Apex Electric Co.

National Labor Relations Board - Board Decisions

Mar 24, 1938

6 N.L.R.B. 156 (N.L.R.B. 1938)

In the Matter of HOLLAND REIGER DIvIsIoN OF APEx ELECTRIC Co.
and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA
Case No. R-581.-Decided March 24, 1938
Electrical Appliances blannfacturrnq Indastrd-Investigation, of Representa-
tives: controversy concerning representation of employees: rival organizations;
refusal by employer to recognize petitioning union as exclusive representative-
antt Appropriate for Collective Bargainiing: production and maintenance em-
ployees including watchmen and shipping clerks, but excluding clerical, super-
visory, and time-study employees: eligibility for membership in both of rival
organizations-Election Ordered
Mr. Peter Di Leone, for the Board.,
Mr. Charles E. Frohman, of Sandusky, Ohio, for the Company.
111r. James Pascoe, of Dayton, Ohio, for the United.
Mr. J. J. Murphy and Mr. William R. McCourtt, both of Sandusky,
Ohio, for the I. A. M.
Mr. J. H. Krug, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
On December 7, 1937, Local 710, United Electrical, Radio and
Machine Workers of America, herein called the United, 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 Holland-Rieger Corpora-
tion (Division of The Apex Electrical Manufacturing Company),2
Sandusky, Ohio, herein called the Company, and requesting an in-
vestigation and certification of representatives, pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On January 14, 1938, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
i Refciied to in the Order directing investigation and hearing as United Electrical,
Radio and Machine Workers of America
2 The petition referred to "Holland Reiger Division of Apex Electric Co" It appears
from the record that the Sandusky plant is owned and operated by Holland-Rieger Corpo-
ration, a subsidiary of The Apex Electrical Manufacturing Company The plant is com-
monly known as the Holland-Rieger Division of that coipoiation
156
DECISIONS AND ORDERS 157
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On January 19, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, upon the
United, and upon Lodge 1329, International Association of Machin-
ists, herein called the I. A. M., a labor organization claiming to
-represent employees directly affected by the investigation. On Jan-
uary 24, 1938, the I. A. M. filed with the Regional Director a motion
to intervene, and the Regional Director granted the motion. Pur-
suant to the notice, a hearing was held on January 28, 1938, at
Sandusky, Ohio, before Waldo C. Holden, the Trial Examiner duly
designated by the Board. The Board, the Company, the United,
and the I. A. M. were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and to 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 with one exception no prejudicial
errors were committed. With this exception, which will be con-
sidered below, the rulings are hereby affirmed.
Upon request made by the United, a hearing was held before the
Board in Washington, D. C., on February 28, 1938, for the purpose
of oral argument. Notice of the hearing was duly served upon all
the parties. The I. A. M. was represented by counsel and partici-
pated in the hearing.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY 3
Holland-Rieger Corporation is engaged in the manufacture of elec-
trical appliances, chiefly washing and ironing machines. The Com-
pany's manufacturing plant and principal office are located at
Sandusky, Ohio. Fifteen per cent of all raw materials used by the
Company are derived from sources outside Ohio, and 88 per cent of
the finished product is shipped outside the State. During 1937 the
Company purchased materials to the value of $872,089 and total sales
amounted to $1,164,527. The finished product represented approxi-
mately two per cent of all washing and ironing machines produced
in the United States during 1937.
$ Substantially all of the facts in this section are derived from a stipulation entered
into by counsel for the Company and counsel for the Board.
158 NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Local"No. 710, United Electrical, Radio and Machine Workers of
America is a labor organization, affiliated with the Committee for
Industrial Organization. Apparently it admits to membership all
employees at the Sandusky plant, excluding clerical, supervisory, and
time-study employees.
Lodge No. 1329, International Association of Machinists is a labor
organization, affiliated with the American Federation of Labor.
Evidently its eligibility rules at the Sandusky plant are identical with
those of the United. Membership in the I. A. M. is not confined to
persons employed at this plant.
