General Motors Corp.

In the Matter of GENERAL MOTORS CORPORATION, FRIOIDAIRE DIVISION and UNITED ELECTRICAL, RADIO &' ;_MACHINE_ WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Case R-,3067.Decided December 1.5, 19-111 Jurisdiction : electric refrigerator manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; contract no bar to. where executed after institution of proceedings with notice of petitioning union's claims; election necessary , , Unit Appropriate for Collective Bargaining : all metal finishers in particular plant, excluding metal finish grinders ; agreement as to. Mr. H. 'M:' Hogan, Mr. A. F. Power; Mr. Denton Jolly; and Mr. Robert C. Carson, all of'Detroit, Mich.;'for the Company. Mr. Henry Fiering, Mr. Arthur Garfield, and Mr. Lem Markland, all of Dayton, Ohio, for'the United. ' Mr. A. G. Slcundor, of Newcastle, Pa., and Mr. Edward C. Bennett and Mr. Jack Loudon, both of Dayton, Ohio, for the I. A. M. Mr. Irvin Carl Delscamp, of Dayton, Ohio, for the Dayton Inde- pendent Union. Mr. Sy'dney,'S. Asher, Jr., of counsel td'the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On'Jtine`17, 1941, United 'Electrical;,Radio,R^Machine Workers of America, affiliated with the C. I. 0., -he rein called the United, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio), a, 'petition alleging that a question affecting commerce had arisen concerning the representation of employees of General Motors Cor- poration, Frigidaire Division, Dayton, Ohio, herein called the Coln-' pany, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September' 24, 1941, the Na- 37 N L.,R B , No 101. 616 GENERAL MOTORS CORPORATION 617 tional 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 con- duct it and- to provide for an appropriate hearing upon due notice. On September 27, 1941, `the Regional Director issued a notice of hearing; copies of which were duly served upon the Company, the United, and Metal Finishers Local Lodge #336, International Asso- ciation of Machinists, affiliated with the American Federation of Labor, herein called the I. A. M., a labor organization claiming to represent employees directly affected by the investigation.' Pursuant to notice, a hearing was held on October 2 and 3, 1941, at Dayton, Ohio, before Alba B. Martin, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the United, and the I. A. M. were represented and participated in the hearing.2 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.3 The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. - On October 7, 1941, the United requested permission to file a brief. On October 9, 1941, the Board granted permission to all parties to file briefs with the Board in support of their respective contentions. On October 18, 1941, the,United filed a brief, which has been considered by the Board. Upon the entire record in the case, the Board makes the following : ' The Regional Director sent a telegram to the Dayton Independent Union on October 1, 1941, notifying it of the hearing 2 The Dayton Independent Union also, appeared at the beginning of the hearing. It stated that it did not desire to intervene since , in view of the short notice it had received, it could not,produce its-proof',of membership among the employees of the Company. The Dayton Independent Union, however, did not request a postponement of the hearing. The Trial Examiner, "in order that the D. I U. be in no way prejudiced," stated that he would allow the Dayton Independent Union until October 6, 1941, to prepare and submit its proof of membership Nevertheless, the Dayton Independent Union withdrew from the hearing' and did not theieafter participate in the hearing or submit, any proof of membership. At the conclusion of the first day of the hearing, the Trial Examiner telephoned counsel for the Dayton Independent Union and informed him that the hearing had been continued until October 3, 1941, and that be would be privileged to attend. Counsel for the Dayton Independent Union did not, however, attend the second day of the hearing. 3 At the opening of the hearing, counsel for the I. A. M objected to the proceedings and to the admission in evidence of the original petition filed by the United, on the ground that the petition did not contain the expiration date of the commission of the notary public before whom it \1as executed We find this contention to be without merit. See Ilflttel' of'J S. Popper, Inc. and Un1fed. Electridat,,Radio and Maclaine. Workers,of America, Local No 421, 17 N L R B 961. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY General Motors Corporation is a Delaware corporation with its principal business offices in New York City. It is composed of several unincorporated divisions, one of which is the Frigidaire Division, which maintains plants in Dayton and Moraine, Ohio.4 At these plants, the Company manufactures electrical refrigerators, stoves, and other household appliances and parts therefor. Approximately 40 per cent of the materials used in production by the Frlgidaire Division are obtained from sources outside of the State of Ohio, and approxi- mately 90 per cent of the products mainifactured at the plants of the Frigidaire Division are shipped to points outside the State of Ohio_ II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. Metal Finishers Local Lodge #336, International Association of Machinists, is a labor organization affiliated with the, American Federation of Labor. It admits to membership employees of, the Company: III. THE QUESTION CONCERNING REPRESENTATION On January 27, 1940, the Board issued a Decision and Direction of Election in which it found that the metal finishers of the Frigidaire Division in Plant 2, exclusive of metal-finish grinders, constituted an appropriate unit.5 An election was held and on March 27, 1940, the Board certified the I. A. M. as the exclusive bargaining represei tative of the employees in the unit.6 Subsequently, on July 16, 1940, the Company and the I. A. M. entered into a contract in which the Com- pany recognized the I. A. M. as the exclusive bargaining representative of these employees. This contract provided that it was to remain in ,force until terminated by either party on 30 days' notice. On Febru- ary 10, 1941, the I. A. M. opened negotiations with the Company with respect to altering its contract. On June 4, 1941, the United advised the Company that it represented a'majority of the metal-finishers, and requested the Company to discontinue its negotiations with the I. A. M. 4 The Company's plants are designated as Plant 1, Plant 2, and the Ordnance Plant The present proceedings involve only Plant 2, which, apparently, is located in Dayton, Ohio 5 Matter of Frigidaire Division of General Motors Corp and Metal Finishers Local Lodge ##336, International Association of Machinists (A. F. L.), 19 N L R. B 957. 