Packard Motor Car Co.

National Labor Relations Board - Board Decisions

Feb 23, 1943

47 N.L.R.B. 932 (N.L.R.B. 1943)

In the Matter Of PACKARD MOTOR CAR COMPANY and INTERNATIONAL
UNION, UNITED AuhoDIonILE , AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO) LOCAL No. 114
Case No. R-4693.-Decided February 23,1943
Jurisdiction : ordnance manufacturing industry
Investigation and Certification of Representatives : existence of question : recog-
nition refused because of provision in existing contract with petitioner's parent
and sister-local precluding contractees from accepting for membership plant
protection employees sought by petitioner ; such contract, although ostensibly
binding upon subordinate locals, held no bar, since it contravened the express
purpose and policy of the Act in that it restricted employees in the selection
of a bargaining agent; election necessary.
Unit Appropriate for Collective Bargaining : all plant protection employees, in-
cluding zone supervisors and relief zone supervisors, but excluding chiefs,
assistant chiefs; foremen, assistant foremen, and confidential clerks, notwith-
standing that they were made civilian auxiliaries of military police by Direc-
tive Order of War Department:
Bodmarn, Longley, Bogle, Middleton d Armstrong, by Mr. Henry C.
Bogle, of Detroit, Mich., for the Company.
Mr. Maurice Sugar, Mr. Ernest Goodman, and Mr. Ned L. Smolder,
of Detroit, Mich:, for Local 114.
Mr. Williamy C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Union, United Automo-
bile, Aircraft & Agricultural Implement Workers of America
(UAW-CIO) Local No. 114, herein called Local 114, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Packard Motor Car Company, Detroit, Michigan,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Harold A.
Cranefield, Trial Examiner. Said hearing was held at Detroit,
Michigan, on December 22 and 28, 1912. The Company and Local 114
appeared, participated, and were afforded full opportunity to be heard,
47 N. L R B., No. 117.
932 -
PA'CKARD MOTOR CAR COMPANY 933'
to examine and 'cros's-examine witnesses, and to introduce evidence,
bearing upon the issues. At the hearing the Trial Examiner reserved
ruling upon the motion of the Company to dismiss the petition on the
following grounds: (1) that plant protection employees are not em-
ployees within the, meaning of the National Labor Relations Act;
,(2) that collective bargaining is inconsistent with the plant protection
employees' status as civilian auxiliaries of the military police; , and
(3) that Local 114, being an affiliate of the International Union,
United Automobile,* Aircraft & Agricultural Implement Workers of
America, herein called the International, is precluded from repre-
senting the Company's plant protection employees because of the
express terms of the collective bargaining agreement now in force
between' the Company and the International and its Local No. 190,
which corers the Company's production and maintenance employees.
For reasons hereinafter stated, the Company's motion is hereby denied.
The Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. The Company and Local 114
filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Packard Motor Car Company is a Michigan corporation with its,
principal office and place of business in Detroit, Michigan. Prior to
1941 the Company was engaged at its Detroit plants in the manufac-
ture and sale of automobiles. In the ordinary course of business raw
materials were purchased and transported to the Company's Detroit
plants from points outside the State of Michigan and large numbers
of completed automobiles were sold and transported by the Company
to points outside the State of Michigan. Beginning in 1941 and con-
tinuing through 1942 the Company has converted its manufacturing
facilities to the manufacture of munitions and ordnance for the Gov-
ernments of the United States and other 'of the United Nations. In
its current war manufacturing activities .the Company procures over
50 percent of the raw materials used from suppliers outside the State
of Michigan and transports approximately 90 percent of the finished
products, valued in excess of 1 million dollars per annum, to points
outside the State of Michigan. The Company admits that for the
purpose of this proceeding it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, Local No. 114, is a labor organization
934 DECISIONS OF NATIONAL LABOR REIlATZONS^ BOARD
affiliated with the Congress of Industrial Organizations admitting to
membership employees of the Company. -
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated July 3; 1942, an official of the International advised
the Company that the International represented a majority of the
Company's plant protection employees and requested recognition' as
the bargaining representative of'these employees. On July 10, 1942,
the Company replied that it could not recognize the International
because of a provision in its current contract with the International
and its Local No. 190, covering the production and maintenance em-
ployees, which precluded the contracting union from accepting for
membership certain enumerated classes of employees, including plant
protection employees. Thereafter on July 17, 1942, Local 114 filed
the petition in this proceeding. The Company contends that the con-
tractual provision is a bar to this proceeding. Local 114 argues that
the specific provision of • the contract in question is enforceable only
against. the local union which represents the production and mainte-
nance employees.