III. THE QUESTION CONCERNING REPRESENTATION
In June 1937 the Company entered into a collective bargaining
agreement with the United, which recognized the United as bargain-
ing agent for its own members. The contract was to expire on
January 1, 1938. Efforts were made by the United to renew the
agreement, with a new clause recognizing the United as exclusive
bargaining agency. The Company objected to the proposed change
on the ground that some of its employees were wearing A. F. of L.
buttons. In its petition and at the hearing the United claimed to
represent a majority within an appropriate unit. The I. A. M. dis-
puted this claim.
We find that a question has arisen concerning 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
Counsel for both labor organizations agreed that the appropriate
unit for purposes of collective bargaining should comprise all pro-
duction and maintenance employees at the Sandusky plant, including
watchmen and shipping 'clerks, but excluding clerical, supervisory,
and time-study employees. Counsel for the Company objected only
to inclusion of the watchmen. Some of the watchmen have signed
authorization cards in which they designated the United as their
DECISIONS AND ORDERS 159
representative for purposes of collective bargaining. Both labor or-
ganizations apparently admit watchmen to membership and, as we
have seen, both desire to include watchmen in the bargaining unit.
Under the circumstances, we conclude that the unit should include
the watchmen.
In accordance with our usual practice, we shall exclude from the
bargaining unit the clerical and supervisory workers. There was
no evidence concerning the functions or interests of the time-study
employees. Since the Company and both labor organizations were
in accord upon the exclusion of these employees, we conclude that
they should not be embraced in the appropriate bargaining unit.
We find that the production and maintenance employees of the
Company at the Sandusky, Ohio, plant, including watchmen and
shipping clerks, but excluding clerical, supervisory, and time-study
employees, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the Coin-
pany 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 REI'RESENTAIIVES
At the hearing the United introduced 197 authorization cards, tc
which counsel for the I. A. M. offered no objection. A committee
composed of four members of the United, including its president and
recording secretary, circulated the, cards, between December 20, 1937,
and the date of the hearing, among the employees of the Sandusky
plant. The recording secretary testified that each member of the
committee witnessed the signed cards which he obtained. The United
urges that the cards afford proof that it represents a majority in the
appropriate bargaining unit, and requests certification by the Board
without an election.
The I. A. M., on the other hand, contends that the question concern-
ing representation should be resolved by an election. Organizing
activities at the plant by the I. A. M. began in November 1937 and
on December 8, 1937, it received a charter. Testimony presented on
behalf of the I. A. M. was, almost wholly, an effort to show that a
reasonable doubt existed regarding the United's claim of represent-
ing a majority in the appropriate unit. Three witnesses, formerly
members of the United, had recently changed their affiliation to the
I. A. M. Counsel for the I. A. M. sought to show that the sentiment
of the Sandusky employees had shifted very recently from the United
to the I. A. M. He introduced five authorization cards signed by
employees whose names appear on United cards. These five are all
dated between January 24, 1938, and January 28, inclusive. Only
one other I. A. M. card was admitted in evidence. All six were iden-
160 NATIONAL LABOR RELATIONS BOARD
tified by the union members who witnessed the signatures. Counsel
for the I. A. M. offered in evidence a large number of other authori-
zation cards, all of which were excluded by the Trial Examiner.
Some of these, it was claimed, were duplicates of United cards.
A check of the authorization cards introduced at the hearing with
a list ,4 prepared by the Company, of "all factory employees" on the
pay roll during the period ending December 1, 1937, reveals the
following :
Total names on pay roll----------------------------------- 367
United cards which check with pay roll (including 1 doubt-
ful case) ---------------------------------------------- 191
United cards not on pay roll ------------------------------ 6
I A. M cards, all on pay roll ------------------------------ 6
Duplicates------------------------------------------------ 5
Total unduplicated United cards (including 1 doubtful card)- 186
The count thus indicates that of a total of 367 employees the
United has a majority of two. We are not convinced, however, that
it has made a showing warranting certification without an elec-
tion. The pay roll, and also the United authorization cards, may
contain names of employees who are excluded from the appropriate
bargaining unit. Moreover, the United was enabled to make its
showing of a majority only because of the action of the Trial Ex-
aminer in excluding the I. A. M. cards. Its claims must rest, there-
fore, upon the validity of this ruling. At the hearing, counsel for
the I. A. M. offered 69 authorization cards, one group consisting of
18 cards claimed to be duplicates of those introduced by the United,
and the other containing 51 additional cards. Upon objection by
counsel for the United, the Trial Examiner stated that unless the
signatures were authenticated, the cards would not be received in
evidence. Five cards were then identified by an officer of the I. A. M.
