The Trailer Co. of America

National Labor Relations Board - Board Decisions

Dec 8, 1943

53 N.L.R.B. 1248 (N.L.R.B. 1943)

In the Matter of THE TRAILER COMPANY OF AMERICA * and UNITED
AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA , LOCAL 392 , U. A. W.-C. I. O.
In the Matter of HIGHLAND BODY MANUFACTURING COMPANY and
UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 392, U. A. W.-C. I. O.
Cases Nos. R-5562 (9-R-1076) and R-5563 (9-R-1077) respectively
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
December 8, 1943
On August 6, 1943, the National Labor Relations Board issued a
Decision and Direction of Election in the above proceedings,' direct-
ing that an election by secret ballot be conducted- among certain em-
ployees of The Trailer Company of America and Highland Body
Manufacturing Company, herein called the Companies, to determine
whether they desire to be represented by United Automobile, Aircraft
& Agricultural Implement Workers of America, Local 382, U. A. W.-
C. I. 0., herein called the C. I. 0., or by International Union, United
Automobile Workers of America, A. F. of L., Local No. 131, herein
called the A. F. of L., for the purposes of collective bargaining, or
by neither. Pursuant to the Decision and Direction of Election, an
election by secret ballot was conducted among such employees of
the Companies on August 27, 1943, under the direction and super-
vision of the Acting Regional Director for the Ninth Region (Cin-
cinnati, Ohio).
On August 28, 1943, the Acting Regional Director, acting pursuant
to Article III, Section 10, of National Labor Relations Board Rules
and Regulations-Series 2, as amended, issued and duly served upon
the parties a Report on Ordered Election.
As to the balloting and its results, the Acting Regional Director
reported as follows :
1 51 N. L. R. B. 1106.
53 N. L. R. B., No. 228.
1248
THE TRAILER COMPANY OF AMERICA 1249
Approximate number of eligible voters--------------------- 1,180
Total ballots cast----------------------------------------- 1,076
Total ballots challenged----------------------------------- 254
Total blank ballots---------------------------------------- 0
Total void ballots----------------------------------------- 1
Total valid votes counted---------------------------------- 821
Votes cast for United Automobile, Aircraft & Agricultural Im-
plement Workers of America, Local 392, U. A. W.-C. I. O____ 775
Votes cast for International Union, United Automobile
Workers of America, A. F. of L., Local No. 131------------- 37
Votes cast for neither------------------------------------- 9
Thereafter, timely objections and exceptions to the Report on
Ordered Election were submitted by the A. F. of L. These are sum-
inarized as follows :
1. The Decision and Direction of Election herein is void and con-
trary to law, in that, particularly, an election is ordered prior to the
expiration of the existing contract between the Companies and the
A. F. of L.
2. The Order of the Regional War Labor Board of June 8, 1943,
suspending the closed-shop provisions of that contract, interfered with
the collective bargaining rights of the A. F. of L. and had the effect of
encouraging affiliation with a rival union.
3. Persons not in the employ of the Companies were permitted to
vote in the election.
4. The conduct of the election was irregular and highly prejudicial
to the A. F. of L., in that Board agents manifested bias and prejudice
against the A. F. of L. and a desire for the success of the C. I. 0.; that
they permitted campaigning by the C. I. O. in and about the voting
place contrary to the Rules and Regulations of the Board ; that they
indicated to the voters the place on the ballot where a C. I. O. vote
should be marked ; that representatives of the A. F. of L. were sub-
jected to open ridicule by Board agents in the presence of voters; that
they intimidated A. F. of L. observers by threatening to place them in
the Army and by questioning their citizenship; that they refused to
recognize or accept challenges offered by the A. F. of L. and placed
A. F. of L. observers in fear of making challenges; that they allowed
C. I. O. representatives to conduct themselves in a manner detrimental
to the fair conduct of the election; that they permitted C. I. O. mem-
bers to hand out ballots in violation of the Rules and Regulations of
the Board; and that they made personal and slanderous remarks to
A. F. of L, observers in the presence of voters.
5. Employees in the cab and woodworking departments were in-
eligible to vote in the election, but the Report on Ordered Election is
in error when it states that the Companies deny the existence of these
departments. In any event, the Decision and Direction of Election is
i
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so vaguely and indefinitely phrased, as to the extent of the appropri-
ate unit, that all employees were uncertain as to their eligibility to vote
and a fair election was thus rendered impossible.
