Midwest Mfg. Co.

In the Matter Of MIDWEST MFG. Co. and FEDERAL LABOR UNION #22278, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-1934.-Decided August 6, 1940 Jurisdiction : refrigerator cabinets manufacturing industry Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union; contract about to expire, no bar to; election necessary. Employees who had not worked for a period of 30 days excluded from voting because they ordinarily do not return to work the following year in business which is seasonal Unit Appropriate for Collective Bargaining : all employees of the Company, ex- cluding office and clerical employees, superintendents, foremen, assistant fore- men, working foremen or group leaders, teamsters, and chauffeurs. Mr. Burrell Barash, of Galesburg, Ill., for the Company. Hardy and Witherell, by Mr. G. B. Hardy and Mr. H. E. Witherell, of Galesburg, Ill., and Mr. Joseph A. Briegel, of Chicago, Ill., for the Federal. Mr. L. Fred O'Brien, of Galesburg, Ill., for the Association. Mr. Louis Cokin of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 15 and June 20, 1940, respectively, Federal Labor Union #22278, herein called the Federal, filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition and amended petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Midwest Mfg. Co.,' Gales- burg, Illinois, herein called the Company, and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 25, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and I Incorrectly designated in the formal papers as The Midwest Manufacturing Company 26 N. L. R. B , No. 20. 172 MIDWEST MFG. CO. 173 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. On June 27, 1940, the Regional Director issued a notice of bearing, copies of which were duly served upon the Company, the Federal, and upon Midwest Employees Shop Association, herein called the Association, a labor organization claiming to represent employees directly 'affected by the investigation. Pursuant to the notice, a hearing was held on July 8, 1940, at Galesburg, Illinois, before Charles F. McErlean, the Trial Examiner duly designated by the Board. The Company, the Federal, and the Association 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 on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were'committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Midwest Mfg. Co. is an Illinois corporation with its principal office and place of business at Galesburg, Illinois, where it is engaged in the manufacture, sale, and distribution of refrigerator cabinets. During 1939 the Company purchased raw materials valued at ap- proximately $300,000, approximately 40 per cent of which were shipped to it from points outside the State of Illinois. During the same period, the Company sold products valued in excess of $800,000, 20 per cent of which were shipped by it to points outside the State of Illinois. The Company admits it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Federal Labor Union #22278 is a labor organization affiliated with the American .Federation of Labor, admitting to membership, all employees. of the Company, excluding superintendents, foremen, assistant foremen, , office and clerical employees, teamsters, and chauffeurs., Midwest Employees Shop Association is an unaffiliated labor organization, admitting to membership the same classes of employees of the Company as the Federal. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE QUESTION CONCERNING REPRESENTATION On February 16, 1940, the Company and the Association entered into a sole bargaining contract governing the employees of the Com- pany. The contract is to be automatically cancelled on September 1, 1940, unless renewed by the parties prior to August 15, 1940. On March 3, 1940, the Federal wrote to the Company claiming to represent a majority of the employees and requesting a conference for the purpose of collecting bargaining. On April 4, 1940, the Com- pany replied by letter stating that such a conference would be of no avail due to the Company's contract with the Association. The contract by its terms ends on September 1, 1940. Moreover, the period within which negotiations must be commenced for the renewal of the contract expires on August 15, 1940. Under the cir- cumstances, it is clear that the contract does not preclude the Board from investigating or certifying a bargaining representative for the purpose of negotiating a new agreement for the period following September 1, 1940, if such is desired.' 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 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 Federal, and the Association agreed at the hearing that the appropriate unit should consist of all employees of the Company, excluding office and clerical employees, superin- tendents, foremen, assistant foremen, teamsters, and chauffeurs. In addition, the United and the Association urged the exclusion of working foremen or group leaders from the unit. The Company stated that it was neutral as to the status of the working foremen or group leaders. The working foremen or group leaders are not eligible to membership in the Federal or the Association, they receive a higher rate of pay than the ordinary production employees, and they report the efficiency of the employees under them to the fore- 7 See Matter of Heldman- Schild-Lasser, Inc. and Cincinnati Joint Board of the Amalagmated Clothing Workers of America (C. I. 0.), 11 N. L. R. B. 1289. MIDWEST MFG. CO. 175 men. Under these circumstances, we shall exclude the working fore- men or group leaders from the unit.' We find that all employees of the Company, excluding office and clerical employees, superintendents, foremen, assistant foremen, working foremen or group leaders, teamsters, and chauffeurs, con- stitute a unit appropriate for the purpose 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 All the parties agreed at the hearing that an election by secret ballot was necessary to resolve the question concerning representa- tion. We will direct that an election by secret ballot be held. The Federal and the Association urged that the pay roll of May 15, 1940, excluding the employees on that pay roll who had not been employed by the Company for a period of 30 days at that time, be used as a basis for determining those eligible to participate in the election. The Company stated that any pay roll would be acceptable to it. An official of the Company testified that the business of the Company is highly seasonal, reaching its peak in April and grad- ually descending until the low is reached in September of each year. He further testified that the Company offers all of its old employees employment before it attempts to hire new employees, but that ordinarily the employees who have worked less than a month do not return the following year. We find that those eligible to vote in the election shall be the employees in the appropriate unit whose names appear on the Company's pay roll of May 15, 1940, excluding those employees who have not been employed for a period of 30 days at that time and employees who have since quit or been discharged for cause, but including employees who were then or have since been temporarily laid off and employees who did not work during such pay-roll ; period because they were ill or on vacation. Upon the basis in the above findings of fact and upon the entire record of the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Midwest Mfg. Co., Galesburg, Illinois, 3 The names of the working foremen or group leaders were introduced at the hearing and are as follows: Edwin Soderquist, Whit Mitchell , Henry Jaarsma, George Vogel, Kenneth Hartman, Ernest Olsen, Elmer Terpening, Glenn Nelson, William Lane, William Hickman, Edward Chambers , Irving Wright, Elmer Calusha, Earl Howard, John Condon , Martin Bielema, William DeVries, George Ward, Gerald Cooper, Joe Shrader, Arthur Howerter, Melvin Matson, Ray Westfall, Earl Frakes, George Nordberg, Glenn Johnson, Ralph Stanton, Fred Kemmer, Ross Smith. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, excluding office and clerical employees, superintendents, foremen, assistant foremen, working foremen, or group leaders, teamsters, and chauffeurs, 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 Relations 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 Midwest Mfg. Co., Galesburg, Illinois, 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 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 Regu- lations, among all the employees of the Company who were em- ployed on May 15, 1940, excluding employees who had not been employed for a period of 30 days at that time, office and clerical employees, superintendents, foremen, assistant foremen, working foremen or group leaders, teamsters, chauffeurs, and employees who have since quit or been. discharged for cause, but including employees who were then or have since been temporarily laid off and employees who did not work during such pay-roll period because they were ill or on vacation, to determine whether they desire to be represented by Federal Labor Union #22278, affiliated with the American Fed- eration of Labor, or by Midwest Employees Shop Association, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election.