Automatic Products Co.

National Labor Relations Board - Board Decisions

Apr 28, 1942

40 N.L.R.B. 941 (N.L.R.B. 1942)

In the Matter of AUTOMATIC PRODUCTS COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 736 (AFL)
Case No. R-3720.-Decided April 08, 1942
Jurisdiction : automatic control equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize any labor organization unless certified by the Board ; consent
election agreement providing for no demand for recognition for one year from
date held no bar despite alleged participation of Board agent, since such
agreement is contra to the policy of the Act and defeats the rights guaranteed
by the Act; despite contention of petitioner that rival union should be excluded
from ballot because of its small showing of representation, Board accorded
it a place on the ballot since union had retarded its organizational activities'
on the assumption that the Company was bound by a consent election agree-
ment; union served with notice of proceedings but not appearing at hearing
excluded from ballot unless within five days it should notify the Regional
Director of a desire to participate in the election, where record is not clear
as to whether or not it is still functioning as a labor organization representing
employees of the Company ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at the Company's two plants in Milwaukee, Wisconsin, excluding
supervisory, office, and clerical employees, draftsmen, salesmen, and watchmen.
Mr. Leon B. Lam from and Mr. A. J. Engelhard of Milwaukee,
Wis., for the Company.
Padway c6 Goldberg, by Mr. David Previant, and Mr. Howard
Tlwmpson and Mr. George Kiebler, of Milwaukee, Wis., for Local
736.
Mr. Walter Cappel and Mr. Max Raskin, of Milwaukee, Wis., for
the C. I. O.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION ,
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Union, United Auto-
mobile Workers of America, Local 736 (AFL), herein called Local
736, alleging that a question affecting commerce had ' arisen concern-
ing-the representation of employees of Automatic Products Company,
40 N. L. R. B., No. 164.
941
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milwaukee, Wisconsin, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Stephen M. Reynolds, Trial Examiner. Said hearing was
held at Milwaukee, Wisconsin, on April 9 and 10, 1942. On the
second day of the hearing International Union, United Automobile,
Aircraft & Implement Workers of America (C: I. 0.), herein called
the C. I. O., filed a motion to intervene in this proceeding. The Trial
Examiner granted this motion. The Company, Local 736, and the
C. I. O. appeared and participated.' All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings, made at the hearing, are free from prejudicial errors. With
the exception hereinafter noted, the rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
• Automatic Products Company is engaged in manufacturing com-
mercial refrigeration control, and gravity feed and metal equipment
.control products, and products for the United States Navy, at two
plants in Milwaukee, Wisconsin. The Company uses raw materials,
consisting,- for the most part, of brass, zinc, steel, chromium, and other
metals. During the year 1941 about 65 percent of such raw materials,
Valued at $450,000 came to the plants from outside Wisconsin. Dur-
ing the same period approximately 75 percent of products finished
at the plants, valued at about $600,000, was shipped from the plants
to points outside Wisconsin.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America, Local
736, is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company. -
Independent Association of Automatic Products Company is an
unaffiliated labor organization, admitting to membership employees
of the Company.
International Union, United Automobile, Aircraft & Implement
Workers of America is a labor organization affiliated with the Con-
gress of Industrial Organizations, admitting to membership employees
of the Company.
1 Independent Association of Automatic Products Company, herein called the Independent.
although served with notice, did not aDDear.
AUTOMATIC PRODUCTS COMPANY 943;
III. THE QUESTION CONCERNING REPRESENTATION
In 1939 the Company recognized the Independent as sole bargaining
agent of its production and maintenance employees and entered into
a contract with the Independent, which by its terms would terminate,
on December 31, 1940, by appropriate notice, or , if not so terminated,
would be renewed for a year and from year to year- thereafter. This
contract was not terminated in December 1940.
In 1940 International Union, United Automobile Workers of Amer-
ica, herein called the International , organized employees of the Com-
pany and admitted them to membership in its Local 696. On August
13, 1941, the Company., the Independent, and Local 696 entered into,
an agreement for a consent election . Under this agreement , the con-
tract between the Company and the Independent was in abeyance
for the purposes of the election , and Local 696 was the only organiza--
tion on the ballot. On August 22, 1941, the consent election was held,
and Local 696 lost the election. The Company and the Independent
thereafter continued to operate under their contract.
On August 26, 1941, the organizer of the International notified the
Company that the International was continuing the organization of
the Company 's employees , and that a new local union was being
organized for such employees under a new charter, to be known as
Local 736. Employees of the Company who had been members of
Local 696 became members of Local 736, the petitioner in this pro-
ceeding.
On December 26, 1941 1 the Company posted a notice to its . employees,
stating that it was withdrawing its recognition of the Independent
and that it would not thereafter recognize any labor organization as
bargaining agent for its employees until such organization: was certi
fled by the Board. .
