O. D. Jennings & Co.Download PDFNational Labor Relations Board - Board DecisionsJun 10, 194668 N.L.R.B. 516 (N.L.R.B. 1946) Copy Citation 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. 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