City Auto Stamping Co.

National Labor Relations Board - Board Decisions

Aug 11, 1937

3 N.L.R.B. 306 (N.L.R.B. 1937)

In the Matter of CITY AuTo STAMPING COMPANY and INTERNA-
TIONAL UNION , UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL
No. 12
Case No. R-203.-Decided August 11, 1937
Auto Parts Manufacturing Industry-Investigation of Representatives: con-
troversy concerning representation of employees : rival organizations; sub-
stantial doubt as to majority status-Unit Appropriate for Collective Bargain-
ing: where other considerations determinative of appropriate unit are evenly
balanced , decisive factor is the desire of the employees involved ; determination
of dependent upon results of elections-Elections Ordercd-Certification of Rep-
resentatives.
Mr. Peter DiLeone for the Board.
Mr. Leroy E. Eastman, of Toledo, Ohio, for the Company.
Mr. Clyde E. Kiker, of Toledo, Ohio, for U. A. W. A.
Mr. Ray Kelsay, of Indianapolis, Ind., for the Polishers Union.
Mr. Joseph B. Robison, of counsel to the Board.
DECISION
STATEMENT OF THE CASE
On May 24, 1937, International Union, United Automobile Work-
ers of America, Local No. 12, herein called the U. A. W. A., filed
with the Regional Director for the Eighth Region (Cleveland,
Ohio), a petition alleging that a question affecting commerce had
arisen concerning the representation of the employees of the City
Auto Stamping Co., Toledo, Ohio, herein called the Company, and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On June 3, 1937, the National Labor Re-
lations Board, herein called the Board, acting pursuant to Article
III, Section 3, of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered the Regional Director to con-
duct an investigation and provide for an appropriate hearing.
Pursuant to a notice of hearing duly issued and served by the
Regional Director upon the Company, the U. A. W. A., and Metal
Polishers, Buffers, Platers and Helpers International Union, Local
No. 2, herein called the Polishers Union, a labor organization named
in the petition as claiming to represent those of the Company's em-
ployees who are employed as polishers, a hearing was held in Toledo,
306
DECISIONS AND ORDERS 307
Ohio, on July 9, 1937, before Charles E. Persons, the Trial Examiner
duly designated by the Board. At the hearing the Board, the Com-
pany, and the U. A. W. A. were represented by counsel; and the
Polishers Union was represented by its vice president. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded to all
parties.
Pursuant to notice, a hearing was held before the Board on July
19, 1937, in Washington, D. C., for the purpose of oral argument.
The U. A. W. A. and the Polishers Union were represented by
counsel.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and objections directed to the issues raised by the petition 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
1. THE COMPANY AND ITS BUSINESS
City Auto Stamping Co. was incorporated in Ohio in 1929, and is
engaged in the manufacture of automobile body stampings, such as
fenders and radiator shells. Its factory, its principal office, and the
offices of its two independently operated subsidiaries are all lo-
cated in Toledo, Ohio. The total number of its employees varies,
having been as high as 1243 and as low as 774 during the first six
months of 1937. On June 30, 1937, the last date for which exact
figures are available, the total pay roll numbered 844.1
Raw materials purchased by the Company are delivered at its
plant. Its products are delivered at the plants of the buyers. Ship-
ments are made by boat, rail, and independently owned trucks, and
occasionally, under unusual circumstances, by the Company's own
trucks. The Company manufactures entirely on specifications laid
down by its customers, and sells none of its product on the open
market. Under the Company's arrangements with its customers, it
contracts to supply as many of a given part as may be needed for a
particular automobile model. The wide variations in employment
noted above are a result of this form of dealing, since the seasonal
fluctuations of the automobile industry penetrate to the automobile
parts plants in an accentuated form.
The total value of purchases made by the Company in 1936 was
$1,816,000, of which $646,000, or 36 per cent, was made outside of
1 Board's Exhibit No. 4.
308 NATIONAL LABOR RELATIONS BOARD
'Ohio, in such states as Indiana, Kentucky, West Virginia, and New
York. The only raw material of importance used was sheet steel.
The total value of the Company's products in 1936 was $3,500,000,
of which less than one per cent remained in Ohio, most of the bal-
ance being shipped to four customers in Detroit, Michigan.2
II. THE ORGANIZATIONS INVOLVED
A. The petitioning union
The U. A. W. A. is a labor organization affiliated with the Com-
mittee for Industrial Organization . Local No. 12 admits to member-
ship all of the employees of the Company who are engaged in pro-
duction except supervisory employees . Foremen and assistant fore-
men are associate members.
