Overhead Door Corporation

National Labor Relations Board - Board Decisions

Jul 26, 1939

13 N.L.R.B. 1152 (N.L.R.B. 1939)

In the Matter of OVERHEAD DOOR CORPORATION and AMALGAMATED
ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF AMERICA,
LODGE No. 1691
Cases Nos . C-585 and R-833.-Decided July 26, 1939
Sash and Door Manufacturing Industry-Settlement : stipulation providing
for cessation of unfair labor practices and taking of certain affirmative action-
Order: entered on stipulation-Investigation of Representatives : petition for,
dismissed pursuant to stipulation.
Mr. Colonel C. Sawyer, for the Board.
Mr. James R. Emshwiller, of Hartford City, Ind., and Dailey,
O'Neal, Dailey cfi Efroymson, by Mr. O'Neal, of Indianapolis, Ind.,
for the respondent.
Mr. James Robb, of Indianapolis, Ind., for the Amalgamated.
Mr. Robert W. Bonham, of Hartford City, Ind., for the Brother-
hood.
Mr. Langdon West, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been filed by Amalgamated
Association of Iron, Steel, and Tin Workers of North America,
Lodge No. 1691,1 herein called the Amalgamated, the National Labor
Relations Board, herein called the Board; by the Regional Director
for the Eleventh Region (Indianapolis, Indiana), issued its com-
plaint dated April 29, 1938, against Overhead Door Corporation,
Hartford City, Indiana, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
1 The charge was originally filed in the name of Employees Bargaining Committee, Local
No. 1691, affiliated with the Committee for Industrial Organization. The first amended
charge and the original petition for investigation and certification were filed in the name
of Local No. 1691 of the Steel Workers Organizing Committee , affiliated with the Com-
mittee for Industrial Organization . The third amended charge and the amended petition
for investigation and certification were filed in the name of Amalgamated Association of
Iron, Steel , & Tin Workers of America , Lodge No . 1691. The correct name is Amalgamated
Association of Iron, Steel , and Tin Workers of North America , Dodge No. 1691.
13 N. L. R. B., No. 109.
1152
OVERHEAD DOOR CORPORATION 1153
practices affecting commerce, within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and notice of hearing thereon were duly served on the respondent,
the Amalgamated, and United Brotherhood of Carpenters & Joiners
of America, Union No. 2047, herein called the Brotherhood.
Concerning the unfair labor practices the complaint alleged, in
substance, that although the Amalgamated represented a majority
of the respondent's employees in an appropriate unit, the respondent
refused to bargain collectively with it as the exclusive representative
of its employees in such unit; that by the aforesaid refusal to bar-
gain and by urging and warning its employees to refrain from
becoming or remaining members of the Amalgamated, by urging
and soliciting its employees to become and remain members of the
Brotherhood, and by requiring as a condition of employment that
all employees become members of the Brotherhood, and by other
acts, the respondent -interfered with, restrained, and coerced its
employees in the exercise of their rights as guaranteed in Section 7
of the Act.
On May 2, 1938, the respondent filed its answer, in which it denied
that it had engaged in unfair labor practices or that it was engaged
in interstate commerce within the meaning of the Act, but admitted,
however, that a substantial amount of raw materials used in its
operations and of the finished products manufactured was shipped
into and out of the State of Indiana, respectively.
On February 23, 1938, the Amalgamated filed with the Regional
Director a petition and on April 20, 1938, an amended petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of the respondent and requesting
an investigation and certification of representatives pursuant to
Section 9 (c) of the Act. On April 15, 1938, the Board, acting
pursuant to Article III, Sections 3 and 10 (c) (2), and Article II,
Section 37 (b), of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered a consolidation of these cases
and an investigation and authorized the Regional Director to con-
duct it and to provide for an appropriate hearing upon due notice.
Copies of the amended petition and notice of hearing thereon were
duly served upon all the parties.
Pursuant to notice, a hearing was held on May 6 and 9, 1938, at
Hartford City, Indiana, before Hugh C. McCarthy, the Trial Ex-
aminer duly designated by the Board. All parties participated in
the hearing. The Board, the respondent, and the Brotherhood were
represented by counsel, and the Amalgamated by its field representa-
tive. Full opportunity to be heard, to examine and cross-examine
1154 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. During the hearing on May 6, 1938, counsel for
the Board and counsel for the respondent entered into a stipulation
setting forth facts concerning the nature and scope of the respond-
ent's business. This stipulation was received in evidence without ob-
jection. Also during the hearing on the same date, the Trial Exam-
iner granted the motion made by counsel for the Board to amend the
complaint to correct a typographical error which appeared therein.
