National Battery Co.

National Labor Relations Board - Board Decisions

Dec 31, 1940

28 N.L.R.B. 826 (N.L.R.B. 1940)

In the Matter of NATIONAL B,TTERY COMPANY and INTERNATIONAL'
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION B-1192
Case No. R-0153.-Decided December 31, 1940
Jurisdiction : storage battery manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal- to accord recognition to union ; seasonal employees of employer whose
practice it is to recall such employees before hiring new ones, held eligible
to vote; election necessary.
Where the record raises a substantial question as to the continued exist-
ence of a labor organization which entered into a contract with the Company,
held, that the contract does not preclude the existence of a question con-
cerning representation.
Board directed the name of an organization to appear on the ballot where
the evidence as to its alleged non-existence is inconclusive, since employees
should not be deprived of an opportunity to select such organization as their
representative if it is still a functioning organization.
Unit Appropriate for Collective , Bargaining : production, maintenance, and ship-
ping employees, excluding supervisory and clerical employees ; agreement as to.
Mr. Claude R. Bachmann, of St. Paul, Minn., for the Company.
Mr. Arthur C. McGraner, of Charleston, S. C., for the Union.
Mr. W. D. McWhirter, of East Point, Ga., for the Independent.
Mr. Louis Newman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 22, 1940, International Brotherhood of Electrical Work-
ers, Local Union B-1192, herein called the Union, filed with the
Regional Director for the Tenth Region (Atlanta, Georgia) a peti-
tion alleging that a question affecting commerce had arisen concerning
the representation of employees of National Battery Company, East
Point, Georgia, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
On November 5, 1940, the National 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
28 N. L. R. B., No. 128.
826
NATIONAL BATTERY COMPANY' 827
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.
On November 7, 1940, the Regional Director issued a notice of hear=
ing, copies of which were duly served on the Company and the Union.',
Pursuant to the notice, a hearing was held on November 15, 1940, at
Atlanta, Georgia, before Alexander E. Wilson, Jr., the Trial Exam-
iner duly designated-by the Board. The Company, the Union, and
the Independent were represented at and participated in the hearing.
Full opportunity_ to be heard, to examine and cross-examine wit-
nesses, 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 the admissibility of evidence. The Board
had reviewed the rulings of the Trial Examiner and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Trial Examiner referred to the Board several motions made by
-the parties during the course of the hearing, as follows : (1) motions
by the Company that the petition be dismissed and that the conduct
of any election ordered by the Board be postponed until February
1941, and a motion by the Union that the name of the Independent
be excluded from the ballot in any election ordered by the Board;
-and (2) motions by the Company that an election be held if the peti-
tion is not dismissed and that the name of the Independent be placed
on the ballot in any such election, and a motion by the Union that
eligibility to participate in an election be determined by the Com-
pany's pay roll for the week of October 26, 1940. For reasons here-
inafter stated, we hereby deny the first group of motions and grant
the second group of motions.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is a Delaware corporation having its principal office
and place of business at St. Paul, 'Minnesota, and other plants at
Kansas City, Missouri, Chicago Heights, Illinois, Los Angeles, Cali-
i The record contains an affidavit of service executed by an employee in the Board's
Regional Office stating that a copy of the notice of hearing was sent to National Battery -
Workers Organization , herein called the Independent, on November 8, 1940, by postpaid
registered mail addressed to the Independent care of the Company 's plant A post office
return receipt indicates that someone at the Company 's plant received this copy of the
notice of hearing, but it was testified at the hearing that the Company received two copies
of the notice of hearing in separate envelopes , each addressed only to the Company. A
representative of the Independent testified that he had received no formal notice of hearing
and that he had learned of the hearing only the day before it was to begin , Nevertheless,
the Independent made no request for a postponement or for other relief , and it partici-
pated fully in the hearing . Its representative at the hearing stated that he had had an
opportunity "to present everything" and that the Independent had not been prejudiced by
its not having received a copy of the notice of hearing.
