Sterling Engine Co.

National Labor Relations Board - Board Decisions

May 22, 1942

41 N.L.R.B. 191 (N.L.R.B. 1942)

Ill 'the Matter Of STERLING ENGINE COMPANY and UNITED AUTOMO-
BILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
C.I.O. 1 1
Case No. R-3797.-Decided May 22, 1942
Jurisdiction : marine engine manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord petitioner recognition until certified by the Board ; contract
entered into after notice of petitioner's claim to representation and filing of
petition, no bar; eligibility determined by current payroll despite petitioner's
request that payroll immediately preceding the date of the hearing be used;
-election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, including employees of the shipping department, timekeepers, produc-
tion clerks, and work on group leaders who do not have authority to hire or
discharge or to recommend such action, but excluding supervisory employees
who have authority to hire or discharge or to recommend such action, and
office and plant protection employees ; stipulation as to
Mr. Frank G. Raichle, of Buffalo, N. Y., for the Company.
Mr. Kdward D. Flaherty, of Buffalo, N. Y., for the C. 1. 0.
Mr. Herbert J. Schifjhauer, of Buffalo, N. Y., forthe Federated.
Mr. Marvin C. Wa/el, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Automobile, Aircraft & Agri-
cultural Implement Workers of America, C. I. 0., herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Sterling Engine Company,
Buffalo, New York, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due no-
tice before Peter J. Crotty, Trial Examiner. Said hearing was held
at Buffalo, New York, on April 29, 1942. The Company, the C. I. 0.,
and Federated Industrial Union, herein called the Federated, ap-
peared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
41N L.Il.B,No 40
191
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bearing on the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Sterling Engine Company is a New York Corporation, engaged at
Buffalo, New York, in the manufacture of marine engines. During
1941 the Company purchased raw materials valued at approximately
$3,425,000, about 57 percent of which represented shipments received
from points outside the State of New York. During the same period,
the Company manufactured products valued at approximately
$3,319,000.
For the purpose of this proceeding, the Company admits that it is
engaged in commerce within the meaning of the National Labor
Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers
of America, affiliated with the Congress of Industrial Organizations,
and Federated Industrial Union are labor organizations, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 30, 1941, the Company and the Federated entered into a
collective bargaining agreement, recognizing the Federated as the sole
bargaining agent "for the factory employees of the Company (except
those who are supervisory employees with authority to hire or dis-
charge or recommend such action, and watchmen)." The agreement
was to remain in effect until May 1, 1942, and was to be automatically
renewed from year to year thereafter unless terminated by either
party upon at least 30 days' notice prior to the expiration date. On
March 9, 1942, the C. I. O. advised the Company by letter that it
represented a majority of the Company's employees 1 and requested
a conference for the purpose of negotiating a collective bargaining
agreement. On March 10 the Company advised the C. I. O. of the
existence of its agreement with the Federated and refused to recog-
nize the C. I. O. until the latter was certified by the Board. On
March 17, 1942, the C. I. O. filed its petition herein. The Company
and the Federated, on April 13, 1942, entered into a new agreement
to remain in effect from that date to May 1, 1943.
1 The C. I. O. did not specify which classes or groups of employees it claimed to
represent.
STERLING ENGINE COMPANY 193
The Federated contends that the agreement of April 13, 1942, con-
stitutes a bar to a present investigation and determination of rep-
resentatives. However, inasmuch as notice of the C. I. O.'s claim
was transmitted-to the Company, and the C. I. O.'s petition herein
was filed, prior to the execution of the 1942 agreement, we hold that
the contract executed on April 13, 1942, is not a bar to this pro-
ceeding.2
A statement of the Regional Director,, introduced • in evidence at
the hearing, shows that the C. I. O. represents' a substantial number
of employees in the unit hereinafter found appropriate 3
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
In accordance with a stipulation of the parties, we find that all
production and, maintenance employees of the Company, including
employees of the shipping department, timekeepers, production clerks,
and work or group leaders who do not have authority to hire or dis-
charge or to recommend such action, but excluding supervisory em-
ployees who have authority to hire or discharge or to recommend such
action, and office and plant protection employees, 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 which has
arisen can best be, resolved by an election by secret ballot. , The