On May 7, 1938, the respondent, the Amalgamated, the Brother-
hood, and counsel for the Board entered into a stipulation in settle-
ment of the case, which provided for the entry of a consent order by
the Board upon its approval of the stipulation. On the same date,
the respondent, the Amalgamated, and the Brotherhood entered into
a consent-election agreement to determine the question of employee
representation. On May 9, 1938, during the hearing, the respondent,
the Amalgamated, and the Brotherhood orally stipulated for the
record that the Amalgamated and the Brotherhood were labor organ-
izations within the meaning of the Act. The Trial Examiner then
received in evidence without objection the consent-election agreement
and the afore-mentioned stipulation concerning the consent order.
Thereafter the hearing was closed.
The stipulation in settlement of the issues provides as follows :
It is hereby stipulated and agreed by and between Overhead
Door Corporation, of Hartford City, Indiana, Respondent,
herein, by Forest E. McKee, President of said Company, and by
J. R. Emshwiller, and Dailey, O'Neal, Dailey and Efroymson,
Attorneys for said Respondent, the Amalgamated Association of
Iron, Steel and Tin Workers of America, Lodge No. 1691, by
James Robb, Field Director, Steel Workers Organizing Commit-
tee, (signer of the charges filed by the complaining Union
herein) and the United Brotherhood of Carpenters and Joiners
of America, Union No. 2047, by Robert W. Bonham, Attorney
for said Union No. 2047, Intervenor herein, and Colonel C. Saw-
yer, Attorney for the Eleventh Region, of the National Labor
Relations Board, as follows :
If approved by the National Labor Relations Board, that the
Respondent, the complaining Union herein, and the Intervenor
Union herein, consent upon the pleadings, to the making of find-
ings and entry of an order thereupon as hereinafter set out.
It is further stipulated and agreed by all the parties hereto,
subject to the approval of the National Labor Relations Board
as above stated, that the National Labor Relations Board may
enter its cease and desist order in the above entitled case in the
following form :
OVERHEAD DOOR CORPORATION 1155
I. That the Respondent shall:
1. Cease and desist from interfering with, restraining or
coercing its employees in the exercise of their right to form,
join and assist labor organizations of their own choosing and in
particular the Amalgamated Association of Iron, Steel and Tin
Workers of America, Lodge No. 1691, to bargain collectively and
to engage in other concerted activities with its employees at its
Hartford City Plant.
2. Hold in obeyance [sic] any negotiations and the carrying
out of any terms of any and all contracts that might now be in
existence signed by and between any of the parties to this
stipulation.
II. Take the following affirmative action in order to effectuate
the policies of the National Labor Relations Act :
A. Cease and desist from in any manner encouraging the for-
mation and administration of the United Brotherhood of Car-
penters and Joiners of America, Union No. 2047, a labor
organization of its employees, and from according any, special
privileges to any of its employees who are members of said or-
ganization, which 'privileges are not granted to other labor
organizations of its employees.
B. Upon request, bargain collectively with whichever Union
receives a majority of the ballots cast in the election to be here-
after held pursuant to the terms of the consent election agree-
ment this day entered into by the parties hereto (which consent
election agreement is entered as an exhibit and made a part of
the record of this hearing) as the exclusive representative of
their employees, exclusive of supervisory and clerical employees,
consistent with the terms of said consent election agreement, in
respect, to rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is reached
on any such matters, embody such understanding in a signed
agreement for a definite term, to be agreed upon, if requested
to do so by the said Union receiving a majority of the ballots
cast in said election as above set out.
C. Hold in obeyance [sic] any negotiations and carrying
out of any terms of any and all contracts that might now be in
existence signed by and between any of the parties to this stip-
ulation.
D. Post notices within ten days from the date of acceptance
of this stipulation by the National Labor Relations Board, in
conspicuous places throughout the Respondent's Hartford City
Plant, stating (1) that the Respondent will cease and desist in
the manner aforesaid; (2) that Respondent's employees are free
to join or assist any labor organization for the purposes of col-
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining with the Respondent; (3) that Respondent
will cease and desist from according any privileges to its employ-
ees who are members of the United Brotherhood of Carpenters
and Joiners of America, Union No. 2047, which are not accorded
to its employees who are members of other labor organizations;
(4) that Respondent will not discriminate against members of
any labor organization of its employees, or any person assisting
such organization, by reason of such membership or assistance;
(5) That any contract entered into pursuant to the terms of par-
agraph B above shall supersede any and all contracts that
might now be in existence signed by and between any of the
parties to this stipulation. (f;) that such notices shall remain
posted for a period of at least thirty consecutive days from the
date of posting.
