Thompson Products, Inc.

In the Matter of THoi IPSON PRODUCTS, INC., and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFFILIATED WITH THE CIO Case No. B-2834.-Decided September 10, 1941 Jurisdiction : metal products manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; election necessary. A contract executed between the Company and a rival union following the union's certification by a State Labor Board does not constitute a bar to an Investigation and Certification of Representatives where the pay-roll check conducted by the State Labor Board, who had no power to certify a collective bargaining representative, did not establish that the union represented a majority of the employees in an appropriate unit and where the Company had knowledge of the petitioner's claim and petition to the Board prior to its execution. Unit Appropriate for Collective Bargaining : hourly rate and production em- ployees, excluding supervisory employees, foremen, assistant foremen, watch- men, and office and confidential employees ; agreement as to. Stanley ct Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio, for the Company. Mr. Maurice Sugar and Mr. Jack N. Tucker, of Detroit, Mich., for the C. I. O. Mr. Lewis F. Brady, of Detroit, Mich., for the Society. Mr., Marvin C. Wahl, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 15, 1941, International Union, United Automobile Workers of America, affiliated with the CIO, herein called the C. I. O., filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Thompson Products, Inc., Detroit, Michigan, herein called the Company, and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the National Labor Rela- 35 N. L. R. B , No. 65. 323 451270-42-vol. 35-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Act, 49 Stat. 449, herein called the Act. On July 8, 1941, 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 July 24, 1941, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the C. I. 0., and upon the Society of Tool and Die Craftsmen of America, herein called the Society, a labor organization claiming to represent em- ployees directly affected by the investigation? Pursuant to notice, a hearing was held on July 31 and August 1, 1941, at Detroit, Michigan, before Woodrow J. Sandler, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the C. I. 0., and the Society 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 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 errors were committed. The rulings are hereby affirmed. On August 14 and 16, 1941, respectively, the Company and the C. I. O. filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Thompson Products, Inc., is an Ohio corporation with its prin- cipal office and place of business at Cleveland, Ohio. At the Detroit plant, with which this proceeding is concerned, the Company manu- factures, sells, and distributes tie rods, drag links, brakerods, gear- shift rods, miscellaneous rods, starting cranks, propeller shafts, and various parts used in the automobile, truck, tractor, aircraft, and marine engine industries, and sells and distributes valves, valve-seat inserts, pistons, pins, bolts, and bushings. In 1939 and 1940, the Company purchased materials valued at approximately $1,600,000 for use in the Detroit plant, 20 per cent of which was purchased from sources outside the State of Michigan. During the same period, the value of the finished products manufactured in the Detroit 1 The Society was erroneously designated as "Society of Tool & Die Craftsmen, Inc in the petition. THOMPSON PRODUCTS, INC. 325 plant was approximately $3,690,000, 22 per cent of which was sold outside the State of Michigan . The Company admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership employees of the Company. The Society of Tool and Die Craftsmen of America is a labor organization , admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company seeks to dismiss the C . I. O.'s petition on the ground that the Society represents a majority of its employees , and that the C. I. 0., as a minority group , is attempting to disrupt a contract recently negotiated between the Company and the Society , which has not yet expired . The Society also contends that the petition should be dismissed on the ground that the Michigan State Labor Mediation Board (herein called the Michigan Board ) has found that the Society represented a majority of the Company 's employees in an appropriate unit. The C. I. 0. contends that the Society and the Company had knowledge of the C. I. O's claim to represent a majority of the Company's employees before the contract was executed , that the find- ing by the Michigan Board was improper and beyond its jurisdiction, and that the, contract ' therefore is not a bar to this proceeding. In January 1941, the C. I. 0., claiming to represent a majority'of the Company's employees, asked the Company to confer with it as the collective bargaining representative . The Company replied that it had a collective bargaining contract with another organization, Auto Parts Workers, Inc., and stated that questions of majority representa- tion should be settled by the Board. In February 1941 ; the Society commenced to organize the employees of the Company , and on March 27, 1941, the Society and the Company held a conference, during which the Society suggested that the question of majority representa- tion be submitted to the Michigan Board. The Company agreed upon condition that the Michigan Board had authority to determine the question of representation . On March 28, the C. I. 0. again re- quested the Company to bargain with it as the representative of the Company's employees and a meeting was arranged for April 3, 1941. At this meeting the Company requested the C. I. 0. to furnish proof that it represented a majority and suggested that the question of majority