General Motors Sales Corp.

National Labor Relations Board - Board DecisionsMay 28, 1940

23 N.L.R.B. 1274 (N.L.R.B. 1940)

In the "Matter of GENERAL MOTORS SALES CORPORATION (GENERAL MOTORS PARTS DIVISION) and INTERNATIONAL UNION,-UNITED AUTO- MOBILE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Case No. R 1817. Decided May 28, 1940 Automobile Parts and Accessories Distribution Industry-Investigation of Representatives : controversy concerning representation of employees : refusal of company to grant union exclusive recognition prior to certification by the Board-Unit Appropriate for Collective Bargaining : all warehouse employees included , `and order-department office employees , special day watchmen , foremen and assistant foremen , and all other persons working in a supervisory capacity, including those who have the power to hire and discharge and those whose duties include recommendation as to hiring and discharging , excluded , pursuant to stipulation ; controversy as to night watchmen and warehouse clerks : included over objection of company , as no showing that their duties were so confidential as to warrant their exclusion-Representatives : eligibility to participate in choice : stipulated-Election Ordered Mr. James A. Cobey, for the Board. Mr. Carlos J. Jolly, by Mr. Denton Jolly, of Detroit, Mich., and Flint and Mackay, by Mr. Wesley L. Nutten, Jr., of Los Angeles, Calif.; for the Company. Mr. Dick Coleman, and Mr. A. L. Wirin, of Los Angeles, Calif., for the CIO-UAW. Mr. A. H. Peterson, of Los Angeles, Calif., for the AFL-UAW. Mr. John Green, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 13, 1940, International Union, United 'Automobile Workers of America, affiliated with the C. I. 0., herein called the CIO-UAW, filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition,1 and on February 19 i The original petition was filed by Local 216 of the CIO -UAW. During the course of the hearing the Trial Examiner granted without objection a motion to amend all formal documents to conform to the caption as set forth above. 23 N. L. R. B., No. 131. 1274 GENERAL MOTORS SALES CORPORATION 1275 and March 4, 1940, amended petitions, alleging that a question affect- ing commerce had arisen concerning the representation of employees of General Motors Sales Corporation (General Motors Parts Divi- sion ), Los Angeles, California, herein called the Company, and re- questing , an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 22, 1940, 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 Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 26, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and upon the CIO-UAW.2 Thereafter, on April 2, 1940, the United Auto- mobile Workers of America, A. F. of L., herein called the AFL,UAW, filed with the Regional Director a motion to intervene. Although it does not appear from the record that any ruling was made on this motion, the AFL-UAW appeared at the hearing. Pursuant to the notice, a hearing was held on April 4, 1940, at Los Angeles, California, before Henry J. Kent, the Trial Examiner duly designated by the Board. The Board, the Company, the CIO-UAW, and the AFL-UAW were represented and participated in the hearing. At the request of the Company and the CIO-UAW the Trial Examiner adjourned the hearing until April 15, 1940, for the purpose of allowing the parties to enter into stipulations con- cerning jurisdictional and other facts.3 Pursuant to notice there- after .served by the Regional Director on all the parties, the hearing was 'resumed on April 29, 1940, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. The AFL-UAW entered no appearance at this hearing, but by letter dated April 29 filed with the Trial Examiner a motion to withdraw from the pro- ceeding. The Trial- Examiner did not rule on this motion. The motion is` hereby granted. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Upon the entire record in the case, the Board makes the following: 2 Copies of the notice of hearing were also served upon the Central Labor Council (A. Jr. of L.) and the Los Angeles Industrial Council (C. I 0 ), both of Los Angeles , California. a on April 25, 1940, the CIO-UAW filed a third amended petition with the Regional Director. 