E. File with the Regional Director of the Eleventh Region
within ten days from the date of this stipulation a report in
writing, setting forth in detail the manner and form in which
the Respondent has complied with the foregoing requirements.
All parties hereto expressly consent to the entry, by the
appropriate Circuit Court of Appeals, of an enforcement order
embodying the terms of the Board's order to be entered herein
by consent, pursuant to the terms of this stipulation.
All parties hereto expressly agree that the notice referred to
in paragraph "D" above is to be prepared by the Regional Direc-
tor for the Eleventh Region of the National Labor Relations
Board.
It is further stipulated, understood and agreed by all the
parties hereto that the complaining Union herein, Amalgamated
Association of Iron, Steel and Tin Workers of America, Lodge
No. 1691, the Intervenor Union herein, United Brotherhood of
Carpenters and Joiners of America, Union No. 2047, and Over-
head Door Corporation, Respondent herein, have this day en-
tered into a consent election agreement, a copy of which consent
election agreement is to be made an exhibit in and part of the
record of this case.
The consent-election agreement provides as follows :
It is hereby agreed by and between Overhead Door Corpora-
tion, hereinafter called the Company, the Amalgamated Associa-
tion of Iron, Steel and Tin Workers of America, Lodge No. 1691,
affiliated with the C. I. 0., and the United Brotherhood of Car-
penters and Joiners of America, Union No. 2047, affiliated with
the A. F. of L., hereinafter called the Unions, that :
1. An election shall be held to determine whether the eligible
employees as specified below, desire to be represented by the
Amalgamated Association of Iron, Steel and Tin Workers of
OVERHEAD DOOR CORPORATION 1157
America, Lodge No. 1691, affiliated with the C. I. 0., or the
United Brotherhood of Carpenters and Joiners of America,,
Union No. 2047, affiliated with the A. F. of L., as their exclusive
representative for the purposes of collective bargaining with the
Company in respect to rates of pay, wages, hours of employment,
or other conditions of employment.
2. Said election shall be supervised by Robert H. Cowdrill,
Regional Director for the Eleventh Region of the National
Labor Relations Board, hereinafter referred to as the Regional
Director, and shall be pursuant to the National Labor Relations.
Act, and to Rules, and Regulations, and decisions of said Board.
The election shall be conducted at a place agreed upon by all
parties concerned, by an agent, or agents, of the Regional Direc-
tor, on a date to be determined by the Regional Director, but
within forty (40) days following the execution of this agreement.
3. All production employees of the Company on the payroll
of November 15, 1937, shall be eligible to vote in said election
with the exception of foremen, employees in a supervisory capac-
ity, salaried and clerical employees wherever located, and any
other classification of employees that may be specified in the
Official "Notice of Election". Any dispute concerning the eli-
gibility of a particular employee, and challenged ballots, shall
be determined by the Regional Director.
4. The Company and the Unions shall cooperate fully with the
Regional Director in the conduct of said election. The Com-
pany shall furnish the payroll list, and other information re-
quired by the Regional Director, in the conduct of said election-
Employees shall not lose pay for the time spent in voting.
5. The Company agrees to recognize the organization which
receives a majority of the ballots cast in said election as the ex-
clusive representative of the production employees for the pur-
poses of collective bargaining with it in respect to rates of pay,,
wages, hours of employment, or other conditions of employment.
On May 10, 1938, pursuant to Article II, Section 37 (b), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,.
the proceeding was duly transferred to the Board.
