The Fred W. Kiemle Co.

National Labor Relations Board - Board Decisions

Feb 11, 1942

38 N.L.R.B. 1094 (N.L.R.B. 1942)

In the Matter of THE FRED W . KIEMLE COMPANY and UNITED CON-
STRUCTION WORKERS ORGANIZING COMMITTEE , LOCAL No. 353
(C. I. 0.)
Case No. R-3452.-Decided February 11, 1942
Jurisdiction : electrical equipment sales and service industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition; contract with rival union about to expire
and not asserted as a bar by either party, no bar to; election necessary.
Unit Appropriate for Collective Bargaining : all production employees of the
Company, excluding supervisory employees, office employees, 'truck drivers,
salesmen, and shipping employees ; stipulation by unions as to.
Mr. Ramey Donovan, for the Board.
Mr. Carl C. Schmidt and Mr. Kenneth L. Cole, of Toledo, Ohio, for
the U. C. W.
Mr. William F. Sturm, of Toledo, Ohio, for the I. B. E. W.
Mr. Fred W. Kiemle and Mr. David Berger, of Toledo, Ohio, for
the Company.
Mr. Harry H. Kuskin, of counsel'to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 6, 1941, United Construction Workers Organizing
Committee, Local No. 353, affiliated with the Congress of Industrial
Organizations, herein called the U. C. W., filed with the Regional
Director for the Eighth Region (Cleveland, Ohio) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of The Fred W. Kiemle Company, herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On December 31,
1941, 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 Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
38 N L. R. B., No. 205.
1094
THE FRED W. KIEV E COMPANY 1095
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On January 5,1942, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the U. C. W.,
and the International Brotherhood of Electrical Workers, Local Union
No. B-1076, affiliated with the American Federation of Labor, herein
called the I. B. E. W., a labor organization claiming to represent em-
ployees directly affected by the investigation. Pursuant to notice, a
hearing was held on January 12, 1942, at Toledo, Ohio, before Henry
J. Kent, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the Company, the U. C. W., and the I. B. E. W.
were represented and 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. No objections
to the rulings of the Trial Examiner were made by any of the parties.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Fred W. Kiemle Company is an Ohio corporation with its
principal office and place of business in Toledo, Ohio. The Com-
pany purchases, reconditions, sells, installs, and services electric mo-
tors and electrical equipment. It deals chiefly in used electrical
power equipment, but also sells new motors and electrical accessories.
The Company employs 43 persons. About $78,000 worth, or 65 per-
cent, of the materials used by it annually in production come from
outside the State of Ohio, and approximately $20,000 worth, or 10
percent, of its products are shipped out of the State of Ohio. The
Company admits that it is engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
United Construction Workers Organizing Committee, Local No.
353, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the
Company.
International Brotherhood of Electrical Workers, Local Union No.
B-1076, affiliated with the American Federation of Labor, is a labor
organization admitting to membership employees of the Company.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On November 21, 1941, the U. C. W. informed the Company that
it represented a majority of the employees of the Company, exclud-
ing supervisory and office employees, and requested the Company to
negotiate with it concerning a contract. The Company refused for
the stated reason that it had a closed-shop contract with the I. B.
E. W. On January 29, 1941, the Company and the I. B. E. W.
executed a closed-shop contract for 1 year to January 29, 1942. The
contract is self-renewable unless either party notifies the other of
desired changes at least sixty (60) days prior to January 29 of any
year. The above request of the U. C. W. to negotiate, made on
November 21, 1941, antedated the 60-day period by 8 days. The
Company admitted that it received notice from the I. B. E. W. re-
questing negotiations as to the terms of the contract, and a repre-
sentative of the I. B. E. W. testified that the contract was "open."
Neither the Company nor the I. B. E. W. contends that the contract
is a bar to these proceedings. We find that it is not.
A statement of the Field Examiner, introduced into evidence at
the hearing, shows that the U. C. W. and the I. B. E. W., respectively,
represent a substantial number of the employees in the unit
hereinafter found to be appropriate.'
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.
'The Field Examiner reported that the U. C. W. submitted 16 authorization cards dated
October 29 and October 30, 1941, and 1 undated card ; that all the cards had signatures
which appeared to be genuine , and that the names of 16 of the 17 individuals appeared on
the Company 's pay roll of December 19, 1941.
The report disclosed that the I. B E W. submitted a roster of 22 names of indi-
viduals who were members in good standing during December 1941, and that the names of
21 of these individuals appeared on the Company 's pay roll of December 19, 1941.
The appropriate unit comprises 21 persons.
THE FRED W. KIEMLIE COMPANY 1097
V. THE APPROPRIATE UNIT
The U. C. W. and the I. B. E. W. stipulated that 21 named pro-
duction employees,2 excluding supervisory employees," office em-
ployees, truck drivers, salesmen, and shipping employees, constituted
an appropriate unit. Twenty-one employees of the Company are
engaged in production work. A representative of the Company stated
that the employees covered by its existing contract with the I. B. E. W.,
which includes all eligible to membership under the I. B. E. W.'s
constitution, comprise, substantially, the unit sought by the U. C. W.
and stipulated by the U. C. W. and the I. B. E. W. as appropriate.
We find that all production employees of the Company, excluding
supervisory employees, office employees, truck drivers, salesmen, and
shipping employees, constitute a unit appropriate for the purposes
of collective bargaining and that such unit will insure to employees
of the Company the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. We shall
direct that the employees of the Company in the appropriate unit
who were employed during the pay-roll period immediately preceding
the date of the Direction of Election herein, subject to the limitations
and additions set forth in the Direction, shall be eligible to vote.
Upon the basis of the above findings of fact 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 The Fred W. Kiemle Company, Toledo,
Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All production employees of the Company, excluding supervisory
employees, office employees, truck drivers, salesmen , and shipping
employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the National Labor
Relations Act.
2 Garnet H. Adams, H. P. Blackmar , John Christman , K M Cooper , Earl Dukeshire,
Raymond E Futrell , Forest E. Giffin, R. L Handy, C. H. Heilman , John Herman, Lloyd
Hite, Clarence Johnson, Arthur M. Kaiser, Elmer H . Keller , Robert E. Keyer , Russell
Miller, D. V. Overy, Carl Piraino, John Posan, Glen Truex , and William F. Webber.
3 The I . B. E. W. conceded at the hearing, and we find , that V. A. Pinkerton, 1 of the
22 members claimed by it, is a foreman and is not in the stipulated production unit
1098 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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
Dnu;cTED that, as part of the investigation authorized by the Board to
ascertain representatives for the purposes of collective bargaining
with The Fred W. Kiemle Company, Toledo, Ohio, 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 Eighth Region, act-
ing 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 production employees of The Fred W. Kiemle Company
whose names appear on the Company's pay roll immediately preced-
ing the date of this Direction, including employees 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 tem-
porarily laid off, but excluding supervisory employees, office employees,
truck drivers, salesmen, and shipping employees, and employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by United - Construction Workers Or-
ganizing Committee, Local No. 353, affiliated with the Congress of
Industrial Organizations, or International Brotherhood of Electrical
Workers, Local No. B-1076, affiliated with the American Federation
of Labor, for the purposes of collective bargaining, or by neither.