The Steel Storage File Co.

In the Matter of THE STEEL STORAGE FILE COMPANY and FEDERAL LABOR UNION No. 18267, AFFILIATED WITH THE AMERICAN FEDERA- TION OF LABOR Case No. R-2002.-Decided September 14, 1940 Jurisdiction : office steel storage file manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ;,contract with rival union expressly sub- ject to Board action and to termination upon, subsequent designation of other representative, no bar to ; election necessary. Pay-roll date preceding direction of election used, notwithstanding one of the unions involved urged use of pay roll for period about nine months earlier on the ground that since that time the number of employees had more than doubled, where the business of the employer had been steadily increasing and employees hired during such period were employed on a permanent basis. Unit Appropriate for Collective Bargaining : production and maintenance ein- ployees, including shipping-room employees and group leaders, but excluding supervisory and office employees and the night foreman. Group leaders having minor supervisory powers included in unit where they are production workers and work with the employees whose work they direct, and where the union desiring their exclusion had previously undertaken to bargain for them by including them in an agreement entered into with the employer. Brother of president of the employer and owner of one share of stock in the Company included in unit notwithstanding he receives a weekly bonus in addi- tion to his hourly paid wages and one of the unions involved desires his exclu- sion from the unit, where he is employed as maintenance man and part-time punch operator and has no authority to hire or discharge employees or make recommendations to that effect. Practice and Procedure Motion of one of the unions involved to dismiss petition on ground that the employer had discouraged membership in the union and favored the petitioner, denied where, at the time of the filing of the petition a complaint proceeding charging the employer with the above-mentioned unfair labor practices was pending before the Board, and thereafter was settled pursuant to a stipula- tion entered into by the employer, the union now moving for dismissal of the petition, and a representative of the Board. Mr. James P. Miller, of Cleveland, Ohio, for the Company. Mr. Coleman Clalierty, of Cleveland, Ohio, for the Federal. Mr. Sam H. Griff, of Cleveland, Ohio, for the U. A. W, Mr. Sidney L. Davis, of counsel to the Board. 27 N. L R. B , No. 46. 210 THE STEEL STORAGE FILE COMPANY 211 DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 26, 1940, Federal Labor Union No. 18267, affiliated with the American Federation of Labor, herein called the Federal, filed with the Regional Director for the Eighth Region (Cleveland, Ohio), a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of The Steel Storage File Company,l Cleveland, Ohio, herein called the Company, and request- ing 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 August 7, 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 in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. - On August 7, 1940, the Regional Director issued a notice of hearing,z copies of which were duly served upon the Company, the Federal, and upon United Automobile Workers of America,,Local No. 217, affiliated with the Congress of Industrial Organizations, herein called the U. A. W., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on August 14 and 15, 1940, at Cleveland, Ohio, before Harry L. Lodish, the Trial Examiner duly designated by the Board. The Com- pany, the Federal, and the U. A. W. 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 prejudicial errors were committed. The rulings are hereby affirmed. At 'the close of the hearing the U. A. W. moved to dismiss the petition on the ground that the Com- pany was responsible for the resignations of a number of members of the U. A. W. and'that the Company aided the Federal in securing - 'The Company was incorrectly designated in the petition as Steel Storage File Com- pany Correction was made at the hearing. 2 The notice of hearing was incorrectly dated August 6, 1940 Correction was made by an order duly served on the parties on August 12, 1940 - - - 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members among its employees. - The Trial Examiner reserved ruling. For reasons stated in Section III, infra, the motion is hereby denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Steel Storage File Company, an Ohio corporation with its principal office and plant located at Cleveland, Ohio, is engaged in the manufacture, sale, and distribution of office steel storage files. During 1938 the Company purchased raw materials amounting to $33,388.90, of which $14,498.42 consisted of raw materials purchased outside the State of Ohio. During the same year the total sales amounted to $115,457.46, of which $75,000 consisted of sales outside the State of Ohio. - In 1939 the Company's purchases and sales were- substantially the same as they had been in 1938, except for a slight increase. The Company admits that it is engaged in interstate com- merce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Federal Labor Union No. 18267 is a labor organization affiliated with the American Federation of Labor, admitting to membership the production and