Yellow Truck & Coach Manufacturing Co.

In the Matter of YELLOW TRUCK & COACH MANUFACTURING COMPANY and PATTERN MAKERS' LEAGUE OF NORTH AMERICA, AFFILIATED WITH THE A. F. L. In the Matter of YELLOW TRUCK & COACH MANUFACTURING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKEaS OF AMERICA, AFFILIATED WITH THE C. I. 0. Cases Nos. R-1835 and R-1836, respectively.Decided June 12, 19%10 Motor Truck and Passenger Coach Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees: re- fusal by employer to bargain with either petitioning union as statutory repre- sentative of employees within respective allegedly appropriate units, on the ground that employer did not know whether either union represented a majority of the employees in an appropriate bargaining unit-Units Appro- priate for Collective Bargaining: (1) All pattern and model makers at the Rapid Street building of the employer's Pontiac plant; (2) all production and maintenance employees, and mechanical employees in engineering depart- ment shops, of the Company at its Pontiac plant, but excluding the following employees : direct representatives of the management, such as officers and directors of the Company ; sales managers and assistant sales managers ; factory managers and assistant factory managers; directors and employees of sales, accounting, personnel, and industrial relations departments; directors of purchases and assistant directors of purchases ; superintendents and assistant superintendents ; general foremen, foremen, and assistant foremen, and all other persons working in a supervisory capacity, including those having the right to hire or discharge and those whose duties include recommendation as to hiring or discharging (but not leaders) ; employees whose work is of a confidential nature ; time-study men ; plant-protection employees (but not maintenance patrolmen or fire patrolmen) ; all clerical employees; chief engi- neers and shift operating engineers in power plants; designing (drawing board), production estimating and planning engineers; draftsmen and detailers ; physicists ; chemists; metallurgists ; artists, designer-artists, and clay and plaster modelers ; timekeepers ; technical school students ; indentured apprentices and technical or professional employees receiving special training ; kitchen and cafeteria help; and all employees engaged as pattern and model makers at the Rapid Street Building of the Company's Pontiac plant-Repre- sentatives: eligibilty to participate in choice: temporarily laid-off employees on seniority list-Elections Ordered : among employees within each of the two units found appropriate ; each union to participate in one election only, since each had indicated an interest in employees within one unit only. Mr. Arthur C; O'Connor, for the Board: Mr. A. F. Power and Mr. R. C. Carson, of Detroit, Mich., for the Company. 24 N. L. R. B., No. 61. 615 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Herbert S. Thatcher, of Washington, D. C., and Mr. J. L. Weiser, of Detroit, Mich., for the Pattern Makers. Mr. Ernest Goodman and Mr. Maurice Sugar, of Detroit, Mich.,, for the U. A. W. Mr. Richard, Johnston, of counsel to the. Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 7, 1939, Pattern Makers' League of North America, herein called the Pattern Makers,' filed a petition with the Regional Director for the Seventh Region (Detroit, Michigan) in the above proceedings designated as Case No. R-1835, alleging that a question affecting com- merce had arisen concerning the representation of employees of Yellow Truck & Coach Manufacturing Company '2 Pontiac, 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 September 26, 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 upon the petition and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice.' On February 15, 1940, International Union, United Automobile Workers of America, herein called the U. A. W.,4 filed a petition with the Regional Director in the proceedings designated above as Case No. R-1836,5 also alleging that a question concerning the representa- tion of the Company's employees had arisen and requesting an inves- 1 The Pattern Makers is also referred to in the record as the A. F. of L. 2 The petition erroneously named General Motors Corporation as the employer Involved. At the hearing mentioned below motions were granted by the Trial Examiner amending the pleadings , record , and title of the above-entitled cases to state the correct name of the single employer involved, as above set forth . fhese rulings of the Trial Examiner are hereinafter affirmed. 3On January 3, 1940, the Board , acting pursuant to Article III, Section 10 (c) (2), of the said Rules and Regulations , ordered that Case No. R-1835 be consolidated with certain other cases. On January 12 the Regional Director Issued a notice of hearing In these consolidated cases , copies of which , together with copies of the petition and amended petition, were duly served upon the Pattern Makers , upon International Union, United Automobile Workers of America, C. I. 0., herein called the U. A. W., upon an employer other than the Company, and upon certain additional labor organizations . On February 2 the Board revoked its order of January 3 in so far as it consolidated Case No. R-1835 with the other cases, and, acting pursuant to Article III, Section 10 (c) (4), of National Labor Relations Board Rules and Regualtions-Series 2, as amended, continued the said case as a separate proceeding. 