Northwestern Auto Parts Co.

In the Matter of EDWARD RAPPAPORT, JAMES RAPPAPORT, AND MAx RAP- PAPORT, CO-PARTNERS , DOING BUSINESS AS NORTHWESTERN AUTO' PARTS Co. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL 1140. Case No. R-3061.-Decided October 29, 1941 Jurisdiction : junk industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until majority be proved ; contract in effect for more than 3 years renewed following notice of rival union's representation claims, no bar to ; probationary employees held eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : all employees, excluding a specifi- cally named individual. Mr. S. H. Gainsley, of Minneapolis, Minn., for the Company. Mr. Ralph L. Helstein, of Minneapolis, Minn., for the C. I. O. Mr. Earl Boxeth, of Minneapolis, Minn., for the A. I. U. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 31, 1941, United Electrical, Radio & Machine Workers of America, Local 1140, affiliated with the Congress of Industrial Or- ganizations, herein called the C. I.. 0., filed with the Regional Director for the Eighteenth Region (Minneapolis, Minnesota) a petition, and on September 3, 1941, an amended petition alleging that a qu`iistion affecting commerce had arisen concerning the representation of em- ployees of Edward Rappaport, James Rappaport, and Max Rappa- port, co-partners,. doing business as Northwestern Auto Parts Co., Minneapolis, Minnesota, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9. (c) of the National Labor Relations Act, 49 Stat. 449,..herein called the Act. On September 9, 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 36 N. L. R. B., No. 97. 484 NORTHWESTERN AUTO PARTS CO . 485 Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional • Director to conduct it- and to proyide for an appropriate hearing upon due notice. On September 15, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the C. I. 0., and upon Associated Independent Unions, Local No. 18, herein called the A. I. U., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on September 26, 1941, at Minneapolis, Minnesota, before Guy Farmer, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by counsel, and the labor organizations by their respective representatives. . All partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing upon the issues was afforded all parties.. During the course of the hearing the Trial Examiner made several rulings upon motions and objections to the admission of evidence. The Board has reviewed the rulings of the: Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Edward Rappaport, James Rappaport, and Max Rappaport are co- partners, doing business under the name of Northwestern Auto Parts Co. The Company is engaged in the business of purchasing and selling new automobile parts, purchasing used, burned, and wrecked automobiles, dismantling automobiles, and selling used automobile parts,. scrap iron, and other materials. Its office and principal place of business is at Minneapolis, Minnesota. During the year 1940 the Company: purchased materials valued at about $40,000, about 12 per cent of which by value were brought to the Company's plant from points outside Minnesota. During the same period the Company sold materials valued at about $75,000, about 23 per cent of which by value were sold and shipped from the Company's plant to points outside Minnesota. H. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Local 1140, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. Associated Independent Unions, Local No. 18, is an unaffiliated labor organization, admitting to membership employees of the Company. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On September 9, 1938, the Company entered into a closed-shop con- tract with the A. I. U. for its employees. The contract provided that it should be in effect for 1 year and thereafter from year to year unless terminated. by either party thirty (30) days before the expiration' of any yearly period. In September 1939 a local union affiliated with the petitioner in this proceeding asked the Company to bargain con- cerning the same employees. To determine their desire for a bargain- ing agent, an election by secret ballot was conducted among such employees. under the auspices of the State Labor Conciliator. The A. I. U. won the election. The Company and the A. I. U. thereafter continued to operate under their contract of 1938. On July 20, 1941, the C. I. O. asked the Company to bargain con- cerning its employees. The Company refused to bargain until the C. I. O. proved a majority representation, and further contended that the Company was bound under its contract with the A. I. U., which had not been terminated by notice of either party. On July 31, 1941, the C. I. O. filed the petition in this proceeding. The Company and the A. I. U. contend that their contract of 1938 is a bar to this proceeding. Such contention is without merit. The contract has already been in effect for more than 3 years.,, Moreover, it is terminable by either party thereto upon notice of thirty (30) days before the expiration of any yearly period. It appears that both the Company and the A. I. U. had notice of the claim of the C. I. O. before the expiration date of the current year.2 We find that the contract between the Company and the A. I. U. does not constitute a bar to a determination of representatives at this time. A statement prepared by the Regional Director and introduced into evidence at the hearing discloses that the C. I. O. and the A. I. U« each represents a substantial number of employees in the appropriate unit.3 We find that a question has arisen concerning the representation of employees of the Company. i Matter of Columbia Broadcasting System, Inc., and American Communications Asso- ciation (Formerly American Radio Telegraphists' Association), 8 N. L. R. B. 508; Matter of McLouth Steel Corporation and Local 174, International Union, United Automobile. Wprkers of America affiliated with the Congress of Industrial Organizations, 30 N. L. R. B., No. 142. 2Matter of Ingram-Richardson Mfg. Company of Indiana, Inr. and Federal Labor Union 22174, affiliated with the A. F. of L., 23 N. L. R. B. 85; cf. Matter of Cluett, Peabody & Co., Inc. and United Garment Workers of America, Local No. 297, affiliated • with the A. F. of L., 31 N. L. R. B., No. 79, and cases cited therein. 