The American National Co.

In the Matter of THE AMERICAN NATIONAL COMPANY and MECHANICS EDUCATIONAL SOCIETY ' OF AMERICA; LOCAL No. 3' Case No. R-1940.-Decided August 30,.,1940 . Jurisdiction : children's vehicles and wheel chair manufacturing industry. Investigation and Certification of Representatives : existence of.question: re- fusal to accord recognition to union ; contract renewed after institution of pro- ceedings, no bar to ; election necessary. Failure of petitioning union td make a more substantial showing of mem- bership among the employees held not to bar an investigation and certifica- tion of representatives in view of the provisions contained in contract with rival union, compelling membership therein as a condition of employment and in view of the action taken by the Company and said union with respect to employees who sought to change their affiliation. Persons discharged pursuant to a valid closed-shop contract held no longer employees and not entitled to participate in the election. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees of the Toledo and Perrysburg plants of the Company, excluding super- visory, clerical, tool, die, and machinery repair employees, metal polishers, metal platers, engineers , and firemen. Mr. Milton C. Boesel, of Toledo, Ohio, for the Company. Mr. Earl S. Strutor, of Toledo, Ohio, and Mr. Karl Pauli, of Cleve- land, Ohio, for the M. E. S'. A. Mr. Edwin J. Lynch, of Toledo, Ohio, for the A. F. of L. Mr. Bliss Daffan, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 18, 1940, Mechanics Educational Society of America. Local No. 3, herein called the M. E. S. A., filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of The American National Company, Toledo, Ohio, herein called the Company, and requesting an investigation and certi- fication of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 24, 27 N. L. R. B., No. 4. 22 THE AMERICAN NATIONAL COMPANY 23 1940, 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,' 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 26, 1940, the'Regional Director issued a notice of hearing, copies of which were duly served upon the Company,' the M. E. S. A., and Juvenile Wheel Workers Federal Labor Union, No. 18528, herein called the A. F. of L., a labor organization claiming to repre= sent employees directly affected by the investigation.. Pursuant to notice, a hearing was held on July 9 and 10, 1940, at Toledo, Ohio, before Max W. Johnstone,. the Trial Examiner, duly designated by the Board. The Company, the M. E. S. A., and the A. F.' of L: were represented by counsel ; all 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. At the commencement of the hearing the trial Examiner granted A motion to intervene filed by the A. F. of L. and denied a like motion filed by the International Association of Machinists, Lodge No. 105.2 During the course of the hearing the. Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed- the rulings. of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing, the A. F. of L. moved to dismiss the petition herein on the ground that the evidence disclosed that no question concerning representation had arisen con- cerning the employees, of the Company. The. Trial Examiner did not rule .on this motion but reserved action thereon for the Board. For the reasons appearing hereinbelow, the motion is denied. On July, 19 and 22, 1940, respectively, the M. E.. S. A. and the A. F. of L. filed briefs with the Board. ' On June 4, 1940, a petition was filed in the United States District Court for the Western -Division, Northern District of Ohio, for the pu•pose of reoreanizing the. Company under Chapter 10 of the Bankruptcy Act of the United States . On June 7, 1940. Thomas A. Cunningham was appointed trustee and granted the general authority to continue operation of the Company . Thereafter , on June 17 , 1940, Edwin C. Kirschner was made trustee and Cunningham co-trustee in charge of operations of the Company 's plants. The notice of hearing was served on Cunningham on June 20, 1940. No question was raised by the Company during the , hearing regarding the validity of service of the notice on Cunningham. The International Association of Machinists , Lodge No.' 105, sought to intervene because of ex'sting contracts between it and the Comp:iny covering the tool makers, die makers, machinists , and machine repairmen and their apprentices employed by the Com- pany.-The Trial Examiner denied the motion to intervene because of the stipulation of the parties that the employees covered by those contracts ehcu ' d not be included in the unit found herein to be appropriate for the purposes of collective bargaining.;;. S, 24 DECISIONS OF. NATIONAL LABOR • RELATIONS BOARD Upon the'entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The American National Company is an Ohio corporation with plants located in Toledo and Perrysburg, Ohio. It is engaged in the manufacture of children's vehicles, doll .carriages, and wheel chairs. During. 1939 the Company used raw materials of the value of $1,- 250,000, approximately 60 per cent of which it obtained outside the State of Ohio. During the same year the Company manufactured and :sold finished products of the value of $2,500,000, approximately 75 per cent of which were delivered to customers outside the State of Ohio. II. THE ORGANIZATIONS INVOLVED Mechanics Educational Society of America, Local No. 3, is a labor organization admitting to its membership production and mainte- nance employees of the Company, excluding supervisory, clerical, tool, die, and machinery repair employees, metal polishers, metal platers, engineers, and firemen. Juvenile Wheel Workers Federal Labor Union, No. 18528, is a labor organization, affiliated with the American Federation of Labor, admitting to its membership production and maintenance employees of the Company, excluding supervisory, clerical, tool, die, and machin- ery repair employees, metal polishers, metal platers, engineers, and firemen. III. THE QUESTION CONCERNING REPRESENTATION Collective bargaining agreements granting exclusive recognition to the A. F. of L. as the bargaining representative of the employees in the unit herein found to be appropriate for the purposes of col- - lective bargaining 3 