maintenance employees of the Company, in- cluding shipping-room employees, and excluding supervisory and office employees. United Automobile Workers of America, Local No. 217 is a labor organization affiliated with the Congress of Industrial Organiza- tions, admitting to membership the same classes of employees as the Federal. M. THE QUESTION CONCERNING REPRESENTATION Both the Federal and the U. A. W. claim to represent a majority of the employees concerned. On May 6, 1940, the U. A. W. and the Company entered into a written agreement wherein the Company recognized the U. A. W. as the exclusive representative and agreed to "bargain collectively with no other labor organization unless directed by the National Labor Relations Board to do so." The agreement further provided that in the event the' Board found the U. A. W. not to be the sole bargaining agent for the employees, the agreement was to become null and void. In view of these provisions, the contract cannot be considered a bar to the claim of the Federal.8 8 See Matter of Monument Mills and Textile Workers Brotherhood, 10 N. L. R. B. 347. THE STEEL STORAGE FILE COMPANY 213 As set forth above, at the hearing the U. A. W. moved to dismiss the) petition on the ground that the Company discouraged membership in the U. A. W. and also assisted the Federal in securing members among its employees. At the time of the filing of the petition, a proceeding under Section 10 of the Act was pending before the Board wherein the U. A. W. had charged the Company with the above-mentioned unfair labor practices. On May 17, 1940, pursuant to a stipulation entered into by the Company, the U. A. W., and a representative of the Board, this proceeding was settled, and an order based thereon was entered by the Board on June 15, 1940.4 Under these circumstances the motion to dismiss the petition is denied.5 , We find that a question has arisen concerning representation of employees of the Company. IV. TIIE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operatiolis 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 At the hearing the Federal and the U. A. W. stipulated that the pro- duction and maintenance employees of the Company, including ship- ping-room employees, but excluding supervisory and office employees, constitute a unit appropriate for the purposes of collective bargaining. The only controversy is as to whether or not W. H. Regenhardt and four group leaders, all of whom receive bonuses in addition to their regular wages, should be included in the appropriate units The U. A. W. contends that these five employees exercise supervisory func- tions and should be excluded from the unit.T -The Federal contends that they are not supervisors and should be included. W. H. Regenhardt is a brother of the president of the Company and owns one share of stock in the Company. He is employed as a mainte- a Matter of The Steel Storage File Company and United Automobile Workers of America, Local 217, affiliated with the Congress of Industrial Organizations, 24 N. L. R B 748. 5 See Matter of New England Transportation Company and International Association of Machinists, 1 N. L R. B. 130; Matter of Pennsylvania Greyhound Lines et at. and The Brotherhood of Railroad Trainmen, 3 N. L. R. B. 622; Matter of Standard Oil Com- pany of New Jersey and United Licensed Officers of the U. S. A., 8 N. L. R. B. 936. 9 These five employees are paid on an houily basis as are all employees within the unit except one who receives a weekly salary but as to whom there is no controversy. 7A sixth employee who receives a bonus in addition to his regular wages, George Beno, the night foreman, will be excluded from the appropriate unit, such exclusion having been requested by the U. A. W. and acquiesced in by the Federal at the hearing 214 DECISIONS 'OF NATIONAL LABOR, RELATIONS BOARD Hance man and part-time punch operator. He has no authority to hire .or discharge employees or make any recommendations to that effect. We shall include him in the unit.' The four group leaders, Arthur Berkey, Ray Miller, Walter Miller, and Boyd Boehnell, are production workers, who direct the work of employees under them and, at the same time, work with them. While there is some evidence to indicate that these group leaders have minor supervisory functions, nevertheless, the U. A. W. has undertaken to bargain for these employees by including them in the agreement entered into with the Company on May 6, 1940.8 We shall include the group leaders in the appropriate unit.9 We find that the production and maintenance employees of the Com- pany, including shipping-room employees and group leaders, but ex- cluding supervisory and office employees and the night foreman, con- stitute 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 Prior to the hearing the Federal and the U. A. W. submitted to the Trial Examiner application cards signed by employees of the Com- pany designating the respective labor 'organizations as collective bar- gaining representatives. It is undisputed that of the 60 employees on the current pay roll, 25 designated only the Federal, and 17 only the -U. A. W. In addition, 10 had at some time or other designated both the Federal and the U. A. W. Both the Federal and the U. A. W., therefore, have substantial membership among the employees in the unit found appropriate in Section V, above. The