Yellow Truck & Coach Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 12, 1940

24 N.L.R.B. 615 (N.L.R.B. 1940)

In the Matter of YELLOW TRUCK & COACH MANUFACTURING COMPANY
and PATTERN MAKERS' LEAGUE OF NORTH AMERICA, AFFILIATED WITH
THE A. F. L.
In the Matter of YELLOW TRUCK & COACH MANUFACTURING COMPANY
and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKEaS OF
AMERICA, AFFILIATED WITH THE C. I. 0.
Cases Nos. R-1835 and R-1836, respectively.Decided June 12, 19%10
Motor Truck and Passenger Coach Manufacturing Industry-Investigation
of Representatives: controversy concerning representation of employees: re-
fusal by employer to bargain with either petitioning union as statutory repre-
sentative of employees within respective allegedly appropriate units, on the
ground that employer did not know whether either union represented a
majority of the employees in an appropriate bargaining unit-Units Appro-
priate for Collective Bargaining: (1) All pattern and model makers at the
Rapid Street building of the employer's Pontiac plant; (2) all production
and maintenance employees, and mechanical employees in engineering depart-
ment shops, of the Company at its Pontiac plant, but excluding the following
employees : direct representatives of the management, such as officers and
directors of the Company ; sales managers and assistant sales managers ;
factory managers and assistant factory managers; directors and employees of
sales, accounting, personnel, and industrial relations departments; directors
of purchases and assistant directors of purchases ; superintendents and assistant
superintendents ; general foremen, foremen, and assistant foremen, and all
other persons working in a supervisory capacity, including those having the
right to hire or discharge and those whose duties include recommendation as
to hiring or discharging (but not leaders) ; employees whose work is of a
confidential nature ; time-study men ; plant-protection employees (but not
maintenance patrolmen or fire patrolmen) ; all clerical employees; chief engi-
neers and shift operating engineers in power plants; designing (drawing
board), production estimating and planning engineers; draftsmen and
detailers ; physicists ; chemists; metallurgists ; artists, designer-artists, and
clay and plaster modelers ; timekeepers ; technical school students ; indentured
apprentices and technical or professional employees receiving special training ;
kitchen and cafeteria help; and all employees engaged as pattern and model
makers at the Rapid Street Building of the Company's Pontiac plant-Repre-
sentatives: eligibilty to participate in choice: temporarily laid-off employees
on seniority list-Elections Ordered : among employees within each of the two
units found appropriate ; each union to participate in one election only, since
each had indicated an interest in employees within one unit only.
Mr. Arthur C; O'Connor, for the Board:
Mr. A. F. Power and Mr. R. C. Carson, of Detroit, Mich., for the
Company.
24 N. L. R. B., No. 61. 615
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Herbert S. Thatcher, of Washington, D. C., and Mr. J. L. Weiser,
of Detroit, Mich., for the Pattern Makers.
Mr. Ernest Goodman and Mr. Maurice Sugar, of Detroit, Mich.,, for
the U. A. W.
Mr. Richard, Johnston, of counsel to the. Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On July 7, 1939, Pattern Makers' League of North America, herein
called the Pattern Makers,' filed a petition with the Regional Director
for the Seventh Region (Detroit, Michigan) in the above proceedings
designated as Case No. R-1835, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Yellow
Truck & Coach Manufacturing Company '2 Pontiac, Michigan, 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 September 26,
1939, 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,
ordered an investigation upon the petition and authorized the Regional
Director to conduct it and to provide for an appropriate hearing upon
due notice.'
On February 15, 1940, International Union, United Automobile
Workers of America, herein called the U. A. W.,4 filed a petition with
the Regional Director in the proceedings designated above as Case
No. R-1836,5 also alleging that a question concerning the representa-
tion of the Company's employees had arisen and requesting an inves-
1 The Pattern Makers is also referred to in the record as the A. F. of L.
2 The petition erroneously named General Motors Corporation as the employer Involved.
At the hearing mentioned below motions were granted by the Trial Examiner amending
the pleadings , record , and title of the above-entitled cases to state the correct name of the
single employer involved , as above set forth . fhese rulings of the Trial Examiner are
hereinafter affirmed.
3On January 3, 1940, the Board , acting pursuant to Article III, Section 10 (c) (2), of
the said Rules and Regulations , ordered that Case No. R-1835 be consolidated with certain
other cases. On January 12 the Regional Director Issued a notice of hearing In these
consolidated cases , copies of which , together with copies of the petition and amended
petition, were duly served upon the Pattern Makers , upon International Union, United
Automobile Workers of America, C . I. 0., herein called the U. A. W., upon an employer
other than the Company, and upon certain additional labor organizations . On February 2
the Board revoked its order of January 3 in so far as it consolidated Case No. R-1835 with
the other cases, and, acting pursuant to Article III, Section 10 (c) (4), of National Labor
Relations Board Rules and Regualtions-Series 2, as amended, continued the said case as a
separate proceeding.
