Tokheim Oil Tank & Pump Co.

National Labor Relations Board - Board Decisions

May 15, 1940

23 N.L.R.B. 798 (N.L.R.B. 1940)

In the Matter of TOKHEIM OIL TANK & PUMP Co. and UNITED
ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, LOCAL 903-
TOKHEIM UNIT, AFFILIATED WITH THE C. I. O.
Case No. R-1811-Decided May 15, 1940
Gasoline Disposing Pumps, Handling Equipment , and Service Station Acces-
sortes Manufacturing Industry-Investigation of Representatives: controversy
concerning representation of employees : refusal by employer to recognize either
of two labor organizations-Unit Appropriate for Collectwe Bargaining: all
production and maintenance employees and those directly associated with pro-
duction, including watchmen, employees in the Company's parts-service depart-
ment , stockroom , shipping and receiving department , and tool crib, and all
truckers , but excluding supervisory and clerical employees ; stipulation as to-
Election Ordered
Mr. Robert D. Malarney, for the Board.
Niezer and Niezer, by Mr. L. F. Niezer, of Fort Wayne, Ind., for
the Company.
Mr. James Pascoe and Mr. Arthur W. Meloan, of Fort Wayne,
Ind., for the United.
Mr. James P. Murphy, of Fort Wayne, Ind., for the Association.
Mr. Willard Young Morris, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 22, 1939, United Electrical Radio & Machine Work-
ers of America, Local 903-Tokheim Unit, herein called the United,
filed with the Regional Director for the Eleventh Region ( Indian-
apolis, Indiana) a petition alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Tokheim Oil Tank and Pump Company, Fort Wayne, Indiana,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On March
26, 1940, the National Labor Relations Board, herein called the
Board, acting pursuant to Section 9 (c) of the Act and Article III,
23 N. L . R. B, No. 84.
798
TOKHEIM OIL TANK & PUMP COMPANY 799
Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropri-
ate hearing upon due notice.
On April 19, 1940, the Regional Director issued a notice of hearing,
copies of which were served upon the Company, the United, and
Tokheim Employees Association; Inc., herein called the Association,
a labor organization claiming to represent employees affected by the
investigation. Pursuant to notice a hearing was held at Fort Wayne,
Indiana, on April 25, 1940, before Herbert Wenzel, the Trial Ex-
aminer duly designated by the Board. The Company, the United,
and the Association 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 several 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. During the course of the hearing
the United moved that the Association not be accorded a place on
the ballot in the event that the Board directed an election, on the
ground that the Association was organized after the United had
filed its petition herein. The Trial Examiner did not rule on this
motion. It is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
Tokheim Oil Tank and Pump Company is an Indiana corporation
with its principal office and place of business in Fort Wayne, Indiana.
The Company is engaged in the manufacture, sale, and distribution
of gasoline disposing pumps, lubricating and kerosene oil, handling
equipment, and service-station accessories. The principal raw mate-
rials used in the Company's manufacturing operations are castings,
die castings, sheet materials, rubber, felt, and glass. In 1939 the
Company purchased raw materials valued at approximately $1,600,-
000, of which 60 per cent, in terms of tonnage, were obtained from
sources outside the State of Indiana. During the same year the
value of the Company's output amounted to approximately $3,-
850,000, of which 90 per cent represent shipments to points outside
the State of Indiana.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
United Electrical Radio & Machine Workers of America, Local
903-Tokheim Unit, is a labor organization affiliated with the Con-
gress of Industrial Organizations. It admits to membership em-
ployees of the Company.
Tokheim Employees Association, Inc., is an unaffiliated labor
organization. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Both the United and the Association claim to represent a ma-
jority of the Company's production and maintenance employees.
Each of said labor organizations has been refused recognition by
the Company as exclusive bargaining representative of such em-
ployees. The Company stipulated at the hearing that it will recog-
nize whichever labor organization is certified by the Board.
We find that a question has arisen concerning representation of
employees of the Company.
1V. 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
relationship to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and free flow of commerce.
V. THE APPROPRIATE UNIT
All the parties stipulated that an appropriate unit consists of all
the Company's production and maintenance employees, and those
directly associated with production, including watchmen, employees
in the Company's parts-service department, stockroom, shipping
and receiving department, and tool crib, and all truckers, but ex-
cluding supervisory and clerical employees. We see no reason for
not finding appropriate the unit stipulated by the parties.
We find that all the Company's production and maintenance em-
ployees, and those directly associated with production, including
watchmen, employees in the Company's parts-service department,
stockroom, shipping and receiving department, and tool crib, and
all truckers, but excluding supervisory and clerical employees, consti-
tute a unit appropriate for the purposes of collective bargaining,
and that said unit will insure to such employees the full benefit
TOKHEIM OIL TANK & PUMP COMPANY 801
of their right to self-organization and to collective bargaining, and
otherwise effectuate the policies of the Act.
VI. DETERMINATION OF REPRESENTATIVES
We find that an election by secret ballot will best resolve the ques-
tion concerning representation.' The parties stipulated at the hear-
ing that a "payroll of current date" be used to determine eligibility
to vote, in the event that the Board directed the holding of an
election.
We shall direct that the employees in the appropriate unit during
the pay-roll period immediately preceding the date of the Direction
of Election herein, including employees who did not work during
such pay-roll period because they were ill or on vacation and em-
ployees who were then or have since been temporarily laid off, and
excluding those who have since quit or been discharged for cause,
shall be eligible to vote in the election.
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 Tokheim Oil Tank and Pump Company,
Fort Wayne, Indiana, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All the Company's production and maintenance employees, and
those directly associated with production, including watchmen, em-
ployees in the Company's parts-service department, stockroom, ship-
ping and receiving department, and tool crib, and all truckers, but
excluding supervisory and clerical employees, constitute a unit appro-
priate 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-
i A "Statement of Regional Director Concerning Claims of Authorization for the Purpose
of Representation ," dated April 24, 1939, and made in connection with his investigation of
the petition in this proceeding , was introduced in evidence and made part of the record.
This statement sets forth that of the signatures on the 126 membership -application and
bargaining-authorization cards submitted by the United in support of its claim , 124 signa-
tures appear on the Company 's pay roll of current date Concerning the claim of the
Association, the statement sets forth that all the signatures on the 139 membership-
application cards submitted by that labor organization appear on the Company 's pay roll
of current date.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions 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 purpose of collective bargaining
with Tokheim Oil Tank and Pump Company, Fort Wayne, Indiana,
an election by secret ballot shall be conducted as soon as possible
.but not later than thirty (30) days from date of this Direction under
the direction and supervision of the Regional Director for the Elev-
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 the Company's production and mainte-
nance employees and those directly associated with production who
were employed during the pay-roll period immediately preceding
the date of this Direction of Election, including watchmen, employees
in the Company's parts-service department, stockroom, shipping and
receiving department, and tool crib, and all truckers, and including
all such employees who did not work during said pay-roll period
because they were ill or on vacation and employees who were then
or have since been temporarily laid off, but excluding supervisory
and clerical employees and employees who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented for the purposes of collective bargaining by United Electrical
Radio & Machine Workers of America, Local 903-Tokheim Unit,
affiliated with the Congress of Industrial Organizations, by Tokheim
Employees Association, Inc., or by neither.