General Motors Corp.

National Labor Relations Board - Board Decisions

Dec 15, 1941

37 N.L.R.B. 616 (N.L.R.B. 1941)

In the Matter of GENERAL MOTORS CORPORATION, FRIOIDAIRE DIVISION
and UNITED ELECTRICAL, RADIO &' ;_MACHINE_ WORKERS OF AMERICA,
AFFILIATED WITH THE C. I. O.
Case R-,3067.Decided December 1.5, 19-111
Jurisdiction : electric refrigerator manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; contract no bar to. where executed after
institution of proceedings with notice of petitioning union's claims; election
necessary , ,
Unit Appropriate for Collective Bargaining : all metal finishers in particular
plant, excluding metal finish grinders ; agreement as to.
Mr. H. 'M:' Hogan, Mr. A. F. Power; Mr. Denton Jolly; and Mr.
Robert C. Carson, all of'Detroit, Mich.;'for the Company.
Mr. Henry Fiering, Mr. Arthur Garfield, and Mr. Lem Markland,
all of Dayton, Ohio, for'the United. '
Mr. A. G. Slcundor, of Newcastle, Pa., and Mr. Edward C. Bennett
and Mr. Jack Loudon, both of Dayton, Ohio, for the I. A. M.
Mr. Irvin Carl Delscamp, of Dayton, Ohio, for the Dayton Inde-
pendent Union.
Mr. Sy'dney,'S. Asher, Jr., of counsel td'the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On'Jtine`17, 1941, United 'Electrical;,Radio,R^Machine Workers of
America, affiliated with the C. I. 0., -he rein called the United, filed
with the Regional Director for the Ninth Region (Cincinnati, Ohio),
a, 'petition alleging that a question affecting commerce had arisen
concerning the representation of employees of General Motors Cor-
poration, Frigidaire Division, Dayton, Ohio, herein called the Coln-'
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On September' 24, 1941, the Na-
37 N L.,R B , No 101.
616
GENERAL MOTORS CORPORATION 617
tional 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 con-
duct it and- to provide for an appropriate hearing upon due notice.
On September 27, 1941, `the Regional Director issued a notice of
hearing; copies of which were duly served upon the Company, the
United, and Metal Finishers Local Lodge #336, International Asso-
ciation of Machinists, affiliated with the American Federation of
Labor, herein called the I. A. M., a labor organization claiming to
represent employees directly affected by the investigation.' Pursuant
to notice, a hearing was held on October 2 and 3, 1941, at Dayton,
Ohio, before Alba B. Martin, the Trial Examiner duly designated by
the Chief Trial Examiner. The Company, the United, and the
I. A. M. were represented and participated in the hearing.2 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.3
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed. -
On October 7, 1941, the United requested permission to file a brief.
On October 9, 1941, the Board granted permission to all parties to
file briefs with the Board in support of their respective contentions.
On October 18, 1941, the,United filed a brief, which has been considered
by the Board.
Upon the entire record in the case, the Board makes the following :
' The Regional Director sent a telegram to the Dayton Independent Union on October 1,
1941, notifying it of the hearing
2 The Dayton Independent Union also, appeared at the beginning of the hearing. It
stated that it did not desire to intervene since , in view of the short notice it had received,
it could not,produce its-proof',of membership among the employees of the Company. The
Dayton Independent Union, however, did not request a postponement of the hearing. The
Trial Examiner, "in order that the D. I U. be in no way prejudiced," stated that he would
allow the Dayton Independent Union until October 6, 1941, to prepare and submit its proof
of membership Nevertheless, the Dayton Independent Union withdrew from the hearing'
and did not theieafter participate in the hearing or submit, any proof of membership.
At the conclusion of the first day of the hearing, the Trial Examiner telephoned counsel
for the Dayton Independent Union and informed him that the hearing had been continued
until October 3, 1941, and that be would be privileged to attend. Counsel for the Dayton
Independent Union did not, however, attend the second day of the hearing.