B. The Polishers Union
Metal Polishers, Buffers, Platers and Helpers International Union
is a labor organization affiliated with the American Federation of
Labor. Local No. 2 admits to membership all of the employees of
the Company who are engaged in polishing and buffing, and also
men doing similar work at other plants in Toledo, Ohio.
III. THE QUESTION CONCERNING REPRESENTATION
A. The background of organization at the Company's plant
The Polishers Union has had signed contracts with the Company
for its members since March 7, 1934. The first one was in effect
until September 7, 1934, and subsequent contracts have been executed
for annual periods. The last was executed in September 1936, and
runs until September 1, 1937, and thereafter until terminated on 30
days notice. There may have been other labor organizations at the
plant prior to 1936, but that does not clearly appear.
Some time in the fall of 1936, the U. A. W. A. started organiz-
ing the plant and on October 26, 1936, it entered into a written con-
tract with the Company, for its own members, which contract runs
until October 26, 1937, and thereafter until terminated on 30 days
notice. Apparently at that time the U. A. W. A. had not attempted
to include the polishers, for the list of wage scales in the contract
does not include a scale for the polishers.
During the succeeding months there was a swing among the pol-
ishers toward the U. A. W. A. Early in March 1937, at a meeting
of the Polishers Union, a large number of the polishers, including all
2All of these facts ale taken from the testimony of an official of the Company who
appeared in response to a subpena Issued by the Board.
0
DECISIONS AND ORDERS 309
three members of the shop committee, were suspended for non-pay-
ment of dues. There is evidence that the actual reason for the sus-
pensions was membership in the U. A. W. A., but the Polishers Union
claims that it has no rule against membership in two unions and
that several of its members at the present time are still in good stand-
ing despite membership in the U. A. W. A.
The suspended shop committee was thereupon elected to represent
the polishers in the U. A. W. A., and at least one of them appears
to be on the shop committee of that union at the present time. On
April 24, 1937, the Polishers Union called a meeting of its members
at the plant. A witness for the U. A. W. A. testified that only
those who were thought to be members were notified of this meeting
and that less than a majority of the polishers working at the plant
were included. At this meeting a new committee was elected.
B. The physical set-up of the Company's plant
There are several departments at the Company's plant, one of
which is devoted to polishing.8 The materials in the course of
production move through the various departments, and a tie-up of
any would shut down the whole plant. Polishing is done in a clearly
defined area, separate from the rest of the departments. The num-
ber of polishers employed fluctuates greatly. During January 1937,
it fell from 76 to 55 and since that month it has never been higher
than 56 and has at times fallen as low as 26. There are 72 names on
the Company's seniority list for the polishers.
There is very little evidence as to the degree of skill required for
polishing at the Company's plant, but it is safe to assume that this
work demands somewhat above the average amount of experience.
C. The present situation
The U. A. W. A. submitted a petition,4 circulated about two months
prior to the date of the hearing, and signed by 24 men whose names
appear on the polishers' seniority list, which is to the effect that the
signers joined the U. A. W. A. voluntarily. In general these men
are the older employees in the department. Their names appear
high on the seniority list. The Polishers Union submitted a peti-
Lion b signed by 41 men whose names also appear on the list, although
for the most part with less seniority. This petition was circulated
immediately before the hearing and states generally the position of
the Polishers Union in this proceeding as well as the fact that the
8 The Polishers Union includes both polishers and buffers. These two operations are
treated as one at the Company's plant. Throughout this opinion , polishing may be taken
to include buffing.
4 U. A. W. A.'s Exhibit No. 2.
Polishers Union Exhibit No. 3
49446-38-vol . 111-21
310 NATIONAL LABOR RELATIONS BOARD
signers desire to be represented by that union. There are no dupli-
cations between these two petitions. However, the U. A. W. A.
claims that it has ten or 12 supporters who did not sign its petition
and the Polishers Union makes a similar claim as to two men. As
there are only seven men who signed neither petition, there is obvious
conflict between these two claims. It is also clear that not all of the
signers ,of these two petitions are now employed at the plant. On
June 30, 1937, the latest date for which exact figures are available,
there were only 30 polishers working. The testimony indicates that
between 45 and 50 were working at the time of the hearing. The
Polishers Union witness testified that at that time only 22 of the 41
signers of its, petition were working.
