O. D. Jennings & Co.

National Labor Relations Board - Board Decisions

Jun 10, 1946

68 N.L.R.B. 516 (N.L.R.B. 1946)

In the Matter of O. D. JENNINGS & COMPANY and UNITED STEEL-
WORKERS OF AMERICA, CIO
Case No. 13-R-3561.-Decided June 10, 1946
Messrs David R. Clark and Michael Gasick, both of Chicago, Ill.,
for the Company.
Messrs L. J. Houser and A. J. Graczyk, both of Chicago , Ill., for
the CIO.
Mr. Joseph Schnierer, of Chicago , Ill., for the Independent.
Mr Sydney S. Asher, Jr, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Steelworkers of
America, CIO, herein called the CIO, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of O. D. Jennings & Company, Chicago, Illinois, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Gustaf B. Erickson, Trial Exam-
iner . The hearing was held at Chicago, Illinios, on May 9, 1946. The
Company, the CIO, and Coin Machine Operators Union, herein called
the Independent, appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues . At the hearing, the Company
moved the dismissal of the petition on the ground that the Board has
no jurisdiction herein . For reasons stated in Section III, infra, the motion
is denied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
O. D. Jennings & Company, an Illinois corporation , is engaged in
the manufacture of coin vending and slot machines at its plant in Chicago,
68 N L R. B., No. 74
516
O. D. JENNINGS & COMPANY 517
Illinios. During the 12-month period preceding the hearing the Company
purchased raw materials valued at over $100,000, approximately 10 per-
cent of which was shipped to it from points outside the State of Illinois.
During the same period it sold products valued in excess of $500,000,
of which approximately 80 percent was sold outside the State of Illinois.
The Company does not deny, and we find, that it is engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization, affiliated with
the Congress of Industrial Organizations, admitting to membership
employees of the Company.
Coin Machine Operators Union is an unaffiliated labor organization,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Following an election directed by the Board, the Independent was
certified on May 18, 19401 as the exclusive bargaining agent of the
Company's production and maintenance employees, with certain excep-
tions. Sometime after this certification, the Company and the Independent
entered into contractual relations , and have maintained them up to the
present time . The most recent contract was signed on April 11 , 1946.2
On April 1, 1946, before the contract was executed, the CIO wrote
a letter to the Company in which it stated that it represented "the em-
ployees" of the Company , and requested a meeting with company repre-
sentatives . To this letter the Company did not reply . Neither the Com-
pany nor the Independent contends that the contract is a bar to the
present proceeding.
The Company contends that the Board has no jurisdiction in this case
because no evidence was presented at the hearing to show that the peti-
tioner represents a substantial number of employees in the unit which
it alleges to be appropriate . In this connection the Company particularly
objects to the recent discontinuance of our former practice of intro-
ducing in evidence at the hearing in a representation proceeding, our
Regional agent's report on the prima facie showing of interest made by
the petitioner and any other labor organizations claiming to represent
employees involved in the proceeding .3 It asserts that the non-disclosure
' Matter of O. D Jennings & Co., 23 N L R B 946.
2 The old contract was to expire May 15, 1946.
' This change of practice does not affect our routine requirement that a labor organization
seeking a Board investigation and determination of representatives must exhibit a showing of
substantial interest to our Regional agents. Our decision to discontinue the introduction of our
agents' reports thereon into evidence at the hearings implements our view that the prima
facie showing has a purely administrative function; it eliminates a feature of our procedure
which appears to have caused confusion.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the report at the hearing in this case is an instance of "star chamber"
procedure. These contentions have no merit. We have repeatedly pointed
out that such reports are administrative expedients only, adopted to
enable the Board to determine for itself whether or not further proceed-
ings are warranted, and to avoid needless dissipation of the Govern-
ment's time, effort, and funds. As such, we have frequently explained,
the reports are not subject to direct or'collateral attack at hearings .4 The
Board's authority to conduct an investigation, under Section 9 (c) of the
Act is in no manner dependent upon the petitioner's showing of prima
facie representative interest, nor can anything contained in our agent's
reports on this subject affect any rights of the parties. It is the election,
not the report, which decides the substantive issue whether or not the
petitioner or another labor organization, if any, actually represents a
majority of the employees involved in a representation case. Accordingly,
we have denied the Company's motion to dismiss the petition.
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 CIO's amended petition seeks a unit composed of all production
and maintenance employees of the Company, excluding office and clerical
employees, foremen, and supervisors. This is substantially the same unit
for which the Independent has been bargaining with the Company. The
Independent agrees that this is the appropriate bargaining unit, and the
Company takes no position with respect to the unit.
At the hearing it was stated that the window washer and the truck
driver are members of American Federation of Labor unions, organiza-
tions not represented in this proceeding. These two employees have not
been considered by the contracting parties as part of the bargaining unit,
and both the CIO and the Independent seek their exclusion. In accord-
ance with the desires of the parties and the past bargaining history,
we shall exclude the window washer and the truck driver from the unit
which we find to be appropriate.
We find that all production and maintenance employees of O. D.
Jennings & Company, but excluding office and clerical employees, window
washers, truck drivers, foremen, and any other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action,
*Matter of Atlas Powder Company, Zapon Dsvision, 43 N. L. R. B 757 (footnote); Matter
of Amos-Thompson Corporation, 49 N. L. R. B. 423 ( footnote); Matter of Buffalo Arms
Corporation, 57 N. L. R. B. 1560; Matter of Bakelite Corporation, 60 N. L. R. B. 318, and
cases cited therein.
O. D. JENNINGS & COMPANY 519
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 employees in the
appropriate unit who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject to
the limitations and additions set forth in the Direction.
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 Relations
Board Rules and Regulations - Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with O. D. Jennings & Company,
Chicago, Illinois, 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 Thirteenth 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 employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including em-
ployees 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 those employees 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 United Steelworkers of America, CIO, or by Coin Machine Operators
Union, for the purposes of collective bargaining, or by neither.