828 DECISIONS OF • NATIONAL. LABOR RELATIONS BOARD
fornia, Dallas, Texas, Depew, New York, North Bergen, New Jersey,
and East Point, Georgia. The present proceeding involves only the
plant at East Point, Georgia, which is near Atlanta, Georgia, and is,
known as the Atlanta plant. -
The Company's Atlanta plant is engaged in the manufacture of
storage batteries for use in automobiles, motor trucks and busses,
boats, and farm machinery. The raw materials used at the Atlanta
plant include approximately 200,000 pounds of oxide per month;
approximately the same quantity of ammonial lead; approximately
one carload of battery separators per month; and approximately
157,000 hard-rubber battery containers and 471,000 hard-rubber bat-
tery covers during the fiscal year ended April 30, 1940. With the
exception of the lead, substantially all of these raw materials are
obtained from outside the State of Georgia, some coming from the
Company's own plants and some from other suppliers. During the
fiscal year May 1., 1939 to April 30, 1940, the Atlanta plant produced
approximately 157,000 batteries, of which approximately half were
sold to purchasers in States other than Georgia.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-1192, is a labor organization in which all production and mainte-
nance employees at the Company's Atlanta plant, exclusive of super-
visory and office employees, are eligible for membership.
National Battery Workers Organization is a labor organization
which admits to membership employees of the Company at its Atlanta
plant.
III. THE QUESTION CONCERNING REPRESENTATION
The Independent was apparently organized early in 1940, when a
constitution was adopted 2 and officers were selected. On February
19, 1940, the Independent and the Company entered into a modified
form of closed shop contract.3 effective until April 30, 1941, and from
year to year thereafter, subject to termination by either party at the
expiration of any annual period upon giving at least thirty days'
notice in writing.
Thereafter the Union began to organize the Company's employees.
Early in October 1940 W. H. Maehl, manager of the Company's
Atlanta plant, refused to bargain with the Union on the ground that
the Company had already entered into a contract with the Independ-
ent as collective bargaining representative of the plant employees and
2 The constitution was not Introduced in the record and there is almost no evidence of
its specific provisions . So far as the record discloses , there have been only two or three
membership meetings of the Independent since it was organized . There is conflicting
testimony as to whether members of the Independent ever paid dues.
'The contract was dated February 17, 1940, but was executed on February 19, 1940.
NATIONAL. BATTERY COMPANY - - - 829
that negotiations with the Union were therefore impossible until the
contract expired in April 1941.
At the hearing the Union produced for examination by the Trial
Examiner a petition dated October 9, 1940, designating the Inter-
national Brotherhood of Electrical Workers as collective bargaining
representative of those signing. The Trial Examiner stated for the
record that the petition contained 72 signatures, of which 68 were
names which appeared also on the Company's pay roll of October 26,
1940. That pay roll is in evidence and shows a total of 83 non-
supervisory employees then at work in the Atlanta plant. The only
evidence of the membership of the Independent at the time of the
hearing is testimony estimating it "at around 15."
The Union urges that the contract between the Company and the
Independent is no bar to the present proceeding because the Inde-
pendent is not an existing labor organization.4 On July 1, 1940, there
was a meeting of members of the Independent, including some who
had previously joined and then withdrawn from the Uliion. It was
voted at this meeting to remove the old officers for failure properly
to discharge their duties, and new officers were selected. There is
testimony that, under the guidance of these newly selected officers,
the Independent continued thereafter to function and was still in
existence at the time of the hearing. On the other hand, the Union
adduced testimony tending to show that the meeting of July 1, 1940
was improperly called ; that the original officers of the Independent
were then still in office; that no removal proceedings were ever insti-
tuted; and that the action taken at the meeting was without effect
under the constitution of the Independent, which provided for the
election of officers on November 1 of each year. There is also testi-
mony in the record that the original president of the Independent,
J. M. Wever, in October 1940 called and held a duly constituted meet-
ing of the Independent at which, in accordance with its constitution, a
three-fourths majority of a quorum voted to dissolve the Independent.
We are of the opinion that the record raises a substantial question
as to the continued existence of the labor organization which entered
into the contract of February 19, 1940, with the Company, and that
the contract should therefore not be held to preclude the existence
of a question concerning the representation of the Company's em-
ployees. We find that a question has arisen concerning the represen-
tation of employees of the Company at its Atlanta plant.-5
4 There is conflicting testimony in the record on the question of whether the Independent
has continued actually to function as a labor organization , even though in existence.
B See Matter of The Midland Steel Products Company, Detroit Pressed Steel Division and
Local 410, International Union, United Automobile Won ens of America, affiliated with Con-
gress of Industrial Organizations , 17 N. L R. B 936, 939; Matter of Brewster Aeronautical
Corporation and International Union, United Automobile Workers of America, Local 365,
affiliated with the Congress of Industrial Organizations , 14 N. L. R B. 1024, 1027.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
I
t
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 Union's petition alleges, and the parties at the hearing stipu-
lated, that the appropriate unit consists of all production, mainte-
nance, and shipping employees at the Atlanta plant, excluding super-
visory and clerical employees. We see no reason to depart from the
stipulation of the parties.