who testified that he had witnessed the signatures. These five,
signed by employees who had also executed United cards, were
admitted in evidence and have been considered above. The five
were evidently taken from the group of 18 claimed duplicates. It
appears, therefore, that the Trial Examiner excluded 13 cards which
the I. A. Al. contended were signed by employees who also executed
cards of the United. The only testimony which might relate to the
authenticity of the signatures on the 13 cards was the statement of
an officer of the I. A. M. that he had witnessed the signatures of
cards other than the five which were received in evidence. Under
the circumstances, therefore, the 13 cards would not establish that
the persons whose names appear thereon desire to be represented by
the I. A. M. They might, however, cast some doubt upon the claims
of the United, and we think the Trial Examiner erred in excluding
4 L'oaid Exhibit No 3
DECISIONS AND ORDERS 161
them. • It is possible that the 13 cards were signed by employees. whose
names appear on the United cards. In view of this circumstance,
since the pay roll with which the United cards have been compared,
and the United cards themselves, may contain names of employees
who are not within the bargaining unit, and also since the majority
shown by comparison of the United cards with the pay roll is ex-
ceedingly slender, we cannot say with assurance that the United
represents a majority of the employees in the appropriate unit.
We find that the question which has arisen concerning representa-
tion can best be resolved by means of an election by secret ballot.
Both -unions are agreeable to the use of the pay roll for the period
ending December 1, 1937, for determining eligibility to vote, and
the Company has made no objection. We. conclude, under the cir-
cumstances, that those eligible to vote in the election shall be the
persons within the appropriate unit employed by the Company at
the Sandusky, Ohio, plant during the pay-roll period ending Decem-
ber 1, 1937, excluding those who have since quit or been discharged
for cause.
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 Holland-Rieger Corporation (Division of
The Apex Electrical Manufacturing Company), Sandusky, 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 watchmen and shipping clerks, but excluding clerical, su-
pervisory, and time-study 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
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as,amended,
it is hereby
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purpose of collective bargaining
with Holland-Rieger Corporation (Division of The Apex Electrical
Manufacturing Company), Sandusky, Ohio, an election by secret bal-
lot shall be conducted within fifteen (15) days froiri the date of this
162 NATIONAL LABOR RELATIONS BOARD
Direction under the direction and supervision of the Regional Di-
rector for the Eighth Region, acting in this matter as agent for
the National Labor Relations Board and subject to Article III, Sec-
tion 9, of said Rules and Regulations, among all persons employed
at the Sandusky, Ohio, plant of the Company during the pay-roll
period ending December 1, 1937, as production and maintenance em-
ployees, including watchmen and shipping clerks, but excluding
clerical, supervisory, and time-study employees, and those who have
since quit or been discharged for cause, to determine whether they
desire to be represented by Local No. 710, United Electrical, Radio
and Machine Workers of America, affiliated with the Committee for
Industrial Organization, or by Lodge No. 1329, International Asso-
ciation of Machinists, affiliated with the American Federation of
Labor, for the purposes of collective bargaining, or by neither.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Election.
SAME TITLE ]
AMENDMENT TO DIRECTION OF ELECTION
April 8, 1938
On March 24, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceeding, the election to be held within fifteen (15)
days from the date of the Direction, under the supervision of the
Regional Director for the Eighth Region (Cleveland, Ohio). At the
request of the Regional Director we shall postpone the election for
the present.
The Board hereby amends its Direction of Election by striking out
the words "within fifteen (15) days from the date of this Direction"
and substituting therefor the words "at such time as the Board may
in the future direct".