for the Board. Mr. Harry W. Elliott, of Los Angeles, Calif., for the Company. Mr. James M. Carter, of Los Angeles, Calif., for the United. Mr. Thomas McNett and Mr. C. 'L. Bentley, of Los Angeles, Calif., and Mr. John P. Frey and Mr. Paul R. Hutchings, of Washington, D. C., for the I. A. M. 'Mr. Parker Bailey, of, counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On May 18, 1939, United Aircraft Welders of America, herein called the United, filed with the Regional Director for the Twenty- first Region (Los Angeles, California) a petition, and on June 2. 16 N. L. R. B., No. 13. 93 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1939, an amended petition, alleging that a question affecting com- merce had arisen concerning the representation of employees of Douglas Aircraft Company, Inc.,' herein called the Company, and of Douglas Aircraft Company, Inc., El Segundo Division,2 herein called the Division plant, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 21 the National Labor Relations Board, herein called the Board, acting pursuant 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. On June 23 the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the United, upon International Association of Machinists, herein called the I. A. M., and upon United Automobile Workers of America. The two last mentioned organizations are labor organizations claiming to repre- sent employees directly affected by the investigation. Copies of the notice of hearing were also duly served upon Los Angeles Industrial Union Council and upon Central Labor Council, Los Angeles, Cali- fornia. Pursuant to the,notice, a hearing was held on June 30 at Los Angeles, California, before Henry W. Schmidt, the Trial Ex- aminer duly designated by the Board. The I. A. M. filed its motion requesting leave to intervene in these proceedings, and the Trial Examiner granted the motion. . The Board, the Company, and the United appeared and were represented by counsel, the I. A. M. was represented by its Grand Lodge Representative, and all of said parties participated in the hearing. Full opportunity to be heard, to examine and to 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 prejudicial errors were committed. The rulings are hereby affirmed. At the hearing it was stipulated and agreed by all parties that the Company might prepare after the hearing and submit to the Board a summary of certain facts with respect to physical assets of the Company, the number of employees at its plants, and other matters, 1 "Douglas Aircraft Company, Inc.," is the correct corporate name. 2 Douglas Aircraft Company, Inc., as stated hereinafter, is a single corporation owning and operating two plants : the main plant, located at Santa Monica, California, and the Division plant, located at El Segundo, California. The reference in the record to "Douglas Aircraft Company, Inc., El Segundo Division," is not to a separate company or employer by that name, but to the Division plant. THE DOUGLAS AIRCRAFT CO., INC. 95 as part of the record of these proceedings. This statement, hereinafter referred to as the Summary of Facts, was lodged with the Board on July 10 with proof of service thereof upon the Board, upon the United, and upon the I. A. M. The Board hereby directs the filing instanter herein of said Summary of Facts as "Company's Exhibit 1." It was also stipulated and agreed by said parties at the hearing and there- after that the United might introduce into the record a copy of, its contract with North American Aviation, Inc., executed April 13, 1938. A copy of said contract was lodged with the Board on or about July 31, and the Board hereby directs the filing instanter herein of said docu- ment as "Petitioner's Exhibit 1." It was stipulated and agreed by all of said parties at the hearing that the Company might introduce into the record a list of the welders employed at its two plants on the pay roll nearest May 18, 1939, and a copy of a certain letter to counsel for the Company from the Regional Director for the Twenty-first Region, under date of May 18, 1937, more particularly referred to hereinafter.,, The two last mentioned documents were lodged with the Board on Au- gust 1, and the Board hereby orders the filing instanter herein of the two documents as "Company's Exhibits 2 and 3." Upon request duly made by the I. A. M. subsequent to the hearing, permission for oral argument was granted by the Board. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on August 22. The I. A. M. appeared by its counsel and its representative. No other party appeared. .. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY At the hearing the Company and the Board stipulated and agreed that the Board might find herein as facts the facts found with refer- ence to the business of the Company in certain consolidated proceedings heretofore had before the Board,in Matter of Douglas Aircraft Com- pany, Inc. and United Automobile Workers of America, International Union, Douglas Local No. 014; and Matter of Douglas Aircraft Com- pany, Inc. and Local No. 311, International Association of Machin- ists, Cases Nos. C-268 and C-269, decided on December 7,1938.1 None of the other parties herein objected to the finding of such facts by the Board. It was further stipulated and agreed by the Company and the s See footnote 9. 