For the past 3 years the Company has operated under collective bar-
gaining contracts with the International and Local 190, covering its
production and maintenance employees. The current agreement was
executed on October 7, 1942, and by its terms is to remain in force
until 6 months after the conclusion of the war. Each of these contracts
contains a provision stating that "the union will not accept for mein-
hership direct representatives of the management such as . . . plant
protection employees. ..." The Company contends that the peti-
tioning union, Local 114, being an affiliate of the International, is
bound by this provision and therefore is estopped from seeking to
represent the plant protection employees.
Although the contract referred to above was not signed by Local 114;
we ,assume for present purposes that it is as binding, upon Local 114 as
upon the International and Local 190, since Local 114-is a subordinate
of the International? ' We also'assume that the contractual provision
purportedly proscribes representation by; as well as. membership in;
Local -114. The' issue becomes, therefore, whether employees 2 may
be denied the privilege of selecting a particular labor organization- 2,s
their representative because that organization has agreed, in a contract
with their employer, not to represent them. In "our opinion, such a
1 The constitution of the International (Article VI. Section 9 ) provides that "All mem-
bers of the Local Union are also members of this International Union and subject -to the
orders, rulings , and decisions of this International- Union and the properly constituted
authorities of the same ." - - - - -
2 For reasons appearing below, we find, that the plant protection employees are em-
ployees-within the meaning of the Act., .
l
PACKARD MOTOR. CAR "COMPANY, 935,
contractual provision contravenesk the express purpose and policy of
the Act.
The statute explicitly declares that it is the policy of the, United
States to mitigate and eliminate obstructions to the free flow of 'com-
merce "by encouraging the practice and procedure of collective bar-
gaining and by protecting the exercise by workers of full freedom of
association, self-organization, and designation of representatives of
their own choosing." Section 7 of the Act states that employees "shall'
have the right . . . to bargain collectively through representa-
tives of their own choosing." In the face of such clear expression of
public policy and the rights of employees, it would seem obvious that
any agreement between an employer and a labor organization restrict-
ing employees in the selection of a bargaining agent and entered into
when that organization was not authorized to act as the representative
of the employees whose rights are affected, is plainly in, derogation of
the rights accorded employees by the Act and cannot be given effect.
No provision in the Act permits the Board, the employer, or a labor
organization not acting as the statutory representative of the employees
whose -rights are in issue, to prevent such employees from exercising
their right to bargain collectively in an appropriate unit through any
bargaining agent whom they may desire to act as their exclusive repre-
'sentative.3 We accordingly- find that the foregoing provision in the
contract between the Company and the International and its Local 190
is not a bar to this proceeding. -
A statement of the Regional Director, introduced in' evidence at the
hearing, indicates,that Local 114 represents,a substantial number of
employees in the unit hereinafter found appropriate 4
We find that a question affecting commerce has arisenconcerning the
representation of employees of the Company within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
3 Cf. McQuay-Norris Mfg. Co. v N. L R B., 116 F. ( 2d) 748 (C: C. A. 7), cert. denied
313 U. S. 565, wherein the Court stated that a union's consent to receiving limited rec-
ognition from the employer did not relieve the employer '.'of its statutory. duty to grant
complete recognition ," inasmuch , as the exclusive , recognition required by Section 9 (a)
of the Act "is not a bargaining matter" but "a statutory requirement " See also Matter
of Chrysler Corporation Highland Park Plant and Local 114, United Automobile, Aircraft
and Agricultural Implement Workers of America, affiliated with the C . I. 0., 44 N. L R. B.
881 ; Matter of Godchaux Sugars, Inc. and United Sugar Workers, Local Industrial Union
No. 1156, C. I. 0., 44 N. L. R. B. 874. '
The Board has held that a provision m a. consent election agreement by which a peti-
tioning union agreed to be bound by the result of an election foi• a period of at least 1
year, flies in the face of Section 1 of the Act and does not constitute a bar to a determi=
nation of representatives prior to the expiration of 1 year from the date the union lost
the consent election. See Matter of Southport Petroleum Company of Delaware and Oil
Workers International Union, Local 449, 39 N. L. R B. 257; Matter of Automatic Prod-
ucts Company and International ' Union, United Automobile Workers of America, Local
736 (AFL), 40 N. L R B. 941
I The report of the Regional Director states that Local 114 submitted- 99"_application
cards for membership in the International dated between June 17, 1942, and August- 14,
1942, bearing apparently genuine signatures ; that 90 of these signatures are the names
of persons whose names appear , on the Company 's pay roll of September , 22, 1942, which
contains the names of 155 persons in the alleged ' appropriate unit.
