M. P. Moller, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1944

56 N.L.R.B. 16 (N.L.R.B. 1944)

In the Matter of M . P. MOLLER, INC.- and, CONGRESS OF- INDUSTRIAL
ORGANIZATIONS
Case No. 5-R-1490.-Decided April 25,1944
Mr. Sidney J. Barban, for the Board.
Mr. John Wagaman, of Hagerstown, Md., for the Company.
Mr. Ernest Marsh, of New York City, and Messrs. Abe Klein, Guy
Johnson, and Robert J. Brylke, of Hagerstown, Md., for the CIO.
Joseph A. Padway, by Mr. James A. Glann, of Washington, D. C.,
and Mr. John Myers, of Hagerstown, Md., for the AFL.
Mr. RobertE. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE,
Upon petition duly filed by Congress'of Industrial Organizations,
herein called the CIO, alleging that a question affecting commerce
had arisen concerning the representation of employees of M. P. Moller,
Inc., Hagerstown, Maryland, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before Earle K. Shawe, Trial Examiner. Said hear-
ing was held. at Hagerstown, Maryland, on March 2 and 3, 1944. The
Company, the CIO,' and Federal Labor Union No. 21108, affiliated
with the American Federation of Labor, herein called the AFL,
appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The rulings of the Trial, Examiner
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded opportunity to file briefs with
the Board. -
During the hearing the AFL moved to dismiss the petition of the
CIO on the ground that no question concerning representation had
arisen because (1) the CIO had not made a substantial showing of
i The CTO signed a waiver of 'its charges of unfair labor practices filed against the Com-
pany in Case No. 5-C-1735, insofar as they might constitute a basis for objecting to the
instant proceeding.
56 N. L. R. B., No. 5.
16
M. P. MOLLER, INC.
r
17
representation, and (2) the AFL was party to contracts with the'
Company which barred a present determination of representatives:
Ruling on this motion was reserved for the Board. For the reasons
stated,in Section III, infra, the motion is hereby denied.
The AFL also moved to continue the hearing until such time as
the uncertainty surrounding the Company's immediate prospects for
giving employment to its full wartime complement of employees was
resolved: Ruling on this motion was reserved for the Board. For the
reasons set forth in Section V, infra, this motion is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF, FACT
1. THE BUSINESS, OF THE! COMPANY
M. P. Moller, .Inc., a Maryland corporation, has its principal place
of business and only plant in Hagerstown, Maryland, where in nor-
mal times it manufactures pipe organs. Since February 1942, the
Company has been engaged in, the manufacture of, airplane wings for
the Fairchild Aircraft Corporation, and ground training equipment
for the Navy Department. Practically' all .the raw materials, used by
the Company are furnished by the Fairchild Aircraft Corporation or
are purchased by the Company. During the year 1943, the Company,
purchased raw materials from outside the ' State of ' Maryland of a
value of approximately $25,000. During the same period, the. value
of the Company's finished products was in excess of $2,000,000. Sub-
stantially all this production went to the Fairchild Aircraft Corpora-
tion or, to the Navy Department.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Congress of. Industrial Organizations is a labor organization ad-
mitting to membership'employees of the Company.
Federal Labor Union No. 21108, is a labor organization affiliated
with the American Federation of -Labor, admitting to membership
employees of the Company. - ,
III. THE QUESTION CONCERNING REPRESENTATION
By a letter dated 'January 8, 1944, the CIO advised the Company
that it represented a substantial number of the latter's hourly-paid
production and maintenance employees and requested a conference
,for collective bargaining purposes . The Company refused to hold a
conference.
587784-45=voL 56-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The AFL,contends that it has contractual relations with the Com-
pany which preclude ^ a present investigation and determination of
representatives. The record indicates that on October 23, 1937, a
consent election was conducted under the auspices of the Board's Re-
gional' Director among the Company's production and maintenance'
employees, in which the,AFL was victorious. The AFL and the Com-
pany entered into their first collective bargaining agreement on June
25, 1938. Subsequent contracts -were signed on November 7, 1939,
April 18, 1940, May 3, 1941, March 6, 1942, and March 6, 1943. This
last contract provides that it is to be effective for a term of 1 year,
and thereafter until changed upon 30 days'- written notice by either
party. Article VII thereof further provides that terms relating to
wages, hours, holidays, vacations, and overtime pay are to be contained
in a separate, agreement., Immediately after signing the March 6,
1943, contract, the AFL petitioned the National War Labor Board,
hereinafter called the W. L. B., on the matter of wages, overtime pay,
holidays, and vacations. On November, 13, 1943; the W. L. B. issued
a directive order which, inter alia, granted certain wage increases to
the'Company's employees retroactive to March 6, 1943. , The provisions
of the directive were incorporated in an agreement signed by the
Company and the AFL on January 3, 1944. This agreement pro-
vides that it is to continue for a term of 1 year from the date of its
execution, and thereafter until replaced or amended, for which 30
days' written notice is required to be given by one party to the other.