C. I. O. requested that eligibility to vote be determined by the pay
roll immediately preceding the date of the hearing, desiring thus to
exclude employees who have been hired since that date. Neither the
Company nor the Federated took any position with respect to the
eligibility date. In the absence of a compelling reason for departing
from our usual practice, we shall direct that the employees of the
Company eligible to vote in the election shall be those in the appro-
priate unit who were employed during the pay-roll period immediately
2 Cf Matter of Alabama Dry Doc! and Shipbuilding Co and Mobile Metal Trades
Council, affiliated ioith the American Federation of Labor, 39 N L R R 994
3 The Regional Director reported that the C I 0 submitted 292 designation cards,
240 of which bore signatures which appeared to be genuine and corresponded to the
names of persons within the requested unit appearing on the Company ' s pay roll of
March 22 , 1942 One hundred'fifty -nine of the cards were dated in 1942 , 2 in 1941,
and 79 were undated A witness at the hearing stated that . the Company employed
between 550 a nd 575 employees on April 12 , 1942 The Regional Director further re-
ported that the claims of representation of the Federated were not investigated because
of its April 30,'1941, agreement with the Company.
463s92-42-vol 41-13
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preceding the date of, the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.
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 ordered by the Board to
ascertain representatives for the purposes of collective bargaining with
Sterling Engine Company, Buffalo, New York, 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 for the Third 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
the employees in the unit found appropriate in Section IV above, who
were employed by the Company during the pay-roll period immedi-
ately preceding the date of this Direction, including any such em-
ployees who did not work during such pay-roll period because they
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding any who
have since quit or been discharged for cause, to determine whether
they desire to be represented by United Automobile, Aircraft & Agri-
cultural Implement Workers of America, C. I. O., or by Federated
Industrial Union, for the purposes of collective bargaining, or by
neither.
MR. GERARD D. REILLY took no part in the consideration, of the above
Decision and Direction of Election.
In the Matter Of STERLING ENGINE COMPANY and UNITED AUTOMOBILE,
- AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O.
Case No. R-3797
CERTIFICATION OF REPRESENTATIVES
June 102, 1942
On May 22, 1942, the National Labor Relations Board issued its
Decision and Direction of Election in the above-entitled proceeding.'-
Pursuant to the Direction of Election an election by secret ballot
was conducted on June 5, 1942, under the direction and supervision
of the Regional Director for the Third Region (Buffalo, New York).
On June 6, 1942, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, issued an Election Report, copies of
which were duly served upon the parties. No objections to the con-
duct of the ballot or to the Election Report were filed by any of
the parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total on eligibility list___________________________________ 559
Total ballots cast________________________________________ 495
Total ballots challenged__________________________________ 5
Total blank ballots_______________________________________ 0
Total void ballots________________________________________ 1
Total valid votes counted_________________________________ 489
Votes cast for Federated Industrial Union________________ 208
Votes cast for United Automobile, Aircraft & Agricultural
Implement Workers of America, C. I. O_________________ 259
Votes cast for neither____________________________________ 22
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, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series
2, as amended,
IT IS HEREBY CERTIFIED that United Automobile, Aircraft & Agricul-
tural Implement Workers of America, affiliated with the Congress of
141 N.L.R B 191
41 N. L. R. B, No 40a.
195
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organizations, has been designated and selected by a
majority of all production and maintenance employees of Sterling
Engine Company, Buffalo, New York, including employees of the
shipping department, timekeepers, production clerks, and work or
group leaders who do not have authority to hire or discharge or to
recommend such action, but excluding supervisory employees who
have authority to hire or discharge or to recommend such action, and
office and plant protection employees, as their representative for the
purposes of collective bargaining, and that pursuant to the provisions
of Section 9 (a) of the National Labor Relations Act, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America,
affiliated with the Congress of Industrial Organizations, is the exclu-
sive, representative of all such employees for the purposes of collec-
tive bargaining, with respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.