Thompson Products, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 1941

35 N.L.R.B. 323 (N.L.R.B. 1941)

In the Matter of THoi IPSON PRODUCTS, INC., and INTERNATIONAL
UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFFILIATED
WITH THE CIO
Case No. B-2834.-Decided September 10, 1941
Jurisdiction : metal products manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; election necessary.
A contract executed between the Company and a rival union following
the union's certification by a State Labor Board does not constitute a
bar to an Investigation and Certification of Representatives where the
pay-roll check conducted by the State Labor Board, who had no power
to certify a collective bargaining representative, did not establish that
the union represented a majority of the employees in an appropriate unit
and where the Company had knowledge of the petitioner's claim and
petition to the Board prior to its execution.
Unit Appropriate for Collective Bargaining : hourly rate and production em-
ployees, excluding supervisory employees, foremen, assistant foremen, watch-
men, and office and confidential employees ; agreement as to.
Stanley ct Smoyer, by Mr. Harry E. Smoyer, of Cleveland, Ohio,
for the Company.
Mr. Maurice Sugar and Mr. Jack N. Tucker, of Detroit, Mich., for
the C. I. O.
Mr. Lewis F. Brady, of Detroit, Mich., for the Society.
Mr., Marvin C. Wahl, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 15, 1941, International Union, United Automobile
Workers of America, affiliated with the CIO, herein called the
C. I. O., filed with the Regional Director for the Seventh Region
(Detroit, Michigan) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees
of Thompson Products, Inc., Detroit, Michigan, herein called the
Company, and requesting an investigation and certification of rep-
resentatives pursuant to Section 9 (c) of the National Labor Rela-
35 N. L. R. B , No. 65.
323
451270-42-vol. 35-22
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, 49 Stat. 449, herein called the Act. On July 8, 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
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On July 24, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, the C. I. 0.,
and upon the Society of Tool and Die Craftsmen of America, herein
called the Society, a labor organization claiming to represent em-
ployees directly affected by the investigation? Pursuant to notice,
a hearing was held on July 31 and August 1, 1941, at Detroit,
Michigan, before Woodrow J. Sandler, the Trial Examiner duly
designated by the Chief Trial Examiner. The Company, the C. I. 0.,
and the Society were represented by counsel 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. During the course of the hearing the
Trial Examiner made various rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. On August 14 and
16, 1941, respectively, the Company and the C. I. O. filed briefs which
the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Thompson Products, Inc., is an Ohio corporation with its prin-
cipal office and place of business at Cleveland, Ohio. At the Detroit
plant, with which this proceeding is concerned, the Company manu-
factures, sells, and distributes tie rods, drag links, brakerods, gear-
shift rods, miscellaneous rods, starting cranks, propeller shafts, and
various parts used in the automobile, truck, tractor, aircraft, and
marine engine industries, and sells and distributes valves, valve-seat
inserts, pistons, pins, bolts, and bushings. In 1939 and 1940, the
Company purchased materials valued at approximately $1,600,000
for use in the Detroit plant, 20 per cent of which was purchased
from sources outside the State of Michigan. During the same period,
the value of the finished products manufactured in the Detroit
1 The Society was erroneously designated as "Society of Tool & Die Craftsmen, Inc
in the petition.
THOMPSON PRODUCTS , INC. 325
plant was approximately $3,690,000, 22 per cent of which was sold
outside the State of Michigan . The Company admits that it is
engaged in commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
International Union, United Automobile Workers of America,
is a labor organization affiliated with the Congress of Industrial
Organizations , admitting to membership employees of the Company.
The Society of Tool and Die Craftsmen of America is a labor
organization , admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company seeks to dismiss the C . I. O.'s petition on the ground
that the Society represents a majority of its employees , and that
the C. I. 0., as a minority group , is attempting to disrupt a contract
recently negotiated between the Company and the Society , which has
not yet expired . The Society also contends that the petition should
be dismissed on the ground that the Michigan State Labor Mediation
Board ( herein called the Michigan Board ) has found that the Society
represented a majority of the Company 's employees in an appropriate
unit. The C. I. 0. contends that the Society and the Company had
knowledge of the C. I. O's claim to represent a majority of the
Company's employees before the contract was executed , that the find-
ing by the Michigan Board was improper and beyond its jurisdiction,
and that the, contract ' therefore is not a bar to this proceeding.
In January 1941 , the C. I. 0., claiming to represent a majority'of
the Company 's employees , asked the Company to confer with it as the
collective bargaining representative . The Company replied that it
had a collective bargaining contract with another organization, Auto
Parts Workers, Inc., and stated that questions of majority representa-
tion should be settled by the Board. In February 1941 ; the Society
commenced to organize the employees of the Company , and on March
27, 1941, the Society and the Company held a conference, during
which the Society suggested that the question of majority representa-
tion be submitted to the Michigan Board. The Company agreed
upon condition that the Michigan Board had authority to determine
the question of representation . On March 28 , the C. I. 0. again re-
quested the Company to bargain with it as the representative of the
Company's employees and a meeting was arranged for April 3, 1941.