On September 7, 1943, the Regional Director issued and duly served
on the parties his Report on Objections, in which he found that the
objections of the A. F. of L. set forth in paragraph 4, above, raised
substantial and material issues with respect to the conduct of the elec-
tion and recommended that a hearing be conducted to adduce testi-
mony concerning those objections and at the same time to define
more clearly the scope of the cab and woodworking departments. On
September 11, 1943, after consideration of the objections and the
report of the Regional Director thereon, the Board ordered the A. F.
of L. to submit proof and/or affidavits within 10 days in support
of the objections summarized on paragraph 4, above. Upon receipt
of affidavits in support of the said objections, the Board, on September
24, 1943, issued its Order Directing Hearing on Objections to•Election
Report to adduce evidence concerning the conduct of Board agents
during the election and the scope and extent of the cab and wood-
working departments of the Companies.' The Order referred the
proceedings to the Chief Trial Examiner and authorized and directed
him to issue a Notice of Hearing.
Pursuant to Notice of Hearing duly served on the parties by the
Chief Trial Examiner, a hearing in conformance to the above Order
was conducted in Cincinnati, Ohio, on October 18, 19, 20, 21, and 22,
1943, before William R. Ringer, Associate Chief Trial Examiner.
The Board, the Companies, the A. F. of L., and the C. I. O. appeared,
participated, and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. All parties
were afforded opportunity to file briefs with the Board. The Com-
panies and the A. F. L. have requested a hearing before the Board
for the purpose of oral argument. In consideration of the lengthy
record and the exhaustive briefs filed by all the parties herein, the
requests are hereby denied.
Upon the entire record in the case, including the Report on Ordered
Election, the objections of the A. F. of L. thereto, the report of the
Regional Director on said objections, and the record previously made,
the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
A. Conduct of Board agents
Rosemary S. Macke, Acting Regional Director , Ninth Region, was
in charge of the election , and assisting her were William I. Shooer
THE TRAILER COMPANY OF AMERICA 1251
and John W. Kelly, Field Examiners, and two stenographers. There
were two voting periods, the first between 12 and 12: 30 a. in. on
August 27, and the second between 1 and 6 p. m. on the same day.
During the initial half-hour period only six voters presented themselves
at the polls. Lou Orleck, an A. F. of L. observer and the principal
witness called by the A. F. of L. at the hearing on objections, chal-
lenged five of the six, on the ground that they were no longer mem-
bers of the A. F. of L. and hence ineligible for employment with the
Companies under the terms of the closed-shop contract. Macke
stated, in effect, that she considered these challenges frivolous but
accepted them for the time being, reserving final ruling. At the be-
ginning of the afternoon period she informed Orleck that, pursuant to
advice from the Board's Washington office, she would not accept
challenges based on non-membership in the A. F. of L., and thereupon
removed from their envelopes the five ballots challenged during the
morning voting period and deposited them in the ballot box.2 This
episode and Macke's later refusal to accept challenges directed to the
ballots of employees whose discharge had been demanded by the A. F.
of L. under its contract form the basis, apparently, of the A. F. of
L.'s assertion that Board agents wrongfully refused to accept chal-
lenges and placed the A. F. of L. observers in fear of making chal-
lenges. We find this charge to be without merit. Since the
individuals whom the A. F. of L. sought to challenge on the grounds
stated above remained in the employ of the Companies 3 and were
otherwise eligible to vote under the Decision, and Direction of Elec-
tion, the refusal of Board agents to accept such challenges was clearly
correct. Inasmuch as the A. F. of L. challenged 254 out of 1,076
ballots on other grounds, it is apparent that its observers were not
intimidated. Orleck also testified that during the midnight voting
period Macke said to him, "I can tell you right now how the election
will go"; and Clifford Mullins, another A. F. of L. observer who was
present, testified that Macke remarked that Orleck was "making a
sap of himself." Macke did not deny making the first statement, but
explained in her testimony that her remark referred only to the obvious
fact that if Orleck were permitted to challenge all voters who were
not members of the A. F. of L. the result of the election could be pre-
dicted. She denied making the remark attributed to her by Mullins,
and we credit her denial. We find that the challenges on the ground
of non-membership in the A. F. of L. were properly rejected, and
2 In his testimony on direct examination and in his affidavit in support of objections Orleck
averred that Macke destroyed the challenge envelopes in his presence . He was obliged to
retract this statement when the envelopes in question wtre exhibited to him on cross-
examination.
3 In the Decision and Direction of Election herein we found the closed -shop contract not to
constitute a bar to an investigation of representatives
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Macke was guilty of no impropriety in her statements and actions
in connection therewith.