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY General Motors Sales Corporation, a Delaware corporation, main- tains offices and places of business in 39 States. The General Motors' Parts Division, an unincorporated division of the Company, main- tains a warehouse at Los Angeles, California, with which this pro- ceeding is concerned. From its Los Angeles warehouse' the Company distributes parts and accessories for Chevrolet, Oldsmobile, and Pontiac automobiles, valued in excess' of $500,000 annually, to dealers and distributors engaged in the business of selling and repairing motor vehicles. Approximately 95 per cent of such parts and accessories are obtained from sources located outside the State of California, and approxi- mately 10 per' cent are distributed to various dealers and distributors located outside the State of California. The Company employs 36 pers8ns at its Los Angeles warehouse. H. THE ORGANI7ATION INVOLVED International- Union, United Automobile Workers of America, is a labor organization affiliated with- the Congress of Industrial Organi- zations. It admits to membership employees of the Company. III. TAE QUhSTIOPT CONCERNING REPRESENTATION During August 1939 the CIO-UAW began organization activity among the warehouse employees of the Company. In the early part of September 1939 the CIO-UAW claimed to represent a majority of such employees and requested exclusive recognition. The Company refused to grant such recognition prior to certification by the Board. 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. GENERAL MOTORS SALES CORPORATION 1277 V. THE APPROPRIATE UNIT At the hearing, the Company and the CIO-UAW stipulated that the appropriate unit shall include all warehouse employees of the Company, excluding order-department office employees, special day watchmen, foremen and assistant foremen, and all other persons working in a supervisory capacity, including those who have the power to hire and discharge and those whose duties include recom- mendation as to hiring and discharging.4 The Company and the CIO-UAW are in dispute with respect to the status of certain night watchmen and warehouse clerks whom the CIO-UAW would include in the appropriate unit and the Company would exclude. Night watchmen.'-These employees consist of two full-time watch- men, Joseph Jones and Earl Potts, and two relief watchmen, Claude Johnston and Emery Whittington. Unlike the special day watchman who wears a uniform and is paid on a weekly basis and whom the parties have agreed to -exclude from the unit, night watchmen do not wear uniforms and are paid on an hourly basis as are the other ware- house employees in the alleged appropriate unit. Except for about an hour occupied in "making the rounds" with a specially designed watchmen's clock during their 6-hour nightly shift, these night watch- men are engaged in janitorial and other maintenance work.6 In addition, the night watchmen control the admission and departure of employees and other persons during the time that the Company is closed for regular business, protect the property of the Company against fire and theft, and otherwise safeguard the interests of the Company. The record does not disclose, nor are we able to perceive, any,valid reasons why inclusion in the unit is incompatible with their position as night watchmen. Night watchmen are eligible for mem- bership in the CIO-UAW and have indicated their desire to be rep- resented by this union.' There is no evidence that their duties as watchmen place these employees in a confidential relationship to the 4 The Company and the CIO-UAW have agreed to the exclusion of the following em- ployees: Harold S. Lee, George Ayres, Roy Thompson, as executives, and Henry J. Tick, as the special day watchman. 5 Sometimes referred to In the record as fire patrolmen. 8 Johnston does no janitorial work but occupies the remainder of his shift In "picking and putting away stock." ° The watchmen were members of Local 216 but, upon the insistence of the Company that they could not retain their position as watchmen if they continued their union affilia- tion, the CIO-UAW advised them to withdraw their union membership, pending the deter- mination of the unit herein. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management of the Company .8 Under the circumstances, we shall include night watchmen in the appropriate unit.' Warehouse clerks.-These employees consist of the shipping clerk, Marvin Franke; the receiving clerk, Ronald Skoda; the shortage clerk, Donald Rogan; and the accessory storeroom keeper, Donald Limbach. Although these employees spend the greater part of the day in performing clerical duties, such as preparing shipping docu- ments, orders, and inventory records, the testimony discloses that their working conditions are similar to those of the other warehouse employees included in the unit. Warehouse clerks are paid on an hourly basis, physically handle materials, and engage in work simi- lar to that of the other warehouse' employees when business is slow. They are eligible for membership in the CIO-UAW, and one ware- house clerk is presently a member thereof. Nevertheless, the Com- pany contends that because warehouse clerks are responsible to the management for maintaining, in part, the flow of materials and an accurate account of the stock at all times, they are part of the man- agement and therefore should be excluded from the unit. We do not believe, however, that these clerks have such responsibilities or that their duties are so confidential that they may not properly be included in a bargaining unit along with other warehouse employees." We shall include the warehouse clerks in the appropriate unit 11 We find that all warehouse employees of the Company, including night watchmen and warehouse clerks, but excluding order-depart- ment office employees, special day watchmen, foremen and assistant foremen, and all other persons working in a supervisory capacity, in- cluding those who have the power to hire and discharge and those whose duties include recommendation as to hiring and discharg- ing, constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. 