Electric Vacuum Cleaner Co., Inc.

National Labor Relations Board - Board Decisions

Oct 3, 1942

44 N.L.R.B. 783 (N.L.R.B. 1942)

In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, LOCAL UNION
No. 52 (A. F. OF L.) -
In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
FEDERAL LABOR UNION No. 18907 (A. F. OF L.)
In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
METAL POLISHERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL
UNION, LOCAL No. 3 (A. F. OF L.)
In the Matter of ELECTRIC VACUUM CLEANER COMPANY, INC. and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT, 54 (A. F.'
OF L. )
Cases Nos. R-4214 to R-4217 inclusive respectively.Decided
October 3, 1942
Jurisdiction : vacuum cleaner manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to any of petitioning organizations until certified
by the Board; immediate elections directed notwithstanding contention that
effects of Company's 'past unfair labor practices had not been dissipated ;
elections necessary.
Unit Appropriate for Collective Bargaining : single or separate units compris-
ing, respectively, (1) firemen; (2) polishers, buffers, platers, and welders;
machinists, tool and.die makers, millwrights, and diesetters,; ('4) remaining
employees; determination of, dependent upon results of separate elections.
Mr. Richard C. Swander, for the Board. " •
Messrs. Spieth, Taggart, Spring ct3 Annat, ' by 7Mr; Lawrence C.
Spieth, of Cleveland, Ohio, for the Company. I 't 11 s
• Messrs.,Keeley, Kutash & Bloch, by •Mllr. George G.-Keeley and
Mr. Richard K. Bloch, of Cleveland, Ohio, for the.petitioningunions.
Mr. Henry Fiering, of Cleveland, Ohio, for the United.
Mr. Eugene R. Thorrens, of counsel 'to' the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by International Brotherhood of
Firemen and Oilers, Local Union No. 52 (A. F. of L.)-, herein called the
44 N L R B., No. 150.
783
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Firemen; Federal Labor Union No. 18907 (A. F. of L.), herein called
the Federal; 'Metal Polishers,' Buffers, Platers and Helpers Interna-
tional Union, Local No. No. 3 (A. F. of L.), herein called the Metal
Polishers; and International Association of Machinists, District 54
(A. F. of L.), herein called the Machinists,' each alleging that a
question affecting commerce had arisen concerning the representation
of employees of Electric Vacuum Cleaner Company, Inc., East Cleve-
land, Ohio, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
William P. Webb, Trial Examiner. Said hearing was held at Cleve-
land, Ohio, on August 27, 1942. The Company, the Firemen, the
Federal, the Metal Polishers, the Machinists, and United Electrical,
Radio & Machine Workers of America (C. I. 0.), herein called the
United, appeared, participated, and were afforded full opportunity
to be heard, to examine and cross-examine, witnesses, and to introduce
evidence bearing upon the issues. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. The petitioning unions and the United filed briefs which
the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE I3USINESS OF THE COMPANY
'Electric Vacuum Cleaner Company, Inc.; a New York corporation
with its principal office and plant at East Cleveland, Ohio, manu--
factures, sells, and distributes vacuum cleaners, parts, and accessories.
During 1941 about 75 percent of the raw materials used by the Com-
pany, totaling more than $2,000,000, were obtained outside the State
of Ohio; and about 90 percent of its finished products, during the
same period, totaling more than $5,000,000, were shipped outside the
State of Ohio. ,The Company admits that-it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen and Oilers, Local Union No.
52; Federal Labor Union No. 18907; Metal Polishers, Buffers, Platers
and Helpers International Union, Local No. 3; and International
Association of Machinists, District 54, are labor organizations,
' Collectively the labor organizations which filed 9 (c) petitions herein are referred to as.
the petitioning unions ,
ELECTRIC VACUUM CLEANER COMPANY, INC. 785
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the Company.
United Electrical, Radio & Machine Workers of America is a labor
organization, affiliated with the Congress of Industrial Organizations,
'admitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company has refused to recognize any of the petitioning unions
as the exclusive representative of the employees in respective, alleged
appropriate units, in the absence of certification by the Board.