have been in effect between the A. F. of L. and the Company since April 9, 1934. The last such agreement, entered into on June 15, 1939,; was, by its terms, to remain in effect until June 30, 1910, and thereafter from year to year, unless either party should notify the other 30. days prior to any anniversary date thereof of a desire to negotiate or amend the agreement. No such notice has been given. The agreement provides that all employees of the. Company, within the appropriate unit, should be members in good standing of the A. F. of L.. Shortly after April 1, 1940, a number of the Company's employees met with an official of the M. E. S. A. with a view to changing.their $ See Section V, infra. THE AMERICAN NATIONAL COMPANY 25 affiliation front the A. F. of L. to the M. E. S. A. On April 20, 1940, a further meeting was 'held, attended by approximately 90 persons, including employees of the Company and officials of the M. E. S. A. On April 22, 1940, the Executive Committee of the ,A. F. of L. met, suspended from its membership 52 employees who had attended the meeting of April 20, and notified the Company of the suspension of these employees and requested their discharge on the ground that they were no longer members in good standing of the A. F. of L. Pursuant to the request of the A. F. of L., on April 23, 1940, the Company discharged the employees suspended from the A. F. of L. All but 19 of these .employees were there- after reinstated by the A. F. of L. and reemployed by the Company. Employees reinstated by the A. F. of L. were required. by it to sign pledges reaffirming their allegiance 'to the A. F. of L. and renouncing any connection with the formation. of another labor organization among the employees of the Company. In. May 1940 the M. E. S. A. requested the Company to recognize it as the bargaining representative of the employees of the Company within the appropriate unit. The Company refused such recogni- . tion because of its existing closed-shop agreement with the A. F. of L. and because the M. E. S. A. had filed charges with the Board relative .to the employees discharged by the Company after their suspension from the A. F. of L 4 As stated above, on June 18, 1940, the M. E. S. A. filed its petition herein. There was introduced into evidence at the hearing an analysis made by a field examiner of the Board showing that the M. E. S. A. had submitted to him 120 applications for membership, of which 97 were dated in April 1940 and 23 were undated. A check by the .field examiner of these applications with the seniority list of the Company disclosed that 51 were applications of employees actually working 'for the Company at the time the check was made, 61 were those of employees who were laid off, and 8 were those of persons either who had quit their jobs or whose names for some other' reason were not on the Company's seniority list.' At the hearing the A. F. of L. introduced evidence that as of June 30, 1910, it had 1,061 members in good standing among the employees on the senior- ity list, of the Company. All the employees who had signed appli- 4 Charges were filed by the M. E. S. A. against the Company on May 8, 1940, in Case No. VIII-C-702, alleging violations of Section 8 (1) and (B) of the Act. These charges were withdrawn by the M. E. S. A. on July 24, 1940, no complaint having been issued. s The Company maintains it seniority list, containing over 1,000 manes, from which it draws employees at tunes when it increases its working force. On June 29, 1040, there were only approximately 057 employees within the appropriate unit who were actually working. 1 26 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD cations'for' membership in the M. E. S. A. are also members of.the A. F. of L. The A. F. of L. contends that there is no question concerning rep- resentation herein because of its closed-shop contract and the fact ,that all the present employees of the Company are members of the A. F. of L., claiming that none is a member of piny other labor organizations The M. E. S. A. claims that the contract is no bar to the existence of a 'question concerning representation and takes the position that the action. taken by.the A. F. of L. and the Company under the closed-shop contract has prevented the employees from making a free choice of bargaining representatives and-that for this reason the M. E. S. A. has been unable to. make a substantial show- ing of membership among the employees. The present contract 'between the A. F. of L.' and the Company was automatically renewed on June 30, 1940. In May, however, the Company had been put on, notice of the representation claim of the 'M. E. S. A. Under these circumstances we find that the contract does not constitute a bar to an investigation and certification of rep- resentatives.7 We also are of the opinion that the failure of the M. E. S. A. to make a more substantial showing of membership among the employees should not bar an investigation and eertifica- tion of representatives. In view of the provision contained in the `1939 contract, which is still in effect, compelling membership of the employees in the A. F. of L. as a condition of their' employment, and in view of the action taken by the A. F. of L. and the Company with respect to the employees who sought to change their affiliation from the A. F. of L. to the M. E. S. A., the fact that more employees have not openly indicated that they desire to change their affiliation 'from the A. F. of L. to the M. E. S. A. is not conclusive of their desires regarding representation 8 We find that a question has arisen concerning representation of employees of the Company. ' 6 The A . F. of L. takes the position that all the employees who' had signed applications in the -Al. E. S. A. who are presently in the employ of the Company renounced their mem- bership in the M. E . S. A. in order to obtain reinstatement in the A . F. of L.'; and that -the 19 who were not reinstated in the A. F. of L. were discharged by the Company and are no longer employees. T See Matter of Colonic Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 2151 11, A. F. of L., 9 N . L. R. B. 658; Matter of Stokely Brothers & Company, Inc. and .Van Camp's; 'Inc . and Federal Labor Union No. 21752, affiliated with A. F. of L., 15 N. L. R. B. 872; Matter • of Malone Bronze Powder Works, Inc. and Malone Aluminum Corpora- tion and Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L., 19 N . L. R. B. 449; Matter of J. Edwards & Co. and United Shoe .7Vorkers of America, Local 127, C. I. 0., 20 N. L. R . B. 244; Matter of Precision Casting Company, . Inc. and National Association of Die Casting Workers, Local No. 4, C. 1. 