I
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
- Local 114 contends that all plant protection employees of the Com-,
pany, including zone supervisors and relief zone supervisors and
excluding chiefs, assistant chiefs , foremen, and confidential , clerks, com-
prise an appropriate unit. The Company , as previously noted, in its
motion to dismiss alleges that the plant protection employees are not
employees within the meaning of the Act and, further, that collective
bargaining is inconsistent with their status as civilian auxiliaries of the
military police.
The Company's plant protection force of approximately 165 employ-
ees-is comprised of 1 chief of guards , 1 assistant chief of guards, 3 fore-
men, 3 assistant foremen, 9 zone supervisors , 21 patrolmen ( 6 of whom
act as relief zone supervisors), and 127 guards. All plant protection
employees have recently been made civilian auxiliaries of the military
police. However, these employees are hired and paid by the Company,
and in all essential respects the customary employer' employee relation-
ship is preserved . - In view of these facts and for reasons we have stated
in similar cases , we find no merit in either of the Company's
contentions.,'
The Company resists the inclusion of zone supervisors in the appro-
priate unit because it contends that the nature of the duties of these
employees is supervisory . The Company 's properties are divided into
4 geographic areas known as zones. A zone supervisor is assigned to
each zone . However, he has no set place of duty and no office and no
zone supervisor is ever at any time in sole charge of the plant protec=
tion force ' since an assistant foreman or other higher supervisor- is at
all times present and in charge . A zone supervisor 's function is to
patrol his respective area, checking on the proper performance of their
duties by patrolmen and guards. Guards have stationary positions of
duty while patrolmen walk a beat. On certain shifts, a zone supervisor
patrols 2 zones, since there are 12 zone shifts per day and only 9 zone
supervisors . There are ; however, , 6 employees who are carried on the
pay roll as patrolmen but who regularly act as relief and assistant zone
supervisors and draw the sane salary as zone supervisors. All of the
Company's plant protection employees are paid a salary. The salary
differential between patrolmen , and zone supervisors is only $5 per
month while the assistant foremen, who are directly over the zone
supervisors , receive $40 per month more than the zone supervisors.
Zone supervisors do not have the authority to hire or discharge. It
appears that the duties of zone supervisors are similar to those of the
eorporals employed at the Shipbuilding Division of Bethlehem Steel
Company at Baltimore, Maryland , 'hom-we included in a, unit of plant
5 See Matter of Curttiss -Wright Corp and International Association of Machinsats,Dss-
trict 76, A. F., L ., 45 N L. R B. 1268, and cases cited therein.
PACKARD MOTOR CAR COMPANY 937
-protection employees in the recent Bethlehem cases 'Inasmuch as their
duties are comparable with those of employees whom we have -previ-
ously found may properly be included in a similar unit, we shall include
the zone supervisors in the appropriate unit.
Local 114 did not take a position witli respect to the three assistant
foremen who appear on the Company's plant protection pay roll. Since
these employees are the assistants to the foremen who are excluded,
by agreement and are one step above the zone supervisors, we shall
exclude the assistant foremen from the appropriate unit.
We find that all plant protection employees of the Company, includ-
ing zone supervisors and relief zone supervisors,, but excluding chiefs,
assistant chiefs, foremen, assistant foremen, and confidential clerks,
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 employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of our Direction of Election, 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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Packard Motor Car
Company, Detroit, Michigan, an election by secret ballot shall be con-
ducted 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 Seventh Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules and Regulations, among all employees of
the Company 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
See Matter of Bethlehem Steel Company, Shipbuilding Division , Baltimore Yard and
Local 211 , Industrial Union of Marine and Shipbuilding Workers of America, affiliated with
the 0. 1 0., 46 N. L R . B 1166.
938 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
i
who have since quit or been discharged for cause , to determine whether
or not they desire to be represented by International Union, United
Automobile , Aircraft & Agricultural Implement Workers of America
(UAW-CIO) Local No. 114, for the,purposes of collective bargaining.
MR. GERARD D. RErLLY dissenting :
This case differs from other cases in which the Board has found units
of plant protection employees appropriate. The contract which was
cited in bar of these proceedings contains the-following clause :
4/
(e) The Union will not accept for membership direct repre-
sentatives of the Management such as superintendents, foremen, or
supervisors in charge of any- class of labor, time study men, plant
protection employees, confidential clerks and salaried employees
exclusive of members of Chapter No. 201. • -[Italics"supplied] '
In other words, the :contract. makes it clear- that both the Interna-
tional.union and the company regard the guards as part of management,
rather than as employees within'the meaning of Section 2 (3) of 'the
Act: It is -true,, of "course, that the Board is not bound by a stipulation
of the parties with regtird to the application of the Act, but there does
seem to be an element of estoppel here_so far as the petitioner is con-
cerned. I am' there-fore constrained - to' dissent for the reasons an-
nounced in my opinion in Union Collieries Coal Company, 44 N. L. R. B.
165.