Hicks Body Co.

In the Matter of HICKS BODY CObIPANY an4 HICKS EMPLOYEES UNION Case No. R-1773-Decided April 30, 1.9410 Bus Manufacturing Industry-Investigation of Represen.tatwes: controversy concerning representation of employees: rival organizations; company refused to grant recognition to either union until one or the other certified by the Board- .Unct Appropriate for Collective Bargatintng: stipulated as to; all production and maintenance employees excluding supervisory and clerical employees ; watchmen, gatekeepers, and truck drivers not within unit-Representatives: eligibility to par- ticipate in choice ; all employees on pay roll immediately preceding date of Direc- tion of Election and, in addition , all employees who earned wages in nine or more weeks during 1939-Electton Ordered M11r. Robert D. Malarney, for the Board. Parr, Parr and Parr by Mr. N. H. Parr, Jr., of Lebanon, Ind., for the Company. Gullion dl Thompson, by Mr. E. C. Gullion, of Lebanon, Ind., for the Employees Union. Mr. Frank S. Pryor and Mr. Hugh Gormley , of Indianapolis, Ind., for the A. F. of L. Union. Mr. Bliss Daffan , of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF TrlE CASE On January 15, 1940, Hicks Employees Union, herein called the Employees Union, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Hicks Body Company, Lebanon, Indiana, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 4, 1940, the Na- tional 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, as amended, ,ordered an investigation and authorized the Regional Director to -conduct it and to provide for an appropriate hearing upon due notice. 23 N. L. R. B., No 29. 462 HICKS BODY COMPANY 463 On March 7, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Employees Union, and Federal Labor Union No. 22207, affiliated with the Ameri- can Federation of Labor, herein called the A. F. of L. Union, a labor -organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on March 18 and 19, 1940, at Lebanon, Indiana, before John T. Lindsay, the Trial Examiner duly designated by the Board. The Board, the Company, the Employees Union, and the A. F. of L. 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 .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 March 21, 1940, the Company requested oral argument before the Board and at the same time lodged with the Board a list of names designated "Senior Employees" and requested that such list of names be incorporated into the record and considered by the Board. On April 9, 1940, a hearing was held before the Board at Washing- ton, D. C., for the purpose of oral argument. The Company, the Employees Union, and the A. F. of L. Union appeared and presented argument. During the course of the argument the A. F. of L. Union lodged with the Board certain affidavits directed at the aforesaid list of "Senior Employees." The request of the Company that this list be incorporated into the record and considered by the Board is hereby denied, since it was lodged with the Board after the close of the hear- ing and the matters asserted therein are put in issue by the affidavits of the Union. The Company filed a brief which has been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. TIIE BUSINESS OF THE COMPANY The Company is an Indiana corporation with its place of business at Lebanon, Indiana. It is engaged in the manufacture of busses, principally school busses. The principal raw materials used by the Company are steel, rubber, leather, composition, insulating material, and glass. During the 1939 fiscal year the total value of raw materials used by the Company amounted to approximately $210,000, of which 85 per cent represented raw m aterials obtained from sources outside the State of Indiana. During the same period sales of finished prod- 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts of the Company amounted to approximately $460,000 in value, of which approximately 60 per cent represented finished products sold' and shipped to purchasers in States other than Indiana. The Com- pany concedes that it is engaged in interstate commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED Hicks Employees Union is an unaffiliated labor organization admit- ting to membership employees of the Company. Federal Labor Union No. 22207 is a labor organization affiliated; with the American Federation of Labor. It admits to membership. employees of the Company. HI. THE QUESTION CONCERNING REPRESENTATION It was stipulated at the hearing, and we find, that the Company refused to recognize either the Employees Union or the A. F. of L. Union as the bargaining representative of the employees until one or the other organization has been certified by this Board as such repre- sentative. It was further stipulated, and 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 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the unions involved stipulated at the hearing that the unit appropriate for purposes of collective bargaining con- sists of all production and maintenance employees, excluding super- visory and clerical employees. We see no reason for not finding such unit appropriate. We find that all production and maintenance employees, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. HICKS BODY COMPANY 465 There was some question as to whether certain classes of employees are in the above unit. It appeared that watchmen and gatekeepers are not eligible for membership in either of the unions involved and both agreed that these employees do not come within the classifica- tions of employees in the unit. We find that watchmen and gate- keepers should not be included in the unit. At the time of the hearing there were three truck drivers in the employ of the Company. They are engaged principally in hauling material between the two plants of the Company which are located some distance apart in Lebanon. Truck drivers are not eligible for membership in the A. F. of L. Union and it desires their exclusion. The record does not disclose whether truck drivers are eligible to membership in the Employees Union or whether any of them are members of that organization, but it apparently desires to represent them in collective bargaining. Under these circumstances, and in view of the stipulation between the unions providing for the inclu- sion in the unit of only production and maintenance employees, we find that truck drivers are not in the appropriate unit. The A. F. of L. Union contends