IV. THE APPROPRIATE UNIT
The U. A. W. A. claims that the entire plant constitutes a single
unit appropriate for the purposes of collective bargaining. The
Polishers Union contends that the men in the polishing department
constitute a separate unit. The situation presented is similar to that
described and discussed In the Matter of The Globe Machine and
Stamping Co. and, Metal Polishers Union, Local No. 3, International
Association of, Machinists, Dietrict No. 54, Federal Labor Union
18788, and United Automobile Workers of America, Cases Nos. R-
178-180, decided this day. As in that case, both contentions are
supported by evidence, the considerations are evenly balanced, and
the record affords little aid on what is there spoken of as the deter-
mining factor, namely, the desires of the men. The nature of the
evidence on this point differs in this case from that of the evidence
in the Globe case, but the claims made by the two unions are here,
as there, conflicting and close. We will therefore order an election
to be held separately for the men engaged in polishing. We will also
order an election. for the, employees of the Company engaged in
production and maintenance, exclusive of the polishers and of clerical
and supervisory employees.
On the result of these elections will depend the determination of
the appropriate unit for the purpose of collective bargaining. If
a majority of the men in both groups of employees elect to be repre-
sented by the U. A. W. A., both groups together will constitute a
single unit. Otherwise we will find that there are two appropriate
units.
V. THE EFFECT OF THE QUESTION OF REPRESENTATION ON COMMERCE
We find that the question of representation which has arisen, oc-
curring in connection with the operations of the Company described
in Section I above, has a close, intimate, and substantial relation to
DECISIONS AND ORDERS 311
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.
VI. THE EXISTING CONTRACTS
Certain questions have arisen with regard to the effect of the exist-
ing contracts with the two unions which were signed in September
and October , 1936. The first of these is with regard to the effect of
the contracts on the holding of elections, and the second is with
regard to certain claims of seniority.
Both of the contracts in question name the contracting union as
the representative of its members only. It is therefore unnecessary
to decide what the effect on the holding of an election would be if the
contracts purported to name the exclusive bargaining agent for the
employees or a group of the employees of the Company. The
Polishers Union contends that the existence of its contract renders
unnecessary any certification of representatives of the polishers by
the Board . However, this contract , by its terms , maybe terminated
by 30 days notice after September 1. Nothing in its terms , therefore,
can prevent the representatives of a majority of the polishers, duly
certified by the Board, from negotiating with the Company as the
exclusive bargaining agent of the polishers . The continued accept-
ance or modifications of the terms of the contract will become one of
the subjects of these negotiations.
The question of seniority arises as follows : All of the contracts
with the Polishers Union have provided generally that the Company
should follow the principles of seniority in hiring and laying. off
polishers. The Company 's system of seniority has been a very
enlightened one. In order to be placed on the seniority list, a man
need work only seven days for the Company. This is a rather short
probation period, as the Company itself now recognizes . Any man
who is on the seniority list remains on after a lay-off until he is
called back to work and fails to appear . Thus a worker does not
lose his rating merely by reason of his working , for a time ,' elsewhere.
If he is not working at the time he is called , he may return to the
Company's plant , even though he has worked elsewhere since the date
of his last lay-off . His interest in his old job is recognized until he
actually refuses reemployment.
In the last contract with the Polishers Union, a clause was inserted
giving to the three members of thethe shop committee for that union
the right to head the seniority list during their term of office, regard-
less of their actual rating. The U. A. W. A. • contract , signed a
month or two later, provides for departmental seniority , and has a
similar provision for the nine members of its shop committee. The
question has arisen as to whether the three members of the Polishers
312 NATIONAL LABOR RELATIONS BOARD
Union committee elected on April 24, 1937, are entitled to paramount
seniority. For the present, the Polishers Union contract is still in
effect according to its terms, and consequently it should be adhered
to. As noted above, the continued existence of the present seniority
clause in the two contracts after the certification of exclusive bar-
gaining agents by the Board can be made the subject of agreement
between the Company and such agents.
VII. CONDUCT OF THE ELECTIONS
The question has arisen as to the eligibility to vote in the election
to determine representatives of the polishers. All of those who
appear on the seniority list of the Company, even though they may
at the time of the election be employed elsewhere, have a reason to
anticipate returning to their work at the Company's plant. They
have therefore an interest in any negotiations toward fixing the terms
of the employment of the Company's polishers and hence an interest
in determining the representatives who are to conduct these negotia-
tions. We find that all those whose names appear on the Company's
seniority list for its polishing department are eligible to vote in the
election to determine the representatives of the polishers for the
purposes of collective bargaining.