3 At the opening of the hearing, counsel for the I. A. M objected to the proceedings and
to the admission in evidence of the original petition filed by the United, on the ground
that the petition did not contain the expiration date of the commission of the notary
public before whom it \1as executed We find this contention to be without merit. See
Ilflttel' of'J S. Popper, Inc. and Un1fed. Electridat,,Radio and Maclaine. Workers,of America,
Local No 421, 17 N L R B 961.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
General Motors Corporation is a Delaware corporation with its
principal business offices in New York City. It is composed of several
unincorporated divisions, one of which is the Frigidaire Division,
which maintains plants in Dayton and Moraine, Ohio.4 At these
plants, the Company manufactures electrical refrigerators, stoves, and
other household appliances and parts therefor. Approximately 40
per cent of the materials used in production by the Frlgidaire Division
are obtained from sources outside of the State of Ohio, and approxi-
mately 90 per cent of the products mainifactured at the plants of the
Frigidaire Division are shipped to points outside the State of Ohio_
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America is a labor
organization affiliated with the Congress of Industrial Organizations.
It admits to membership employees of the Company.
Metal Finishers Local Lodge #336, International Association of
Machinists, is a labor organization affiliated with the, American
Federation of Labor. It admits to membership employees of, the
Company:
III. THE QUESTION CONCERNING REPRESENTATION
On January 27, 1940, the Board issued a Decision and Direction
of Election in which it found that the metal finishers of the Frigidaire
Division in Plant 2, exclusive of metal-finish grinders, constituted an
appropriate unit.5 An election was held and on March 27, 1940, the
Board certified the I. A. M. as the exclusive bargaining represei tative
of the employees in the unit.6 Subsequently, on July 16, 1940, the
Company and the I. A. M. entered into a contract in which the Com-
pany recognized the I. A. M. as the exclusive bargaining representative
of these employees. This contract provided that it was to remain in
,force until terminated by either party on 30 days' notice. On Febru-
ary 10, 1941, the I. A. M. opened negotiations with the Company with
respect to altering its contract. On June 4, 1941, the United advised
the Company that it represented a'majority of the metal-finishers, and
requested the Company to discontinue its negotiations with the I. A. M.
4 The Company's plants are designated as Plant 1, Plant 2, and the Ordnance Plant
The present proceedings involve only Plant 2, which, apparently, is located in Dayton, Ohio
5 Matter of Frigidaire Division of General Motors Corp and Metal Finishers Local Lodge
##336, International Association of Machinists (A. F. L.), 19 N L R. B 957.
621 N.L R. B. 1142.
GENERAL MOT'ORS' CORPORATION 619
until the Board conducted an election.' The Company refused this
request because "the group had already been certified to another bar-
gaining. agency." On June 17, 1941, as noted above, the United filed
the present petition. On June 19, 1941, the I. A. M. and the Company
signed a, contract in which the Company recognized the I. A. M. as the
exclusive bargaining representative of all metal finishers in Plant 2.
The contract provided that it was to take retroactive effect as of
April 28, 1941, and was to remain in force until April 28, 1942, and
thereafter until terminated by either party on 60 days' notice.
The I. A. M. contends that this contract is a bar to the present
proceedings; the United maintains that the contract is not such a
bar; and the Company takes no position. In its brief, the I. A. M.
insists that verbal agreement has been reached on all major issues
on- April 28, 1941, and that the delay in reducing the agreement to
writing was occasioned at the Company's request. At the hearing"
a witness for the T. A. M. testified that he "thought" that the con-
tract could have been signed prior to the date on which it was
actually signed. Ile added that the "major issues" were all settled
prior thereto, but that "there were some other questions" on which
the I. A. M. could not secure an answer until shortly before the agree-
ment was executed. While an accord may have been reached on
a number of substantive terms, as contended, the record fails to
establish that any binding agreement had been consummated prior
to June 17, 1941, when the United filed its petition. The contract,
as we have noted, was in fact executed after the United had claimed
to represent, the metal finishers and had filed a petition with the
Board. We have repeatedly held that a contract; should not preclude
a determination of representatives when it is executed after a rival
union has claimed to represent, employees covered by the contract
or has filed at petition with the Board.8 We do not believe that
the circumstances presented herein justify a departure from those
rulings. We hold, accordingly, that the contract constitutes no bar
to this proceeding.