We find that all production, maintenance, and shipping employees
of the Company at, its Atlanta plant, excluding supervisory and
clerical employees, constitute a unit appropriate for the purposes of
collective bargaining, and that said unit will insure to 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 DETERMINATION' OF REPRESENTATIVES
The Company contends that, if the petition is not dismissed, an
election should be held to determine the collective bargaining repre-
sentative of the employees at the Atlanta plant. The Union also
requests an election, rather than certification on the basis of the
record. We find that the question concerning representation which
has arisen can best be resolved by an election.
The Union requests that, in any election which is held, the name of
the Independent be excluded from the ballot because it is no longer
in existence as a labor organization. We have held in Section III,
above, that there is a substantial question as to the continued exist-
ence of the Independent and that its contract with the Company is
therefore no bar to the present proceeding. In view, however, of the
inconclusive nature of the evidence, we do not believe that the Com-
pany's employees should be deprived of an opportunity to select
the Independent as their collective bargaining representative if it is
still a functioning organization.6 We shall therefore direct that the
6 That there now is at least a reorganized Independent is indicated by its participation
in this proceeding.'
NATIONAL BATTERY COMPANY 831
name of the Independent appear on the ballot in the election to be
conducted.
The Union also requests that eligibility to participate in the elec-
tion be determined by the Company's pay roll of October 26, 1940.
The Company and the Independent oppose this request on the ground
that the pay roll of October 26, 1940, represents the peak of em-
ployment during 1940 and therefore includes a number of temporary
employees -who have been or will be laid off with the end of the 1940
season. The operations of the Atlanta plant are highly seasonal in
nature, the slack season beginning about November 15 each year and
continuing to about May 1 of the following year. During slack
periods the Company employs an average of 45 to 47 non-supervisory
factory employees, 5 supervisory employees, and approximately 8
office employees. Operations begin to increase about May 1 each year
and' rise gradually to a peak sometime in the following October or
-November, when the plant also reaches a peak in the number of
persons employed. Peak employment in 1939 was approximately 75
non-supervisory factory employees and approximately 12 office or
clerical employees. In 1940 it was 86 non-supervisory factory em-
ployees, plus the usual 5 foremen 7' and approximately 17 office
employees.
As the Atlanta plant began operations in the spring of 1939, it
has thus far been through only one full slack season and the rebord
does not show which or how many of the employees laid' off after the
1939 season were recalled during the 1940 season. It is the estab-
lished practice at all of the Company's other plants, however, to rehire
laid-off employees first, when employment begins to increase each year,
before hiring new employees, and this policy is to be followed at the
Atlanta plant. Indeed, this policy, was written into the contract be-
tween the Company and the Independent, which provides for the
recall of employees in order of seniority. Employees thus recalled
retain their seniority unbroken.8
We find that the employees added to the Company's pay roll
during busy periods should be permitted to participate in the elec-
tion which is to be held. Accordingly, we shall direct that all em-
ployees in the appropriate unit who were on the Company's pay roll
of October 26, 1940, including employees who did not work during
that pay roll period because they were ill or on vacation and em-
ployees who were then or have since been temporarily laid off, but
7 The number of foremen or supervisors remains the same , apparently , during both slack
and busy periods
8 This is apparently true at other plants of the Company, and at the Atlanta plant the
contract with the independent expressly provides that an employee ' s seniority is not inter-
rupted unless be is "out of the service " of the Company more than 1 year
832 DECISIONS OF NATIONAL LABOR ` RELATIONS BOARD
excluding employees who have since quit or been discharged for cause,
shall be eligible to participate in the election.
On 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 National Battery Company, East Point,
Georgia, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All production, maintenance, and shipping employees of the
Company at its Atlanta plant, excluding supervisory 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
,lay 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 National Battery Company, East Point, Georgia, 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 Election, under
the direction and supervision of the Regional Director for the Tenth
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 all production, maintenance, and shipping em-
ployees of the Company at its Atlanta plant who were on the Com-
pany's pay roll of October 26, 1940, including employees who did not
work during that pay roll period because they were ill or on vaca-
tion and employees who were then or have since been temporarily
laid off, but excluding supervisory and clerical employees and any
employees who have since quit or been discharged for cause, to deter-
mine whether they desire to be represented by International Brother-
hood of Electrical Workers, Local Union B-1192, or by National
Battery Workers Organization, for the purposes of collective bar-
gaining, or by neither.