4 The U. A. W. is also referred to in the record as the C. I. O.
9 See footnote 2, supra.
YELLOW TRUCK & COACH MANUFACTURING COMPANY 617
tigation and certification of representatives. On March 28 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 upon the petition in said case
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On April 22 the Board, acting pursuant to Article III, Section 10
(c) (2), of the said Rules and Regulations, ordered that the two afore-
mentioned cases, Case No. R-1835 and Case No. R-1836, be consoli-
dated. On April 15 the Pattern Makers filed an amended petition
and on April 29 the U. A. W. did likewise.
On April 30 the Regional Director issued a notice of hearing in
the consolidated cases, copies of which, together with copies of the
petitions and amended petitions, were duly served upon the Com-
pany, upon the Pattern Makers,, upon the U. A. W., upon General
Motors Corporation, and upon International Union, United Automo-
bile Workers of America, A. F. L. Thereafter the Regional Di-
rector issued an amendment to notice of hearing and a notice of
postponement of hearing, copies of each of which were duly served
upon the foregoing persons and organizations upon whom the notice
of hearing of April 30 had been served. Pursuant to notice a hear-
ing was held on May 9 at Detroit, Michigan, before Madison Hill,
the Trial Examiner duly designated by the Board. The Board, the
Company, the U. A. W., and the Pattern Makers appeared and were
represented by counsel. All parties participated in the hearing and
were afforded full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing on the issues.
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 error was committed. The rulings are hereby
affirmed.
On May 16 the Pattern Makers requested leave to submit a brief
and present oral argument before the Board. Thereafter, the Board
notified all parties that they, were granted the privilege of submit-
ting briefs and that a hearing before the Board for the purpose of
oral argument would be held. On May 22 the U. A. W. informed
the Board in writing of its withdrawal of all opposition to a finding
by the Board that. the unit, claimed by the Pattern Makers in the
amended petition in Case No. R-1835, as appropriate for the pur-
poses of collective bargaining, and of its desire not to participate
in any election held among employees in this unit. The Board
O The allegations of the amended petitions differ in various respects from those of the
petitions.
618 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
interprets this action by the U. A. W. as a waiver of its privilege
to submit a brief or present oral argument. On May 23 the Pattern
Makers notified the Board in writing of its waiver of the right to
present oral argument, and on May 25 the Company did likewise.
The Company also waived its right to submit a brief, and we in-
terpret the action of the Pattern Makers as being to the same effect..
On May 27 the Pattern Makers requested the Board in writing to
certify that organization upon the record as the statutory repre-
sentative of employees in the above-mentioned unit. The Board
hereby directs the filing instanter as part of the record herein of
all letters and documents containing the above-mentioned waivers,
notifications, and requests of the parties. All parties have been
notified of the cancellation of the hearing previously set. The Pat-
tern Markers' request for certification upon the record is hereby
denied, for reasons hereinafter appearing.
Upon the entire record in ,the..case, ;the Board, makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Yellow Truck & Coach Manufacturing Company is a Maine cor-
poration with executive offices at Pontiac, Michigan. It is engaged
in the manufacture, sale, and distribution of motor trucks and
passenger coaches, and replacement and service parts for such trucks
and coaches. The Company maintains a manufacturing plant in
Pontiac where the employees herein involved are employed. It reg-
ularly ships approximately 94 per cent in value of the finished
products of its Pontiac plant to points outside the State of Michigan.
In the regular course of production at Pontiac, the Company uses
various raw materials and fabricated or partially fabricated articles,
approximately 59 per cent of which in value are obtained and shipped
to the plant from outside the State of Michigan. The Company
employs approximately 5,400 employees. It is evident from the size
of the Company's operations, and we find, that a substantial amount
of finished products are shipped in interstate commerce and a sub-
stantial amount of raw materials are shipped in interstate commerce
in connection with these operations.
II. THE ORGANIZATIONS INVOLVED
Pattern Markers' League of North America is a labor organization
affiliated with American Federation of Labor, admitting to mem-
bership pattern and model makers employed by the Company.
YELLOW TRUCK & COACH MANUFACTURING COMPANY 619
international Union, United Automobile Workers of America, is
a labor organization affiliated with Congress of Industrial Organiza-
tions, admitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company has bargained collectively concerning working con-
ditions with each of the petitioning unions as the representative of
its members. Neither union has ever been recognized by the Com-
pany as the statutory representative. of employees within an appro-
priate collective bargaining unit. Both unions recently requested
the Company to recognize and otherwise bargain collectively with
them as the statutory representative, respectively, of employees within
allegedly appropriate collective bargaining units. The Company
has refused these requests for the reason that it does not know whether
either union in fact represents a majority of the Company's
employees in an appropriate bargaining unit..