The bulk of the voters cast their ballots during the period from 1 to
6 p. in. on August 27. The Board agents named above were present at
the voting, along with a number of observers of the C. I. 0., the
A. F. of L., and the Companies. The election culminated a long period
of intense interunion rivalry , and interest in the result was high, as is
indicated by the fact that over 91 percent of those eligible to vote cast
ballots. The balloting was conducted in a section of a large building
within a roped enclosure, and throughout the building work of the
Companies was being carried on. Employees were constantly passing
to and from a stockroom, and others were punching in or out on a
nearby time clock. The voting enclosure was open to view from most
of the building. These conditions were not ideal for the purposes of
conducting an election, for it was not possible to keep those who had
voted and those who were merely curious entirely away from the
polling place.
During this 5-hour period 1,070 ballots were cast and the ballots of
254 voters were challenged by the A. F. of L. Each challenged voter
had to stand in thg challenge line, which at times extended through
a doorway of the building to an adjoining street. Of course, this cir-
cumstance contributed heavily to the confusion and understandably
occasioned questioning and dispute among those challenged. The
A. F. of L. seeks to avoid responsibility fox this confusion by the asser-
tion that its challenges were bona fide. We do not find them so.- All
254 challenged voters, the A. F. of L. contends, were employed in the
cab and woodworking departments of the Companies. When it is
considered that prior to the merger the cab and woodworking de-
partments had existed only at Highland and had comprised there a
group of less than 100 employees, the conclusion is inescapable that
most of the challenges were not made in good faith and had the neces-
sary, and perhaps intended, effect of creating confusion and ill feeling.
The challenges cannot be excused on the plea of ignorance. They
were made by A. F. of L. observers Orleck, Mullins, and Smoot. Smoot
did not appear at the hearing, but Orleck and Mullins testified that
they were acquainted with all Highland employees. Therefore, they
must have known that many of their challenges were directed to voters
who had never been in the employ of Highland or worked in the cab
and woodworking departments.
Orleck, supported in some respects by other A. F. of L. witnesses,
testified that C. I. O. stewards, members, and proponents were per-
mitted to gather about the voting place to harass and intimidate those
in the voting lines; and that many of those so gathered wore C. I. O.
insignia, loudly proclaimed their favor for the C. I. 0., and used
THE TRAILER COMPANY OF AMERICA 1253
threatening and abusive language to him. He alleged that no effective
action was taken by Board agents to disperse these men, and that
Board Agent Kelly left the voting place to fraternize and converse
with them, even placing his arms about them in a friendly manner.
He stated that Board Agent Shooer manifested a hostile attitude
toward him throughout the election and directed many and varied
profane remarks to him. He asserted that C. I. O. Observer Harvey
left the voting place at least six times unaccompanied, contrary to the
rules governing observers; that Shooer in passing out ballots pointed
meaningly to the C. I. O. box and remarked to the voters, "Vote your
choice. You know how to vote"; that C. 1'. O. Observer Harvey was
permitted to hand out about 20 ballots to voters; and that at the close
of the election he was subjected to threats of induction into the Army
from Kelly and Shooer when he refused to sign a certificate attesting
that the election was fairly conducted.
In general, the testimony of the A. F. of L. witnesses is unreliable.
Orleck, particularly, was argumentative, prone to insist upon stating
conclusions, often vague and self-contradictory, and obviously in-
clined to exaggerate and to characterize completely innocuous episodes
as misconduct on the part of Board agents.' His testimony consisted
in the main of general accusations, unsupported by circumstantial
detail, and in a significant number of instances when he testified as
to specific facts he was flatly impeached by other evidence or by his
own notes and his affidavit filed in support of the objections. We will
discuss below his charge that Shooer directed an indecent remark to
him and the fact that his notes show that this remark was actually
directed to Kelly by Orleck himself. He recklessly stated in his
affidavit and testified at the hearing that a C. 1. 0. member voted twice.
The evidence discloses, at the most, the unsuccessful attempt of one
voter to cast a second ballot. He testified untruthfully, as noted above,
that Macke had destroyed certain challenge envelopes in his presence.
He testified that Harvey, a C. 1. 0. observer at the challenge table, left
the voting place unaccompanied on six occasions. Harvey testified
that he left only twice, accompanied on both occasions by Vaught, the
A. F. of L. observer at the ballot box. Mullins testified that Harvey
left the voting place two or three times, but did not state that Harvey
was unaccompanied. Vaught confirmed Harvey's testimony as to
these incidents by testifying that he and Harvey twice left the voting
place together. We find the facts to be as testified by Harvey. Insofar
as Orleck and the other A. F. of L. witnesses averred that Board agents
permitted electioneering, heckling, and other improper conduct by
C. I. O. adherents who prominently displayed insignia, it is clear
4 For example , a paragraph of his affidavit and some of his testimony at the hearing were
devoted to an account of Shooer telling him "You look like Pete Noll."