It appears from a statement of a Field Examiner of the Board,
° On September 7, 1940, the Board had certified the United as the exclusive bargaining
representative of the Company's production and maintenance employees excluding, inter
alia, the metal finishers Matter of F,sgidaire Division, General Motors Corp, Dayton,
Ohio, and Local 801, United Electrical, Radio 0 Machine Workers of America,, affiliated with
the C I 0 , 27 N L R 13, No 28 On June 17, 1941, the Company and the United entered
into in agreement covering all units of the Company's employees in which the United had
received, or should in the futuie receive, Board certification This contract is still in
effect.
8Matter of Erie City Iron Works and International Brothei hood of Firemen and Oilers,
Local 249, A F of L, 30 N L. R B , No 66; Matter of Gene) al Dry Batteries , Inc and
Battery Workers' Federal Labor Union, No 22510, A. F. of L, 29 N L R B, No 145;
Matter of Solvay Process Company and Local 12103, Chemical Division of Distract 50, United
Mine WorlersofAmerica,0.1. 0,29N L R B,No 5
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which was introduced into evidence, that the United submitted proof
of substantial representation, in the unit alleged to be appropriate.°
We find that a question has arisen concerning the representation of
employees of the-Company.
IV. THE EFFECT OF THE QUESTION CONCERNINO REPRESENTATION UPON
CODI MEItCE
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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The United requests a unit composed of all metal finishers in
Plant_ 2, excluding, metal-finish grinders. This was agreed to by
all parties. It is the same unit which was found to be appropriate
in the previous decision of the Board, mentioned above.10 We find
that the metal finishers in Plant 2. excluding metal-finish grinders,
constitute a unit appropriate for the purposes of collective bargain-
ing and that said unit will insure to the employees of the Company
the full benefit of their right to self-organization, and to collective
bargaining and will otherwise effectuate the policies of the Act.
VI. THE DFTEEMINATTON OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be -resolved by, and
we shall accordingly direct, an election by secret ballot.
The United seeks to have eligibility to vote based upon the pay roll
nearest the date on which the petition was filed. The Company and
the I. A. M. expressed no preference as to the pay-roll date to be
used. In support of its contention, the United established at the hear-
ing that since the petition was filed the Company had laid off or trans-
ferred 50 employees in the unit, and intended to lay off an additional
130 employees within the week after the hearing. It is our usual prac-
tice to base eligibility to vote on a current pay roll and to allow em-
ployees who have been temporarily laid off to vote in the election, and
we shall so provide herein.
9 The United submitted 238 membership applications and authorization caids to the Field
Examiner , which were checked against the Company ' s pay roll of July 26, 1941. Of these,
224 contained apparently genuine signatures of employees whose names appeared on the
pay roll There were 480 metal finlsheis on the pay roll of July 26. 1941.
11 See footnote 5
GENERAL MOTORS CORPORATION 621
We shall direct that the employees of the Company eligible to vote
in the election shall be the metal finishers in Plant 2, excluding metal-
finish grinders, who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, 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 General Motors Corporation, Frigidaire
Division, Dayton, Ohio, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The metal finishers in Plant 2, excluding metal-finish grinders,
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 General Motors Corporation, Frigidaire Division, Dayton, Ohio,
an election by secret ballot shall be conducted as early as possible, but
not later than thirty (30) days from the date of this Direction of Elec-
tion, under the direction and supervision of the Regional Director for
the Ninth 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 the metal finishers in Plant 2 who were
employed 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 tem-
porarily laid off, but excluding metal-finish grinders and employees
who have since quit or been discharged for cause, to determine whether
they desire to be represented by United Electrical, Radio & Machine
Workers of America, affiliated with the Congress of Industrial Organi-
zations, by Local Lodge #336, International Association of Machinists,
affiliated with the American Federation of Labor, or by neither, for
the purposes of collective bargaining.