The Electric Auto-Lite Co.

In the Matter of THE ELECTRIC AUTO-L1TE COMPANY ( BUCKEYE BUMPER DIVISION ) and UNITED AUTOMOBILE WORKERS OF AMERICA, LocAL 402 , AFFILIATED WITH C. I. O. 'Case No. R-1899:-Decided July 31, 1940, Jurisdiction : automobile accessories manufacturing industry Investigation and Certification of Representatives : existence of question. con- flicting claims of rival representatives; refusal by employer to grant recog- nition to either union ; contract providing for representation for members only with representative which has subsequently become defunct, no bar to : election necessary Unit Appropriate for Collective Bargaining : all hourly paid production and maintenance employees and piece workers at one of the Company's divi- sions, excluding office and factory clerical employees, foremen, assistant fore- men, and other employees having the right to hire and discharge, chief inspector, checkers, watchmen, and powerhouse employees. Powerhouse employees excluded from the general unit of hourly paid, production and maintenance employees and piece workers although one of the unions desire their inclusion in view of their separate organizations and collective bargaining history and the existence of a contract covering their conditions of employment. Mr. Oscar Grossman, for the Board. Mr. James P. Falvey, of Toledo, Ohio, for the Company. Mr. Julius Holzberg, of Cincinnati, Ohio, for the U. A. W.-C. I. 0 Mr. Pat McCartney, of Springfield, Ohio ; Mr. Peter G. Noll, of Norwood, Ohio; and Mr. E. C. Bundy, of Cincinnati, Ohio, for the U. A. W.-A. F. L. Mr. Richard Johnston, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 15, 1940, United Automobile Workers of America, Local 402, affiliated with C. I. 0., herein called the U. A. W.-C. I. 0., a local of United Automobile Workers of America, an international labor organization affiliated with Congress of Industrial Organiza- tions, filed with the Regional Director for the Ninth Region (Cin- cinnati, Ohio) a petition alleging that a question affecting commerce 25 N. L. R. B., No 123. 1296 THE ELECTRIC AUTO-LITE- COMPANY 1297 had arisen concerning the representation of employees of The Elec- tric Auto-Lite Company, Springfield, Ohio, herein called the Com- pany, at its Buckeye Bumper Division , and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor • Relations Act, 49 Stat. 449, herein called the Act. On June 5 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 Regula- tions-Series 2, as amended, ordered an investigation upon the peti- tion and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 7 the Regional Director issued a notice of hearing, copies of which, together with copies of the petition , were duly served upon the Company, upon the U. A. W.-C. I. 0., and upon United Automobile Workers of America, Local 657, herein called the U. A. W.-A. F. L., a local of United Automobile Workers of America, an international labor organization affiliated with American Federation of.Labor. Pursuant to notice a hearing was held on June 17 at Springfield, Ohio, before Oscar Grossman , the Trial Examiner duly designated by the Board. The Board, the Company, and the U. A. W.-C. 1. 0. appeared and were represented by counsel , and the U. A. W.-A. F. L. appeared and was represented by its representative and by counsel . All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence 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 June 21 the Company requested permission to submit a brief and present oral argument before the Board. Thereafter, the Board notified all parties that they were granted the privilege of submitting briefs and that a hearing before the Board for the purpose of oral argument would he held. On June 28 the Company submitted a brief. Pursuant to notice a hearing for the purpose of oral argu- ment on the record was held before the Board on July 9 in Wash- ington, D. C. The Company appeared by counsel and presented its argument on the record. Upon the entire record in the case , the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Electric Auto-Lite Company is an Ohio corporation qualified to do business in the States of California, Illinois, Michigan, and 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wisconsin. A division or branch of the Company's business enter- prise, known as Buckeye Bumper Division, is located at Springfield, Ohio, and centers about a manufacturing plant there operated by the Company. This proceeding is concerned solely with persons employed by the Company at this division. The Company is engaged through this division in the manufacture, sale, and distribution of automobile bumpers, hub caps, and spring covers. In the regular course of manu- facture at the, Springfield plant the Company uses various raw and other materials, including steel, brass, copper, paints and lacquers, and plating and polishing chemicals and compounds. A large part of these materials are purchased in and regularly shipped to the Springfield plant from States other than Ohio. During the year ending May 31, 1940, the Company purchased about $1,023,000 of such materials in States other than Ohio and shipped them from such States to the Springfield plant. The Company regularly sells and ships to customers located in States other than Ohio a large part of the products which it manufactures at Springfield. During the above-mentioned year it sold approximately $2,296,000 worth of such products, and shipped them from the Springfield plant, to customers in States other than Ohio. On February 3, 1940, the Company employed about 430 employees at the Springfield plant of its Buckeye Bumper Division. II. THE ORGANIZATIONS INVOLVED United Automobile Workers of America, Local 402, affiliated with C. I. 0., is a local of United Automobile Workers of America, an international labor organization affiliated with Congress of Industrial Organizations. United Automobile Workers of America, Local 657, affiliated with American Federation of Labor, is a local of United Automobile Workers of America, an international labor organization affiliated with American Federation of Labor. Both the U. A. W.