Since the agreement of March 6, 1943, has been in effect for, over
a year, and is now terminable upon 30.days' notice by either party, it
clearly is no bar to -a present determination of representatives? Nor
can the agreement of January 3, 1944, be regarded as precluding a
present determination] ,of representatives despite-the fact that it was
executed prior to notice of the CIO's claim to representation. As noted
heretofore, Article VII of the March 6, 1943, contract specifically pro-
vides for a "separate and supplemental" wage agreement such as was
signed on January 3, 1944. Likewise, the latter agreement in its
preamble states that it was entered into in accordance with Article
VII •of the March 6, 1943, contract and shall be construed as a wage
agreement. The president of the Company testified that the January
agreement did not replace the March contract. 'Moreover, it has been
the practice of the Company and the AFL to enter into supplemental -
wage agreements, as is indicated by separate "agreements negotiated
on March 6, 1942, and September' 5, 1942, for 6-month periods.
Finally, as noted above, the W. L. B. directive which was incorporated
in the-January agreement was made retroactive to March 6, 1943, the
4 See Matter of Phelps-Dodge Refining Corporation, 40, N. _L: R. -B. 1159, 1161, and
cases cited therein - -
M. P. MOLLER, INC. 19
date of the basic contract. The January 3, 1914, agreement, therefore,
must -be treated as supplemental to the March 6, 1943, basic contract,
and, for the purposes of this representation proceeding, as subject to
its termination provisions. Were we to hold the January 3, 1944, -
agreement, which deals primarily with wages, to be a bar to this
proceeding, it is conceivable that the subject matter which may'
appropriately be dealt with in collective bargaining agreements would
be divided among several separate contracts, each of which might
have a different termination date, so that the, occasion would never
arise when there would be no contract in operation to be urged as a
-bar to the petition of a rival organization. Under such circumstances,
the rights of employees to choose new bargaining representatives at
reasonable intervals would be defeated. I
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, as supplemented by a statement of the Trial
Examiner made at the hearing; indicates that the CIO, represents a
substantial number of employees in the unit hereinafter found to be
appropriate .3 The AFL contends that the CIO has not made a
sufficient showing in view of the evidence indicating that the number
of employees who would be included in the unit is steadily decreasing-.-
It urges that the CIO does not represent a substantial number-of the
Company's pre-war employees who will filially constitute the unit if
lay-offs continue as company -officials predict. It is -true that prior to
the hearing the Company released many of its employees. However,,
at the present time, the extent to which the Company's total personnel
will be further decreased cannot be foretold with any degree of
accuracy. We shall, therefore, rely upon the showing which the CIO
made in its proposed unit at the time its designation cards were re-
ceived and checked by the Board's Field Examiner and the Trial
Examiner.
We find that a question affecting commerce has arisen concerning,
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the,Act.
IV. THE APPROPRIATE UNIT
The parties are in agreement that the appropriate unit should com-
prise all production ,and maintenance employees of the Company,
including inspectors, truck drivers, watchmen, and leadmen, but ex-
cluding executives, office and clerical employees (including those who
spend part of their time handling forms in connection with shipments),
employees in the retail music store, out-of-town employees who install,
s According to the statements , the CIO submitted 381 application for membership cards.
Of these cards , 271'bore signatures which were the names of persons whose names appeared
on the Company 's pay roll of January 29 , 1944, which listed 721 employees in the unit
slleaed to be appropriate . The AFL relies upon its contracts to show its interest.
-20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tune, and service organs, the engineering staff, draftsmen, nurses,
guards, managers, superintendents, assistant ssuperintendents, and
the chief inspector. The Company and the CIO would also, exclude
foremen, assistant foremen, and assistant chief inspectors, whereas
the AFL would include them in the unit.
Beginning with the 1942 contract, the AFL has bargained col-
lectively for foremen, assistant foremen, and assistant chief inspectors.
This date coincides with the expansion in the Company's personnel
which resulted from the change-over from peacetime to wartime pro-
,duction. Prior thereto, the Company had no assistant foremen or
assistant chief inspectors. The president of the Company stated that
while the, Company originally was willing that the AFL bargain
for the above employees, it is now of the opinion that the results of
such bargaining warrant their exclusion.