4 Matter of Douglas Aircraft Company, Inc . and United Automobile Workers of America, International Union, Douglas Local No. 21¢; Matter of Douglas Aircraft Company, Inc., and Local No. 311, International Association of Machinists , 10 N. L. R. B. 242. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board that there had been no substantial change in the interstate char- acter of the business of the Company since the decision of the Board in those proceedings. Upon these stipulations and agreements, and upon the record, we find : Douglas Aircraft Company, Inc., is a Delaware corporation engaged in the business of designing, engineering, developing, manufacturing, and selling aircraft and aircraft parts for military and for transport use. Its principal office and manufacturing plant are located at Santa Monica, California. It owns and operates a separate plant known as the El Segundo Division of Douglas Aircraft Company, Inc., located at El Segundo, California.5 At present the plant at Santa Monica occupies-approximately 920,000 square feet of floor space, and employs approximately 5,000 production workers. The Division plant occu- pies approximately 206,000 square feet of floor space, and employs approximately 1,000 production workers. The principal raw materials used by the Company in the course of production at its plants are sheet duralumin, sheet steel, bar and tube steel, bar and tube driving, driving forges, steel forges, dura- lumin castings, paints, varnishes, fabrics, cotton, wool, and glass. Engines, instruments, propellers, and rubber tires are purchased by the Company ready for installation. More than 50 per cent of all the raw materials, and more than 50 per cent, each, of the duralumin, steel, glass, fabrics, engines, instruments, and propellers thus used by the Company at each of- the plants are purchased and shipped to, the plants from outside the State of California. The Company manufactures principally pursuant to contract. At the Santa Monica plant both military and transport planes are manu- factured; at the Division plant military planes are manufactured almost exclusively. The Company's sales for 1936 aggregated over $7,800,000. The greater part of the production of the Company is sold to various agencies of the United States Government, including the War, Navy, and Post Office Department, and the Coast Guard. Planes manufactured for the Government are delivered ready for flight at the Company's plants and are immediately ferried by Gov- ernment pilots to Government air depots in various parts of the United States. Spare parts manufactured for and delivered to the Government at the Company's plants are similarly ferried to Govern- ment air depots. The Company also manufactures planes for a number of commer- cial air lines. Douglas planes are in operation on air lines in North 6 See footnote 2, supra. About August 1937 the Division plant was owned and operated by Northrop Corporation , then a wholly owned subsidiary of the Company. In that month Northrop Corporation was merged into the Company, which thereupon became the owner in fact of all the real estate, personal property , and business previously owned by Northrop. Corporation. THE DOUGLAS AIRCRAFT CO., INC. 97 and South America, Europe, Africa, Asia, and Australia. Planes manufactured by the Company for Transcontinental and Western Air, Inc., American Airlines, Eastern Air Lines, Pan American Air- ways, and other American lines are delivered by the Company's pilots at points outside the State of California. Planes destined for an air line in Holland are delivered in New York City for shipment. II. THE ORGANIZATIONS INVOLVED United Aircraft Welders of America is an unaffiliated labor organi- zation admitting to its membership "all workers of the aircraft indus- try employed as gas welders, electric are welders, aluminum welders, gas burners, gas cutters, apprentice welders and helpers," 6 and exclud- ing persons who have the right to hire' or to discharge.' International Association of Machinists is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership all employees, including welders, in plants where it is organ- ized, with the exception of certain employees in supervisory or clerical positions.' III. THE QUESTION CONCERNING REPRESENTATION About March 1939 the United requested the Company to recognize it and bargain collectively with it as the exclusive representative of all welders, cutters, helpers, and apprentices s employed at the two plants of the Company. The United submitted to the Company as a basis for negotiation a draft of a. proposed collective agreement cov- ering wages, hours of service, and other working conditions of these' employees. The Company informed the United that it would not at that time grant recognition or negotiate, for the reason that some time prior thereto, in the early part of 1937, the Regional Director