From December 1941 to March 1942 Local 736 tried, to make an
agreement with the Company for a consent election . The Company
refused, and on March 11, 1942, , notified Local 736 that it would not
recognize Local 736 as exclusive bargaining agent of , the Company's
employees until it was certified by the Board. On March -12, 1942,
Local 736 filed the petition in this proceeding.
The consent election agreement of August 13, 1941, contained a
provision that in the event that Local 696 should lose in the election
it would refrain from seeking recognition for 1 year . At the hearing:
the Company asserted that Local 736 , the petitioner herein, is Local
696 under a new name, and offered , but was refused leave, to prove
that the Regional Director had drawn up the consent election agree-
ment and had specifically suggested the inclusion of the provision
in question . It contended that Local 736 and the Board are bound
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the terms of the agreement and that the petition ought therefore
to be dismissed.
For the purpose of this decision, we assume that Local 736 is a.
mere continuation of Local 696; further, we overrule the Trial Ex-
aminer in his rejection of the Company's offer of proof and assume
that the Regional Director drafted and sanctioned the restrictive
provision in the consent election agreement. We nevertheless con-
clude that the provision must be denied effect. The record indicates
that no labor organization now represents the Company's employees,
that the Company has refused to recognize any representative unless
it has been certified by the Board, and that two, if not three, labor
organizations claim the right of representation. The provision relied
on by the Company goes counter to the policy of the Act to encourage
the practice and procedure of collective bargaining.' The Board's
policy against disturbing agreements in which its agents participated,
or to which they have lent their approval,8 does not extend to a situa-
tion in which enforcement of the agreement would defeat the rights
guaranteed in the Act 4
A statement prepared by the Regional Director and introduced at
the hearing indicates that Local 736 represents a substantial num-
ber of employees in the appropriate unit.5 We find that a question
affecting commerce has arisen concerning the representation of em-
ployees of the Company, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
z Section 1 of the Act provides :
It is hereby declared to be the policy of the United States to eliminate the causes
of certain substantial obstructions to the free flow of commerce and to mitigate
and eliminate these obstructions when they have occurred by encouraging the pray
tice and procedure of collective bargaining and by protecting the exercise by workers
of full freedom of association , self-organization, and designation of representatives
of their own choosing, for the purpose of negotiating the terms and conditions of
their employment or other mutual aid or protection.
See Matter of Southport Petroleum Company of Delaware and Oil Workers International
Union, Local 449 , 40 N. L . R. B 609
8 See Matter of Simplicity Pattern Company, Inc., a Corporation and Local 92, Interna-
tional Union, United Automobile Workers of America, 16 N. L. R.,B. 291; Matter of Wick-
wire Brothers and Amalgamated Ass'n of Iron, Steel & Tin Workers of North America,
Lodge #1985, 16 N. L. R. B. 316; Matter of Hope Webbing Company and Textile Workers
Organizing Committee of the C. I. 0, Local No . 14, 14 N. L. R B, 55; Matter of Godchaux
Sugars, Inc. and Sugar Mill Workers ' Union, Locals No 21177 and 2188, a ffiliated with the
American Federation of Labor, 12 N. L. R. B 568; Matter of Shenandoah -Dives Mining
Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11
N L. R B . 885. Cf Matters of Harry A Halff, Doing Business as The Halff Manufacturing
Company and Internatiohal Ladies' Garment Workers' Union , 16 N L . R B 667; Matter
of Corinth 'Hosiery Mill, Inc and American Federation of Hosie; y We, kern, 16 N R. L. B.
414, Matter of Allsteel Products Manufacturing Company (Inc.) and International
Association of Machinists, Local 1308, 16 N. L . R. B. 72.
4 See Matter of The Duffy Silk Company and Silk Throwsters Union, Local 81, Textile
Workers Union of America , 19 N L R. B. 37.
"5 Local 736 submitted to the Regional Director 157 cards , 58 of which were dated during
1941, 80 were dated during 1942 , and 19 were undated, all of which bear names of
employees on the Company 's pay roll of March 21, 1942 , containing 282 names.
AUTOMATIC PRODUCTS COMPANY 945
IV. THE APPROPRIATE UNIT
The Company and Local 736 agree, and we find, that all produc-
tion and maintenance employees of the Company at its two plants
in Milwaukee , Wisconsin, excluding supervisory, office, and clerical
employees, draftsmen, and salesmen, should be included in the appro-
priate unit. Local 736 would include, and the Company would
exclude watchmen.°
Before the war the Company employed watchmen, to whom were
delegated certain maintenance duties in addition to their ordinary
duties as watchmen. At the present time the Company's products
are used by the Navy Department, and at the recommendation of the
Navy Department, the Company employs six armed watchmen with
restricted duties. Such watchmen search trucks going in and out of
the plants, and watch all persons at 'the plants for sabotage and
espionage . Watchmen make their reports either directly to the
police or to the Federal Bureau of Investigation, or through the
Company to either agency. Since it appears that watchmen are
armed guards, we believe that they should be excluded from a unit
composed primarily of ordinary production and maintenance
employees.