No question was raised as to eligibility of the other employees in
the plant. Since there is nothing to show that a different rule should
apply as to this election, we find that all those whose names appear
on the Company's seniority list for the balance of the production
work in the plant are eligible to vote in the election to determine
representatives for the purposes of collective bargaining. If, how-
ever, no such seniority list is available, eligibility will be determined,
in accordance with our usual rules, by the pay roll of the Company
for the week including May 24, the date of the petition.
CONCLUSION OF LAW
On the basis of the above findings of fact, the Board makes the
following conclusion of law :
Questions concerning commerce have arisen concerning the repre-
sentation of the employees of City Auto Stamping Co., within the
meaning of Section 9 (c) and Section 2, subdivisions (6) and (7)
of the National Labor Relations Act.
DIRECTION OK ELECTIONS
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, 49 Stat. 449, and pursuant to Article III, Section 8
of National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is
DECISIONS AND ORDERS 313
DIRECTED that, as part of the investigation directed by the Board to
ascertain representatives for the purposes of collective bargaining
with City Auto Stamping Co., elections by secret ballot , shall be con-
ducted within 15 days from the date of this Direction , under the
direction and supervision of the Regional Director for the Eighth
Region , acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9 of said Rules and
Regulations, among
a. All of the men whose names appear upon the seniority list of
City Auto Stamping Co. for the polishing department , to determine
whether they desire to be represented by International Union,
United Automobile Workers of America, Local No. 12, affiliated with
the Committee for Industrial Organization , or by the Metal Polishers,
Buffers, Platers and Helpers International Union, Local No. 2,
affiliated with the American Federation of Labor, for the purposes
of collective bargaining; and
b. All of the employees of City Auto Stamping Co. engaged in
production , except the polishers and those engaged in a clerical or
supervisory capacity , whose names appear on the seniority list, or, if
such a list is unavailable, on the pay roll for the week including
May 24 , 1937 , to determine whether or not they desire to be repre-
sented by International Union, United Automobile Workers of
'America, Local No. 12 , affiliated with the Committee for Industrial
Organization , for the purposes of collective bargaining.
[SAME TITLE ]
AMENDMENT TO DIRECTION OF ELECTIONS
August 04,1937
On August 11, 1937 , the National Labor Relations Board, herein
called the Board, issued a Direction of Elections in the above-en-
titled case , the elections to be held within 15 days from the date of the
Direction . Thereafter the Board was advised that the Company was
operating with a skeleton force of between 150 and 200 men out of its
usual total of nearly 1000, and that it would resume normal opera-
tions by the last week in August.
All of the parties having agreed to a postponement of the elections
until the end of August 1937 , we hereby amend the Direction of
Elections issued on August 11 , 1937, by striking therefrom the words
"within 15 days from the date of this Direction ," and substituting
therefor the words , "within ten days after September 1, 1937."
Mr. EDWIN S. SMITH took no part in the consideration of the,above
Amendment to Direction of Elections.
314
[SAME TITLE
NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
AND
CERTIFICATION OF REPRESENTATIVES
September 30, 1937
STATEMENT OF THE CASE
On May 24, 1937, International Union, United Automobile Work-
ers of America, Local No. 12, herein called the U. A. W. A., filed with
the Regional Director for the Eighth Region (Cleveland, Ohio) a
petition alleging that, a question affecting commerce had arisen'con-
cerning the representation of the employees of City Auto Stamping
Company, Toledo, Ohio, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On June 3, 1937, the National Labor Relations
Board, herein called the Board, acting pursuant to Article III, Sec-
tion 3, of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered the Regional Director to conduct an
investigation and provide for an appropriate hearing.
Pursuant to notice duly served upon the Company, the U. A. W. A.,
and Metal Polisher's, Buffers, Platers and Helpers International
Union, Local No. 2, herein called the Polishers Union, a labor or-
ganization named in the petition as claiming to represent those of
the Company's employees who are engaged as polishers, a hearing
was held in Toledo, Ohio, on July 9, 1937, before Charles E. Per-
sons, the Trial Examiner duly designated by the Board. On August
11, 1937, the Board issued a Decision and Direction of Elections
which provided that two elections be held.