suggested to the Company that it should refrain from collective bargaining with any labor organization until various proceedings ° This language is quoted from Article 1, Section 3, of the Constitution of the United. ' The I. A. M. did not introduce a copy of its constitution in evidence in these proceedings. The expression "welders, cutters, helpers , and apprentices" as used herein , refers to the classifications of workers within the unit hereinafter found to be appropriate. See Section V. ° Counsel for the Company testified at the hearing that early in 1937 he had conferred with the Regional Director in order to ascertain what the Company "should do with ref- erence to requests which were made upon it for collective bargaining ," and that the Regional Director had stated in substance that the Company "should not entertain nego- tiations for collective bargaining with any organization until the complaint and the charges which were then pending before the Board had been cleared up." The letter of the Regional Director to the Company, written under date of May 18 , 1.937, mentioned only certain representation proceedings theretofore begun on behalf of employees of the Company. 'At the hearing the Company stated that it "would like some sort of an official order from - the Board revoking or discharging [the Company ] from responsibility to that instruc- tion from the Regional Director . . Our. decision herein obviates the necessity of such an order. . 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then pending before the Board against the Company were deter- mined.10 The United did not press its request, but instead filed its petition and amended petition herein, for the purpose of resolving all doubt as to its present right to be accorded recognition and to bargain as the exclusive representative of the Company's welders, cutters, helpers, and apprentices. We find that a question has arisen concerning 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 relation to trade, traffic, and commerce among the several States, and between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The amended petition alleges that the following employees of -.the Company employed at its main plant and at its Division plant constitute a unit appropriate for purposes of collective bargaining: call oxy-acetylene, oxy-hydrogen, and electric are welders employed to do fusion welding, all gas torch cutters, and all helpers and apprentice welders," but not including foremen or those in a super- visory capacity. The United contends that the afore-mentioned classifications of employees, herein called the welders, cutters, helpers, and apprentices, constitute a well-defined class of aircraft workers whose work and whose interests regarding collective bargaining are distinct from those of other employees of the Company ; that employees within these classifications either at both plants of the Company or at each of its plants constitute a unit appropriate for purposes of collective bargaining; and that a substantial number of these employees at each plant have designated the United as their exclusive representative for such purposes. The United is indifferent whether the employees whom it claims to represent are considered as constituting a separate appropriate unit at each plant or as a single appropriate unit for both plants. 10 The Board takes notice that proceedings in the cases mentioned in footnote 4, vie, Cases Nos. C-268 and C-269, were begun in April 1937, and that on September 22, 1939, a consent decree was entered in the Circuit Court of Appeals for the Ninth Circuit, disposing of the two cases. u Apprentices are also called tackers. THE DOUGLAS AIRCRAFT CO., INC. 99 The I. A. M. contends that employees within the alleged bargaining unit do not independently constitute an appropriate bargaining unit but are part of a larger industrial unit. The I. A. M. does not define with particularity the unit which it claims to be appropriate nor state whether such unit is a plant unit or an employer unit. The Company takes no position with respect to the question whether welders, cutters, helpers, and apprentices constitute a, separate bar- gaining unit. However, it does express the opinion that any unit should be limited to employees of the individual plants. In September 1936 a group of workers employed as welders, cutters, helpers, and apprentices by the Company and by two other manufac- turers of aircraft with plants located in Los Angeles County, Cali- fornia, began organization among employees in their classifications at these plants. On December 27, 1936, this movement culminated in the formal organization of the United as an unaffiliated labor organization for aircraft workers employed in the mentioned classi- fications. Thereafter, the United enrolled members at the remaining: aircraft plants in Los Angeles County, and at plants in San Diego County, California. There is evidence that at the present time over 90 per cent of the welders, cutters, helpers, and apprentices employed at these plants are affiliated with the United. The United has a col- lective agreement with one of these companies covering such em- ployees, and is negotiating a similar contract with another. The Board, on petition of the United, recently directed an election among such employees of a third company.'