We find that questions have arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING REPRESENTATION
UPON COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
and tend to lead to labor disputes' burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNITS
A. The pattern makers unit
The amended petition of the Pattern Makers alleges that "all em-
ployees engaged as pattern and model makers at the Rapid Street
Building" of the Company's Pontiac plant constitute a unit appro-
priate for the purposes of collective bargaining.' The Company
normally employs 19 such pattern and model makers. Neither the
Company nor the U. A. W. now contests the appropriateness of such
a: unit. The Board has held in many cases that employees such as
those in the alleged unit can constitute under certain circumstances
a separate appropriate collective bargaining unit. We are of the
opinion, upon the record presented, and in view of the positions of
° This unit also is described in the record as comprising all pattern and model makers
in Department 64 of the Company 's Pontiac plant.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respective parties on this issue, that the alleged unit is appropriate.
Accordingly, we find that all employees engaged as pattern and model
makers at the Rapid Street Building of the Company's Pontiac plant
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit will insure to employees of the Company the
full benefit of their right to self-organization and to collective bar-
gaining, and otherwise effectuate the policies of the Act. This unit
is herein referred to as the pattern makers unit.
B. The industrial unit
The amended petition of the U. A. W. alleges that a unit appropri-
ate for the purposes of collective bargaining consists of all produc-
tion and maintenance employees, and mechanical employees in en-
gineering department shops of the Company at its Pontiac plant,
but excluding the following employees : direct representatives of the
management, such as officers and directors of the Company ; sales
managers and assistant sales managers; factory managers and as-
sistant factory managers; directors and employees of sales account-
ing, . personnel, and industrial relations departments; directors of
purchases and assistant directors of purchases; superintendents and
assistant superintendents ; general foremen, foremen, and assistant
foremen, and all other persons working in a supervisory capacity,
including those having the right to hire or discharge and those
whose duties include recommendation as to hiring or discharging
(but not leaders) ; employees whose work is of a confidential nature;
time-study men; plant-protection employees (but not maintenance
patrolmen or fire patrolmen) ; all clerical employees; chief engineers
and shift-operating engineers in power plants ; designing (drawing
board), production estimating and,planning engineers; draftsmen
and detailers ; physicists ; chemists ; metallurgists ; artists, designer-
artists, and clay and plaster modelers (but not those who make
patterns) ; timekeepers; technical school students; indentured ap-
prentices and technical or professional employees receiving special
training; and kitchen and cafeteria help. At the hearing the Com-
pany did not oppose a finding by the Board of an appropriate unit
such as that alleged by the U. A. W. in its amended petition, al-
though the Pattern Makers contended that the unit alleged im-
properly included within it the employees already found to constitute
a separate appropriate collective bargaining unit. In view of our
finding the pattern makers unit to be appropriate, and of the positions
now taken by the parties, we are of the opinion, and find, that the
employees in the pattern makers unit were improperly included in
the unit alleged in the amended petition of the U. A. W. to be
appropriate. However, we see no reason for not finding the alleged
YELLOW TRUCK & COACH MANUFACTURING COMPANY 621
unit, excluding employees in the pattern makers unit, to be appro-
priate for collective bargaining. Accordingly, we find that such
unit is appropriate for the purposes of collective bargaining and
that said unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bargain-
ing, and otherwise effectuate the policies of the Act. This unit is
herein referred to as the industrial unit.
VI. THE DETERMINATION OF REPRESENTATIVES
A. The pattern makers unit
As above stated, the Pattern Makers requests a certification upon
the record of itself as the statutory representative of employees in
the pattern makers unit. From 'a report of the Board's Field Ex-
aminer introduced in evidence it appears that a substantial number
of employees within the unit are members of the Pattern Makers.
However, in view of the nature and quantity of the proof offered
regarding representation, we are of the opinion, and find, that the
question which has arisen concerning the representation of em-
ployeesin the pattern makers unit can best be resolved by an election
by secret ballot to determine the choice of bargaining representative.
Seven of the 19 employees who were within this unit when the
original petition was filed by the Pattern Makers have since been
temporarily laid off for lack of work. However, these individuals
are carried by the Company on its seniority list, and will be recalled
to work before new employees are hired when work becomes avail-
able." Both the Company and the Pattern Makers agree that such
persons should be eligible to vote in an election among employees in
the pattern makers unit. We have in many cases held such persons
to be employees, within the meaning of the Act, and eligible to vote.
We here so hold and find, and the Direction of Elections shall be
construed as permitting these employees to vote.'
We shall, accordingly, direct that an election be held among em-
ployees in the pattern makers unit subject to such limitations as
may be stated in the Direction of Elections. The U. A. W., for
reasons above indicated, will not appear upon the ballot in this
election.