representation be submitted to the Michigan Board. ' The C. I. 0. refused on the ground that the Michigan Board had no 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authority to certify a bargaining representative. Witnesses for the Company testified that at the meeting, the C. I. O.'s representatives were advised that the Society had previously requested recognition and had offered to submit its membership cards for a pay-roll check to be conducted by the Michigan Board. The C. I. O.'s witnesses denied that it had been so advised. On April- 8 and 9, 1941, the Michigan Board conducted a pay-roll check and found that the Society presented valid cards of 377 em- ployees out of a total of 722 employees on the Company's pay roll,. and thereupon notified the Company and the Society, but not the C. I. O., that the Society represented a majority of the Company's employees. The C. I. O. was not notified that the pay-roll check was to be held,' and first learned of it on April 15 or 16, when a handbill was distributed by the Society which stated that the Society was the bargaining agent of the Company's employees by virtue of the find- ings of the Michigan Board. On April 15, the C. I. O. filed its petition with the Board and on April 16, protested both to the Michi- gan Board and to the Company, and advised them that it would not recognize any contract that was entered into pursuant to the Michi- gan Board's findings. On April 18, a Field Examiner for the Board wrote to the Company concerning the C. I. O.'s claim to represent a majority of the Company's employees. The Company and the Society nevertheless continued bargaining negotiations, and on April 28,8 the Company advised the Field Examiner that it had entered into a contract with the Society. It is clear that the Michigan Board recognizes that it has no power to certify a collective bargaining representative.4 In addition, the pay-roll check conducted by the Michigan Board does not estab- 2 It appears that the Company and the Michigan Board expected each other to notify the C. I. O. but neither of them did so. 8 The contract, which was admitted in evidence, is dated April 29, 1941. One witness testified that the contract had been consummated 4 or 5 days before the date which appears on the contract. 4 While the Company does not dispute this fact, it states that it relied upon the assur- ances of the Michigan Board that it had authority to designate a bargaining agent and the Company thereupon negotiated and entered into a contract with the Society. There is conflicting testimony in the record as to whether or not the Company was told that the Michigan Board had power to designate a bargaining agent, but from the evidence it would seem that it has power only to settle disputes , and can do that only where all parties agree to abide by its decision . It does not have power to certify a labor organiza- tion. A letter dated May 6, 1941 , from the chairman of the Michigan Board to the Society, was introduced in evidence , and reads , in part: Please be advised that under the existing law of the State of Michigan , particularly the law under which this Board operates , there is no provision in the law whereby the State Mediation Board can certify any union as the sole bargaining agent. * * * It has been the practice of this Board to assist employers and employees in so-called payroll checks and consent elections . This practice was carried out by the Board merely as a matter of courtesy to assist the parties in arriving at some under- standing. * * * THOMUPSON PRODUCTS, INC. 327 fish that the Society represented a majority of the employees in an appropriate unit at the time of the pay-roll check.5 In view of these facts and the knowledge on the part of the Company of the C. I. O.'s claim and petition to the Board prior to the execution of the contract, we find that the contract is not a bar to a present determination of representatives." - There was introduced in evidence a statement of the Regional Director from which it appears that the C. I. O. and the Society have substantial representation among the employees of the Com- pany in the unit hereinafter found to be appropriate.? 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT All the parties agree, and we find, that all hourly rate and production employees at the Detroit plant of the Company, excluding super- visory employees, foremen, assistant foremen, watchmen, and office and confidential employees, constitute a unit appropriate for the pur- poses of collective bargaining. We find, further, 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 effec- tuate the policies of the Act. "A conciliator for the Michigan Board testified that when he conducted the pay-roll check he had before him a letter from the Company which purported to set forth the "Supervisory Force and Office Force," and which stated that the Company did not believe that they should be eligible for membership in any union . He testified that he did not consider the question of exclusion of confidential or other employees from the unit, nor could he say what specific inclusions or exclusions were made. 6 The exercise of power by the Michigan Board does not oust the Board from jurisdic- tion Section 9 (c) of the Act; cf. Matter of Robert Jacobs, Inc. and Industrial Union of Marine and Shipbuilding Workers of America, Local 38, affiliated with the C. I. O. and New York District Council, United Brotherhood of Carpenters and Joiners of America, Local 488 (served with notice of hearing), 32 N. L. R. B 646; Matter of Rock River Woolen Mills and Textile Workers Union of America, affiliated with the Congress of Industrial organizations , 18 N. L. R. B. 828. 