Monteith Brothers Co.

In the Matter Of MONTEITH BROTHERS COMPANY, A CORPORATION and UNITED AUTOMOBILE WORKERS OF AMERICA, AFFILIATED WITH THE C.,1. O. Case No. R-1824.Decided June J8,.1940 Automobile Parts Rebuilding Inmhustry-Investigation. of Representatives: controversy concerning representation of employees: eln^ployer refused union request for consent election-Unit Appropriate for Collective Bargaining: pro- duction and maintenance employees, excluding foremen, assistant foremen, minor supervisory employees, and office and clerical employees ; shipping- and receiving-room workers,, employed by affiliated corporation not a party to pro- ceeding, excluded-Representatives: part-time workers expected to become full- time workers, eligible to vote-Election. Ordered Mr. Jack G. Evans, for the Board. Mr. Verne G. Ca2vley, of Elkhart, Ind., for the Company. 31r. Mose Kucela, of Mishawaka, Ind., and Mr. LeRoy B. Sun- thimer, of Elkhart, Ind., for the Union. Mr. J. H. Krug, of counsel to the.Board. DECISION AN D DIRECTION OF ELECTION STATEMENT OF THE CASE On March 12, 1940, United Automobile Workers.of America, Local No. 693, affiliated with the Congress of Industrial Organizations,, herein called the Union, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) an amended petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of 'Monteith Brothers Company, Elkhart, Indiana, 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 April 22, 1940, the National Labor Relations 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, 1 It appears from the record that this Is the correct name of the labor organization, which is designated in the amended petition as "The United Automobile Workers of America affiliated with C. I. 0." 24 N. L. R. B., No. 86. 812 MONTEITH' BROTHERS COMPANY .813 ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On April 25; 1940, the Regional Director issued a notice of hearing, copies of which were. duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on May 6 and 7, 1940, at Elkhart, Indiana, before Josef L.Hektoen, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing, upon 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 reviewedthe rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 13, 1940, the Company requested permission •to argue orally before the Board. This request was granted' and upon 'notice of hearing and notice of postponement of hearing, both of which were served upon the parties, a hearing for the purpose of oral argument was set for June 4, 1940, at Washington, D. C. On June 3, 1940, the Company advised the Board that it did'not intend to appear for oral argument, and on the same date the Board advised the Union to this effect. Neither the Company nor the Union appeared at the time set for the hearing. Pursuant to permission granted to all parties by the Board, the Company filed a brief, which has been considered by the Board. Upon the. entire record in the case, the Board mal es-the.follo.wing_:. FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 2 Monteith Brothers Company, an Indiana corporation.with its prin- cipal office and place of business at Elkhart, Indiana, is engaged in the" business of rebuilding automobile parts, principally generators, armatures, and. connecting rods. During 1939 the Company produced approximately $500,000 worth of such products, all of which it sold and delivered, at its Elkhart plant, to Monteith Brothers, Inc., here- in called the Sales Company. Approximately 95 per cent of the merchandise purchased from the Company by the Sales Company was transported by the Sales Company to purchasers outside the State of Indiana. During 1939 the Company purchased raw materials costing ap- proximately $283,000. Of this amount $182,000 represented pur- Y The findings in this section are based upon a stipulation of facts between the Company and counsel for the Board. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chases by the Company from the Sales Company- of used automobile parts, which were located at the time of purchase 'in Elkhart, In- diana, and $101,000 represented purchases of materials-from sources other than the Sales Company. Approximately 95 per, cent of the merchandise purchased from the Sales Company had been purchased by the Sales Company at points outside the State of Indiana. Ap- proximately. 95 per cent of. the materials' purchased by the Company from sources other than the Sales Company were shipped to the Com- pany's plant from points outside the State of Indiana. The Company employs approximately 115 production and mainte- nance employees, excluding foremen and assistant foremen. H. THE ORGANIZATION INVOLVED United Automobile Workers of America.,_ Local No. 693 , is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. III. TIIE QUESTION 'CONCERNING REPRESENTATION In January. or February 1940 the Company refused the Union's request that a consent election be held in order to determine whether the Union represented a majority of the Company's employees in a unit appropriate for the purposes of, collective bargaining. At the hearing the Company stipulated that a question concerning repre- sentation exists. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, 'and ' commerce among the several State,,and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The-Union claims that the production and maintenance employees of the Company, excluding foremen, supervisory employees,3 and office and clerical employees, constitute a unit appropriate for the 3 In its ' amended, petition - the Union stated that the 'appropriate unit should' exclude "supervisors." At the hearing,. when the union representative stated his claims , as to the unit, this word was replaced by the term "assistant foremen." It is clear from the record that the Union desires to exclude not only the assistant foremen at the Company's plant, but also other alleged minor supervisory employees. MONTEITH BROTHERS COMPANY 815 purposes of collective bargaining.' The Company agrees that the unit should consist of its production and maintenance employees, ex- cluding foremenVassistant foremen, and office and clerical employees.' A dispute has arisen, however, as to inclusion in the unit of. five" shipping-room and two receiving-room employees in the plant. The -Company contends that the unit should include the shipping- and receiving-room employees. These men, whom the Union desires to exclude, are employees not of the Company, but of the Sales Com- pany. The Monteith brothers own substantially all the stock in the Sales Company as well as in the Company. The Union's petition does not refer to employees of the Sales Company. The Sales Company is not a party to this proceeding. 'At the hear= ing the Union insisted that'its request as to the bargaining unit was limited to employees of the Company alone. Under the circumstances we are of the opinion that the Company's contention regarding the shipping- and receiving-room employees must be rejected. We ac- cordingly find that the shipping-'and receiving-room employees should be excluded from the unit.5 The parties agree upon exclusion from the unit of nine foremen and assistant foremen.' The Union desires to exclude, in addition, eight:. employees,' on the ground that they exercise supervisory authority. All of these perform manual labor, and all are paid on an hourly basis in contrast to the foremen and assistant foremen, who receive salaries. Testimony concerning the duties of the eight alleged supervisory employees' was' given at the hearing by several union members employed by the Company.' From this, testimony-it appears that each of the eight alleged supervisory employees directed the work of one or' more of the' witnesses for brief periods during the 4 months preceding the hearing. Each witness testified that the alleged ' Both in its petition and at the :hearing the Union requested exclusion of warehouse employees . The record shows that the Company has no warehouse employees . In' our finding as to .the unit, therefore, we shall disregard the Union's request to exclude warehouse employees.. 6 See Matter of Coldwell Lawnmower Company and International Association of Machinists, Lodge No. 757, affiliated with the American Federation of Labor, 14 N. L. R. B. 38, 42; ' Matter . of Walter C. Birk Candy Company and Bakery & Confectionery Workers International Union of America, Affiliated with the American Federation of Labor, 11 N. L. R. B. 23, 25 ; Matter of National Candy Company, Inc., Veribrite Factory and Tocal 351 Candy, Workers, affiliated with Bakery and Confectionery Workers 'International Union of America (A. F. of L. Affil.),7 N. L. R. B. 1207,4210, where the Board' excluded shipping- and receiving-room employees from a unit consisting of production and main- tenance employees , at the request of the only union involved. 6 Elmer Myers, George Sigsbee, Arthur B. Marshall, John Myers, Ervin Bullard, Gordon Johnson, Arthur Beam, C. W. Vescelus, and a foreman designated as "Harold." W. C. Brouse, Simon Hostetler, L. B. Marjason, Ted McManus, Alvin Picl:rell, C R. Rich, Russell Strawser ; and C. C. Ulrich. There is some indication that -the Union also wishes to exclude from the unit H. ' L: McManus and Henry Mumaw, but there is no evidence that these two employees have supervisory duties . The plant superintendent testified- that Mumaw was formerly the foreman in charge of the armature department, but that he is now, and has been for the past year , a designer and machinist. We find that H . L. McManus and Henry Mumaw should be included in the unit. s The employment of one of these witnesses was terminated on April 8, 1940. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory employee under whom he worked gave him instructions as to what to do and how to do it. From the testimony of these witnesses it appears that they were ordered to work under the alleged supervisory employees by foremen or assistant foremen. Ac cording to the testimony, each of the eight alleged supervisory em- ployees, with one exception,9 directed the work of at least one other employee in addition to the witness, and in some instances of several employees. There is also testimony.that Hostetler, Marjason, Ted McManus, Rich, and Strawser regularly supervise the work of at least one other employee.10 . . The company superintendent testified that none of these eight em- ployees has any men under him. He testified that when an employee is shifted to work with which he is unfamiliar, he is normally helped or instructed not by the foreman or assistant foreman, but by an employee 'without supervisory authority, who is experienced at that work. The. superintendent testified that all the eight men in question, except Brouse and Ulrich, were formerly considered subforemen and some of them foremen, but that in January 1940, on the recommenda- tion of a job analysis expert who found that the plant had too many foremen and subforemen, the superintendent "realigned the duties of what were called factory foremen, and the men that we consider foremen and subforemen get a salary now." Although the Com- pany's position is that these employees now have no supervisory authority, the' superintendent did not explain what measures, if any, were taken to withdraw the supervisory authority which they formerly possessed, nor in what particulars their duties have changed. Under all the circumstances. we : are of the - opinion, that, the eight employees in question exercise supervisory authority. It is our general practice to exclude minor supervisory employees where the only union involved so requests.