8 Employees who have had 6 months' continuous employment with the Company are
placed on a seniority list and, if laid off , are given a preference over new employees for
reemployment.
9 At the hearing the Pattern Makers contended that eligibility to vote should be de-
termined by the pay roll of March 28, 1940, since on that date all of the pattern and
model makers on the Company ' s seniority list were working . However. since employees who
have subsequently been temporarily laid off will be eligible to vote under the terms of the
Direction of Elections . we see no reason for not following our customary procedure
of selecting the pay-roll period next preceding the date of the Direction of Elections.
The Direction of Elections will so provide.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The industrial unit
From the afore-mentioned report of the Field Examiner it appears
that a substantial number of employees within the industrial unit are
members of the U. A. W. and have selected it as their collective
bargaining representative. The U. A. W. does not request certifi-
cation upon the record. We are of the opinion that the purposes
of the Act will best be effectuated and the desires for ,representation
of the employees within this unit best ascertained in an election by
secret ballot. Accordingly, we shall direct that a separate election
be held among all employees within this unit, subject to such limi-
tations as may be stated in the Direction of Elections.
At the hearing, the U. A. W. contended that eligibility to vote in
this election should be limited to those employees on the Company's
pay roll of March 28, 1940. The Company suggests that the pay
roll of May 4, 1940, or of some later date be taken for such purpose.
We see ^no reason for. varying from our customary procedure<.of
selecting the pay-roll period next preceding the date of the direction
of election as determinative of eligibility to vote. Ordinarily all
employees in the unit at or about the time the choice of a statutory
representative is ascertained should be permitted to participate in the
selection.
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. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Yellow Truck & Coach Manufacturing
Company, Pontiac, Michigan, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the National Labor Relations Act.
2. All employees engaged as pattern and model makers at the
Rapid Street Building of the Company's Pontiac plant constitute
a unit appropriate. for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
3. All production and maintenance employees, and mechanical
employees in engineering department shops of the Company "at its
Pontiac plant, but excluding the classifications of employees here-
inabove excluded from the unit found to be appropriate,10 constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
io See Section V B, supra.
YELLOW TRUCK '& COACH MANUFACTURING COMPANY 623
DIRECTION OF ELECTIONS
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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Yellow Truck & Coach Manufacturing Company, Pontiac, Mich-
igan, separate elections by secret ballot shall be conducted, as early
as possible but not later than thirty (30) days from the date of this
Direction of Elections, under the direction and supervision 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 employees in
the following groups, respectively, •viz r.
1. Among all employees. engaged as pattern and model makers at
the Rapid Street Building of the Company's Pontiac plant during
the pay-roll period next preceding the date of this Direction of Elec-
tions, including pattern and model makers who did not work during
such period because they were ill or on vacation, or were then or
have since been temporarily laid off,l1 but excluding those pattern
and model makers who have since quit or been discharged for cause,
to determine whether or not they desire to be represented by Pattern
Makers' League of North America, affiliated with American Federa-
tion of Labor, for the purposes of collective bargaining ; and
2. Among all production and maintenance employees, and mechan-
ical employees in engineering department shops of the Company at
its Pontiac plant employed by the Company during the pay-roll
period next preceding the date of this Direction of Elections, includ-
ing employees who did not work during such period because they were
ill or on vacation or were then' or have since been temporarily laid
off, but excluding the following employees : direct representatives of
the management, such as officers and directors of the Company ; sales
managers and assistant sales managers; factory managers and assist-
ant factory managers; directors and employees of sales, accounting,
personnel, and industrial relations departments ; directors of pur-
chases and assistant directors of purchases; superintendents and
assistant superintendents; general foremen, foremen, and assistant
11 See Section VI, supra, with respect to the eligibility of certain persons, temporarily
laid off, to vote in this election.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen, and all other persons working in a supervisory capacity,,
including those having the right to hire or discharge and those whose
duties include recommendation as to hiring or discharging (but not
leaders) ; employees whose work is of a confidential nature; time-
study men; plant-protection employees (but not maintenance patrol-
men or fire patrolmen) ; all clerical employees; chief engineers and
shift-operating engineers in power plants; designing (drawing
board), production estimating and planning engineers; draftsmen
and detailers; physicists; chemists; 'metallurgists; artists, designer-
artists, and clay and plaster modelers; timekeepers; technical school
students; indentured apprentices and technical or professional em-
ployees receiving special training; kitchen and cafeteria help; all
employees engaged as pattern and model makers at the Rapid Street
Building of the Company's Pontiac plant; and all employees who
since such pay-roll period have quit or been discharged for cause, to
determine whether or not they desire to be represented by Interna-
tional Union, United Automobile Workers of America, affiliated with
Congress of Industrial Organizations, for the purposes of collective
bargaining.