On June 15, 1939, counsel for the Board, the president of the re-
spondent, and the representatives of the Brotherhood and of the
Amalgamated entered into a supplemental stipulation, amending the,
stipulation of May 7, 1938. The supplemental stipulation provides
as follows :
It is hereby stipulated and agreed by and between Overhead
Door Corporation, Hartford City, Indiana; Amalgamated As-
187930-39-vol 13-74 ,
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sociation of Iron, Steel and Tin Workers of America, Lodge
No. 1691; United Brotherhood of Carpenters and Joiners of
America, Union No. 2047, and Lester M. Levin, Regional Attor-
ney for the National Labor Relations Board as follows :
That the stipulation, dated May 7, 1938, entered into by the
aforesaid parties and Colonel C. Sawyer, Attorney for the Na-
tional Labor Relations Board, in settlement of the above-
entitled consolidated case and received in evidence as Board Ex-
hibit No. 5 at the, hearing therein, be, and the same hereby is
amended by :
(1) Adding thereto the following provision :
"It is further stipulated that subsequent to the signing of the
original stipulation herein, on May 7, 1938, the respondent did
on May 19, 1938, file with the Regional Director for the Eleventh
Region of the National Labor Relations Board, its report of com-
pliance with the requirements of the said stipulation showing
that it had taken the affirmative action called for by the terms of
said stipulation. That subsequent thereto and pursuant to the
terms of the consent election agreement referred to in said orig-
inal stipulation as having been signed on May 7, 1938, a consent
election was held under the supervision of Robert H. Cowdrill,
Regional Director for the Eleventh Region of the National
Labor Relations Board on June 14, 1938.
That thereafter on June 15, 1938, the said Regional Director
certified the results of said election as follows :
Total Number of Valid Votes Cast________________________________ 243
Total Number of Votes for the Amalgamated Association of Iron,
Steel and Tin Workers of America, Lodge No. 1691, affiliated with
C. I. 0. --------------------------------------- ---------------20
'Total Number of Votes for the United Brotherhood of Carpenters
and Joiners of America Union No. 2047, affiliated with A. F. L.___ 223
That thereafter respondent renewed a contract with the United
Brotherhood of Carpenters and Joiners of America Union No.
'2047, recognizing said organization as the sole and exclusive bar-
gaining agency of all its production employees."
"It is further stipulated and agreed by all the parties hereto,
-subject to the approval of the National Labor Relations Board,
that the National Labor Relations Board may enter an order
dismissing (1) the petition for investigation and certification of
-representatives, and (2) that part of the complaint relating to
the respondent's alleged refusal to bargain collectively with
Amalgamated Association of Iron, Steel, and Tin Workers of
America, Lodge No. 1691."
(2) By deleting from the proposed order therein paragraph
`2" of Part I and paragraphs "B" and "C" of Part II ;
OVERHEAD DOOR CORPORATION 1159
(3) By striking from the proposed order therein paragraph
"A" of Part II and substituting therefor the following :
"A. Cease and desist from in any manner encouraging the
formation and administration of the United Brotherhood of
Carpenters and Joiners of America; Union No. 2047, a labor
organization of its employees, and from according any special
privileges to any of its employees who are members of said
organization, which privileges are not granted to other labor
organizations of its employees ; provided that Overhead Door
Corporation shall not be precluded from making an agreement
with a labor organization (not established, maintained, or as-
sisted by any action defined in the National Labor Relations Act
as an unfair labor practice) to require as a condition of employ-
ment membership therein, if such labor organization is the rep-
resentative of the employees as provided in Section 9 (a) of the
Act, in the appropriate collective bargaining unit covered by
such agreement when made."
(4) By striking from the proposed order therein paragraph
"D" and substituting therefor the following :
"D. Post notices within ten days from the date of acceptance of
this stipulation by the National Labor Relations Board, in con-
spicuous places throughout the respondent's Hartford City Plant,
stating (1) that the respondent will cease and desist in the manner
aforesaid; (2) that the respondent's employees are free to join or
assist any labor organization for the purposes of collective bar-
gaining with the respondent; (3) that the respondent will cease
and desist from according any privileges to its employees who are
members of the United Brotherhood of Carpenters and Joiners of
America, Union No. 2047, which are not accorded to its employees
who are members of other labor organizations ; provided that the
respondent shall not be precluded from making an, agreement with
a labor organization (not established, maintained, or assisted by
any action defined in the National Labor Relations Act as an un-
fair labor practice) to require as a condition of employment mem-
bership therein, if such labor organization is the representative
of the employees as provided in Section 9 (a) of the Act, in the
appropriate collective bargaining unit covered by such agreement
when made; (4) that the respondent will not discriminate against
members of any labor organization of its employees, or any person
assisting such organizations, by reason of such membership or
assistance; (5) that such notices shall remain posted for a period
of at least thirty consecutive days from the date of posting."