? At the plants of two com- panies where the I. A: M. has been accorded exclusive recognition as the bargaining representative of all employees and has obtained collective contracts on that basis, the United has maintained its mem- bership, nevertheless, among a majority of the welders, cutters, help- ers, and apprentices there employed. Approximately 82 persons are employed at the main plant of the Company and 11 at its Division plant, within the unit alleged to be appropriate. Forty-eight of those at the main plant' work in a separate department at steel welding, approximately 16 others in another department at aluminum welding, three others in the experi- mental department at welding, and the rest 'at welding or cutting in various other departments. The 11 at the Division plant work at welding in a single department. All welders work continuously and exclusively at welding. Those engaged in steel welding weld all major structural parts of planes; those engaged in aluminum welding weld tanks and pipes. The cutters cut various metals with gas torches. The apprentices and helpers work at "tacking," that is, 'Matter o f Ryan Aeronautical Co. and United Aircraft Welders of America, 'Fad., 15 N. L. It. B. 812. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joining the component parts of a metal structure together with "small particles of weld until it can be held in a position steady enough to be taken from the jig and welded in one piece" by the welder. They also assist the welder in heating an object which "requires more heat than a welder can produce from his own equipment"; and "occa- sionally help the aluminum welders" by holding "the flaps down until the aluminum welder can get them tacked together and proceed by himself." Welders in the aircraft industry require from 2 to 4 years of experience before they are proficient at their occupation.'' They must be acquainted with the properties of different metals and with "flux" compounds used in aircraft construction. They are among the highest paid employees in the industry, and their apprentices and helpers receive higher wages than the average production worker. The I. A. Al. has attempted since June 1937 to organize employees at the main plant of the Company on an industrial basis. What mem- bership it has among these employees is not established by the record, save that no welders are affiliated with it. At the hearing it refused to show the number of its members and objected to interrogation of its .witnesses by the United upon this subject. The Trial Examiner sus- tained this objection. One witness for the I. A. Al. vouchsafed that it had "a nice membership and it is continually growing." A witness for the United stated that he "understood" the I. A. M. had "something like eight or nine hundred" members. The I. A. M. has never re- quested the Company to recognize it as a collective bargaining agency and has no collective contract with the Company. The United introduced testimony to the effect that it has been desig- nated as exclusive bargaining representative by substantially all of the employees within the alleged unit at both plants of the Company. Al- though the Company, for reasons above-mentioned, refused to nego- tiate a collective agreement with the United, the Company has ex- pressed to' the'United its willingness to negotiate such an agreement when and if the asserted impediment is removed by the Board.- The contention of the I. A. M. that only an industrial unit is ap- propriate for purposes of collective bargaining between the Company and its employees is not entitled to much weight, since there is no proof that that. organization has any substantial claim to exclusive repre- sentation of.employees in such a unit. We are not constrained to give consideration to the appropriateness of a hypothetical unit. We are of the opinion, and we find, that the welders, cutters, helpers, and apprentices employed by the Company constitute a well-defined v The welders should be distinguished from the "spot-welders" employed by the Company. Spot-welders require no special training , and they are not eligible for membership in the United. Their work is described as "putting two sheets of metal together . . . and two electrical contacts come down upon the two pieces of metal . . . for a minute or two . . . until it Is fused together." 