Hicks Body Co.

National Labor Relations Board - Board Decisions

Apr 30, 1940

23 N.L.R.B. 462 (N.L.R.B. 1940)

In the Matter of HICKS BODY CObIPANY an4 HICKS EMPLOYEES UNION
Case No. R-1773-Decided April 30, 1.9410
Bus Manufacturing Industry-Investigation of Represen.tatwes: controversy
concerning representation of employees: rival organizations; company refused to
grant recognition to either union until one or the other certified by the Board-
.Unct Appropriate for Collective Bargatintng: stipulated as to; all production and
maintenance employees excluding supervisory and clerical employees ; watchmen,
gatekeepers, and truck drivers not within unit-Representatives: eligibility to par-
ticipate in choice ; all employees on pay roll immediately preceding date of Direc-
tion of Election and, in addition , all employees who earned wages in nine or more
weeks during 1939-Electton Ordered
M11r. Robert D. Malarney , for the Board.
Parr, Parr and Parr by Mr. N. H . Parr, Jr., of Lebanon, Ind., for the
Company.
Gullion dl Thompson, by Mr. E. C. Gullion, of Lebanon, Ind., for
the Employees Union.
Mr. Frank S . Pryor and Mr. Hugh Gormley , of Indianapolis, Ind.,
for the A. F. of L. Union.
Mr. Bliss Daffan , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TrlE CASE
On January 15, 1940, Hicks Employees Union, herein called the
Employees Union, filed with the Regional Director for the Eleventh
Region (Indianapolis, Indiana) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Hicks Body Company, Lebanon, Indiana, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On March 4, 1940, the Na-
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
-conduct it and to provide for an appropriate hearing upon due notice.
23 N. L. R. B., No 29.
462
HICKS BODY COMPANY 463
On March 7, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Employees
Union, and Federal Labor Union No. 22207, affiliated with the Ameri-
can Federation of Labor, herein called the A. F. of L. Union, a labor
-organization claiming to represent employees directly affected by the
investigation. Pursuant to notice, a hearing was held on March 18
and 19, 1940, at Lebanon, Indiana, before John T. Lindsay, the Trial
Examiner duly designated by the Board. The Board, the Company,
the Employees Union, and the A. F. of L. Union were represented by
,counsel and participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of
the hearing the Trial Examiner made several rulings on motions and
.objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On March 21, 1940, the Company requested oral argument before
the Board and at the same time lodged with the Board a list of names
designated "Senior Employees" and requested that such list of names
be incorporated into the record and considered by the Board.
On April 9, 1940, a hearing was held before the Board at Washing-
ton, D. C., for the purpose of oral argument. The Company, the
Employees Union, and the A. F. of L. Union appeared and presented
argument. During the course of the argument the A. F. of L. Union
lodged with the Board certain affidavits directed at the aforesaid list
of "Senior Employees." The request of the Company that this list
be incorporated into the record and considered by the Board is hereby
denied, since it was lodged with the Board after the close of the hear-
ing and the matters asserted therein are put in issue by the affidavits
of the Union. The Company filed a brief which has been considered
by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
The Company is an Indiana corporation with its place of business
at Lebanon, Indiana. It is engaged in the manufacture of busses,
principally school busses. The principal raw materials used by the
Company are steel, rubber, leather, composition, insulating material,
and glass. During the 1939 fiscal year the total value of raw materials
used by the Company amounted to approximately $210,000, of which
85 per cent represented raw m aterials obtained from sources outside
the State of Indiana. During the same period sales of finished prod-
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ucts of the Company amounted to approximately $460,000 in value, of
which approximately 60 per cent represented finished products sold'
and shipped to purchasers in States other than Indiana. The Com-
pany concedes that it is engaged in interstate commerce within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Hicks Employees Union is an unaffiliated labor organization admit-
ting to membership employees of the Company.
Federal Labor Union No. 22207 is a labor organization affiliated;
with the American Federation of Labor. It admits to membership.
employees of the Company.
HI. THE QUESTION CONCERNING REPRESENTATION
It was stipulated at the hearing, and we find, that the Company
refused to recognize either the Employees Union or the A. F. of L.
Union as the bargaining representative of the employees until one or
the other organization has been certified by this Board as such repre-
sentative. It was further stipulated, and we find, that a question
has arisen concerning representation of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
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 Company and the unions involved stipulated at the hearing
that the unit appropriate for purposes of collective bargaining con-
sists of all production and maintenance employees, excluding super-
visory and clerical employees. We see no reason for not finding such
unit appropriate.
We find that all production and maintenance employees, excluding
supervisory and clerical employees, constitute a unit appropriate for
the purposes of collective bargaining, and that such unit will insure
to employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuate the
policies of the Act.
HICKS BODY COMPANY 465
There was some question as to whether certain classes of employees
are in the above unit. It appeared that watchmen and gatekeepers
are not eligible for membership in either of the unions involved and
both agreed that these employees do not come within the classifica-
tions of employees in the unit. We find that watchmen and gate-
keepers should not be included in the unit.
At the time of the hearing there were three truck drivers in the
employ of the Company. They are engaged principally in hauling
material between the two plants of the Company which are located
some distance apart in Lebanon. Truck drivers are not eligible for
membership in the A. F. of L. Union and it desires their exclusion.
The record does not disclose whether truck drivers are eligible to
membership in the Employees Union or whether any of them are
members of that organization, but it apparently desires to represent
them in collective bargaining. Under these circumstances, and in
view of the stipulation between the unions providing for the inclu-