- C. I. O. and the U. A. W.-A. F. L. admit to membership employees of the Company at its Buckeye Bumper Division. III. THE QUESTION CONCERNING REPRESENTATION The Company has had contractual relations over a period of years with those of its employees who were members of and with Auto- motive Accessories Association, Inc., herein called the Association. The Association is, or was, an independent labor organization, ad- mitting to membership persons employed at its Buckeye Bumper Di- vision. On November 8,1939, the Company entered into an agreement with those of its employees who were or might become members of the Association, acting through the Association, covering wages, hours of service, and other working conditions of persons employed in the THE ELECTRIC AUTO-LITE COMPANY 1299 Buckeye Bumper Division. The agreement provided for recognition by the Company of the Association as collective bargaining repre- sentative of those of its employees "who are and/or may become" members of the Association; and was to continue in full force and effect for a period of 1 year and thereafter from year to year unless terminated by either of the parties thereto upon 30 days' notice in the manner therein provided. In February 1940 United Automobile Workers of America, affiliated with Congress of Industrial Organizations, began organizational activities among employees of the Company at. the Buckeye Bumper Division. United Automobile Workers of America, affiliated with American Federation of Labor, likewise has engaged in organizational activities among employees at this division. The U. A. W.-C. I. O. and the U. A. W.-A. F. L. have been set up by the respective Inter- nationals as local labor organizations for these employees, and, as set forth below, have been designated as collective bargaining repre- sentatives by substantial numbers of these employees. At the hear- ing before the Board on July 9 the Company by its counsel represented that since the making of the contract of November 8, 1939, above mentioned, the Association had "disintegrated" and many of the employees who had been its members or officers had joined either the U. A. W.-C. I. O. or the U. A. W.-A. F. L. Both the U. A. W.-C. I. O. and the U. A.. W.-A. F. L. recently requested the Company to recognize them, respectively, as the ex- clusive collective bargaining representative of employees at the Buck- eye Bumper Division, within allegedly appropriate collective bargaining units. The Company, because of the competing claims of the rival unions, refused to recognize either labor organization. We find that a question has arisen concerning representation. of employees of the Company. The above-mentioned contract of the Company constitutes no ground for our not proceeding to an investi- gation and determination of this question. Among other things, even if the Association has not, "disintegrated," as stated by the Com- pany, the Association never was accorded by the Company through the contract. recognition as the statutory representative,' and there is no showing that it otherwise was accorded such recognition. An agreement made in behalf of employees such as that here involved would not preclude a determination of representatives. 1 See Matter of Pressed Steel Car Company, Inc. and Steel Workers Organizing Com- mittee, 7 N. L. R. B. 1099; Matter of Unit Cast Corporation and Steel Workers Organiz- ing Committee, 7 N. L. R. B. 129. 1300 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD 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 In its petition the U. A. W.-C. I. 0. alleges that "all hourly paid production and maintenance employees and pieceworkers of the Company . . . except foremen, timekeepers, watchmen, clerical workers, the chief inspector and assistant chief inspector and others having the right to hire and discharge, and powerhouse employees," constitute a unit appropriate for the purposes of collective bargaining. The petition has reference to employees of the Company at the Buckeye Bumper Division, essentially those in the Springfield plant. At the hearing the U. A. W.-A. F. L.',contended that the alleged unit im- properly excluded certain employees, and that the unit should include all employees of the division with the exception of employees having the right to hire and discharge, and with the further exception of employees in the Company's office at Springfield designated as the purchasing agent and the engineer in charge of the engineering depart- ment. The Company in its brief urges that "all hourly paid produc- tion and maintenance employees and piece workers of the Company [at the Buckeye ' Bumper Division] . . . except foremen, assistant ,foremen,,time"keepers (checkers), watchmen, office and factory clerical `workers, the chief inspector and others having the right to hire or discharge, and powerhouse employees (firemen)," constitute an appropriate unit. It is apparent from the foregoing that the contention, of the U. A. W.