4 The U. A. W. is also referred to in the record as the C. I. O. 9 See footnote 2, supra. YELLOW TRUCK & COACH MANUFACTURING COMPANY 617 tigation and certification of representatives. On March 28 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 upon the petition in said case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On April 22 the Board, acting pursuant to Article III, Section 10 (c) (2), of the said Rules and Regulations, ordered that the two afore- mentioned cases, Case No. R-1835 and Case No. R-1836, be consoli- dated. On April 15 the Pattern Makers filed an amended petition and on April 29 the U. A. W. did likewise. On April 30 the Regional Director issued a notice of hearing in the consolidated cases, copies of which, together with copies of the petitions and amended petitions, were duly served upon the Com- pany, upon the Pattern Makers,, upon the U. A. W., upon General Motors Corporation, and upon International Union, United Automo- bile Workers of America, A. F. L. Thereafter the Regional Di- rector issued an amendment to notice of hearing and a notice of postponement of hearing, copies of each of which were duly served upon the foregoing persons and organizations upon whom the notice of hearing of April 30 had been served. Pursuant to notice a hear- ing was held on May 9 at Detroit, Michigan, before Madison Hill, the Trial Examiner duly designated by the Board. The Board, the Company, the U. A. W., and the Pattern Makers appeared and were represented by counsel. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues. 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 reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. On May 16 the Pattern Makers requested leave to submit a brief and present oral argument before the Board. Thereafter, the Board notified all parties that they, were granted the privilege of submit- ting briefs and that a hearing before the Board for the purpose of oral argument would be held. On May 22 the U. A. W. informed the Board in writing of its withdrawal of all opposition to a finding by the Board that. the unit, claimed by the Pattern Makers in the amended petition in Case No. R-1835, as appropriate for the pur- poses of collective bargaining, and of its desire not to participate in any election held among employees in this unit. The Board O The allegations of the amended petitions differ in various respects from those of the petitions. 618 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD interprets this action by the U. A. W. as a waiver of its privilege to submit a brief or present oral argument. On May 23 the Pattern Makers notified the Board in writing of its waiver of the right to present oral argument, and on May 25 the Company did likewise. The Company also waived its right to submit a brief, and we in- terpret the action of the Pattern Makers as being to the same effect.. On May 27 the Pattern Makers requested the Board in writing to certify that organization upon the record as the statutory repre- sentative of employees in the above-mentioned unit. The Board hereby directs the filing instanter as part of the record herein of all letters and documents containing the above-mentioned waivers, notifications, and requests of the parties. All parties have been notified of the cancellation of the hearing previously set. The Pat- tern Markers' request for certification upon the record is hereby denied, for reasons hereinafter appearing. Upon the entire record in ,the..case, ;the Board, makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Yellow Truck & Coach Manufacturing Company is a Maine cor- poration with executive offices at Pontiac, Michigan. It is engaged in the manufacture, sale, and distribution of motor trucks and passenger coaches, and replacement and service parts for such trucks and coaches. The Company maintains a manufacturing plant in Pontiac where the employees herein involved are employed. It reg- ularly ships approximately 94 per cent in value of the finished products of its Pontiac plant to points outside the State of Michigan. In the regular course of production at Pontiac, the Company uses various raw materials and fabricated or partially fabricated articles, approximately 59 per cent of which in value are obtained and shipped to the plant from outside the State of Michigan. The Company employs approximately 5,400 employees. It is evident from the size of the Company's operations, and we find, that a substantial amount of finished products are shipped in interstate commerce and a sub- stantial amount of raw materials are shipped in interstate commerce in connection with these operations. II. THE ORGANIZATIONS INVOLVED Pattern Markers' League of North America is a labor organization affiliated with American Federation of Labor, admitting to mem- bership pattern and model makers employed by the Company. YELLOW TRUCK & COACH MANUFACTURING COMPANY 619 international Union, United Automobile Workers of America, is a labor organization affiliated with Congress of Industrial Organiza- tions, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION The Company has bargained collectively concerning working con- ditions with each of the petitioning unions as the representative of its members. Neither union has ever been recognized by the Com- pany as the statutory representative. of employees within an appro- priate collective bargaining unit. Both unions recently requested the Company to recognize and otherwise bargain collectively with them as the statutory representative, respectively, of employees within allegedly appropriate collective bargaining units. The Company has refused these requests for the reason that it does not know whether either union in fact represents a majority of the Company's employees in an appropriate bargaining unit.. We find that questions have arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION UPON COMMERCE We find that the questions concerning representation which have arisen, occurring in connection with the operations of the Company described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes' burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNITS A. The pattern makers unit The amended petition of the Pattern Makers alleges that "all em- ployees engaged as pattern and model makers at the Rapid Street Building" of the Company's Pontiac plant constitute a unit appro- priate for the purposes of collective bargaining.' The Company normally employs 19 such pattern and model makers. Neither the Company nor the U. A. W. now contests the appropriateness of such a: unit. The Board has held in many cases that employees such as those in the alleged unit can constitute under certain circumstances a separate appropriate collective bargaining unit. We are of the opinion, upon the record presented, and in view of the positions of ° This unit also is described in the record as comprising all pattern and model makers in Department 64 of the Company 's Pontiac plant. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respective parties on this issue, that the alleged unit is appropriate. Accordingly, we find that all employees engaged as pattern and model makers at the Rapid Street Building of the Company's Pontiac plant constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bar- gaining, and otherwise effectuate the policies of the Act. This unit is herein referred to as the pattern makers unit. B. The industrial unit The amended petition of the U. A. W. alleges that a unit appropri- ate for the purposes of collective bargaining consists of all produc- tion and maintenance employees, and mechanical employees in en- gineering department shops of the Company at its Pontiac plant, but excluding the following employees : direct representatives of the management, such as officers and directors of the Company ; sales managers and assistant sales managers; factory managers and as- sistant factory managers; directors and employees of sales account- ing, . personnel, and industrial relations departments; directors of purchases and assistant directors of purchases; superintendents and assistant superintendents ; general foremen, foremen, and assistant foremen, and all other persons working in a supervisory capacity, including those having the right to hire or discharge and those whose duties include recommendation as to hiring or discharging (but not leaders) ; employees whose work is of a confidential nature; time-study men; plant-protection employees (but not maintenance patrolmen or fire patrolmen) ; all clerical employees; chief engineers and shift-operating engineers in power plants ; designing (drawing board), production estimating and,planning engineers; draftsmen and detailers ; physicists ; chemists ; metallurgists ; artists, designer- artists, and clay and plaster modelers (but not those who make patterns) ; timekeepers; technical school students; indentured ap- prentices and technical or professional employees receiving special training; and kitchen and cafeteria help. At the hearing the Com- pany did not oppose a finding by the Board of an appropriate unit such as that alleged by the U. A. W. in its amended petition, al- though the Pattern Makers contended that the unit alleged im- properly included within it the employees already found to constitute a separate appropriate collective bargaining unit. In view of our finding the pattern makers unit to be appropriate, and of the positions now taken by the parties, we are of the opinion, and find, that the employees in the pattern makers unit were improperly included in the unit alleged in the amended petition of the U. A. W. to be appropriate. However, we see no reason for not finding the alleged YELLOW TRUCK & COACH MANUFACTURING COMPANY 621 unit, excluding employees in the pattern makers unit, to be appro- priate for collective bargaining. Accordingly, we find that such unit is appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargain- ing, and otherwise effectuate the policies of the Act. This unit is herein referred to as the industrial unit. VI. THE DETERMINATION OF REPRESENTATIVES A. The pattern makers unit As above stated, the Pattern Makers requests a certification upon the record of itself as the statutory representative of employees in the pattern makers unit. From 'a report of the Board's Field Ex- aminer introduced in evidence it appears that a substantial number of employees within the unit are members of the Pattern Makers. However, in view of the nature and quantity of the proof offered regarding representation, we are of the opinion, and find, that the question which has arisen concerning the representation of em- ployeesin the pattern makers unit can best be resolved by an election by secret ballot to determine the choice of bargaining representative. Seven of the 19 employees who were within this unit when the original petition was filed by the Pattern Makers have since been temporarily laid off for lack of work. However, these individuals are carried by the Company on its seniority list, and will be recalled to work before new employees are hired when work becomes avail- able." Both the Company and the Pattern Makers agree that such persons should be eligible to vote in an election among employees in the pattern makers unit. We have in many cases held such persons to be employees, within the meaning of the Act, and eligible to vote. We here so hold and find, and the Direction of Elections shall be construed as permitting these employees to vote.' We shall, accordingly, direct that an election be held among em- ployees in the pattern makers unit subject to such limitations as may be stated in the Direction of Elections. The U. A. W., for reasons above indicated, will not appear upon the ballot in this election. 8 Employees who have had 6 months' continuous employment with the Company are placed on a seniority list and, if laid off , are given a preference over new employees for reemployment. 