The DeVilbiss Co.

In the Matter of THE DEVILBISS COMPANY and AMERICAN FEDERA- TION OF LABOR Case No. R-1596.-Decided December 8,1939 Atomizer, Spray Painting Equipment, and Hose Manufacturing Industry- Investigation of Representatives : question concerning representation : two rival unions have membership contracts ; petitioning union has secured recognition as representative for its members ; membership contract of rival union no bar to petition-Unit Appropriate for Collective Bargaining : production and main- tenance employees , including shipping and receiving clerks, stockroom clerks, and timekeepers, exclusive of foremen and supervisory employees, time-study men, and office employees, stipulated ; engineering and drafting department employees : wages and functions ; excluded from unit-Representatives : eligi- bility to participate in choice : additional employees hired after strike ; tem- porary backlog of unfilled orders; temporary nature of employment ; employees previously employed and on Company's "recall list"-Petition to Intervene: filed after close of hearing ; claim to represent engineers and draftsmen ; dis- missed, as claim unaffected by this decision-Election ordered Mr. Max W. Johnstone, for the Board. Marshall, Melhorn,Davies, Wall d Bloch, by Mr. Henry R. Bloch, of Toledo, Ohio, for the Company. Mr. Francis J. Dillon and Mr. Samuel R. Isard, of Toledo, Ohio, for the A. F. of L. Edward Lamb, by Mr. Lowell Goerlich, and Mr. Richard Gosser, of Toledo, Ohio, for the U. A. W. Mr. Oscar J. Smith, Mr. Irving J. Blumberg, and Mr. Milden D. Murphy, of Toledo, Ohio, for the Association. Mr. Marcel Scherer, of Detroit, Mich., for the Society. Mr. Louis A. Roland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 28, 1939, American Federation of Labor, herein called the A. F. of L., by its representative, F. J. Dillon, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of The DeVilbiss Company, Toledo, Ohio, herein called the Company, and requesting an investi- 1S N. L. R. B., No. 29. 187 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 18, 1939, 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 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 25, 1939, the Regional Director issued and duly served a notice of hearing upon the Company and the A. F. of L., upon Local 12, International Union, United Automobile Workers of America, C. I. 0., herein called the U. A. W., and Employees of The DeVilbiss Company Association, herein called the Association, labor organiza- tions claiming to represent employees directly affected by the investi- gation, and upon Metal Polishers, Buffers, Platers & Helpers International Union, Local No. 2, affiliated with the A. F. of L., herein called the Polishers Union. Pursuant to the notice, a hearing was held on November 2, 1939, at Toledo, Ohio, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, the Company, the U. A. W., and the Association were represented by counsel, the A. F. of L. by its representatives, and all participated in the hearing. The Polishers Union did not appear at 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 prejudicial errors were committed. The rulings are hereby affirmed. On November 18, 1939, after the close of the hearing, Local 204, Society of Designing Engineers, International Federation of, Archi- tects, Engineers, Chemists and Technicians, affiliated with the C. I. 0., herein called the Society, filed with the Board a petition to intervene in the proceeding. This petition is dealt with below in Section VII. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The DeVilbiss Company is an Ohio corporation, incorporated in 1905, with its plant at Toledo, Ohio, and with warehouse facilities in New York, Pennsylvania, Michigan, Illinois, Kansas, Wisconsin, Missouri, Texas, California, and Utah. Its principal manufactures are atomizers, spray-painting equipment, and hose. The principal raw materials used in the manufacture of its finished products are THE DEVILBISS COMPANY 189 crude rubber, brass rods, and glass. Ninety per cent of these raw materials come from without the State of Ohio. Ninety per cent of its finished products are shipped to points outside the State of Ohio. The total amount of sales and purchases for the year 1938 each exceeded $500,000 in value. The Company has employed an average of 650 persons in production and maintenance work during the last few years. H. THE ORGANIZATIONS INVOLVED American Federation of Labor, the petitioning union herein, is a parent labor organization with which are affiliated international, federal labor, and other unions. It distributed applications for membership in the A. F. of L. among employees of the Company at its Toledo plant and claims to have secured approximately 325 signa- tures on such application cards. A temporary committee has been set up to conduct the affairs of the organization at the Company's plant until such time as a charter for a local labor organization is granted by the A. F. of L. Local No. 12, International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Indus- trial Organizations. It admits to membership employees of the Company at its Toledo plant. Employees of The DeVilbiss Company Association is an unaffiliated labor organization admitting to membership employees of the Company at its Toledo plant. III. THE QUESTION CONCERNING REPRESENTATION On April 20, 1938, after a petition for investigation and certification of representatives had been, filed by the U. A. W. and after the Board had conducted an election, the Association was certified by the Board as the exclusive bargaining representative of the production employees of the Company who were paid on an hourly or piece-work basis, excluding clerical and supervisory employees.' The Association had previously, on August 6, 1937, entered into a collective bargaining con- tract with the Company under which the Association was recognized as the exclusive representative of the Company's employees, excluding direct representatives of the management, such as salesmen, superin- tendents, foremen, group leaders, time-study men, watchmen, and confidential salaried employees. The contract was to remain in effect until July 1, 1938, and thereafter until terminated by 30 days' notice of either party. The Association terminated this contract in 1939 as set forth below. On September 14, 1939, a strike was called at the plant by the U. A. W. which continued until October 5, 1939, at which time the 1 Matter of The DeVilbiss Company and International Union, United Automobile Workers of America, #12, 6 N. L. R. B. 8. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company entered into a collective bargaining contract with the U. A. W. in which the U. A. W. was recognized as the bargaining agent for its members. On October 6, 1939, the Company entered into a similar membership contract with the Association, which had just previously terminated its exclusive bargaining contract with the Com- pany. Each contract is to continue in effect until July 15, 1940, and thereafter until modified or amended by 30 days' notice of either party. Several days after the beginning of the strike on September 14, 1939, the A. F. of L. began to organize among the Company's employees and claims to have secured approximately 325 signed application cards. After filing its petition in this case, representatives of the A. F. of L. conferred with Company officials on October 7, 1939. No grievance or proposed contract was presented to the Company; however, the A. F. of L. requested and obtained recognition as the bargaining agent for its members among the Company's employees. The U. A. W. claims that its membership contract of October 5,1939, constitutes a bar to any determination of representatives by the Board. We do not agree with this contention. The contract presents no bar to the petition because it was signed after the filing of the petition on September 28, 1939,2 and also because it does not grant the U. A. W. recognition as the exclusive bargaining representative but only as a bargaining agent for its members.' 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 de- scribed 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 The Company, the A. F. of L., the U. A. W., and the Association stipulated that all employees of the Company at its Toledo plant en- gaged in production and maintenance work, including shipping and receiving clerks, stockroom clerks, and timekeepers, exclusive of fore- 2 See Matter of Florence Pipe Foundry & Machine Co. and Steel Workers Organizing Committee, etc., 15 N. L. It. B. 250, and cases there cited. 2 See Matter of Aluminum Company of America and Aluminum Employees Association, 9 N. L. R . B. 944; Matter of Sloss Sheffield Steel & Iron Company and O3rotherhood of Railroad Traintnen, 14 N. L, R. B. 180, THE DEVILB1:SS COMPANY 191 men and other supervisory employees with authority to hire and fire, time-study men, and office employees, constitute an appropriate bar- gaining unit. We see no reason for deviating from the desires of the parties in this respect. The sole question as to the appropriate unit concerns the engineers and draftsmen. The U. A. W. and the Company desire that these employees be excluded from the unit. The A. F. of L. representative, although at first expressing a preference for their inclusion, thereafter stated, "It doesn't make any difference." The engineering and drafting department consists of 48 employees, exclusive of supervisors, and includes designing engineers, draftsmen, experimental machinists, clerks, and apprentice draftsmen. Some of these employees are also known as sales engineers, experimental engineers, and experimental test men. All of them are paid on a weekly or monthly basis, whereas the production and maintenance employees receive an hourly wage. In general the engineering and drafting department plans and designs objects for regular production and for special work. After a design is approved, models are constructed, chiefly in metal, and are then tested. Thereafter, the article is manufactured by the production employees. After an article is in the process of regular manufacture, the engineering and drafting department continues to examine and test the product with a view to improvement and to insure that the article is made according to design. In addition, sales engineers, working in cooperation with salesmen, design products to meet the needs of customers on the latter's premises. In the light of all the circumstances, we find that the employees of the engineering and draft- ing department may properly be excluded from a unit of production and maintenance employees.4 We find that all employees of the Company at its Toledo plant en- gaged in production and maintenance work, including shipping and receiving clerks, stockroom clerks, and timekeepers, exclusive of fore- men and other supervisory employees with authority to hire and fire, time-study men, office employees, and employees in the engineering and drafting department, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefits of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES As stated above, the U. A. W. and the Association have membership contracts with the Company, and the A. F. of L. has been recognized 4 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N. L. R. B. 228; Matter of Atlantic Basin Iron Works and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 13, 5 N. L. R. B. 402; Matter of Walker Vehicle Company et al. and Walker-Automatic Independent Labor Associaiton, 7 N. L. R. B. 827. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Company as the bargaining representative of its members. At the hearing the A. F. of L. had approximately 325 membership cards, but did not introduce them in evidence. Under the circum- stances, we find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. Evidence at the hearing revealed that after the strike at the plant had ended on October 5, 1939, the Company, on October 9, 1939, and during the following 3 weeks, engaged about 250 production workers in addition to those who had been employed prior to the strike. Of these, about 220 were persons never previously employed by the Company. The remaining 30 persons had previously been employed by the Com- pany, and, although they had lost their seniority by being absent from work at the plant for over a year, were on the Company's "recall list." The seniority rules which at present govern at the Toledo plant of the Company provide for a form of permanent seniority so that employees no longer lose their seniority status by a year's absence from work. The Company, the A. F. of L., and the Association contend that none of the 250 employees should be eligible to vote because they are tempo- rary employees. The U. A. W. agrees with this position except that it believes that the 30 persons who were on the "recall list" should be permitted to vote. The president of the Company testified that the employment of the 250 additional persons after the strike was due in part to the backlog of unfilled orders which had accumulated during the strike and in part to increased business. Although not certain whether the additional employees would be temporary or permanent, he further testified that business in the atomizer and perfume-spraying division would slacken after December 1, 1939, necessitating the lay- off of the additional help in that division, that it was likely that the backlog of unfilled orders might be eliminated by that time, and that the Company had about 830 production and maintenance employees on its pay roll at the time of the hearing although, the average number of employees for the last few years had been about 650. Under the existing seniority rules of the Company, new employees do not secure a seniority status in the plant until the expiration of 90 days, so that persons employed in October 1939 would secure seniority status only in January 1940. No further evidence appears concerning the prob- ability of future employment with the Company of the new employees who may be laid off before January 1940. Under the circumstances, we are of the opinion that persons hired after October 9, 1939, who were not on the "recall list," should not be eligible to vote. We shall accordingly direct that those eligible to vote in the election will be the employees in the appropriate unit whose names appear on the pay roll of the Company immediately preceding the strike which occurred THE DEVILBISS COMPANY 193 from September 14 to October 5, 1939,6 and those of the employees in the appropriate unit newly hired on or after October 9, 1939; whose names appear on the Company's "recall list," including employees who did not work during the aforesaid pay-roll period because they were ill or. on vacation, and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for cause. VII. PETITION TO INTERVENE Claiming to represent employees in the engineering and drafting department of the Company, the Society, as stated above, filed with the Board, after the close of the hearing in this proceeding, a petition to intervene for the purpose of reopening the record to present evi- dence in support of its claim to represent the designing engineers and draftsmen or, in the alternative, to be represented on the ballot in the event an election involving designing engineers and draftsmen is directed. Since we, have, without the participation of the Society as a party to this proceeding, determined that an election should be held among employees in an appropriate unit which excludes employees in the engineering and drafting department, the claim of the Society that it represents employees in that department is in nowise affected. Accordingly, the Society's petition to intervene in this proceeding is hereby denied. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONOLusIONs OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The DeVilbiss Company, Toledo, Ohio, 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's plant engaged in production and maintenance work, including shipping and receiving clerks, stock- room clerks, and timekeepers, exclusive of foremen and other super- visory employees with power to hire and fire, time-study men, office employees, and employees in the engineering and drafting department, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Rela- 6 All employees who struck on September 14, 1939, subsequently returned to work at the end of the strike on October 5, 1939. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions 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 with The DeVilbiss Company, Toledo, Ohio, 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 Eighth 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 DeVilbiss Company, at its Toledo, Ohio, plant, engaged in production and maintenance work, including shipping and receiving clerks, stockroom clerks, and timekeepers, whose names appear on the pay roll of the Company immediately preceding Septem- ber 14, 1939, and those of the employees newly hired on and after October 9, 1939, whose names appear on the "recall list" of the Com- pany, including any who did not work during the aforesaid 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 other supervisory employees with power to hire and fire, time- study men, office employees, employees in the engineering and drafting department, and employees who have since quit or been discharged. for cause, to determine whether they desire to be represented by American Federation of Labor, by Local No. 12, International Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, or by Employees of The DeVilbiss Com- pany Association, for the purposes of collective bargaining, or by none of them.