0., 24 N. L.. R. B. 1045. 8 See Matter of The George W. Borg Corporation and United Clock Workers Union, 25 N. L. R.B.481. 1 THE AMERICAN NATIONAL COMPANY 27 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 M. E. S. A., and the A. F. of L. agreed at the hearing, and.we find, that all production and maintenance employees of the Toledo and Perrysburg plants of the Company, excluding supervisory, clerical, tool, die, and machinery repair employees, metal polishers, metal platers, engineers, and firemen, constitute a unit appropriate for the purpose of collective bargaining. We further find 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. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre= sentation of employees of the Company can best be resolved by an election by secret ballot. . The two unions disagree as to who shall be eligible to vote in the election. There were approximately.- 657 employees working for the Company within the appropriate unit- on June 29, 1940. At the hearing a seniority list submitted by the Company to the A. F. of L. on July 9, 1940, containing the names of over 1,000 employees, was introduced in evidence: The names of the 19 employees discharged by the Company because of their expulsion from the A. F. of *L. are not included in this list.' The A. F. of L. contends that this seniority list should be used to determine eligibility to participate .in the elec- tion since the Company's business'is seasonal and any employee added to the present force when production increases will be taken from the seniority list. While not objecting to the use of such.a seniority list in determining eligibility to participate in the election, the M. E. S. A. contends that any seniority list used should include the names of the 19 employees who were discharged by the .Company because of their expulsion from the A. F. of L. The evidence indi- cates that the 19 employees were discharged by,the Company pur- siiant to the terms of a valid closed-shop contract.. This being so, they 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are no longer employees of the Company and- are not entitled to vote in the election. We shall direct that all employees in the appropriate unit on the Company's seniority list of employees of July 9, 1940, excluding those on said list who have since quit or been discharged for cause, 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 QF LAw 1. A question affecting commerce has arisen concerning the repre sentation of employees. of The American National Company, Toledo, 'Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. , 2. All production and maintenance employees of the Toledo and Perrysburg plants of the Company, excluding supervisory , clerical, tool, die, and. machinery repair employees, metal polishers, metal platers; engineers, and firemen , constitute a unit appropriate for the purposes of collective bargaining , within the meaning of Section (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 The American National Company, Toledo, 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 , under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regula- tions, among all production and maintenance employees of the Toledo and Perrysburg plants of The American National Company, on the Company's 'seniority list of employees of July 9, 1940, excluding supervisory, clerical, tool, die, and machinery repair employees, metal polishers; metal platers, engineers, firemen, and those who since July Q, 1940, have quit or been discharged for cause, to determine whether they desire to be represented by Mechanics Educational Society of America, Local No. 3, or by Juvenile Wheel Workers Federal Labor Union, No. 18528, for the purposes of collective bargaining, or by neither. THE AMERICAN NATIONAL COMPANY 29 [SAME TITLE] CERTIFICATION OF REPRESENTATIVES October i7,191o On August 30,, 1940, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceedings. Pursuant to. the. Direction of Election, an election by secret ballot was conducted on September 23 and 24, 1940, under the direction and supervision of the Regional Director for the Eighth Region (Cleve- .land, Ohio).' On September 25, 1940, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties, his Election Report. No objections to the conduct of the ballot or the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total number of employees eligible------------------------- 1, 128 Total number of ballots cast------------------------------- 946 Total number of votes cast for Mechanics Educational Society of America, Local No. 3--------------------------------- 42 Total number of votes cast for Juvenile Wheel Workers Fed- eral Labor Union No. 18528 (AFL)---------------------- 894 Total number of votes cast for neither organization---------- 5 Total number of blank ballots----------------------------- 2 Total number of void ballots------------------------------ 2 Total number of challenged ballots------------------------- 1 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, 49 Stat. 449, and pursuant to^ Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, I . IT IS rIEREBY cERTl_rlEn that Juvenile Wheel Workers Federal Labor Union, No. 18528, has been designated ancf selected by a majority of the production and maintenance employees of the Toledo and Perrys- burg plants of." The American National Company, Toledo, Ohio, ex- cluding supervisory, clerical, tool, die, and machinery repair employ- ees, metal polishers, metal platers, engineers, and firemen, as their representative for the purposes of collective bargaining, and that, pur- suant to Section 9 (a) of the National Labor Relations Act, Juvenile Wheel Workers' Federal Labor Union, No. 18528, is the exclusive representative of all such employees for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. ' - _ 27 N. L. R. B., No. 4a.