7 The statement shows that the C. I. O. submitted 240 membership application cards all of which appeared to bear genuine signatures and represent persons on the Company's April 8, 1941 , pay roll. The Society submitted 383 membership application cards all of which likewise appeared to bear genuine signatures and represent persons on said pay roll . The Company employed 735 persons in the alleged unit on April 8, 1941. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 parties agree that in the event of an election a current pay roll be used to determine eligibility." Ac- cordingly, we shall direct that those eligible to vote in the election shall be the employees within the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election, subject to such limitations and additions as are set forth in the Direction. 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 Thompson Products, Inc., Detroit, Michi- gan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All hourly rate and production employees at the Detroit plant of the Company, excluding supervisory employees, foremen, assistant foremen, watchmen, and office and confidential employees, 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 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 Thompson Products, Inc., Detroit, Michigan, an election by secret ballot shall be conducted as soon as possible, but not later than thirty (30) days from the date of this Direction of Electioh, under the direction and supervision of the Regional Director for the Sev- 8 The parties also agreed , however, to deny eligibility to those employees who were hired within 30 days preceding the date of this Decision. We do not believe that sufficient reason exists to warrant a departure from our usual practice of determining eligibility by the pay roll immediately preceding the date of the Direction of Election. THOMPSON - PRODUCTS, 'INC. 329 enth 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 rate and production employees at the Detroit plant of Thompson Products, Inc., who were employed by the Company during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding supervisory employees, foremen, assistant foremen, watchmen, office and confidential em- ployees, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Inter- national Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations or by the Society of Tool and Die Craftsmen of America, for the purposes of collective bargaining, or by neither. [SAME TITLE] SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTION October 9, 1,941 On September 10, 1941, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, directing, inter alia, that an election by secret ballot be conducted among certain employees of Thompson Products, Inc., Detroit, Michigan, herein called the Company, to determine whether they desire to be represented by International Union, United Automobile Workers of America, affiliated with .the Congress of Industrial Organizations, herein called the C. I. 0., or by Society of Tool and Die Craftsmen of America, herein called the Society, for the purposes of collective bargaining, or by neither. Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted among such employees on September 25, 1941, under the direction and supervision of the Regional Director for the Seventh Region (Detroit, Michigan). On September 26, 1941, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2. as amended, prepared and duly served upon the parties an Election 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Report setting forth, inter alia, the following results of the aforesaid election : Total on eligibility list-------------------------------------- 780 Total ballots cast ------------------------------------------- 758 Total ballots challenged------------------------------------- 8 Total blank ballots------------------------------------------ 0 Total void ballots------------------------------------------ 0 Total valid votes cast--------------------------------------- 750 Votes cast for International Union, United Automobile Workers of America, affiliated with the Congress of Industrial Organi- zations--------------------------------------------------- 370 Votes cast for Society of Tool and Die Craftsmen of America_-- 360 Votes cast for neither ------------------------ --------------- 20 No objections were thereafter filed to the Election Report. On October 1, 1941, the C. I. O. filed a formal request for a run-off election to be held by the Board. Although neither of the competing labor organizations received a majority of the votes cast, the results of the election show that a sub- stantial majority of the employees in question desire to bargain col- lectively with the Company. Accordingly, we shall direct a run-off election in which such employees will be given an opportunity to decide whether they desire to be represented by the C.I.O., or by the Society for the purposes of collective bargaining. SECOND 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, 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 D=crED that, as part of the investigation authorized by the Board to determine the appropriate unit and to ascertain representatives for the purposes of collective bargaining with Thompson Products, Inc., Detroit, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Second Direction of Election, under the direction and super- vision of the Regional Director for the Seventh 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 rate and production employees described in the Direction of Election issued on September 10, 1941, but excluding those employees who have since quit or been discharged for cause, to determine whether they desire to be represented by International Union, United Automobile Workers of America, affiliated with the Congress of Industrial' Organizations, or by Society of Tool and Die Craftsmen of America, for the purposes of collective bargaining. 35 N. L. R. B., No. 65a.