sion in the unit of only production and maintenance employees, we
find that truck drivers are not in the appropriate unit.
The A. F. of L. Union contends that 10 named employees' are
supervisor- employees and therefore excluded from the unit. The
Employees Union maintains that these 10 employees are not super-
visory and are included in the unit.
These men are all senior employees of the Company. During peak
periods of employment they, along with other older employees, act
as leaders and, under authorization of the general foremen, direct
the work of new and inexperienced employees and in some instances
"lay out" the work of the other employees. They have no power to
designate the working hours of employees who work with them and
have no authority to hire, discharge, or recommend the hiring and
discharge of employees. They do the same work as the employees
whom they lead and are paid an hourly rate like the other production
employees. In some instances their hourly rate of pay is somewhat
higher, and in others somewhat lower than the employees with whom
they work. We find that these 10 employees should be included in the
appropriate unit.
VI. TIIE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can be best resolved by an election by secret ballot.
The unions involved disagree as to the employees entitled to vote
in the election. The Employees Union contends that the proper pay-
Claude large, Carl Williams, Russell Bates, Thomas Mitchell, Fred Daily, Clifford Carr,
Edgar Essex, Claience Haven, Moses Nease, and Carl Randolph
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll date to determine eligibility of employees to participate in the.
election is that of March 13, 1940, containing the names of 33 em-
ployees in the appropriate unit. The A. F. of L. Union claims that
the proper pay roll is that of August 23, 1939, containing the names,
of approximately 334 employees.
The Company's business is seasonal. Charts introduced in evi-
dence showing the fluctuation in employment for 1937, 1938, and 1939
disclose that peak employment is reached in the latter part of August
and first part of September in each year, with employment steadily
dropping thereafter until a low of between 30 and 40 production and
maintenance employees is reached during the months of January and
February of the following year. Following the low reached in Janu-
ary and February of each year the charts reflect a gradual rise in
employment during the following months until the peak is again
reached during the latter part of August and early in September.
The pay roll of August 23, 1939, represents the employment peak
reached by the Company during the year 1939, an unusual year be-
cause the Company had been the recipient of contracts from the
State of Indiana, let every 4 years, for the construction and repair
of school busses. The employment peak in 1937 and 1938 varied from
between 190 and 200 employees in 1937 to 250 in 1938.
Therefore, while the pay-roll date desired by the A. F. of L. Union
represents the employment peak reached during 1939, the pay roll
desired by the Employees Union represents only a slight increase
in the employment low reached in January and February of 1940.
The Employees Union claims that the pay roll of March 13, 1940,
represents the only regular employees of the Company, whereas that
of August 23, 1939, represents an abnormal period of employment,
and that use of the latter pay roll to determine eligibility would
permit participation in the election of purely temporary employees
having no interest in the choice of bargaining representatives for
the Company's employees at this time. On the other hand, the
A. F. of L. Union claims that the employees. on the pay roll of
August 23, 1939, have a reasonable expectation of employment for
e substantial period when the Company's seasonal operations increase
during 1940 and additions are made to its force of employees.
There is approximately a 50 per cent turn-over in seasonal employees
of the Company from year to year. The employment records of the
Company show that a substantial number of employees who worked
during 1939 were also employed by the Company in 1937 and 1938.
Thus, approximately 100 employees who were on the pay roll of the
Company for the period preceding July 1, 1939, were also on the
pay roll covering the same period during 1937 and 1938.
HICKS BODY COMPANY 467
It is plain that a large number of employees who worked during
1939, but who were not in the Company's employ at the time of the
hearing, have a reasonable expectation of employment during 1940.
Also, the employment of many of them will be for a period which,,
when viewed in the light of the Company's operations in previous
years, is substantial.2
In view of the above we shall direct that all employees in the appro-
priate unit who were employed by the Company during the pay-roll
period immediately preceding the date of the Direction of Election
herein, and, iii addition, all employees in the appropriate unit who
'did not work during said pay-roll period, but who earned wages in
9 or more weeks during 1939, shall be eligible to vote in the election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Hicks Body Company, Lebanon, Indiana,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All production and maintenance employees, excluding super-
visory and clerical employees, 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 ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Hicks Body Company, Lebanon, Indiana, 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, under the direction and
supervision of the Regional Director for the Eleventh 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
Of the emplo'ees who worked for the Company during 1939, 300 received 4 weeks' em-
plovmemt , 250 mere' ed 0 weeks' employment , 200 received 9 weeks ' employment, 150 recehed
14 weeks' employment , 100 received 27 weeks ' employment , 75 received 35 weeks' employ-
ment 60 recened 42 week'' employment , and 50 received 48 weeks' employment
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all production and maintenance employees employed by the Company
during the pay-roll period immediately preceding the date of this
Direction of Election, including all employees who did not work dur-
ing such pay-roll period because they were ill or on vacation, and, in
addition, all production and maintenance employees who did not work
during said pay-roll period but who earned wages in 9 or more weeks
during 1939, but excluding supervisory and clerical employees and all
persons who have since said pay-roll period quit or been discharged
for cause, to determine whether they desire to be represented by Hicks
Employees Union or by Federal Labor Union No. 22207, affiliated with
the American Federation of Labor, for the purposes of collective
bargaining, or by neither.