9 At the hearing the Pattern Makers contended that eligibility to vote should be de- termined by the pay roll of March 28, 1940, since on that date all of the pattern and model makers on the Company 's seniority list were working . However. since employees who have subsequently been temporarily laid off will be eligible to vote under the terms of the Direction of Elections. we see no reason for not following our customary procedure of selecting the pay-roll period next preceding the date of the Direction of Elections. The Direction of Elections will so provide. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The industrial unit From the afore-mentioned report of the Field Examiner it appears that a substantial number of employees within the industrial unit are members of the U. A. W. and have selected it as their collective bargaining representative. The U. A. W. does not request certifi- cation upon the record. We are of the opinion that the purposes of the Act will best be effectuated and the desires for ,representation of the employees within this unit best ascertained in an election by secret ballot. Accordingly, we shall direct that a separate election be held among all employees within this unit, subject to such limi- tations as may be stated in the Direction of Elections. At the hearing, the U. A. W. contended that eligibility to vote in this election should be limited to those employees on the Company's pay roll of March 28, 1940. The Company suggests that the pay roll of May 4, 1940, or of some later date be taken for such purpose. We see ^no reason for. varying from our customary procedure<.of selecting the pay-roll period next preceding the date of the direction of election as determinative of eligibility to vote. Ordinarily all employees in the unit at or about the time the choice of a statutory representative is ascertained should be permitted to participate in the selection. 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. Questions affecting commerce have arisen concerning the repre- sentation of employees of Yellow Truck & Coach Manufacturing Company, Pontiac, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees engaged as pattern and model makers at the Rapid Street Building of the Company's Pontiac plant constitute a unit appropriate. for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. All production and maintenance employees, and mechanical employees in engineering department shops of the Company "at its Pontiac plant, but excluding the classifications of employees here- inabove excluded from the unit found to be appropriate,10 constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. io See Section V B, supra. YELLOW TRUCK '& COACH MANUFACTURING COMPANY 623 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 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 Yellow Truck & Coach Manufacturing Company, Pontiac, Mich- igan, separate elections by secret ballot shall be conducted, as early as possible but not later than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Director for the Seventh 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 employees in the following groups, respectively, •viz r. 1. Among all employees. engaged as pattern and model makers at the Rapid Street Building of the Company's Pontiac plant during the pay-roll period next preceding the date of this Direction of Elec- tions, including pattern and model makers who did not work during such period because they were ill or on vacation, or were then or have since been temporarily laid off,l1 but excluding those pattern and model makers who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Pattern Makers' League of North America, affiliated with American Federa- tion of Labor, for the purposes of collective bargaining ; and 2. Among all production and maintenance employees, and mechan- ical employees in engineering department shops of the Company at its Pontiac plant employed by the Company during the pay-roll period next preceding the date of this Direction of Elections, includ- ing employees who did not work during such period because they were ill or on vacation or were then' or have since been temporarily laid off, but excluding the following employees : direct representatives of the management, such as officers and directors of the Company ; sales managers and assistant sales managers; factory managers and assist- ant factory managers; directors and employees of sales, accounting, personnel, and industrial relations departments ; directors of pur- chases and assistant directors of purchases; superintendents and assistant superintendents; general foremen, foremen, and assistant 11 See Section VI, supra, with respect to the eligibility of certain persons, temporarily laid off, to vote in this election. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foremen, and all other persons working in a supervisory capacity,, including those having the right to hire or discharge and those whose duties include recommendation as to hiring or discharging (but not leaders) ; employees whose work is of a confidential nature; time- study men; plant-protection employees (but not maintenance patrol- men or fire patrolmen) ; all clerical employees; chief engineers and shift-operating engineers in power plants; designing (drawing board), production estimating and planning engineers; draftsmen and detailers; physicists; chemists; 'metallurgists; artists, designer- artists, and clay and plaster modelers; timekeepers; technical school students; indentured apprentices and technical or professional em- ployees receiving special training; kitchen and cafeteria help; all employees engaged as pattern and model makers at the Rapid Street Building of the Company's Pontiac plant; and all employees who since such pay-roll period have quit or been discharged for cause, to determine whether or not they desire to be represented by Interna- tional Union, United Automobile Workers of America, affiliated with Congress of Industrial Organizations, for the purposes of collective bargaining.