Each petitioning union represents a substantial number of employees
of the Company within the unit claimed by each to be appropriate.2
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) aid (7) of the Act.
IV. THE APPROPRIATE UNIT OR UNITS
The Firemen contends that an appropriate unit consists of the
"company's employees working as firemen."
The Metal Polishers contends that an appropriate unit consists of
the "company's employees working as polishers, buffers, platers,
welders; and their helpers, and inspectors in such work, but excluding
supervisory employees." 3
The Machinists contends that an appropriate unit consists of the
"company's employees working as machinists, tool and diemakers,
millwrights, diesetters, and generally all of its employees in the drill
2 In his Report dated August 22 , 1942 , the Regional Director reported with respect to,
evidence submitted , concerning representation claims of the petitioning unions:
Number of
Number of
such authori- Number of
Name of petitioner
genuine
authorization Dated zations of em-ployees on
employees in
alleged
cards sub- August 5. 1942 appropriate
mitted
,
pay roll unit
Firemen --___ ---_ 4 May 1942 3 3
Federal ------------------------------ 542 May 1942 300 341
Polishers---------------------------- 111 May 1942 30 36
Machinists ----------------- 187 May 1942 123 136
The Regional Director also reported that the United submitted evidence in various forms
with respect to claims that it represents 22 employees . Of the 22 persons , 9 appear on the
Company's pay roll of August 5, 1942.
3 At the hearing `the Trial , Examiner granted without objection a motion by counsel
for the petitioning unions to delete the words "and other similar, kindred " and related
classifications " from that portion of the Metal Polishers' petition describing the alleged
appropriate unit
487498-42-vol. 44-50
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
press department, punch press department, automatic department,
screw machine department, millwright department, ballbearing de-
partment; tool room, grinding department and .die cast, department,
and inspectors in these departments, but excluding supervisory
employees." 4
The Federal contends that an appropriate unit consists of the
"company's employees working in the motor department, assembly
department, stock and store department, sewing department, service
department, packers department, shipping and receiving department,
and as truckers, sweepers, janitors, watchmen, inspectors, tiinekeep-'
ers, and generally all other employees of the company not hereinafter
excluded; but excluding from the foregoing all employees covered
by other craft unions affiliated with the American Federation of
Labor, all printers, pressmen, bookbinders, molders, patternmakers,
painters, uniformed guards, office employees and supervisory em-
ployees."
The United contends that an appropriate unit consists of the Com-
pany's production and maintenance employees, excluding supervisory
and clerical employees, but including all the employees described
in the petitions herein:
In this proceeding the Company expressed no preference as to the
unit or units appropriate for the purposes of collective bargaining:
In Hatter of Electric 'Vacmum Cleaner Company, Inc. 'and United
Electrical c i Radio Workers of America, Local 7 ,905 a complaint
proceeding involving, inter alia, a charge of refusal to-bargain col-
lectively, the Company admitted the allegation in the complaint that
all its production and maintenance employees, exclusive of clericalf
and supervisory employees, constituted an appropriate unit:6
For sometime prior to 1935, the Company recognized the,Polishers,
and dealt with it on an informal basis without a written contract.
In June 1935, the Company entered into a 1-year written contract,
containing a closed-shop'provision, with the Polishers, the Machinists,
the Federal, the International Molders Union of North America, and
the Patternmakers Association, herein collectively called the Affil-
iates.' The contract was renewed for 1 year in 1936. In May 1937,
the contract was again renewed to run for 1 year and from year to
4 At the hearing the Trial Examiner granted without, objection a motion by counsel for the petitioning,
unions to delete the words "and other similar , kindred and related classifications " from that portion of the
Metal Polishers' petition , describing the alleged'appiopriate unit.