At this meeting the Company requested the C. I. 0. to furnish proof
that it represented a majority and suggested that the question of
majority representation be submitted to the Michigan Board. ' The
C. I. 0. refused on the ground that the Michigan Board had no
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to certify a bargaining representative. Witnesses for the
Company testified that at the meeting, the C. I. O.'s representatives
were advised that the Society had previously requested recognition
and had offered to submit its membership cards for a pay-roll check
to be conducted by the Michigan Board. The C. I. O.'s witnesses
denied that it had been so advised.
On April- 8 and 9, 1941, the Michigan Board conducted a pay-roll
check and found that the Society presented valid cards of 377 em-
ployees out of a total of 722 employees on the Company's pay roll,.
and thereupon notified the Company and the Society, but not the
C. I. O., that the Society represented a majority of the Company's
employees.
The C. I. O. was not notified that the pay-roll check was to be
held,' and first learned of it on April 15 or 16, when a handbill was
distributed by the Society which stated that the Society was the
bargaining agent of the Company's employees by virtue of the find-
ings of the Michigan Board. On April 15, the C. I. O. filed its
petition with the Board and on April 16, protested both to the Michi-
gan Board and to the Company, and advised them that it would not
recognize any contract that was entered into pursuant to the Michi-
gan Board's findings. On April 18, a Field Examiner for the Board
wrote to the Company concerning the C. I. O.'s claim to represent
a majority of the Company's employees. The Company and the
Society nevertheless continued bargaining negotiations, and on April
28,8 the Company advised the Field Examiner that it had entered
into a contract with the Society.
It is clear that the Michigan Board recognizes that it has no
power to certify a collective bargaining representative.4 In addition,
the pay-roll check conducted by the Michigan Board does not estab-
2 It appears that the Company and the Michigan Board expected each other to notify
the C. I. O. but neither of them did so.
8 The contract , which was admitted in evidence, is dated April 29 , 1941 . One witness
testified that the contract had been consummated 4 or 5 days before the date which
appears on the contract.
4 While the Company does not dispute this fact, it states that it relied upon the assur-
ances of the Michigan Board that it had authority to designate a bargaining agent and
the Company thereupon negotiated and entered into a contract with the Society. There
is conflicting testimony in the record as to whether or not the Company was told that
the Michigan Board had power to designate a bargaining agent, but from the evidence
it would seem that it has power only to settle disputes , and can do that only where all
parties agree to abide by its decision . It does not have power to certify a labor organiza-
tion. A letter dated May 6, 1941 , from the chairman of the Michigan Board to the
Society, was introduced in evidence , and reads , in part:
Please be advised that under the existing law of the State of Michigan , particularly
the law under which this Board operates , there is no provision in the law whereby
the State Mediation Board can certify any union as the sole bargaining agent. * * *
It has been the practice of this Board to assist employers and employees in so-called
payroll checks and consent elections . This practice was carried out by the Board
merely as a matter of courtesy to assist the parties in arriving at some under-
standing. * * *
THOMUPSON PRODUCTS, INC. 327
fish that the Society represented a majority of the employees in an
appropriate unit at the time of the pay-roll check.5 In view of these
facts and the knowledge on the part of the Company of the C. I. O.'s
claim and petition to the Board prior to the execution of the contract,
we find that the contract is not a bar to a present determination of
representatives." -
There was introduced in evidence a statement of the Regional
Director from which it appears that the C. I. O. and the Society
have substantial representation among the employees of the Com-
pany 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
All the parties agree, and we find, that all hourly rate and production
employees at the Detroit plant of the Company, excluding super-
visory employees, foremen, assistant foremen, watchmen, and office
and confidential employees, constitute a unit appropriate for the pur-
poses of collective bargaining. We find, further, that said unit will
insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuate the policies of the Act.
"A conciliator for the Michigan Board testified that when he conducted the pay-roll
check he had before him a letter from the Company which purported to set forth the
"Supervisory Force and Office Force," and which stated that the Company did not believe
that they should be eligible for membership in any union . He testified that he did not
consider the question of exclusion of confidential or other employees from the unit, nor
could he say what specific inclusions or exclusions were made.
6 The exercise of power by the Michigan Board does not oust the Board from jurisdic-
tion Section 9 (c) of the Act; cf. Matter of Robert Jacobs, Inc. and Industrial Union
of Marine and Shipbuilding Workers of America, Local 38, affiliated with the C. I. O.
and New York District Council, United Brotherhood of Carpenters and Joiners of America,
Local 488 (served with notice of hearing ), 32 N. L. R. B 646; Matter of Rock River
Woolen Mills and Textile Workers Union of America , affiliated with the Congress of
Industrial organizations , 18 N. L. R. B. 828.