The Board hereby approves the above stipulation, as supplemented.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Indiana corporation with its principal office
and place of business in Hartford City, Indiana. It is engaged in the
manufacture, sale, and distribution of upward-acting sectional doors
and electric operators used in connection with the operation of the
doors. During the year 1937, the respondent purchased raw materials,
consisting of steel and wood, at a total cost of $958,076.65. Ninety per
cent of these materials were shipped to the respondent's plant at Hart-
ford City, Indiana, from points outside the State of Indiana. Over
the same period of time the respondent manufactured 40,751 doors
valued at $1,530,247.89. About 90 per cent of the doors were shipped
to points outside the State of Indiana.
We find that the aforesaid operations constitute a continuous flow
of trade, traffic, and 'commerce among the several States.
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel, and Tin Workers of North
America, Lodge No. 1691, and United Brotherhood of Carpenters &
Joiners of America, Union No. 2047, are labor organizations admitting
to membership employees of the respondent.
III. THE APPROPRIATE UNIT
We find that all production employees of the respondent on the pay
roll of November 15, 1937, exclusive of foremen, and supervisory,
salaried, and clerical employees wherever located, constitute a unit
appropriate for the purposes of collective bargaining and that such
unit insures to employees of the respondent the full benefit of their
right of self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
IV. REPRESENTATION BY THE BROTHERHOOD OF A MAJORITY WITHIN THE
APPROPRIATE UNIT
We find that on June 14, 1938, and at all times thereafter, the
Brotherhood was the representative of the majority of the respond-
ent's employees in the appropriate bargaining unit, and by virtue of
Section 9 (a) of the Act, was the exclusive representative of all the
respondent's employees in such unit for the purposes of collective bar-
gaining in respect of rates of pay, wages, hours of employment, and
other conditions of employment.
OVERHEAD DOOR' CORPORATION 1161
ORDER
Upon the basis of the above findings of fact, stipulations, and the
entire record in the case, and pursuant to Section 10 (c) of the Na-
tional Labor Relations Act, the National Labor Relations Board
hereby orders that Overhead Door Corporation, Hartford City, In-
diana, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of their right to form, join, and assist labor organizations of
their own choosing and in particular the Amalgamated Association
of Iron, Steel, and Tin Workers of North America, Lodge No. 1691, to
bargain collectively and to engage in other concerted activities with
its employees at its Hartford City plant.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Cease and desist from in any manner encouraging the forma-
tion and administration of the United Brotherhood of Carpenters and
Joiners of America, Union No. 2047, a labor organization of its em-
ployees, and from according any special privileges to any of its
employees who are members of said organization, which privileges
are not granted to other labor organizations of its employees; pro-
vided that Overhead Door Corporation shall not be precluded from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in the National Labor
Relations Act as an unfair labor practice) to require as a condition of
employment membership therein, if such labor organization is the
representative of the employees as provided in Section 9 (a) of the
Act, in the appropriate collective bargaining unit covered by such
agreement when made ;
(b) Post notices within ten days from the date of acceptance of
this stipulation by the National Labor Relations Board, in conspicu-
ous places throughout the respondent's Hartford City Plant, stating
(1) that the respondent will cease and desist in the manner aforesaid ;
(2) that the respondent's employees are free to join or assist any labor
organization for the purposes of collective bargaining with the re-
spondent; (3) that the respondent will cease and desist from accord-
ing any privileges to its employees who are members of the United
Brotherhood of Carpenters and Joiners of America, Union No. 2047,
which are not accorded to its employees who are members of other
labor organizations; provided that the respondent shall not be pre-
cluded from making an agreement with a labor organization (not
established, maintained, or assisted by any action defined in the
National Labor Relations Act as an unfair labor practice) to require
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a condition of employment membership therein, if such labor or-
ganization is the representative of the employees as provided in Sec-
tion 9 (a) of the Act, in the appropriate collective bargaining unit
covered by such agreement when made; (4) that the respondent will
not discriminate against members of any labor organization of its
employees, or any person assisting such organization, by reason of
such membership or assistance; (5) that such notices shall remain
posted for a period of at least thirty consecutive days from the date
of posting.
AND IT IS FURTHER ORDERED that the part of the complaint relating
to the respondent's alleged refusal to bargain collectively with the
Amalgamated Association of Iron, Steel, and Tin Workers of Nortli
America, Lodge No. 1691, be, and hereby is, dismissed; and that the
petition for investigation and certification of representatives filed by
the Amalgamated Association of Iron, Steel, and Tin Workers 'of
North America, Lodge No. 1691, be, and hereby is, dismissed.