618 N. L . R. B. 591 , enf d in 315 U S 685, rev'g 120 F . ( 2d), 611 ( C C A. 6).
6In the complaint proceeding , however , the Board did not resolve the controversy as to
appropriate , unit created impart by conflicting claims of the American Fedeiation of Labor
affiliates involved in the present case, since it found that the United did not represent a'
majority of employees in the industrial unit or in any of the smaller units claimed by the
American Federation of Labor affiliates. -
At the time of the hearing in this case and for several months preceding , the Company
had no molders or natters makers on its uav roll.
ELECTRIC VACUUM CLEANER COMPANY, INC. -787,
year thereafter, with a 30=day cancelation clause. After the Supreme
Court had rendered its opinion enforcing the Board's order in the
proceeding referred to above," the Company canceled the contract on
April '16, effective May 20, 1942, pursuant to its terms. The written
contracts negotiated on behalf of the Affiliates by a joint committee,
recognized "the Unions" as "the representative" of the employees,
prescribed hours and general conditions of work, and set up a griev-
ance procedure, but contained no wage scales.° In addition to the
contracts involving the Polishers, the Machinists, and the Federal,
the Company entered into a separate written contract, dated October
23, 1941, with the Firemen, containing a closed-shop provision, to
take effect October 1, 1.941,' and to remain in force until May 20,
1942, and thereafter, with a 30-day cancelation clause. The Company
also canceled this contract, pursuant to its terms, effective May 20,
1942.. Thus, at the time of the hearing there were no contracts in
force, between the Company and any of the petitioning unions.
The groups claimed to be appropriate units by the petitioning
unions, except the Federal, each constitutes a definite and recognized
craft. The Federal claims a normal semi-industrial unit. On the
8 On June 22, 1935, as indicated above, the Company and the Affiliates, representing a
majority of the Company's employees, entered into a 1-year written collective bargaining
agreement. As it supplement to the written contract the Company orally agreed that all
new emp'oyees, i. e , those hired after the date of the contract, should be required to join
the apprcpriate A F of L. affiliate This oral agreement was not revealed to the employees
On July 6, 1936, when the Affiliates represented an increased majority of the employees, the
written and oral agreements were extended to June 23, 1937; but again the employees were
not informed of the oral agreement During March 19,17, a group of employees began to
organize a local of the United Electrical and Radio Workers of America The Company
thereupon attempted to forestall the organization of its plant by the United and, by unfair
labor practices, assisted the Affiliates It compelled a number of old employees to join or
retain membership in the Affiliates under penalty of dischaige; it di°chaiged an old employee
because of his refusal to Jain the Affiliates ; it locked out all its employees for 2 weeks to
enable the Affiliates to cement their ranks and prevent defections to the United ; and it
infoimed its employees that under the July 1936 agreements all employees were required to
be members of the Affiliates, which was not true Before reopening the plant, the Company'
and the Affiliates abandoned the July 1936 agreements and, on April* 3, 1937, enteied into,
an oral full closed-shop contract, which was s ibsequently reduced to writing, requiring
membership in the Affiliates as a condition of employment In conformance with the new
closed-shop contract the Company denied employment to 24 employees who had failed to
obtain approval of or to Join, the- Affiliates.
The Board found that by these actions the Company interfered with,, restrained, and
coerced its employees in the exercise of the rights guaranteed by, Section 7 of the Act, thereby
violating Section 8 (1) ; that because of the antecedent assistance rendered to the Affiliates,
the 1937 closed-shop contract was illegal under the proviso to Section 8 (3) of the Act; and
that.tbe refusal to reemploy' the 24 employees in accordance with the closed-shop contract
was, therefore, discriminatory and in violation of Section 8 (1) and (3) of the Act
The Board's order required the Company (1) to cease and desist from its unfair labor
practices, from giving effect-to the closed-shop provision of its contract with the Affiliates,
and from giving effect to any provisions of that contract should the Board certify another
labor organization as exclusive bargaining representative; (2) to offer reinstatement with
back'pay to the employees discriminated against; and (3) to post notices.
e Witnesses for the Company and the petitioning unions testified without contradiction
that during the administration of the contracts the Company negotiated wage scales and
dealt with each contracting union with respect to grievances separately on behalf of em-,
ployees in each of the units claimed by the petitioning unions, respectively, to be
aunronria te.
