Sunbeam Electric Manufacturing Co.

In the Matter Of SUNBEAM ELECTRIC MANUFACTURING Co. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. R-0697-Decided August 03, 1941 Jurisdiction : refrigerator units and cabinet manufacturing industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit ; laid-off employees held eligible to vote despite Company's contention that they have no claim to future employment and are no longer employees where they have a reasonable expectancy of obtaining future employment ; election necessary. Unit Appropriate for Collective Bargaining : all production employees of the Company in the cabinet division housed in one of Company's four buildings excluding maintenance, clerical, and supervisory employees, plant superin- tendent, assistant superintendent, general foremen, department foremen, and leadmen. Mr. Robert D. Markel and Mr. Isidor Kahn, of Evansville, Ind., for the Company. Mr. William Sentner, of St. Louis, Mo., and Mr. James Payne, of Evansville, Ind., for the Union. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 18, 1941, United Electrical, Radio & Machine Workers of America, affiliated with the C. I. 0., herein called the Union, filed with the Regional Director for the Eleventh Region (Indian- apolis, Indiana) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Sunbeam Electric Manufacturing Co., Evansville, Indiana, herein called the Company, and requesting an investigation and certifica- tion of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 13, 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 Reg- 34 N. L. R. B., No. 101. 831 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alations-Series 2, as amended, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June 20, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Union, and upon Sunbeam Employees' Association and International Associa- tion of Machinists.' Pursuant to notice, a hearing was held on July 1 and 2, 1941, at Evansville, Indiana, before Arthur R. Donovan, the Trial Examiner duly designated by the Chief Trial Examiner. The Company was represented by counsel and the Union by representa- tives; 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. The Trial Examiner reserved rulings for the Board on motions by the Company to dismiss the Union's petition on the grounds: (1) that there is no controversy concerning representation; (2) that the employees of the cabinet divi- sion (Building 2) do not constitute a separate appropriate unit; and (3) that the Union is not a "competent, legal, or qualified representa- tive of the Company's employees." For reasons hereinafter appearing, all the grounds advanced in support of the motions are without merit.2 The motions are hereby denied. During the course of the hearing the Trial Examiner made various rulings on other motions and on ob- jections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudical errors were committed. The rulings are hereby affirmed. On July 17 and 18, 1941, respectively, the Union and the Company filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Sunbeam Electric Manufacturing ' Co., an Indiana corporation, is engaged in the manufacture, sale, and distribution of refrigerator units and cabinets. During 1940 the Company purchased raw mate- rials, consisting principally of steel and sheet metal, valued in excess of $1,000,000, of which more than 75 per cent was obtained from points outside the State of Indiana. During the same period the Company sold to its only customer, Sears, Roebuck & Company, I The latter two organizations did not appear at the hearing. z In connection with ground ( 3), mentioned above, the Trial Examiner refused to permit interrogation of witnesses by the Company concerning the alleged Communistic connections of the Union's officers. The Trial Examiner's ruling is hereby affirmed . See Matter of Ford Motor Company, a Delaware Corporation and International Union, United Automo- btile Workers of America, affiliated with the C. I. 0., 30 N. L. R. B. 985. SUNBEAM ELECTRIC MANUFACTURING CO. 833 finished products valued at more than $1,000,000, of which more than 75 per cent was shipped to destinations outside the State of Indiana. The Company concedes that it is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. III. THE QUESTION CONCERNING REPRESENTATION United Electrical, Radio & Machine Workers of America is a labor organization,affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the Company. M. THE QUESTIONS CONCERNING REPRESENTATION On April 17, 1941, the Union, claiming to represent a majority of the production and maintenance employees of the cabinet divi- sion (Building 2), asked the Company for a conference for the pur- pose of negotiating an agreement covering these employees. The Company refused this request, asserting that the cabinet division is not an appropriate unit. A statement of the Regional Director introduced in evidence indi- cates that the Union represents a substantial number of employees in the unit alleged in its petition to be appropriate.3 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 Union alleges in its petition that all production and mainte- nance employees of the Company in the cabinet division (Building 2), excluding clerical and supervisory 4 employees, constitute an ap- propriate unit. The Company opposes a separate unit for the cabi- 8 The Regional Director reported that the Union submitted 423 signed membership and authorization cards. Due to the Company's failure to furnish a copy of its pay roll, the Regional Director was unable to check the signatures on the cards against the Company's pay roll. There are approximately 680 employees in the unit sought by the Union. 4 Supervisory employees include the plant superintendent, assistant superintendent, gen- eral foremen, department foremen, and leadmen. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD net division, contending that all employees in all divisions of tht, Company at Evansville constitute an appropriate unit. _ The Company uses four buildings and three warehouses in its operations at Evansville. In the original building, herein called Building 1, the Company is engaged principally in the production and assembly of refrigerator units (motors and compressors) and parts. There are approximately 1,460 production employees in this building. Building 2, constructed in 1936, houses the cabinet divi- sion and employs approximately 640 production employees. The Company is engaged principally in the production and assembly of refrigerator cabinets in Building 2. These two buildings, separated by a public street, are connected by an enclosed overhead bridge. Adjacent to Building 2 is the central,heating plant. The Company employs approximately 260 production employees in Building 3, which is the service station where units and cabinets returned from the field are repaired. Building 4 is the central station for the handling of surplus parts for units. Buildings 3 and 4, as well as the warehouses, are located some distance from the other buildings. The Company makes all its units and one-half of its cabinets; the other half is purchased by the Company from another manufac- turer. The units and cabinets are so designed that they can only be used together, as the bottom of the unit when assembled with the cabinet becomes the top of the latter. The units and cabinets are crated separately at the respective buildings where they are fabri- cated, from which they are transported by the Company's trucks to the warehouses for storage and shipment. Although some assem- bling of units and cabinets is done at Building 3, most of it is done in the field after delivery. I In support of its request for a unit restricted to employees of the cabinet division, the Union points to the fact that the cabinet divi- sion is a major and independent subdivision of the Company's op- erations; and that substantially all of the production operations of the Company used in the construction of the cabinets are performed in Building 2. Apparently the Union has confined its organizational activities to employees in the cabinet division. In support of its contentions, the Company directs attention to the facts that there is centralized control of all - production and maintenance operations; that administrative and personnel policies emanate from a common source; that all buildings operate as a part of an integrated production system; that some of the parts used in Building 2 are fabricated in Building 1 and vice versa; that uniform wages, hours, and working conditions prevail at all the Company's buildings; and that the Company has a policy of transferring em- ployees not only from department to department but also from build- ing to building. SUNBEAM ELECTRIC MANUFACTURING Co. 835 On the basis of the entire record, we find that either a unit re- stricted to employees of the cabinet division (Building 2) or one comprising employees in all buildings might be appropriate for the purposes of collective bargaining. However, since no organization is here seeking to represent employees of the Company other than those in the cabinet division, we are of the opinion that a unit which coin- cides with the extent of the Union's organization is appropriate. To find otherwise would deprive the employees in the cabinet divi- sion of the benefits of collective bargaining until the employees in the other divisions and buildings had organized. Our determination herein as to the appropriate unit, however, is no bar to a later revi- sion in accordance with the changes in the status of self-organization of the Company's employees.' The Company has a maintenance force of approximately 270 em- ployees under the same general head at Building 1. Two hundred and twenty-six of, these employees report at Building 1 where they may be assigned to work in any of the Company's buildings; and 40 report at Building 2 where they are regularly stationed. Although the Union's petition includes maintenance employees in the claimed unit, it stated at the conclusion of the hearing that since it appears that substantially all supervision over the entire maintenance force emanates from Building 1, it has no objection to the exclusion of these employees. The Company contends that, in the event its mo- tion for dismissal of the petition is denied, the unit should include maintenance employees. However, under the circumstances we shall exclude maintenance employees from the production unit. The Company stated that if a separate unit for the cabinet division employees is found appropriate, it should also include the clerical employees in that division. As stated above, the Union desires to exclude clerical employees from the unit. In the cabinet division the Company employs 7 hourly paid, and 17 salaried, clerical em- ployees. We have customarily excluded clerical employees from a production unit and under the circumstances we shall exclude them in this instance." We find that all production employees of the Company in the cabi- net division (Building 2), excluding maintenance, clerical, and super- visory employees, the plant superintendent, assistant superintendent, general foremen, department foremen, and leadmen, constitute a unit appropriate for the purposes of collective bargaining, and that said 5 See Matter of Crane Company and Shipping, Receiving Clerks, and Assistants Union, Local 21648, affiliated with the American Federation of Labor, 28 N. L. It. B. 756; Matter of Butler Motors, Inc . and International Association of Machnnssts, Auto Mechanics Local 701, A. F. of L, 28 N. L. R B 1254; Matter of Crescent Dress Co. and Cutters Local 11,, 1. L G. W. U., A. F. of L, 29 N. L. It. B. 351, and cases cited therein. 9 See Matter of The Texas Company and Oil Workers International Union, Local 367, 33 N. L. It. B. 722. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. A ques- tion arises concerning the eligibility of certain laid-off employees. One June 23, 1941, due to a shortage of materials, the Company laid off 208 employees on the second shift in the cabinet division. The Union contends that all these employees should be permitted to vote in the election. Sixty-two of these employees had been employed for 8 months or longer and have been transferred to Buildings 1 and 3. We are unable to ascertain from the record which of these employees, if any, will be transferred back to Building 2 when normal produc- tion is resumed. We find that only such of these employees as are employed within the appropriate unit during the pay-roll period selected to determine eligibility to vote, as set forth below, shall be eligible to vote. As to the remaining 146 employees, the Company stated that they have no claim to future employment and are no longer employees, and that, therefore, they are ineligible to partici- pate in the election. The record shows that although these em- ployees have no seniority status under the Company's rules, they will be taken back when conditions permit before new employees are hired. We find that these employees have a reasonable expectancy of obtaining future employment at Building 2 and are eligible to participate in the election. The Company urges that if an election is ordered, it should not be held until normal 'operations of the Company have been resumed. The Union requests an immediate election. In view of our eligibility ruling above, we see no reason to postpone the election. We shall, accordingly, direct that an election by secret ballot be conducted as soon as possible but not later than 30 days from the date of this Direction. In accordance with our usual practice, we shall direct that those eligible to vote shall be all employees within the appro- priate unit who were employed during the pay-roll period immedi- ately preceding the date of this Direction, 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 OFI LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Sunbeam Electric Manufacturing Co., SUNBEAM ELECTRIC MANUFACTURING CO. 837 Evansville, Indiana, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of the Company in the cabinet divi- sion (Building 2), excluding maintenance, clerical, and supervisory employees, plant superintendent, assistant superintendent, general foremen, department foremen, and leadmen, constitute a unit appro- priate 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 Lobos Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, 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 Sunbeam Electric Manufacturing Co., Evansville, Indiana, 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 Eleventh 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 production employees in the cabi- net division (Building 2) who were employed by the Company dur- ing the pay-roll period immediately preceding the date of this Direction, 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 maintenance, clerical, and supervisory em- ployees, plant superintendent, assistant superintendent, general foremen, department foremen, leadmen, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Electrical, Radio & Machine Workers of America, affiliated with the C. I. 0., for the purposes of collective bargaining. CHAIRMAN HARRY A. Mn us, dissenting : I dissent from the decision of the majority to establish a separate unit for production employees in the cabinet division (Building 2). The Company's administrative organization, integrated production system, established personnel policies, and other circumstances indi- cate, in my opinion, that such a unit is inappropriate for the pur- poses of collective bargaining. The record reveals an overlapping 451269-42-vol. 34-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of production operations in the various buildings of the Company and particularly in Building 1 and Building 2. Certain parts used in the construction of the motors and compressors in Building 1 are either made or processed in Building 2; T other parts used in the construction of the cabinet in Building 2 are made in Building 1; 8 and most of the parts used in Buildings'3 and 4 are made in Build- ings 1 and 2. The record also shows that one personnel department hires all employees and establishes uniform wages, hours, and work- ing conditions applicable to employees in all buildings. An employee transfer policy in effect at all the Company's buildings, .provides for the transfer of employees from department to depart- ment and from building to building, depending upon the require- ments of the Company and the ability of the employees. Between January 1937 and July 1941, the Company transferred 430 employees from one building to another, of which 120 occurred during the first 7 months of 19419 Conceding that the extent of union organization 10 among em- ployees, as indicated by the majority. opinion, is one of the important factors in the determination of an appropriate unit, nevertheless, I am of the opinion that the foregoing circumstances clearly show that a departmental unit would not effectuate the policies of the Act.'- I would dismiss the Union's petition. 9 Lid pans are fabricated and enameled in Building 2 for use in Building 1 ; evaporators, fabricated in Building 1, are sent to Building 2 for enameling , after which they are re- turned for use in Building 1; and steel used in Building 1 Is sheared in Building 2. 8 Handy bins, rollers, the light-switch strike, and some of the dies used in the construc- tion of the cabinet in Building 2 are made in Building 1. 8 The transfer of 62 employees in June 1941 , due to a shortage of materials , from Build- ing 2 to the Company's other buildings clearly demonstrates the inappropriateness of a separate unit for Building 2. While these employees or some of them may in the near future be transferred back to their former jobs in Building 2, they nevertheless are disfran- chised from participating in the election ordered by the majority, if they are not employed in Building 2 during the pay-roll period by which eligibility is to be determined. 10,The Union's constitution and bylaws indicate that employees in all divisions of the Company are eligible for membership and there is no showing that the Union has not sought to organize all of said employees Cf. Matter of The National Sanitary Company and International Brotherhood of Foundry Employees , Local #104 (Independent ), 31 N. L. R B. 824. 11 Under the circumstances it seems to me that the exclusion of maintenance employees at Building 2 from the unit is a pro tanto admission by the majority that a departmental unit it not appropriate.