11 See footnote 9. THE DOUGLAS AIRCRAFT CO., INC. 101 group entitled to be regarded, under the circumstances presented, as it unit appropriate for the purposes of collective bargaining. Our find- ing is no bar to a later determination at another stage of self-organiza- tion among the Company's employees, consistent with a change in the status of such self-organization. As stated above, the Company is of the opinion that any unit should be limited to employees of the indi- vidual plants; that is, that two units, in this instance composed of em- ployees in the mentioned classifications, should be established. The United, as has been indicated, is indifferent as to whether plant units or an employer unit, be found to be appropriate. In view of this ex- press desire of the Company and the absence of any disagreement therewith by the United, we shall find the plant units to be appropriate. _In a representation case recently decided concerning aircraft workers employed in classifications similar to those here involved, we stated that since the functions of such workers were not sufficiently defined by the record in that case, we were of the opinion that a unit comprising such workers should be restricted to those who devoted the major portion of'their working time to the work in which they were classified. While no such matter is here presented with respect to the welders employed by the Company, the record is silent as to the amount of time at work devoted by the cutters, helpers, and appren- tices to cutting and welding operations. Accordingly, we shall follow the rule previously enunciated.- WWWe find that all employees of the Company who are engaged during more than 50 per cent of their working time as oxy-acetylene, oxy- hydrogen, and electric are welders employed to do fusion welding, as gas torch cutters, and as helpers and apprentice welders, at each plant of the Company, namely, the Santa Monica plant and the El Segundo Division plant, excluding foremen or those in supervisory capacity, constitute a separate unit appropriate for the purposes of collective bargaining, and that such separate units will insure to employees of the Company the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The United, in addition to introducing the testimony already men- tioned relating. to its designation as exclusive collective bargaining .representative by substantially all of the employees within the alleged unit at both plants of the Company, introduced certain cards, signed by certain of these employees and authorizing the United to act as 15 Matter of Ryan Aeronautical Co. and United Aircraft Weldem of America, Ind., 15 N. L. R. B. 812. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such representative. There also was introduced in evidence a list of the "persons employed by the Company within the units found to be appropriate. However, we believe that the question which has arisen concerning the representation of employees of the Company can best be resolved by elections by secret ballot. We shall, accord- ingly, direct that such elections be held. Although the parties stipu- lated and agreed at the hearing that in the event elections be directed herein, the date for determining eligibility to vote shall be May' 18, 1939, we believe that the current eligibility date will best effectuate the policies of the Act. Those employees in the appropriate units who were employed by the Company at its main plant and at its Division plant, respectively, during the pay-roll period next preced- ing the date of this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been tempo- rarily laid off, but excluding all persons who have quit or have been discharged for cause since that date, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. _ A question affecting commerce has arisen concerning, the repre- sentation of employees of Douglas Aircraft Company, Inc., Santa Monica, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company who are engaged, during more than 50 per cent of their working time as oxy-acetylene, oxy-hydro- gen, and electric are welders employed to do fusion welding, as gas torch cutters, and as helpers and apprentice welders, at each plant of the Company, namely, the Santa Monica plant and the El Segundo Division plant, excluding foremen or those in supervisory capacity, constitute a separate unit appropriate for purposes of collective bar- gaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining THE DOUGLAS AIRCRAFT CO., INC. 103 with Douglas Aircraft Company, Inc., Santa Monica, California, separate elections by secret ballot shall be conducted as early as pos- sible but not later than thirty (30) days from the date of this Direc- tion, under the direction and supervision of the Regional Director for the Twenty-first 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 all employees of the Company who are engaged during more than 50 per cent of their working time as oxy-acetylene, oxy-hydrogen, and electric are welders employed to do fusion welding, as gas torch cutters, and as helpers and ap- prentice welders, at each plant of the Company, namely, the Santa Monica plant and the El Segundo Division plant, and who were employed by the Company at each of said plants during the pay-roll period next preceding the date of This Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding foremen and those in supervisory capacity, and all persons who have quit or have been discharged for cause since that date, to determine whether or not they desire to be represented by United Aircraft Welders of America for the purposes of collective bargaining. 247383-40-vol. 10--8