We find that all production and maintenance employees of the
Company at its two plants in- Milwaukee, Wisconsin, excluding super-
visory, office, and clerical employees, draftsmen, salesmen, and watch-
men, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation of employees
of the Company can best be resolved by an election by secret ballot.
The C. I. 0. recently commenced the organization of the Com-
pany's employees and submitted to the Regional Director five
authorization cards, all dated in February 1942 and all bearing the
names of employees on the Company's pay roll of March 21, 1942.
The C. I. 0. desires to be represented on the ballot. Although the
C. I. 0. has made a small showing, and Local 736 contends that for
this reason it should be excluded from participation in the election,
we shall direct that the C. I. 0. have a place on the ballot.?
The Independent was duly served with notice of this proceeding
and did not appear at the hearing. The record is not clear whether,
the Independent is still functioning as a labor organization repre-
"The C . I. 0 took no position with respect to the appropriate unit.
The C . I. O. contended , without contradiction, that it retarded its organizational
activities on the assumption that the Company was bound under its agreement with the
Independent until August 1942.
455771-42-vol 40-60
946 DECISIONS - OF NATIONAL LABOR • RELATIONS BOARD
seating employees of the Company. For this reason , we shall not
place the name of the Independent on the ballot , provided , however,
that it may appear thereon if the Independent gives notice to the
Regional Director , within five (5 ) days of the date of the issuance,
of our Decision and Direction of Election , that it desires to partici-
pate in the election.
Those eligible to vote in the election shall be employees within 'the
appropriate unit who were employed during the pay-roll period im-
mediately preceding the date of our Direction of Election , subject
to the limitations and additions set forth therein.
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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Automatic Products Company, Milwaukee , Wisconsin,'an elec-•
tion 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
Twelfth 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 within the
unit found appropriate in Section IV, above, who were employed
during 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 mili-
tary service or training of the United States, or temporarily laid
off, but excluding 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, Local
736 (AFL), or by International Union, United Automobile, Air-
craft & Implement - Workers of America ( C. I. O:), for the purposes
of collective bargaining , or by neither.
In the Matter of AUTOMATIC PRODUCTS COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 736
(A. F. L.)
Case No. R-3720
SUPPLEMENTAL DECISION
AND
AMENDMENT TO DIRECTION OF ELECTION
May 6, 191
On April 28, 1942, the National Labor Relations Board issued its
Decision and Direction of Election in this proceeding.' In our De-*
cision we stated that the record was not clear whether Independent
Association of Automatic Products Company, herein called the Inde-
pendent, was still functioning as a labor organization representing
employees of Automatic Products Company. For this reason, in our'
Direction of Election, we made no provision for the Independent on
the ballot. In our Decision, however, we provided that if the Inde-
pendent gave appropriate notice to the Regional Director that it
desired to participate in the election, we would place the name of the
Independent upon the ballot. - The Independent having advised the
Regional Director that it desires to participate in the election, we
shall amend our Direction of Election accordingly.
The Direction of Election bereinbefore issued by the Board on
April 28, 1942,.is hereby amended by striking out the words "for the
purposes of collective bargaining, or by neither" and by substituting
therefor the words "or by Independent Association of Automatic
Products Company, for the purposes of collective bargaining, or by
none."
140 N. L. It. B. 941.
40 N. L. R. B., No. 164a.
947
In the Matter of AUTOMATIC PRODUCTS COMPANY and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 736 (AFL)
Case No. R-3720
SECOND AMENDMENT TO DIRECTION OF ELECTION
May 13, 1942
On April 28, 1942, the National Labor Relations Board issued its
Decision and Direction of Election in this proceeding.'. On May 6,
1942, the Board issued its Supplemental Decision and Amendment to
Direction of Election.2
Notice of-hearing in this proceeding was served upon Independent
Association of Automatic Products Company, herein called the Inde-
pendent,3 an unaffiliated labor organization alleged to represent em-
ployees of the Automatic Products Company. In our Supplemental
Decision and Amendment to Direction of Election, we made provision'
for the Independent to participate in the election which we directed
among employees of the Company. The Regional Director having
informed us that the correct name of the Independent is Independent
-Union of Automatic Employees, the Board hereby further amends its
Direction of Election by striking out the words "by Independent
Association of Automatic Products Company" and substituting there-
for the words "by Independent Union of Automatic Employees."
140 N. L R B 941
2 40 N. L R. B 947
2 The Independent is otherwise known in the record as "Independent Union of Automatic
Products Company Employees ," "Independent Union of Automatic Products ' Co. Em-
ployees," "Independent Union of Automatic Pioducts Employees ," and "Independent Union
of Automatic Employees."
40 N. L. R B., No. 164b.
948
O