Fairchild Engine & Airplane Corp.

National Labor Relations Board - Board Decisions

May 30, 1942

41 N.L.R.B. 552 (N.L.R.B. 1942)

In the Matter of FAIRCHILD AIRCRArr DIVISION OF FAIRCHILD ENGINE
& AIRPLANE CORPORATION and INTERNATIONAL ASSN OF MACHINISTS
(AFL)
Case No. R-2j20
SUPPLEMENTAL DECISION
AND
ORDER
May 30, 1949 -
On May 13, 1941, the National Labor Relations Board, herein called
the Board, issued a Decision and Direction of Election in the above-
entitled proceeding,' directing intei° alia that an election by secret
ballot be conducted among certain employees of Fairchild Aircraft
Division of Fairchild Engine & Airplane Corporation, Hagerstown
Maryland, herein called the Company, to determine whether they
desire to be represented by International Association of Machinists
(AFL), herein called the I. A. M., by Independent Aircraft Workers,
Inc., unaffiliated, herein called the Independent, or by United Auto-
mobile Workers of America, Aircraft Division, C. I. 0.,, herein called
the C. I. 0., for the purposes of collective bargaining, or by none of
these labor organizations. '
Pursuant to the Decision and Direction of Election, an election by
secret ballot was conducted among such employees on May 28, 1941,
under the direction and supervision of the Regional Director for
the Fifth Region (Baltimore, Maryland). No party having received
a majority of the total ballots cast, the Board, on June 10, 1941, issued
a Supplemental Decision and Direction of Election,2 directing that
a second election be held among such employees, to determine whether
they desire to be represented by the I. A. M., the Independent, or the
C. I. 0., for the purposes of collective bargaining.
Pursuant to the Supplemental Decision and Direction of Election,
the Regional Director conducted an election by secret ballot among
such employees on June 27, 1941. Again, no party received a ma-
jority of the ballots cast. The Board, on July 15,1941, issued a Supple-
131 N L R B 8.33
2 32 N L R . B. 497.
41 N L. R. B, No. 108
552
FAIRCHILD ENGINE & AIRPLANE CORPORATION 553
mental Decision and Third Direction of Election,3 directing that a
third election be held among such employees, to determine whether
they desire to be represented by the Independent or the C. I. 0., for the
purposes of collective bargaining, and that the name of the I. A. M. be
dropped from the ballot because that organization had received the
least number of votes cast.
Pursuant to the Supplemental Decision and Third Direction of
Election, an election by secret ballot was conducted on July 29, 1941,
by the Acting Regional Director. On July 31, 1941, the Acting
Regional Director, acting pursuant to Article III, Section 9, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, issued and duly served upon the parties a Report on Run-
Off Election.
As to the balloting and its results, the Acting Regional Director
reported as follows :
Total on eligibility list----------------- ------------------- 1135
Total ballots cast---------------------------------------- 1065
Total ballots challenged---------------------------------- - 0
Total blank ballots-------- ------------------------------- 5
Total void ballots ---------------------------------------- 3
Votes cast for Independent Aircraft Workers, Inc., unaffil-
iated -------------------------------------------------- 572
Votes cast for United Automobile Workers of America, Air-
craft Division ( C. I. 0.) -------------------------------- 493
On August 4, 1941, the C. I. O. filed objections to the Acting Re-
gional Director's Report on Run-Off Election. On September 30,
1941, the Regional -Director issued a Report on Objections to Run-
Off Election, copies of which were duly served upon the parties, in
which he recommended that the Board direct a hearing on the objec-
tions. On October 24, 1941, it appearing that the objections filed by
the C. I. O. raised substantial and material issues with respect to the
conduct of the ballot and the -Election Report, the Board, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, ordered a hearing on
the objections and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
On October 24, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the I. A. M.,
the Independent, and the C. I. O. On November 6, 1941, the Re-
gional Director issued and duly served upon the parties a notice
postponing the hearing to December 4, 1941. Pursuant to such no-
tice, a hearing was held on December 4, 5, 6, and 8, 1941, and January
14,15, and 16,1942, at Hagerstown, Maryland, before Josef L. Hektoen,
3 33 N L R. B. 455
_554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner duly designated by the Chief Trial Examiner.
The Board, the Company, the Independent, and the C. I. O. were
represented by counsel, and the I. A. Al. by its representative; all
parties 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. During the course
of the hearing, the Trial Examiner made various rulings on motions
and on objections to the admission of evidence. The Board has re-
viewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed. -
Upon the, foregoing record, the Report on Run-Off Election, the
objections filed thereto, the Report on Objections to Run-Off Election,
and the record previously made, the Board, acting pursuant to
Article III, Sections 8 and 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, hereby makes the
following :
SUPPLEMENTAL FINDINGS OF FACT
The C. I. O. objected, inter alia, that the Company interfered with
the freedom of choice of its employees in selecting a collective bar-
gaining representative by permitting the Independent to operate milk-
