Reo Motors, Inc.

National Labor Relations Board - Board Decisions

May 29, 1945

61 N.L.R.B. 1579 (N.L.R.B. 1945)

In the Matter of REO MOTORS, INC. and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA (UAW-CIO)
Case No. 7-R-1889.-Decided May 29, 1915
Messrs. Carroll R. Taber and Russell A: Smith, of Lansing, Mich.,
for the Company.
Messrs. Maurice Sugar and N. L. Smokier, by Mr. N. L. Smokier, of
Detroit, Mich., for the UAW.
Messrs. Edward M. Dodge and Merle D. Hillock, of Lansing, Mich.,
for the Association and the Committee.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), herein called the UAW, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of Reo Motors, Inc.,' Lansing, Michigan, herein called the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Robert J. Wiener, Trial Examiner.
Said hearing was held at Lansing, Michigan, on January 31, 1945, and
February 15, 1945. The Company, the UAW, Plant Protection
Association, Reo Motors, Inc., herein called the Association, and a
committee of four employees, herein called the Committee, appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues? The Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded an opportunity to file briefs with the Board.
1 Name as amended at the hearing.
s Edward M. Dodge made a motion to intervene in behalf of the Association The UAW
objected to the granting of the motion on the ground that the Association had no interest
in the proceeding . The Trial Examiner withheld ruling on the motion and permitted
61 N. L R. B., No. 243.
1579
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Reo Motors, Inc., is a Michigan corporation with its principal office
and manufacturing establishment at Lansing, Michigan, where it is
engaged in the manufacture and sale of trucks, busses, and parts
thereof. The Company uses annually materials valued in excess of
$1,000,000, of which approximately 50 percent is shipped to the Com-
pany's plant from points outside the State of Michigan. The Com-
pany's annual sales exceed $1,000,000 in value, of which approximately
50 percent is shipped to points outside the State. °
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
A committee of four employees is an unaffiliated labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the UAW as the
exclusive representative of its plant-protection employees. The Com-
pany contends that a contract entered into between it alld the
Committee is a bar to a present determination of representatives.
The contract purports to be an agreement under which the Com=
pany agrees to recognize the Committee as the representative body of
the plant-protection employees for the purposes of collective bargain-
ing. However, the Company's attorney who drafted the agreement,
the Company's factory manager, and the chairman of the Committee,'
all testified that the contract was intended to cover only those em-
ployees who comprised the Committee, referred to herein as Commit-
teemen, and those employees who had designated the Committee to
represent them. It appears further that the contract itself does not
Dodge to participate during the entire hearing At the close of the hearing , the Trial
Examiner denied the Association' s motion to intervene on the ground that the Association
had established no interest in the proceeding , there having been submitted neither evidence
of a contractual relationship between the Company and the Association, nor evidence of
representation among the employees involved herein Testimony adduced at the hearing
indicates that Dodge also represented the Committee, consisting of four employees,
including Dodge, who are signatories to a contract with the Company purporting to
cover the employees involved herein Although Dodge made no formal motion to intervene
on behalf of the Committee , we shall consider it as an interested party, in view of its
contractual relations with the Company.
3 Dodge.
REO MOTORS, INC. 1581
provide for recognition of the Committee as the exclusive bargaining
representative of all plant-protection employees. In view of these
facts, and upon the entire record, we are of the opinion that this con-
tract covers "members only," and accordingly cannot serve to preclude
a present determination of representatives.4 Moreover, since the Com-
mittee is hereinafter found not to be a bona fide labor organization,
the contract does not constitute a bar.5
The Company also contends that the UAW has contracted not to ac-
cept the plant-protection employees as members 6 and, for this reason,
inferentially requests the dismissal of the petition. We have had occa-
sion in previous cases to consider similar contractual provisions, and,
as in those proceedings, we find that the above-mentioned provision
in the contract between the Company and the UAW covering the
production and maintenance workers does not warrant a dismissal
of the petition.?
The UAW urges that the Committee should not be accorded a place
on the ballot on the ground that it was conceived and organized by the
Company, and is, therefore, incapable of representing the employees
involved herein. One of the plant-protection employees gave uncon-
tradicted testimony that the Committee was formed at the request of
management, with its organizational framework dictated by man-
agement. The factory manager has exercised a veto power over the
constitutency of the Committee, and has determined the method to be
followed in selecting Committeemen.8 Although the Committee has
been in existence for over a year,9 it has no constitution, and the em-
ployees who designated the Committee to represent them have never
been called to attend, and have not attended, any membership meetings.
The record also discloses that the contract between the Company and
the Committee, discussed above,lo incorporates the Company's rules
and regulations for its plant-protection department, which provide,
inter alia, that "duty periods and scale of wages will be regulated by
the chief of police with the approval of the management." Particu-
larly noteworthy is the fact that, after a very informal relationship