that 10 named employees' are supervisor- employees and therefore excluded from the unit. The Employees Union maintains that these 10 employees are not super- visory and are included in the unit. These men are all senior employees of the Company. During peak periods of employment they, along with other older employees, act as leaders and, under authorization of the general foremen, direct the work of new and inexperienced employees and in some instances "lay out" the work of the other employees. They have no power to designate the working hours of employees who work with them and have no authority to hire, discharge, or recommend the hiring and discharge of employees. They do the same work as the employees whom they lead and are paid an hourly rate like the other production employees. In some instances their hourly rate of pay is somewhat higher, and in others somewhat lower than the employees with whom they work. We find that these 10 employees should be included in the appropriate unit. VI. TIIE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can be best resolved by an election by secret ballot. The unions involved disagree as to the employees entitled to vote in the election. The Employees Union contends that the proper pay- Claude large, Carl Williams, Russell Bates, Thomas Mitchell, Fred Daily, Clifford Carr, Edgar Essex, Claience Haven, Moses Nease, and Carl Randolph 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll date to determine eligibility of employees to participate in the. election is that of March 13, 1940, containing the names of 33 em- ployees in the appropriate unit. The A. F. of L. Union claims that the proper pay roll is that of August 23, 1939, containing the names, of approximately 334 employees. The Company's business is seasonal. Charts introduced in evi- dence showing the fluctuation in employment for 1937, 1938, and 1939 disclose that peak employment is reached in the latter part of August and first part of September in each year, with employment steadily dropping thereafter until a low of between 30 and 40 production and maintenance employees is reached during the months of January and February of the following year. Following the low reached in Janu- ary and February of each year the charts reflect a gradual rise in employment during the following months until the peak is again reached during the latter part of August and early in September. The pay roll of August 23, 1939, represents the employment peak reached by the Company during the year 1939, an unusual year be- cause the Company had been the recipient of contracts from the State of Indiana, let every 4 years, for the construction and repair of school busses. The employment peak in 1937 and 1938 varied from between 190 and 200 employees in 1937 to 250 in 1938. Therefore, while the pay-roll date desired by the A. F. of L. Union represents the employment peak reached during 1939, the pay roll desired by the Employees Union represents only a slight increase in the employment low reached in January and February of 1940. The Employees Union claims that the pay roll of March 13, 1940, represents the only regular employees of the Company, whereas that of August 23, 1939, represents an abnormal period of employment, and that use of the latter pay roll to determine eligibility would permit participation in the election of purely temporary employees having no interest in the choice of bargaining representatives for the Company's employees at this time. On the other hand, the A. F. of L. Union claims that the employees. on the pay roll of August 23, 1939, have a reasonable expectation of employment for e substantial period when the Company's seasonal operations increase during 1940 and additions are made to its force of employees. There is approximately a 50 per cent turn-over in seasonal employees of the Company from year to year. The employment records of the Company show that a substantial number of employees who worked during 1939 were also employed by the Company in 1937 and 1938. Thus, approximately 100 employees who were on the pay roll of the Company for the period preceding July 1, 1939, were also on the pay roll covering the same period during 1937 and 1938. HICKS BODY COMPANY 467 It is plain that a large number of employees who worked during 1939, but who were not in the Company's employ at the time of the hearing, have a reasonable expectation of employment during 1940. Also, the employment of many of them will be for a period which,, when viewed in the light of the Company's operations in previous years, is substantial.2 In view of the above we shall direct that all employees in the appro- priate unit who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election herein, and, iii addition, all employees in the appropriate unit who 'did not work during said pay-roll period, but who earned wages in 9 or more weeks during 1939, shall be eligible to vote in the election. 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 Hicks Body Company, Lebanon, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees, excluding super- visory and clerical employees, 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- tions Act, 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 Hicks Body Company, Lebanon, Indiana, 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 Eleventh 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 Of the emplo'ees who worked for the Company during 1939, 300 received 4 weeks' em- plovmemt , 250 mere' ed 0 weeks' employment , 200 received 9 weeks' employment, 150 recehed 14 weeks' employment , 100 received 27 weeks ' employment , 75 received 35 weeks' employ- ment 60 recened 42 week'' employment , and 50 received 48 weeks' employment 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all production and maintenance employees employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including all employees who did not work dur- ing such pay-roll period because they were ill or on vacation, and, in addition, all production and maintenance employees who did not work during said pay-roll period but who earned wages in 9 or more weeks during 1939, but excluding supervisory and clerical employees and all persons who have since said pay-roll period quit or been discharged for cause, to determine whether they desire to be represented by Hicks Employees Union or by Federal Labor Union No. 22207, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.