621 N.L R. B. 1142. GENERAL MOT'ORS' CORPORATION 619 until the Board conducted an election.' The Company refused this request because "the group had already been certified to another bar- gaining. agency." On June 17, 1941, as noted above, the United filed the present petition. On June 19, 1941, the I. A. M. and the Company signed a, contract in which the Company recognized the I. A. M. as the exclusive bargaining representative of all metal finishers in Plant 2. The contract provided that it was to take retroactive effect as of April 28, 1941, and was to remain in force until April 28, 1942, and thereafter until terminated by either party on 60 days' notice. The I. A. M. contends that this contract is a bar to the present proceedings; the United maintains that the contract is not such a bar; and the Company takes no position. In its brief, the I. A. M. insists that verbal agreement has been reached on all major issues on- April 28, 1941, and that the delay in reducing the agreement to writing was occasioned at the Company's request. At the hearing" a witness for the T. A. M. testified that he "thought" that the con- tract could have been signed prior to the date on which it was actually signed. Ile added that the "major issues" were all settled prior thereto, but that "there were some other questions" on which the I. A. M. could not secure an answer until shortly before the agree- ment was executed. While an accord may have been reached on a number of substantive terms, as contended, the record fails to establish that any binding agreement had been consummated prior to June 17, 1941, when the United filed its petition. The contract, as we have noted, was in fact executed after the United had claimed to represent, the metal finishers and had filed a petition with the Board. We have repeatedly held that a contract; should not preclude a determination of representatives when it is executed after a rival union has claimed to represent, employees covered by the contract or has filed at petition with the Board.8 We do not believe that the circumstances presented herein justify a departure from those rulings. We hold, accordingly, that the contract constitutes no bar to this proceeding. It appears from a statement of a Field Examiner of the Board, ° On September 7, 1940, the Board had certified the United as the exclusive bargaining representative of the Company's production and maintenance employees excluding, inter alia, the metal finishers Matter of F,sgidaire Division, General Motors Corp, Dayton, Ohio, and Local 801, United Electrical, Radio 0 Machine Workers of America,, affiliated with the C I 0 , 27 N L R 13, No 28 On June 17, 1941, the Company and the United entered into in agreement covering all units of the Company's employees in which the United had received, or should in the futuie receive, Board certification This contract is still in effect. 8Matter of Erie City Iron Works and International Brothei hood of Firemen and Oilers, Local 249, A F of L, 30 N L. R B , No 66; Matter of Gene) al Dry Batteries, Inc and Battery Workers' Federal Labor Union, No 22510, A. F. of L, 29 N L R B, No 145; Matter of Solvay Process Company and Local 12103, Chemical Division of Distract 50, United Mine WorlersofAmerica,0.1. 0,29N L R B,No 5 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was introduced into evidence, that the United submitted proof of substantial representation, in the unit alleged to be appropriate.° We find that a question has arisen concerning the representation of employees of the-Company. IV. THE EFFECT OF THE QUESTION CONCERNINO REPRESENTATION UPON CODI MEItCE 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 United requests a unit composed of all metal finishers in Plant_ 2, excluding, metal-finish grinders. This was agreed to by all parties. It is the same unit which was found to be appropriate in the previous decision of the Board, mentioned above.10 We find that the metal finishers in Plant 2. excluding metal-finish grinders, constitute a unit appropriate for the purposes of collective bargain- ing and that said unit will insure to the employees of the Company the full benefit of their right to self-organization, and to collective bargaining and will otherwise effectuate the policies of the Act. VI. THE DFTEEMINATTON OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be -resolved by, and we shall accordingly direct, an election by secret ballot. The United seeks to have eligibility to vote based upon the pay roll nearest the date on which the petition was filed. The Company and the I. A. M. expressed no preference as to the pay-roll date to be used. In support of its contention, the United established at the hear- ing that since the petition was filed the Company had laid off or trans- ferred 50 employees in the unit, and intended to lay off an additional 130 employees within the week after the hearing. It is our usual prac- tice to base eligibility to vote on a current pay roll and to allow em- ployees who have been temporarily laid off to vote in the election, and we shall so provide herein. 9 The United submitted 238 membership applications and authorization caids to the Field Examiner, which were checked against the Company's pay roll of July 26, 1941. Of these, 224 contained apparently genuine signatures of employees whose names appeared on the pay roll There were 480 metal finlsheis on the pay roll of July 26. 1941. 11 See footnote 5 GENERAL MOTORS CORPORATION 621 We shall direct that the employees of the Company eligible to vote in the election shall be the metal finishers in Plant 2, excluding metal- finish grinders, who were employed during the pay-roll period imme- diately preceding the date of the Direction of Election herein, 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 General Motors Corporation, Frigidaire Division, Dayton, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The metal finishers in Plant 2, excluding metal-finish grinders, 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 General Motors Corporation, Frigidaire Division, Dayton, 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 of Elec- tion, under the direction and supervision of the Regional Director for the Ninth 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 metal finishers in Plant 2 who were employed 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 tem- porarily laid off, but excluding metal-finish grinders 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, affiliated with the Congress of Industrial Organi- zations, by Local Lodge #336, International Association of Machinists, affiliated with the American Federation of Labor, or by neither, for the purposes of collective bargaining.