7 The statement shows that the C. I. O. submitted 240 membership application cards all
of which appeared to bear genuine signatures and represent persons on the Company's
April 8, 1941 , pay roll. The Society submitted 383 membership application cards all of
which likewise appeared to bear genuine signatures and represent persons on said pay
roll . The Company employed 735 persons in the alleged unit on April 8, 1941.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot. The parties agree that in the event of an
election a current pay roll be used to determine eligibility." Ac-
cordingly, we shall direct that those eligible to vote in the election
shall be the employees within the appropriate unit who were employed
by the Company during the pay-roll period immediately preceding
the date of the Direction of Election, subject to such limitations and
additions as are set forth in the Direction.
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 Thompson Products, Inc., Detroit, Michi-
gan, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the National Labor Relations Act.
2. All hourly rate and production employees at the Detroit plant
of the Company, excluding supervisory employees, foremen, assistant
foremen, watchmen, and office and confidential employees, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
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
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Thompson Products, Inc., Detroit, Michigan, an election by
secret ballot shall be conducted as soon as possible, but not later than
thirty (30) days from the date of this Direction of Electioh, under
the direction and supervision of the Regional Director for the Sev-
8 The parties also agreed , however , to deny eligibility to those employees who were hired
within 30 days preceding the date of this Decision . We do not believe that sufficient
reason exists to warrant a departure from our usual practice of determining eligibility by
the pay roll immediately preceding the date of the Direction of Election.
THOMPSON - PRODUCTS, 'INC. 329
enth 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 all hourly rate and production employees at
the Detroit plant of Thompson Products, Inc., who were employed
by the Company during the pay-roll period immediately preceding
the date of this Direction of Election, 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 temporarily laid off, but excluding supervisory employees,
foremen, assistant foremen, watchmen, office and confidential em-
ployees, and employees who have since quit or been discharged for
cause, to determine whether they desire to be represented by Inter-
national Union, United Automobile Workers of America, affiliated
with the Congress of Industrial Organizations or by the Society of
Tool and Die Craftsmen of America, for the purposes of collective
bargaining, or by neither.
[SAME TITLE]
SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
October 9, 1,941
On September 10, 1941, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in
the above-entitled proceeding, directing, inter alia, that an election
by secret ballot be conducted among certain employees of Thompson
Products, Inc., Detroit, Michigan, herein called the Company, to
determine whether they desire to be represented by International
Union, United Automobile Workers of America, affiliated with .the
Congress of Industrial Organizations, herein called the C. I. 0., or
by Society of Tool and Die Craftsmen of America, herein called
the Society, 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 on September 25,
1941, under the direction and supervision of the Regional Director
for the Seventh Region (Detroit, Michigan). On September 26,
1941, the Regional Director, acting pursuant to Article III, Section
9, of National Labor Relations Board Rules and Regulations-Series
2. as amended, prepared and duly served upon the parties an Election
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Report setting forth, inter alia, the following results of the aforesaid
election :
Total on eligibility list-------------------------------------- 780
Total ballots cast ------------------------------------------- 758
Total ballots challenged------------------------------------- 8
Total blank ballots------------------------------------------ 0
Total void ballots------------------------------------------ 0
Total valid votes cast--------------------------------------- 750
Votes cast for International Union, United Automobile Workers
of America, affiliated with the Congress of Industrial Organi-
zations--------------------------------------------------- 370
Votes cast for Society of Tool and Die Craftsmen of America_-- 360
Votes cast for neither ------------------------ --------------- 20
No objections were thereafter filed to the Election Report.
On October 1, 1941, the C. I. O. filed a formal request for a run-off
election to be held by the Board.
Although neither of the competing labor organizations received a
majority of the votes cast, the results of the election show that a sub-
stantial majority of the employees in question desire to bargain col-
lectively with the Company. Accordingly, we shall direct a run-off
election in which such employees will be given an opportunity to
decide whether they desire to be represented by the C.I.O., or by
the Society for the purposes of collective bargaining.
SECOND 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, 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
D=crED that, as part of the investigation authorized by the Board
to determine the appropriate unit and to ascertain representatives
for the purposes of collective bargaining with Thompson Products,
Inc., Detroit, Michigan, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Second Direction of Election, under the direction and super-
vision of the Regional Director for the Seventh 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 all hourly rate and production employees described in the
Direction of Election issued on September 10, 1941, but excluding
those employees who have since quit or been discharged for cause, to
determine whether they desire to be represented by International
Union, United Automobile Workers of America, affiliated with the
Congress of Industrial' Organizations, or by Society of Tool and Die
Craftsmen of America, for the purposes of collective bargaining.
35 N. L. R. B., No. 65a.