The record is clear that the employees in question exercise, super-
visory powers which affect the-status of other employees. ^ Thus, the
foremen are immediately under plant superintendents, and have the
power to discipline and effectively to recommend hiring and discharg-
ing. In addition, they fill out efficiency forms and other employee
records. The assistant foremen act as foremen in the absence of the
latter. They also effectively recommend hiring and discharging.
They are engaged in production work from 15 to 75 percent of their
time as daily circumstances vary. The assistant chief inspectors re.
port -to the chief inspector, and in his absence they are directly re-
sponsible for the work of inspectors. They'have authority effectively
to recommend discipline, promotion, hiring, and discharging of
inspectors. On the average, one-half of their time is devoted to
supervision and one-half to inspection activities.
In Matter of The Maryland Drydock Co7npany,4 the Board held
that supervisors could not constitute an appropriate unit within the
scope of the Act, except in crafts having a history of such bargain-
ing. While it can be said that the Company has a history of collective
bargaining as respects certain of its ' supervisory employees, never-
theless, it was not the intent of our decision in the,Maryland Dry-
.dock case to provide that isolated short-term instances of collective
bargaining history on behalf of supervisory employees could serve
to remove the affected employees from the application of the doc-
trine enunciated therein. Here, the record does not indicate that
bargaining for foremen, assistant foremen, and assistant chief in-
spectors is typical of the unions interested in organizing the organ
industry or the airplane parts industry. We shall, therefore, exclude
foremen, assistant foremen, and assistant chief inspectors from the
4 49 N. L. R. B 733.
M. P. MOLLER, INC. 21
unit as supervisory employees, within the meaning of the Maryland
Drydock decision.
We find that all production and maintenance employees of, the
Company, including inspectors, truck ' drivers, watchmen, and lead-
men, but excluding executives, office and clerical employees (includ-
ing, those who spend part of their time handling forms in connection
with shipments), employees in the retail music store, out-of-town
employees who install, tune, and service organs, ,the engineering staff,
draftsmen, nurses, guards, managers, superintendents, assistant su-
perintendents, the, chief inspector, foremen, assistant foremen, as-
sistant chief inspectors, and all other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise- effect,
changes in the status of employees, or effectively recommend such
action, constitute ,a unit appropriate for the purposes of collective
bargaining within the meaning of Section' 9 (b) of the Act.
V. THE DETERMINATION OF, REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Election
herein, subject to the limitations, and additions set forth therein .5
As has been 'indicated heretofore, there is a possibility that the
employment rolls of the Company will be cut drastically in the near
future. If this event occurs it will be the result of reconversion from
war activities to peacetime production, in which the 590 production.
and maintenance employees at the date of the hearing would be re-
duced in number to between 125 and 150. The AFL contends that
since this possibility exists, no election should -be held until it has
materialized or has been eliminated..
Inasmuch as the record indicates that the future employment plans
of the Company are by no means definitely established, we shall not
postpone the election hereinafter directed and thereby deprive the
employees of a present opportunity to choose a collective bargaining
representative. However, when it is demonstrated that the Com-
pany's personnel has been cut to its pre-war size by reconversion-from-
war to peacetime production, and that this, together with other ap-
propriate circumstances, warrants a redetermination of representa-
tives or of the appropriate bargaining unit, a new petition for the
investigation and certification of a collective bargaining' representa-
tive may be filed with the Board. ) . -
I
5 The CIO urges that eligibility to vote be determined by a pay-roll period nearest the
,date when its petition was filed, in view of the anticipated decrease in personnel . We find no
merit to this request since our usual date for determining eligibility will more accurately
provide for a reflection of the desires'of the employees still retained by the Company at the
time of the election
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, it, is hereby - 11
DIRECTED that, as part of the investigation to ascertain rej resenta-
,tives for the purposes of collective bargaining with M. P. Moller, Inc.,
Hagerstown, Maryland, 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 Fifth Region, acting in this matter as agent for the
National Labor'Relations Board, and subject to Article III,, Sections
10 and 11, of said Rules 'and Regulations, among the employees in
the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding any who have,
since quit or been discharged for cause, and have not been rehired or
reinstated prior to the date of the election, to determine whether they
desire to be represented- by Congress of industrial Organizations, -or
,by Federal Labor Union, Local 21108, AFL, for the purposes of
collective bargaining, or by neither.6
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and, Direction of Election.
'6 The CIO and the AFL"expressed preferences at the hearing that their respective names
appear on the ballot as set forth in the Direction of Election.