8It should be noted that the parties distinguish between the duties of these night watch- men and the special day watchmen . See also Matter of General Motors Corporation and International Union, U. A W A, affiliated with the A. F. L, 20 N L R B. 950, wherein the parties have agreed to exclude "plant protection employees" and to include "maintenance patrolmen or fire patrolmen " Cf Matter of Illinois Tool Works and Metal Trades Department of the American Fed- eration of Labor, Elgin, Illinois , 21 N L R B 660, and cases cited therein 10 Cf. Matter of Katoneer Company and Local 92, United Automobile Workers o f America, A. F. of L, 22 N. L. R B 995 ; Matter of Walgreen Co. and Wholesale and Chain Drug Warehouse Employees Union, Local 217,04, 15 N L R B. 980; Matter of Willys Overland Motors, Inc . and International Union, United Automobile Workers of America, Local No. 12, 9 N. L R. B. 924. 11 Pursuant to a strike settlement between the Company and the CIO-UAW, warehouse clerks aie not assigned supervisory duties, and have no power to hire or discharge, or the duty to recommend hiring or discharging. Accordingly, warehouse clerks are not to be classified as employees in a supervisory capacity, or those who have the power to hire and discharge, or the duty to recommend hiring and discharging GENERAL MOTORS SALES CORPORATION 1279 VI. TIIE DETERMINATION OF REPRESENTATIVES There was introduced in evidence at the hearing an analysis by the Regional Director of evidence of membership submitted to him by the CIO-UAW, showing that the CIO-UAW represents a sub- stantial number of employees in the appropriate unit. At the hear- ing the Company and the CIO-UAW stipulated that the question concerning representation should be determined by an election con- ducted by the Board. Accordingly, we find that the question which has arisen concerning representation can best be resolved by the hold- ing of an election by secret ballot. Since the AFL-UAW withdrew from the proceeding, we shall make no provision for its name on the ballot. The Company and the CIO-UAW further stipulated that all em- ployees in the appropriate unit employed by the Company during the pay period ending April 26, 1940, excluding those employees who have since quit, should be eligible to vote. We construe the stipula= tion to include as eligible to vote those employees whose names do not appear on the pay roll as of the above date because they were -ill or on vacation, or temporarily laid off, and to exclude those- who have since been discharged for cause, as well as those who have since quit. As thus construed, we see no reason to depart from the wishes of the Company and the CIO-UAW, and we shall direct accordingly. Upon the basis of the above findings of fact, upon the stipulation entered into at the hearing, 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 Sales Corporation (Gen- eral Motors Parts Division), Los Angeles, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All warehouse employees of the Company, including night watchmen and warehouse clerks, but excluding order-department office employees, special day watchmen, foremen and assistant fore- men, and all other persons working in a supervisory capacity, in- eluding those who have the power to hire and discharge, and those whose duties include recommendation as to hiring and discharging, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations Act. ]280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 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 purpose of collective bargaining with General Motors Sales Corporation (General Motors Parts Di- vision), Los Angeles, California, 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 of the Twenty-first 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 warehouse employees of the Company who were employed during the pay period ending April 26, 1940, including night watchmen, ware- house clerks, and employees whose names do not appear on the pay roll as of the above date because they were ill or on vacation, or tem- porarily laid off, but excluding order-department office employees, special day watchmen, foremen and assistant foremen, and all other persons working in a supervisory capacity, including those who have the power to hire and discharge, and those whose duties include recom- mendation as to hiring and discharging, and those employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Union, United Automobile Workers of America, affiliated with the C. I. 0., for the purposes of collective bargaining.