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that their testimony was grossly exaggerated. Macke, Kelly, and
Shooer testified that none of the voters wore union insignia. C. I. O.
Steward Harvey testified that no insignia was displayed and that
C. I. O. members were instructed prior to the election not to wear their
buttons or ribbons. Some of the A. F. of L. witnesses made no refer-
ence to this objection, while another testified only that he saw one man
wearing a C. I. O. steward's badge. As to the alleged electioneering
along the voting lines, and the general disturbance attributed to C. 1. 0.
adherents, Macke, Kelly, and Shooer admitted that there was con-
fusion. They testified emphatically, however, that the disturbing
groups were dispersed as quickly as possible and that there was no
electioneering. In this respect Kelly testified credibly that he did
place his arms about the shoulders of some in these groups, in the
process of urging them away from the voting place. In view of the
physical characteristics of the voting place and the extraordinary
number of challenges, which we have described, we are convinced that
the election was conducted in a manner as orderly as the circumstances
permitted, that congregating about the polls was not permitted, and
that there was no electioneering nor display of C. I. O. insignia at
the voting place. We further find that Kelly did not improperly
fraternize with C. I. O. adherents in and about the voting place.
Board Agent Shooer is the subject of many of the more serious
complaints. During the balloting in the afternoon of August 27, he
was in charge of the challenge table. It was his function to pass
out ballots and envelopes to those in the challenge line, to instruct
the voters how to cast their ballots, and to have the name of the voter
and the reason for the challenge typed on one of the envelopes.
Shooer faced a table on which, from right to left, ballots and two
sizes of envelopes were stacked. When the name of the voter and
the reason for the challenge had been typed on the large envelope
he would, with his right hand, take a ballot from the stack, pick up
a small envelope, and hand these with, the large envelope
to the voter, and at the same time recite, with occasional variance,
the -following instructions : "Here is your ballot. Vote your choice,
put your ballot in the small envelope. Seal the small envelope. Put
the small envelope iii the large envelope. Seal the large envelope.
Drop it in the ballot box on your way out." All this was, of course,
in the sight and hearing of Orleck, Harvey, and the Companies'
observer at the challenge table. Orleck testified that Shooer, when
instructing the voters, would say, "Vote your choice, you know how
to vote," and at the same time point with finger or pencil to the
C. I. O. box on the ballot in such a manner as to indicate his favor
for the C. I. O. Other A. F. of L. witnesses corroborated this testi-
mony, although one of them testified that he attached no significance
to it until after he had voted. Harvey, who was stationed at the
THE TRAILER COMPANY OF AMERICA 1255
challenge table, denied that Shooer instructed voters except in the
language first quoted above, or that Shooer indicated in any manner
how the voters should mark their ballots. Shooer denied that he
distorted the voting instructions in the manner charged. He agreed
that in picking up the ballots his right thumb would naturally be
placed in or near the C. I. O. box, because the stack of ballots was
so placed on the table that in picking up an individual ballot he
grasped it in the corner nearest his right hand, where the C. I. O.
box appeared; he denied that this practice or the instructions he gave
justified any inference that he desired the voters to mark their ballots
in the C. I. O. box. We regard the testimony of the A. F. of L.
witnesses in this respect as inherently incredible. The design charged
to Shooer could not have been effected if it were covert, and could
not have escaped immediate challenge if it were open. We find that
Shooer did not indicate by instructing the voters or by handling
the ballots that he desired the voters to mark their ballots for the
C. I. O. and we find the objection of the A. F. of L. in this respect
to be without merit. Orleck also testified that Shooer maintained a
hostile attitude toward him throughout tl}e election, directed indecent
language to him,5 and threatened to have him inducted in the Army
upon Orleck's refusal to certify that the election was conducted fairly.
Harvey testified that he heard no dispute between Shooer and Orleck
and noticed nothing strained or unfriendly in their -relationship.
Shooer testified that there was no antagonism between him and Orleck
during the election and emphatically denied employing indecent lan-
guage in his conversations with him. As to Orleck's somewhat con-
fused testimony that Shooer threatened him with induction in the
Army, Shooer testified that he instructed a stenographer to take the
names and addresses of all observers and suggested that the addresses
could be obtained from their draft cards or other papers. We credit
Shooer's explanation. We find that he neither directed indecent re-
marks to Orleck nor threatened him with induction in the Army.