- C. I.0. and of the Company is, essentially, that production and main- tenance employees alone constitute an appropriate unit, whereas the U. A. W.-A. F. L. takes the general position that those employees together with office and factory clerical employees constitute an ap- propriate unit. The Company employs from 12 to 18 office and factory clerical employees, including employees in the pay-roll department, purchasing department, stockroom, and engineering department, and including also a receiving clerk, an office manager, an employment manager, and a production manager. As we have had occasion to point out, "Traditionally, production and maintenance workers ... THE ELECTRIC AUTO-LITE COMPANY 1301 have seldom been organized with office and clerical employees . . . The ... traditional form which organization has taken, together, with the substantial dissimilarity in status and function of office and clerical employees, on the one hand, and of production and maintenance em- ployees on the other, has led the Board,to conclude that ordinarily the two groups do not constitute a single appropriate bargaining unit."2 That conclusion obtains here, and is supported by circumstances shown. The office and factory clerical employees at the Buckeye Bumper Division work in offices set apart from the production departments; they are paid on a different basis; they are allowed sick leave not granted to production and maintenance employees; and their employ- ment is not governed by a seniority program such as that applicable to the employment of the production and maintenance employees. We shall therefore limit the unit to the production and maintenance employees.3 - We find that in, general a unit comprising the hourly paid production and maintenance employees and piece workers em- ployed,by the Company at the Buckeye Bumper Division is appro- priate for collective bargaining purposes. However, as indicated above, there is a question as to whether certain employees at this division should be included in or excluded from the general unit. Supervisory employees and the chief inspector. All the parties agree that supervisory employees having the right to hire and dis- charge should be excluded from the general bargaining unit. There are in the plant 10 or 11 foremen, all of whom fall within. this classi- fication. There are also two "assistant foremen who, in the absence of foremen, act in their stead and have the right to hire and dis- charge, and who make recommendations regarding hiring and dis- charging even when the foremen are present. Following our usual rule, we shall exclude from the general bargaining unit all foremen, assistant foremen, and any other employees who may have the right to hire and discharge. The Company employs at the Buckeye Bumper Division a chief inspector, who has charge of the work of the various other inspectors. We presume, and find, from the charac- ter of his position that he exercises supervisory powers. The U. A. W.-C. I. O. and the Company would exclude him from the general unit. The position of the U. A. W.-A. F. L. on this matter is not entirely clear. Since it is shown that the chief inspector is at least to some extent a supervisory employee, in accordance with what has been said above, we shall exclude him. The U. A. W.-C. I. O. requests the exclusion from the unit of the "assistant chief inspector." Evidence adduced at the hearing shows 2Matter of Foote Brothers Gear and Machine Corporation and United Office and Pro- fessional Workers of America, No 2111, 14 N L R B 1045, 1065 3 See Matter of Alabama By-Products Corporation, Coke Oven Division and District 50, United Mine workeas of America (C. I. 0.), 13 N L R B 427. 283036-42-vol 25-83 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Company employs no assistant chief inspector at the Buckeye Bumper Division. _ Timekeepers and checkers. An official of the Company testified, and we find that the Company employs no workers at the Buckeye Bumper Division who are known as "timekeepers." There are, how- ever, five "checkers," who keep production records of work done by other employees. The work done by two of these checkers iscentirely clerical, while the work done by the other three is partly clerical and partly manual. Both labor organizations herein desire that ,these employees be included within the general bargaining unit. The Company contends, however, that the checkers are "to some extent identified with supervision and management," and opposes their inclusion within the unit. While it appears that these em- ployees exercise no direct supervision over other employees, their duties are nevertheless rather closely related to management. More- over, either all or a substantial part of their work is clerical in nature. Under these circumstances we shall not include the checkers with employees in the general unit.4 Watchmen. Four watchmen are employed at the Buckeye Bumper Division. The U. A. W.-A. F. L. contends that they are properly within an industrial unit, while both the Company and the U. A. W.- C. I. 0. take a contrary position. It is our usual practice in regard to such employees to exclude them from such a unit where one of the labor organizations' desiring to represent the employees within the unit contests their inclusion. We shall therefore not include watch- men with employees in the general unit.5 Powerhouse employees. The Company employs four persons to tend the boilers in the powerhouse of the Springfield plant of the Buckeye Bumper Division. The Company and the U. A. W-C. I. 0. state that these employees do 'not properly come within the general unit, while the U. A. W.