7$$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other hand, the integrated character of, ,the Company's operations
and the history of collective ba-rgaining indicate the appropriateness
of an industrial unit which would include the foregoing groups. We
are of the opinion, therefore,, that the Firemen, the Machinists, the
Polishers, and those named in the petition of the Federal, in groups
more expressly defined below, might properly constitute separate
bargaining units, or that they might function as parts of a single
industrial unit. Under these circumstances, we find that the deter-
mining factor should be the desires of the employees in these
groups.1° We shall order elections among the .employees of the,
Company at its East Cleveland plant, within the groups described
below : '
(a) The Company's employees working as firemen, to determine
whether they desire to be represented by International Brotherhood
of Firemen and Oilers, Local Union No. 52 (A. F. of L.), or by the
United, for the purposes of collective bargaining, or by neither;
(b) The Company's employees working as' polishers, buffers,
platers, welders, and their helpers, and inspectors in such work, but
excluding supervisory employees, to determine whether they desire
to be represented by Metal Polishers, Buffers, Platers and Helpers
International Union, Local No. 3 (A. F. of L), or by the United,
for the purposes of collective bargaining, or by neither;
I(c) The Company's employees working as, machinists, tool and
diemakers, millwrights, diesetters, and generally all of its employees
in the drill press department, punch press department, automatic
department, screw machine department, millwright department, ball-
bearing department, tool room, grinding department and die cast
department, and inspectors in these departments, but excluding super-
visory employees, to determine whether they desire to be represented
,by International Association of Machinist's, District 54 (A. F. of L.),
or by the United, for the purposes of collective bargaining, or by-
neither ;
(d) The Company's employees working in the motor department,.
assembly department, stock and store department, sewing depart-
ment, service department, packers department, shipping and receiv-
ing department, and, as truckers, sweepers, janitors, watchmen, in-
spectors, timekeepers, and generally all other employees of the Com-
pany not hereinafter excluded; but excluding from the foregoing all
employees covered by other craft unions affiliated with the American
Federation of' Labor, all printers, pressmen, bookbinders, molders,.
patternmakers, painters, uniformed guards, office employees and
10 Matter-of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No 3;
Inte natronal Association of Machinists, District No 54; Federal' Labor Union 18788, and
United Automobile Workers of America, 3 N. L. R B. 294, and subsequent cases
ELECTRIC VACUUM CLEANER COMPANY, INC. 789
supervisor- employees, to determine whether they desire to be repre-
sented by Federal Labor Union No. 18907 (A. F. of L.), or by the
United, for the purposes of collective bargaining, or by neither.
As stated above, there will be-no final determination of the api
propriate unit or units, pending the results of the, elections. In ac-
,cordance with our usual practice, such of the groups as choose a union
•other than the United will constitute separate and distinct appropriate
units; and such as choose the United will together constitute a single
appropriate unit.