Therefore, we find the objections of the A. F. of L. in these respects to
be without merit. Orleck testified that Shooer permitted Harvey to
hand out ballots to perhaps 20 voters in the challenge line. He agreed
that such ballots were given only to those voters whose challenge en-
velopes had been filled out. Shooer denied that he permitted anyone
to hand out ballots. We need not attempt to resolve this conflict. It
does not appear that the interests of the A. F. of L. were in any manner
prejudiced by the alleged happening and we find that this objection
raises no substantial or material issue with respect to the conduct
of the election.
' Orlek's notes , allegedly written the evening of the election, indicate that Or!eck himself
had used the language in question in a colloquy with Kelly.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We think it significant with respect to all the acts charged to Board
agents and C. I. O. observers that the A. F. of L. made no complaint
during the course of the election. We consider it highly improbable
that Orleck would have sat, without protest, through 5 hours of an
election watching Board Agent Shooer indicate to voters how to cast
a ballot for the C. I. O. We consider it to be equally unlikely that any
of the A. F. of L. observers would have supinely permitted C. 1. 0. pro-
ponents to gather about the voting place, to electioneer for the C. I. O.
and to threaten reprisals against those who favored the A. F. of L.,
without taking some positive action to correct such a situation.
Further we consider it improbable that the acts and words attributed
to the Board agents and the C. I. O. members could have gone un-
noticed by the observers representing the Companies. If such observ-
ers did notice any untoward incidents, the A. F. of L. did not avail
itself of, the opportunity to place them on the stand at the hearing.
We find that the conduct of Board agents during the election was not
prejudicial to the A. F. of L. and to the extent that the objections of
the A. F. of L. pertain to such actions they are hereby overruled.
B. The remaining objections
The objections of the A. F. of L. summarized under paragraph 1,
above, are directed to the Decision and Direction of Election herein.
This decision was reached after a full hearing at which all parties
were represented. No evidence has since been presented to the Board
which persuades us that we should reconsider.
The objections under paragraph 2 are directed to a decision by the
Regional War Labor Board. This is not the forum to entertain that
objection.
The objections under paragraph 3 relate to the eligibility of non-
members of the- A. F. of L. to vote. We have found above that this
objection lacks merit.
C. The cab and woodworking departments
In the Decision and Direction of Election herein, the Board found
the appropriate bargaining unit to include "all production and main-
tenance employees of the Companies, working at the Trailer and High-
land plants, including watchmen, firemen, and plant engineers, but
excluding armed guards, cab department and woodworking depart-
ment employees, superintendents, foremen, and' any other supervisory
employees with authority to hire, promote, discharge, discipline; or
otherwise effect changes in the status of employees or effectively recom-
mend such action." When this Decision was issued the operation of
the Companies was in the process of a merger which has now been
accomplished. The Board was then of the opinion that the exclusion
THE TRAILER COMPANY OF AMERICA 1257
of the employees in the cab and woodworking departments would
apply to approximately 100 employees who had formed an identifiable
group at the Highland plant and would continue to constitute such a
group in the Trailer plant.
On the basis of the testimony in the record, we find that the cab
department is composed of those employees who are regularly assigned
to work on the fourth floor of the Goodall Building in assembling
cabs; and that the woodworking department is composed of those
employees who are regularly assigned to work on the first floor of the
Goodall Building working in lumber in the mill.
CONCLUSIONS
The A. F. of L. challenged the ballots of 254 voters at the election
on the ground that the ballots were cast by employees working in the
cab or woodworking departments. . According to the record the num-
ber of employees in those two departments as defined above does not
exceed 59, consequently, a large number of the challenged ballots must
have been cast by eligible voters. However, the result of the election
cannot be affected by the opening and counting of the challenged
ballots and we shall not order that they be opened and counted.
CERTIFICATION OF REPRESENTATIVES
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, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations-Series 3,
IT IS HEREBY CERTIFIED that United Automobile, Aircraft & Agri-
cultural Implement Workers of America, Local 392, U. A. W.-C. I. O.
has been designated and selected by a majority of all production and
maintenance employees of The Trailer Company of America and
Highland Body Manufacturing Company, Cincinnati, Ohio, including
watchmen, firemen, and plant engineers, but excluding armed guards,
cab department and woodworking department employees as defined
herein, superintendents, foremen, and any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees or effectively recommend
such action, as their representative for the purposes of collective bar-
gaining and that, pursuant to Section 9 (a) of the Act, the said
organization is the exclusive representative of all such employees for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
MR. GERARD D. REILLY took no part in the consideration of the above
Supplemental Decision and Certification of Representatives.