In its decision, the Board made no finding as to the appropriate
unit for the purposes of collective bargaining with the Company.
The U. A. W. A. had contended that all of the production employees
of the Company constituted a single appropriate unit. The Polishers
Union contended, however, that the Company's polishers constituted
a separate appropriate unit. The Board stated that since either
contention could be sustained, it would direct that a separate elec-
tion be held for the polishers, and would decide the issue on the'basis
of the preferences indicated by the employees in the elections. It
therefore directed that an election by secret ballot be held among the
Company's polishers to determine whether they desired to be repre-
sented by the U. A. W. A. or the Polishers Union for the purposes
DECISIONS AND ORDERS 315
of collective bargaining. It also ordered that an election by secret
ballot be held among the rest of the production employees of the
Company to determine whether or not they desired to be represented
by the U. A. W. A. The Board stated,' "On the result of these elec-
tions will depend the determination of the appropriate unit for the
purpose of collective bargaining. If a majority of the men in both
groups of employees elect to be represented by the U. A. W. A.,
both groups together will constitute a single unit. Otherwise we
will find that there are two appropriate units."
Under the original Decision and Direction of Elections, eligibility
to vote in the election for the polishing department was to be based
on the Company's eligibility list for that department. On August 23,
1937, the U. A. W. A. protested this part of the Direction and peti-
tioned for a rehearing of the case and a modification or other change
in the Decision and Direction of Election.' On August 25, 1937, the
Board denied this petition.
Pursuant to an Amendment of the Direction of Elections made on
August 24, 1937, postponing the date thereof, secret ballots were
conducted on September 8, 1937. Full opportunity was accorded to
all parties to this investigation to participate in the conduct of this
secret ballot and to make challenges.
On September 8, 1937, the agents of the Board who conducted the
ballots certified that a count of the ballots cast showed :
Polishers
Total number eligible----------------------------------------- 71
Total number of ballots cast__________________________________ 70
Total number of blank ballots _________________________________ 0
Total number of void ballots ---------------------------------- 0
Total number of challenged ballots-- -------------- -------------- 0
Total number of ballots cast for the U. A. W. A---------------- 37
Total number of ballots cast for the Polishers Union------------ 33
Production workers, coclusevc of polishers
Total number eligible--------------- -------------------------- 1,117
Total number of ballots cast__________________________________ 429
Total number of blank ballots_________________________________ 0
Total number of void ballots---------------------------------- 3
Total number of challenged ballots---------------------------- 0
Total number of ballots cast for the U. A. W. A________________ 403
Total number of ballots cast against the U. A. W. A------------ 23
On September 13, 1937, the Acting Regional Director caused to be
served on the parties to the proceeding his Intermediate Report on
the conduct of the ballots. No objection with respect to the conduct
1 See Section IV of the Findings of Fact in the original decision.
2 Although there is no provision in the Act or the Rules and Regulations for such a
petition , it was given full consideration. '
316 NATIONAL LABOR RELATIONS BOARD
of the ballots was filed to the Intermediate Report, and it was
forwarded by the Acting Regional Director to the Board in
Washington, D. C.
Upon the entire record in the case the Board makes the following:
SUPPLEMENTAL FINDING OF FACT
In order to insure to the employees of the Company the full benefit
of their right to self-organization and to collective bargaining, and
otherwise to effectuate the policies of the Act, we find that all the
employees of the Company engaged in production, except those en-
gaged in a clerical or supervisory capacity, constitute a unit appro-
priate for the purposes of collective bargaining.
SUPPLEMENTAL CONCLUSION OF LAW
Upon the basis of the above finding of fact and upon the entire
record in the case, the Board makes the following conclusion of law :
All of the employees of City Auto Stamping Company engaged in
production, except those engaged in a clerical or supervisory capacity,
constitute a unit appropriate for the purposes of collective bargain-
ing, within the meaning of Section 9 (b) of the National Labor
Relations Act.
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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT IS HEREBY CERTIFIED that International Union, United Automobile
Workers of America, Local No. 12, has been designated and selected
by a majority of the employees of City Auto Stamping Company en-
gaged in production, except those engaged in a clerical or supervisory
capacity, as their representative for the purposes of collective bargain-
ing and that, pursuant to the provisions of Section 9 (a) of the Act,
International Union, United Automobile Workers of America, Local
No. 12, is the exclusive representative of all such employees for the
purposes of collective bargaining in respect to wages, rates of pay,
hours of work, and other conditions of employment.