4 See Matter of Ball Brothers Company, 54 N. L. R. B. 1512, and Matter of B. F. Hirsch,
me, 57 N. L. R. B. 59.
5 Cf. Matter of Latonia Refining Corporation , 49 N. L. R. B. 488.
6 The UAW currently represents the Company's production and maintenance employees
by virtue of a written contract, which , inter alia, provides :
* * * the term "employee" * * * shall not include direct representatives of
management such as * * * plant-protection employees * * * and * *
the Union will not solicit them for membership.
7 See Matter of Packard Motor Car Company, 47 N. L. R. B. 932; and Matter of Federal
Motor Truck Company, 50 N. L. R. B. 214, and 54 N. L. R. B. 984.
6 It appears further that Committeemen lose that position on being discharged by the
Company.
6 The evidence discloses that the Committee came into existence in the sn a ner of 1949
io The contract was entered into in September 1944.
639678-45-vol. 61-101
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the Company and the Committee of more than a year's dura-
tion, the contract, which was' prepared by the Company, was entered
into only after the UAW had succeeded in organizing a substantial
number of the employees involved herein. In view of these facts, and
upon the entire record, we are convinced that the Committee is not a
bona fide labor organization. Inasmuch as we cannot certify an
organization as the representative of employees for the purposes of
collective bargaining when it is apparent that the organization is
not bona fide and is, therefore, incapable of bargaining at arm's length
with the employer, we shall not accord the Committee a place on the
ballot in the election hereinafter directed 11
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the UAW represents a substantial number of
employees in the unit hereinafter found appropriate .12
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.
1Y. THE APPROPRIATE UNIT
The UAW seeks a unit of all plant-protection employees of the
Company, excluding the chief, the captain, the lieutenants, and
the sergeants. Providing that such a unit is appropriate within the
meaning of the Act, the Company agrees generally with the composi-
tion of this unit, except that it would include the sergeants.13
The plant-protection department is headed by a chief, who is assisted
by a captain. Each of the three shifts is headed by a lieutenant, and
two additional lieutenants are assigned to the chief's office. There
are four sergeants, with one assigned to each shift under the lieutenant
in charge of the shift, and one assigned to the chief's office. The
remainder of the department consists of patrolmen and patrolwomen.
Approximately 95 percent of the plant-protection employees are
armed, and all are auxiliaries to the military police. The employees
of the department perform the type of duties usually associated with
plant protection, and no more.
We have had occasion in recent cases to consider the appropriateness
of units of militarized plant-protection employees performing similar
11 See Matter of Douglas Aircraft Company, Inc, 53 N. L. R. B. 486 , and cases therein
cited
11 The Field Examiner reported that the UAW submjtted 29 designation -authorization
cards ; that the names of 25 persons appearing on the cards were listed on the Company's
pay roll of October 4, 1944, which contained the names of 74 employees in the alleged
appropriate unit ; and that 1 card was dated July 1944, 19 were dated August 1944, 8 were
dated September 1944, and 1 was undated.
1s The Committee,. through Dodge, would also include the sergeants While we accord
no weight to the unit contentions made by a labor organization which is not bona fide,
the issue of the inclusion of the sergeants is raised by the Company because of their
allegedly supervisory status, and is consequently hereinafter treated.
REO MOTORS, INC. 1583
functions.- For the reasons stated in those cases, we find that the
Company's plant-protection employees may constitute a unit appro-
priate for the purposes of collective bargaining.
The chief, the captain, and the lieutenants are clearly supervisory
employees, each having the authority to effect changes in the status
of the employees under them. The sergeants perform regular patrol-
men's duties, but also have the duty of relaying the lieutenants' orders
to the patrolmen. Moreover, it appears that the sergeants regularly
act as lieutenants on the one day each week that the lieutenants are
off duty, and when they do so act, they make recommendations to the
lieutenants, which are normally followed, respecting the disciplining
of the patrolmen. Accordingly, we find that the sergeants are super-
visory employees within the meaning of our customary definition, and
we shall exclude them from the unit.
We find that all patrolmen and patrolwomen employed by the Com-
pany at its Lansing, Michigan, plant, excluding the chief, the captain,
the lieutenants, the sergeants, 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 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 representa-
tives for the purposes of collective bargaining with Reo Motors, Inc.,
Lansing, Michigan, 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 Seventh Region, acting in this matter as agent for
'" See Matter of International Harvester Company, Milwaukee Works, 61 N . L. R. B.
912 ; and Matter of Lockheed Aircraft Corporation, Lockheed Modification Center, 61
N. L. R. B. 1336.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were em-
ployed during the pay-roll period immediately preceding the date of
this Direction, including employees who did not work during the 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 or not they desire to be represented by International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, affiliated with the Congress of Industrial Or-
ganizations, for the purposes of collective bargaining.
MR. GERARD D. REILLY, dissenting :
For the reasons set forth in my dissenting opinions in Matter of
Packard Motor Car Company, 47 N. L. R. B. 932, and Matter of Fed-
eral Motor Truck Company, 54 N. L. R. B. 984, I am constrained to
dissent from the majority opinion in this case.