V. THE DETERMINATION OF REPRESENTATIVES
The petitioning unions request certification upon the record, or
separate elections in each unit. The Company expressed no prefer-
ence as to the method to be employed in the determination of repre-
sentatives. The United contends, however, that a fair election cannot
be conducted at this time and that the petitions should be dismissed
because. the effects of the Company's unfair labor practices, referred
to above, extending over a period of years, have not been dissipated,
and that the Company has not complied fully with the Board's order
with respect to back pay for four employees." In support of its con-
tention the United offered one witness who testified (1) that he is
the only one of five employees reinstated who was then employed by
the Company ; (2) that he was unsuccessfully solicited to join the
American Federation of Labor the day he returned to work; (3) that
he had been warned by a friendly employee not to continue working
without joining the American Federation of Labor; and (4) that two
unidentified non-employees refused to allow him to approach the Com-
pany's plant about May 12 or 13, 1942. Under the circumstances and
in view of the fact that investigation- by the Board's agents' discloses-
no reason to postpone the elections, we shall proceed with an immediate
determination of representatives. The petitioning unions and the
,Company desire that eligibility to vote in the elections be determined
on the basis.of the Company's pay roll next preceding the Board's Di-
rection of Elections. The United expressed no preference with re-
spect to the eligibility date. We see no reason for departing from
our usual piractice,of using a current pay-roll date. We shall direct
that the employees. eligible to vote shall be those within the voting
groups described above who were employed during the pay-roll pe-
riod immediately preceding the date of the Direction of Elections,
ii The Board 's records indicate that the Company has complied fully with the Board's
order, except as to back pay for four employees , and that the Company is willing to deposit
In escrow with the Board funds sufficient to pay awards to the four employees'in amounts
to"be' fixed by the Board and the courts.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject to the limitations and additions set forth, in the Direction of
Elections. -
The petitioning unions contend that the name of the United should
not be placed on the ballot in view of the absence of a showing that
it represents, a substantial number of employees., In view of the fact
that the United has shown that it represents some employees of the
Company, and the history of unfair labor practices on-the part of the
Company, we shall direct that the name of the United be placed upon
the ballot, unless the United requests five (5) days after the,date of
the Direction of Elections that its name be withdrawn.12
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 to ascertain representa-
tives for the purposes of collective bargaining with-Electric Vacuum
Cleaner Company, Inc., East Cleveland, Ohio, elections by secret
ballot shall be conducted as early as possible, but not later than
thirty (30) 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 Relations
Board and subject to Article III, Section 9, of. said Rules and Reg-
ulations, among those employees who fall within the groups de-
scribed below who were employed -by the Company at its East
Cleveland. plant during the pay-roll. period immediately preceding
the date of, this Direction of Elections, including employees in each
group 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, and excluding employees
in each group who' have since quit or been discharged for cause :
(a) The Company's employees working as firemen, to determine
whether they desire to be represented by International Brotherhood
of Firemen and Oilers, Local Union No. 52 (A. F. of L.), or by
United Electrical, Radio & Machine Workers of America (C. I. 0.),
for the' purposes of collective bargaining, or by neither;
(b) The .Company's employees,, wdrking as polishers,,,-buffers,
platers, welders, and their helpers, and inspectors in such work, .but
excluding supervisory employees, to determine whether they desire
" At the hearing the United expressed no preference as to a place for it on the-ballot
in the event that the Board ordered balloting.
ELECTRIC VACUUM CLEANER COMPANY, INC. 791
to be represented by Metal Polishers , Buffers, Platers, and Helpers
International Union, Local No. (A. F. of L.), or by the United,
for the purposes of collective bargaining , or by neither;
(c) The Company 's employees working as machinists , tool and
diemakers ,- millwrights , diesetters , and generally all of its employees.
in the drill press department , punch press department , automatic
department , screw machine department , millwright department, ball-
bearing department , tool room, grinding department and die cast
department , and 'inspectors in these departments , but excluding
supervisory employees , to determine whether they desire to be repre-
sented by International Association of Machinists , ' District 54
(A. F. of L.), or by the United ', for the purposes of collective bar-
gaining, or by neither ; and
(d) The Company 's employees working in the motor department,
assembly department , stock and store department , sewing depart-
ment, service department , packers department , shipping and receiving
department , and as truckers , sweepers , janitors, watchmen ,-inspectors,
timekeepers , and generally all other employees of the Company
not hereinafter excluded; but excluding from the foregoing all em-
ployees covered by other craft unions affiliated with the American
Federation of Labor, all printers , pressmen, bookbinders , molders,
patternmakers , painters , uniformed guards, * office employees and
supervisory employees , to determine whether they desire to be repre-
rented by Federal Labor Union No. 18907 , (A. F. of L.), or by
the United , for the purposes of collective bargaining , or by neither.
MR. WM . M. LEIsERs0N took no part in the consideration of the-
above Decision and Direction of Elections.