vending machines, located in the Company's plants, and to distribute
to the employees free milk therefrom during working hours.
It is undisputed that it was an announced company rule that
no union activity was to be permitted on company time or property,
and that foremen were to remain strictly impartial. The evidence
shows, however, that this rule was not always followed with respect
to -the Independent. On July 18, 1941, 11 days prior to the final
election, the vice president and 2 members of the Independent solici-
ted funds from the employees in one of the plants, purchased 200
bottles of milk from a local dairy company, placed signs upon the
milk-vending machines in the plant reading, "Have a drink on the
I. A. W. [the Independent]," and left the machines open so that
employees could obtain free milk. The entire incident took more than
an hour. The vice president of the Independent testified, and we find,
that when the bottles of milk were placed in the machines, a "mad
scramble" ensued. Despite these events, the Company alleged that
it had no knowledge of the incident until long after it occurred.
Other witnesses, however, asserted that foremen and guards were
present in the departments where the machines were situated, but
made no effort to interfere 4 We find that the Independent was
permitted to operate the milk-vending machines and to distribute to
A similar incident on a smaller scale, occurred on the same day in another plant of
the Company at Hagerstown.
FA,IRCMLD ENGINE & AIRPLANE . CORPORATION 555
the employees free milk therefrom, without hindrance from the Com-
pany's supervisory staff.
In addition, the credible evidence shows that Foremen Glenn A.
Divilbiss and Isaac D. Ward, during working hours, solicited member-
ships for the Independent and indicated, their opposition toward
the C. I. O. Furthermore, we are convinced from the record that
various employees who were members of the Independent were also
permitted to solicit, to leave their place of work, and to campaign in
behalf of the Independent with the tacit approval of the Company's
supervisors and foremen who observed them. It does not appear that
these privileges were extended to members of the C. I. O. or the
I.A.M. I
We find that the Company, by the above-described acts, inter-
fered with the conduct of the last election and thereby prevented
a free choice of representatives by its employees.
Moreover, upon charges filed by the C. I.' O.6 and the I. A. M.,
the Board, on October 24, 1941, issued a complaint, alleging that the
Company had engaged in certain unfair labor practices. In our
Decision and Order in that case, issued this days we have found that
prior to the elections which the Board previously conducted herein,
the Company had committed unfair labor practices, within the mean-
irig of Section -8 (1) of the Act, by permitting and assisting the
Independent to solicit-members, collect dues, and electioneer on com-
pany time and property while denying similar privileges to the
C. I. O. and the I. A. M., and by advising its employees to join the
Independent and warning them against becoming or remaining mem-
bers of the C. I. O. or the I. A. M. We are consequently unable to
certify the Independent as the freely chosen representative of the
Company's employees. For the foregoing reasons, we are compelled
to set aside and vacate the elections in this proceeding.
The circumstances do not warrant us to direct a new election in
this case. The original petition herein was filed on January 30,
1941, almost 16 months ago. Because of the inability of any union
to obtain a majority, it was necessary to conduct 3 elections. The last
election was held on July 29, 1941, and, for the reasons hereinabove
set forth, a lawful collective bargaining representative has not yet
been chosen. -While, in the last election, there were 1135 employees
eligible to vote, on December 28, 1941, there were approximately 3,500
eligible voters, according to figures submitted by the Company. A
representative of the Company declared at the hearing that its per-
" The original charge was filed on August 5, 1941.
See, Matter of Fairchild Engine and Airplane Corporation and United Automobile,
Aircraft and Agricultural Implement Workers of America, C. 1 0., etc, 41 N. L. R B 521.
i
556 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
sonnel would be still further augmented. Moreover, at the time of
the hearing on the objections, construction of a new plant was in
.progress. Under the circumstances, we shall dismiss the petition
herein, without prejudice to the filing of a new petition or to the
consideration of any pending petition.'
ORDER
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 National Labor Relations Board Rules and
Regulations-Series 2, as amended,
IT IS HEREBY ORDERED that the elections previously held herein be,
and they hereby are, vacated and set aside ;
AND IT IS FURTHER ORDERED that the petition for investigation and
-certification of representatives filed herein by the International As-
sociation of Machinists be, and it hereby is, dismissed without preju-
dice to the filing of a new petition or to,the consideration of any
pending petition.
7 Cf. Matter of Minneapolis -Honeywell Regulator Company and Minneapolis Printing
Pressmen & Assistants Union No. 20, afitiated with I P . P. & A V. of N. A, A F. of L
etc, 40 N. L. R B. 633; Matter of Pilpt Radio Corporation and United Electrical &
Radio Workers of North America, 36 N. L. R. B 1045 ; Matter of J. 1. Case Company and
Farm Equipment Workers' Organizing Committee , etc, 36 N. L. R. B. 614