Smith Commercial Body Works, Inc.

National Labor Relations Board - Board Decisions

Dec 28, 1943

54 N.L.R.B. 95 (N.L.R.B. 1943)

In the Matter of SMITH COMMERCIAL BODY WORKS, INC. and LOCAL
905, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
Case No. 18-R-854.-Decided December 28, 1943
Messrs. L. U. Stambaugh and Donald A. Smith, both of Fargo, N. D.,
for the Company.
Messrs. Carl A. Hallquist and Edward J. Murnane, both of Minneap-
17,
olis, Minn., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Local 905, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (UAW-CIO), herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Smith Commercial Body Works, Inc., Fargo, North Dakota,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Clarence A.
Meter, Trial Examiner. Said hearing was held at Fargo, North
Dakota, on November 16, 1943. The Company and the Union ap-
peared, participated, and 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 hear-
ing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Smith Commercial Body Works, Inc., a North Dakota corporation
with its principal office and place of business located at Fargo, North
Dakota, is normally engaged in the manufacture and sale of truck and
54 N. L. R. B., No. 20.
95
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bus equipment and bodies . At the present time, however , due to condi-
tions caused by the national emergency the Company has altered its
operations to a large extent , and is now engaged in the production of
ammunition crates and the servicing , maintaining , and repairing of
rolling equipment . During the year 1942, the Company 's purchases of
raw material totaled in value $933 ,282.46 of which approximately 58
percent was received from points outside the State of North Dakota.
During the same period , the sales of the Company totaled in value
$1,204,308.06 , of which approximately 7 percent was made to points
outside the State of North Dakota. The Company 's purchases of raw
materials during the year 1943 is estimated at 40 to 50 percent less than
that of 1942 and its interstate purchases are estimated at 40 to 45 per-
cent of this figure. The Company 's sales during the year 1943 are
estimated at approximately one-half the value of those of 1942, but
the volume of interstate sales is estimated at 14 percent of the total.
We find that the Company is engaged in commerce within the meaning
of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Local 905, International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America is a labor organization
!affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about October 1, 1943, the Union requested recognition as
the bargaining representative of the Company's production and main-
tenance employees. The Company did not reply to this request.
A statement of the Regional Director indicates that the Union
represents a substantial number of. employees in the unit hereinafter
found to be appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union seeks a unit comprised of all production, maintenance,
and yard employees of the Company, including employees working
on portable saw mills under an independent contractor, watchmen,
3 The Regional Director reported that the Union submitted 32 applications of which 31
bore apparently genuine original signatures ; of these 31 , 27 contained the names of persons
whose names appear upon the Company 's pay roll for the period ending October 9, 1943.
Said pay roll contained 36 names. The record reveals that , as of the date of the hearing,
there are approximately 81 employees in the unit hereinafter found appropriate but that
this number will decrease to approximately 73.
SMITH COMMERCIAL BODY WORKS , INC. 97
parts department employees , and working foremen, but excluding
office employees , outside salesmen , parts department manager, fore-
men, and all supervisory employees with authority to hire or dis-
charge. While not specifically disagreeing with the foregoing group,
the Company contends that no election should be conducted at the
present time inasmuch as the Company is not engaged in its normal
operations ; it further contends that employees in its crate department,
who are concerned with the production of ordnance crates, should
not be included within the same unit as its main plant employees,
whose duties are confined to the serving of rolling stock.
We do not agree with either contention . The fact that the national
emergency has prevented the Company from pursuing its normal
operations is no reason for denying its employees the benefits of col-
lective bargaining . Nor is the diverse nature of the respective work
performed by crate department and the main plant employees suffi-
cient to warrant their separation . The record discloses that both
groups are centrally controlled under a common administration; that
all accounting and paper work is performed at a common office; and
that the employees of both are hired by the same personnel manager.
Furthermore , both the crate department and the main plant are ser-
viced by the same protective staff ; the tools and supplies of both are
kept by a common parts department ; and there is evidence that the
foreman of the crate department exercises authority over employees
in the main plant. Under these circumstances , we' are of the opinion
that the interests of both groups of employees can best be served by
their inclusion within a single unit.
The Company employs an individual in the crate department whom
it designates as assistant or working foreman. This hourly paid
employee is in charge of the night shift, and has authority to make
recommendations which would affect the status of employees working
under him . While his position is of a temporary nature, and will be
eliminated when the necessity for a night shift no longer exists, we
are of the opinion that at the present time, the working foreman
exercises powers sufficiently supervisory in nature to warrant his
exclusion from the industrial unit. We shall therefore exclude him.
Included on the Company 's pay roll is a group of 12 individuals
who are engaged in milling operations on the Company's property.
Although they work under the direct supervision of an independent
contractor , they are hired through the Company's personnel depart-
ment, punch the same time clock as regular employees of the Com-
pany, and are included with them for purposes of Workmen's Com-
pensation . We are of the opinion that these persons are employees
of the Company , and under normal circumstances , should be entitled
to a voice in the selection of a bargaining representative for Com-
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98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany employees. However, the record discloses that these employees
were hired for a specific duty of a temporary nature; that they were
- aware of this at the time they accepted employment, and that they
have no reasonable expectation of being retained by the Company
at the conclusion of the work for which they were engaged. Under
these circumstances, we are of the opinion that their employment_
interests are not sufficient to warrant their inclusion with a unit of
regular employees of the Company. We shall therefore exclude
them.
We find that all production, maintenance, and yard employees of
the Company, including watchmen, assistant in the parts department,
but excluding office employees, temporary milling employees, outside
salesmen, parts department manager, foremen, assistant foremen,
and all other supervisory employees with authority to hire, promote,
-discharge, discipline or otherwise effect changes in the status of
employees or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit hereinbefore described. The Union
contends that eligibility to vote in said election be determined as of
November 15, 1943. However, we are of the opinion that the reasons
advanced in support thereof are insufficient to warrant a departure
from our customary practice, and shall direct that the employees of
the Company eligible to vote in the election shall be those who were
employed during the pay-roll period immediately preceding the data
of the Direction of Election herein, subject to the limitations and
additions set forth in the Direction.3 -
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Smith Commer-
cial Body Works, Inc., Fargo, North Dakota, an election by secret
E See Matter of Cardinals Macaroni Mfg Co., Inc., 29 N. L. R. B. 1145.
The Union requested that it be designated on the ballot as "United Automobile Workers
of America , UAW-CIO, Local 905." This request is hereby granted.
SMITH COMMERCIAL BODY WORKS, INC. 99
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 Eighteenth Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in
the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether or not
they desire to be represented by United Automobile Workers of
America, UAW-CIO, Local 905, for the purposes of collective
bargaining.