- Accordingly, we shall exclude these eight employees from the appropriate Unit. The record shows that two other employees have positions similar to those of the minor supervisory employees considered above. The superintendent testified that there are from four to six employees on the night shift in the "rod room," that the day foreman leaves instructions with the night shift, and that one of the production employees on this shift, whose name is Vernon G. Bale, is responsible for seeing that- the- instructions are-carried out. The superintendent also testified that Spurgeon Egolf, a machine operator, instructs five 9 Alvin Pickrell The witness who testified that he had worked under Pickrell was not asked whether other employees worked under Pickrell. 10 One witness testified that Strawser was his strawboss from 1937 until April 8, 1940, when the employment of the witness was terminated. 11 See Matter of Southern California Gas Company and Utility Workers Organizing Committee, Local No. 132, 10 N. L. It. B. 1.123; Matter of The Texas Company and Oil. Workers International Union Local $280, 11 N. L. It. B. 925. MONTEITH BROTHERS COMPANY 817 other employees in their work , and that in the absence of the assistant foreman, Egolf sometimes distributes work to these other employees. The testimony regarding Bale and Egolf is not contradicted. We are of the opinion that Bale and Egolf occupy positions substantially identical with, those of ,.the eight .,minor supervisory employees con- sidered above, and we . shall , therefore , exclude these two employees from the appropriate unit. We find that the production and maintenance employees of the Company, excluding foremen, assistant foremen, office and clerical employees, and the minor supervisory employees listed in Appendix- A hereto, constitute a. unit appropriate for the purposes of 'collective bargaining, and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. VI. TILE DETERMINATION OF REPRESENTATIVES Prior to the hearing the Union submitted to the Regional Director evidence of recent designation by a substantial number of employees of the Company as their representative for the purposes of collective bargaining. The Union asks that an election be held. We find that the question concerning representation which has, arisen can best be resolved by means of an election by secret ballot. The.Union requests that in the event that an election: is directed by the Board eligibility to vote be determined as of the date of the filing of the original petition, February 27, 1940. Between that date and the date of the hearing, 15 employees were hired. We see no reason. to depart from our usual practice of directing that eligibility to vote he determined with reference to the pay-roll period last preceding the date of our Direction of Election. We shall so direct. The Union asserts that James Teed, Robert Garver, and Ned Wil- cox should not be eligible to vote in the election. Garver and Wilcox were hired on March 26, 1940, and Teed was' employed on March 6, 1940. These three employees were, at the time of the hearing, high- school students, and had worked since the date of their employment approximately 20 hours per week. When they graduate from high school in June 1940 they are expected to become full-time employees. We find that they should be eligible to vote in the election which we are directing. 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 Monteith Brothers Company, Elkhart, 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The production and maintenance employees of the Company;, excluding foremen, assistant foremen, office and clerical employees, and the minor supervisory -employees listed in Appendix A hereto,, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Monteith Brothers Company, Elkhart, 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 of Election, under the direction and supervision of the Regional Director for the Thirteenth 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 the production and maintenance em- ployees of the Company employed by the Company during the pay- roll period last preceding the -date of this Direction, including em- ployees who did not work during said 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, assistant foremen, office and, clerical employees, and the minor supervisory employees listed in Appendix A hereto, and also excluding employees who be- tween said pay-roll date and the date of the election have quit or been discharged for cause, to determine whether or not they desire to be represented by United Automobile Workers of America, Local No. 693, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. APPENDIX A W. C. Brouse C. R. Rich Simon Hostetler Russell Strawser L. B. Marj ason C. C. Ulrich Ted McManus Vernon G. Bale Alvin Pickrell Spurgeon Egolf MONTEITH BROTHERS COMPANY 819 Mx. WILLIAM M. LEIsn soN , dissenting in part : I dissent from the exclusion of the alleged minor supervisory em- ployees. These men do substantially the same work as the ordinary workmen and are paid on an hourly basis, .as distinguished from the Company's foremen and assistant foremen who receive salaries. The mere fact that these alleged supervisors occasionally instruct or assist other workers in the performance of their duties does not justify their classification as supervisory employees.