3 The C. I. O. submitted to the Regional Director seven application cards of recent date, six of which bear names of employees on a current pay roll. . The A. I. U. submitted to the Regional Director its membership list containing 11 names, of which 9 are names of employees on a current pay roll. There are approximately 12 employees in the appropriate unit. NORTHWESTERN AUTO PARTS' GO. 487 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 C. I. O. contends that all employees of the Company, excluding clerical, supervisory, and sales employees, constitute an appropriate, unit. The A. I. U. and the Company contend that all employees con- stitute an appropriate unit.' The Company is a partnership, composed. of a father and two sons. The partners personally hire and discharge employees and plan,. assign, and supervise their work. The Company employs no super- visors, as such. The partners personally buy all major items for wrecking and resale. In order to maintain a stock of used automobile parts, and particularly to cater to out-of-town trade, certain employees are from time to time sent out to find and buy wanted used parts from. lots of the Company's competitors. The Company's plant consists- of a building and an adjacent lot. In its building the Company main- tains an office, a sales counter, and a small repair shop where used automobile parts are reconditioned for sale. Part of the building is used as a warehouse. On its adjacent lot the Company dismantles used cars. New automobile' parts are sold over the counter in the building,. used parts over the counter or directly from cars on the lot. The Company employs no salesmen as such. The partners regularly take care of the selling themselves. Any employee who is available to take care of a customer may be expected to do so. The record does not disclose that the Company employs any clerical worker as such. It does not clearly appear what, if any, clerical work is required of any employee, incidental to his duties at the plant. The parties agree that the following six employees should be in- cluded in the bargaining unit : two mechanics, whose work of recon- ditioning used parts is for the most part performed in the repair shop, two "wreckers," whose work is performed for the most part on the lot, and one stock man, who spends about 10 per cent of his time on mechanical work, reconditioning parts, and the remainder of his time in the building and on the lot, taking stock of parts in the warehouse and on the lot and selecting such parts for sale. The parties further agree to include one Don Roberts, whose duties include refinishing parts, baling of scrap iron, buying of used parts, selling of used and Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD new parts, shipping, and any general work which is required about the plant. The parties disagree with respect to the following three employees : Joe Robbins, Victor Fink, and Frank Rappaport. The C. I. 0. would exclude them from the bargaining unit, the Company and the A. I. U. would include them. The C. I. 0. contends that Joe Robbins is a supervisory employee. Robbins is an outside or "yard" employee, who works with two wreckers on the lot in dismantling cars. For information and orders respecting wanted parts, the partners communicate with their em- ployees on the lot through a loud speaker. Robbins often relays such orders to other employees. The partners hired Robbins with the in- tention of putting him in charge of the yard work. It does not appear that this intention was communicated to Robbins or to his fellow workers. It was not carried out. Although Robbins received $2.50 more per week than the other two wreckers, they regard him as a fellow yard worker and not as a supervisory employee. The partners would give some consideration to Robbins' recommendations, but not as much as they would give to the recommendations of Art Hanson, the stockman, who all parties agree should be included in the bar- gaining unit. We shall include Robbins in the bargaining unit. The C. I. 0. contends that Victor Fink is a clerical and sales em- ployee. As noted above, the record does not disclose what clerical work is incidental to the regular duties of any employee. Fink and Roberts, whom all parties desire to include in the unit, do similar work. Fink is older in the Company's service than Roberts, and more experienced. We shall -include Fink in the bargaining unit. The C. I. 0. contends that Frank Rappaport is a sales employee and that he is to be excluded particularly because he is son and brother, respectively, of the partners. Frank Rappaport does general work about the plant, towing in cars, selling, purchasing used parts for resale, and any other needed work, except the actual wrecking of cars. He spends most of his time lining up used parts for resale from cars on the Company's lot or from used car lots of its competitors. Under all the circumstances, we shall exclude him from the bargaining unit. Three probationary employees completed the total number of the Company's employees at the time of the hearing. Two probationary employees were learning to wreck cars in the yard, while the third was assisting with work within the building. No objections were made at the hearing to their inclusion in the bargaining unit so far as their work was concerned. We find that all employees of the Company, excluding Frank Rap- paport, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company NORTHWE'STERN AUTO PARTS CO. 489 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 We find that the question concerning representation can best be resolved by, and we shall accordingly direct, an election by secret ballot. The parties agreed at the hearing that the pay roll of September 20, 1941, was suitable for determining eligibility to vote. The record does not disclose any reason for departure from, our usual practice of using the pay-roll period immediately preceding the date of the Direc- tion of Election herein. The parties disagreed at the hearing with respect to the eligibility of the three probationary employees noted above. The partners recently hired them to take care of extra work made available through the increasing demand for scrap iron, intend- ing to keep one or two of them permanently. At the time of the hearing the partners had not decided what men should.be permanently retained. The C. I. 0. and the Company contended at the hearing that the probationary employees should be excluded from voting. The A. I. U. would permit them to vote. We find that such probationary employees have a substantial expectation of continuing employment with the Company and that any who were employed during the pay- roll period hereinafter designated for purposes of determining eligi- bility should be permitted to vote in the election. Those eligible to vote in the election shall be all employees in the appropriate unit, including probationary employees, who were em- ployed by the Company during the pay-roll period immediately pre- ceding the date of this Direction of Election, subject to such limitations and additions as are set forth in the 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 Edward Rappaport, James Rappaport, and Max Rappaport, co-partners, doing business as Northwestern Auto Parts Co., Minneapolis, Minnesota, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of Edward Rappaport, James Rappaport, and Max Rappaport, co-partners, doing business as Northwestern Auto Parts Co., Minneapolis, Minnesota, excluding Frank Rappaport, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Edward Rappaport, James Rappaport, and Max Rappaport, co-partners, doing business as Northwestern Auto Parts Co., Minne- apolis, Minnesota, 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 Eighteenth 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 employees of the Company who were employed during the pay-roll period imme- diately preceding the date of this Direction of Election, including probationary employees and 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 Frank Rappaport and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Electrical, Radio & Machine Workers of America, Local 1140, affiliated with the Congress of Industrial Organi- zations, or by Associated Independent Unions, Local No. 18, for the purposes of collective bargaining, or by neither.