-A. F. L. states the contrary. A labor organization not party to these proceedings, affiliated with American Federation of Labor, .has separately organized these employees, has represented them for collective bargaining purposes, and as such representative has entered into a written collective bargaining agree- ment with the Company covering their conditions of employment., These employees work in a separate room of the plant and seldom come in contact with other factory employees. In view of their separate organization and collective bargaining history, and the 4 Cf Matter of The Electric Auto-Lite Company, American Enameled Magnet Wire Division and International Association of Machinists, Local 218, 10 N. L. R. B. 1239 Matter of Armour & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 235, 10 N. L. R B 912; Matter of F. E. Booth &I Company, et at, and Monterey Bay Area Fish Workers Union No 23, 10'N L It. B. 1491 ' 6 At the oral argument counsel for the Company stated that this contractual rela- tionship has existed for approximately 2 years THE ELECTRIC AUTO-LITE COMPANY 1303 existence of the afore-mentioned contract covering their working conditions we are of the opinion that at the present time they should not be included with employees in the general bargaining unit. We find that all hourly paid production and maintenance employees and piece workers employed by the Company in its Buckeye Bumper Division, Springfield, Ohio, but excluding office and factory clerical employees; foremen, assistant foremen, and other employees having the right to hire and discharge; chief inspector; checkers; watchmen; and powerhouse employees, constitute a unit 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 bargaining, and otherwise, effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Employment at the Buckeye Bumper Division is subject to peri- odic fluctuations. From October until April it is at a peak, while during the months of June,,July, and August it is at a low level. On February 3,1940; the Company employed approximately 388 employees within the unit which we have found to be appropriate. From a re- port of the Regionil Director's agent introduced in evidence it ap- pears that a substantial number of the employees within this unit applied for membership in the U. A. W.C. I. 0., and thereby desig- nated that labor organization their bargaining representative; and from a report made at the hearing by the Trial Examiner it appears that a substantial number of the employees likewise applied for mem- bership in the U. A. W.-A. F. L., and thereby designated that labor organization their bargaining representative. Under these circum- stances we are of the opinion, and find, that the question which has arisen concerning representation of employees of the Company at its Buckeye Bumper Division can best be resolved by holding an election by secret ballot. The Company, the U. A. W.-C. I. O.,' and the U. A. W.-A. F. L. stipulated and agreed at the hearing that in view of the fluctuation in employment, eligibility to vote in any election which may be directed should be determined by employment during the pay-roll period of February 3, 1940. We approve this agreement, and, accordingly, shall direct that the election by secret ballot to be held shall be con- ducted among those employees in the appropriate unit who were em- ployed by the Company during the pay-roll period of February 3, 1940, subject to such limitations and additions as are set forth in the Direction of Elections. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 The Electric Auto-Lite Company, Spring- field, Ohio, at its Buckeye Bumper Division, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All hourly paid production and maintenance employees and piece workers employed by the Company in its Buckeye Bumper Division, Springfield, Ohio, but excluding office and factory clerical employees; foremen, assistant foremen, and other employees having the right to hire and discharge; chief inspector; checkers; watchmen; and powerhouse employees, constitute a unit appropriate for the pur- poses 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, Sections 8 and 9, 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 The Electric Auto-Lite Company, Springfield, 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 of Election, under the direction and supervision of the Regional Director for the Ninth 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 hourly paid production and maintenance employees and piece workers employed by the Company in its Buckeye Bumper Division, Springfield, Ohio, during the pay-roll period of February 3, 1940, including employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding all employees who have since quit or been discharged for cause, and further excluding office and factory clerical employees; foremen, assistant foremen, and other employees having the right to hire and discharge; chief inspector; checkers; watchmen; and power- THE ELECTRIC AUTO-LITE COMPANY - 1305 house employees, to determine whether they desire to be represented for the purposes of collective bargaining by United Automobile Workers of America, Local 402, affiliated with C. I. 0. or by United Automobile Workers of America, Local 657, affiliated with American Federation of Labor, or by neither. Mr. WILLIAM M. LEISErsON took no part in the consideration of the above Decision and Direction of Election.