Federal desires an election and requests that the current pay roll be used as a basis for determining those employees eligible to vote. The U. A. W. contends that, in the event an election is directed by the Board, the pay roll from November 15 to December -15, 1939,10 should be used because : (1) subsequent to November 1939 the Company discouraged member- ship in the U. A. W. and thereafter favored the Federal when it attempted to organize the employees; and (2) the current pay roll does not reflect the normal state of employment with the Company. B The group leaders are named in Appendix A of the agreement mentioned in Section III, supra, as eligible employees in the unit appropriate for collective bargaining. - 0 See Matter of City Auto Stamping Company and International Union, United Auto- mobile Workers of America, affiliated with the C I. 0., 15 N. L. R. B. 1032. 30 As stated in the iecoi d the pay-roll date requested by U. A. W. was from Navember 15 to December 15, 1940 However, it is obvious from reading the entire record that this was an error and that the U. A. W. referred to the pay-roll date from November 15 to December 15, 1939. THE STEEL STORAGE FILE COMPANY 215 For the reasons stated in Section III, supra, we do not consider the first contention controlling. As for the second contention, the record indicates that the business of the Company has been steadily increasing and that persons hired since January 1940 have been employed on a permanent basis. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. We shall use as the date for determining eligibility of employees to vote the pay-roll date immediately preceding the date of this Direction of Election. 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 Steel Storage File Company, Cleveland, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company, including shipping-room employees and group leaders, but excluding supervisory and office employees, and the night foreman, constitute a unit appropriate for the purposes of collective bargaining. 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 The Steel Storage File Company, Cleveland, 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 Regulations, among the production and maintenance) employees of the Company who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including shipping-room employees, group leaders, and employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding supervisory and office employees, the night foreman, and employees who have since 216 DECISIONS OF NATIONAL LABOR` RELATIONS BOARD quit or been discharged for cause, to'determine whether such employees desire to be represented by Federal Labor Union No. 18267, affiliated with the American Federation of Labor, or, by United Automobile Workers of America, Local No. 217, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. [SAME TITLE SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES October 28, 1940 On September 14, 1940, the National Labor Relations Board, herein called the 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 27, 1940, under the direction and supervision of the Regional Director for the Eighth Region (Cleveland, Ohio). On - September 28, 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. As to the balloting and its results, the Regional Director reported as follows : Total number of employees eligible--------------------------- 50 Total number of ballots cast--------------------------------- 48 Total number of votes for Federal Labor Union No. 18267 (A. F. L.) ------------------------------------------------ 29 Total number of votes for United Automobile Workers of Amer- ica, Local No. 217 (C I 0 )------------------------------- 19 Total number of votes cast for neither organization----------- 0 Total number of blank ballots------------------------------- 0 Total number of void ballots-------------------------------- 0 Total number of challenged votes-- -------------------------- 0 On October 3, 1940, United Automobile Workers of America, Local No. 217, affiliated with the Congress of Industrial Organizations, herein called the U. A. W., filed with the Regional Director its objec- tions to the conduct of the ballot and the Election Report. On Octo- ber 17, 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 his Report on the Objec- tions of the U. A. W. to the conduct of the secret ballot and the Elec- tion Report. THE STEEL STORAGE FILE COMPANY 217 The Board has considered the objections of the U. A. W. and finds that they do not raise substantial or material issues with respect to the conduct of the ballot or the Election Report. The objections are hereby overruled. CERTIFICATION OF REPRESENTATIVES 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, IT Is HEREBY cERTIFIED.that Federal Labor Union No. 18267, has been designated and selected by, a majority of the production and mainte- nance employees of The Steel Storage File Company, Cleveland, Ohio, including' shipping room employees and group leaders, but ex- cluding supervisory and office employees and the night foreman, as their representative for, the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the National Labor Relations Act, Federal Labor Union No. 18267, is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, -hours of employment, and other conditions of employment. 27 N. L. R B., No. 46a.