The American National Co.

National Labor Relations Board - Board Decisions

Aug 30, 1940

27 N.L.R.B. 22 (N.L.R.B. 1940)

In the Matter of THE AMERICAN NATIONAL COMPANY and MECHANICS
EDUCATIONAL SOCIETY ' OF AMERICA; LOCAL No. 3'
Case No. R-1940.-Decided August 30,.,1940 .
Jurisdiction : children's vehicles and wheel chair manufacturing industry.
Investigation and Certification of Representatives : existence of.question: re-
fusal to accord recognition to union ; contract renewed after institution of pro-
ceedings, no bar to ; election necessary.
Failure of petitioning union td make a more substantial showing of mem-
bership among the employees held not to bar an investigation and certifica-
tion of representatives in view of the provisions contained in contract with
rival union, compelling membership therein as a condition of employment
and in view of the action taken by the Company and said union with respect
to employees who sought to change their affiliation.
Persons discharged pursuant to a valid closed-shop contract held no longer
employees and not entitled to participate in the election.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees of the Toledo and Perrysburg plants of the Company, excluding super-
visory, clerical, tool, die, and machinery repair employees, metal polishers,
metal platers, engineers , and firemen.
Mr. Milton C. Boesel, of Toledo, Ohio, for the Company.
Mr. Earl S. Strutor, of Toledo, Ohio, and Mr. Karl Pauli, of Cleve-
land, Ohio, for the M. E. S'. A.
Mr. Edwin J. Lynch, of Toledo, Ohio, for the A. F. of L.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 18, 1940, Mechanics Educational Society of America. Local
No. 3, herein called the M. E. S. A., filed with the Regional Director
for the Eighth Region (Cleveland, Ohio) a petition alleging that a
question affecting commerce had arisen concerning the representation
of employees of The American National Company, Toledo, Ohio,
herein called the Company, and requesting an investigation and certi-
fication of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. On June 24,
27 N. L. R. B., No. 4.
22
THE AMERICAN NATIONAL COMPANY 23
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 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 June 26, 1940, the'Regional Director issued a notice of hearing,
copies of which were duly served upon the Company,' the M. E. S. A.,
and Juvenile Wheel Workers Federal Labor Union, No. 18528,
herein called the A. F. of L., a labor organization claiming to repre=
sent employees directly affected by the investigation.. Pursuant to
notice, a hearing was held on July 9 and 10, 1940, at Toledo, Ohio,
before Max W. Johnstone,. the Trial Examiner, duly designated by
the Board. The Company, the M. E. S. A., and the A. F.' of L:
were represented by counsel ; all participated.' in.: the hearing. Full
opportunity to be heard,. to examine . and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all
parties.
At the commencement of the hearing the trial Examiner granted
A motion to intervene filed by the A. F. of L. and denied a like motion
filed by the International Association of Machinists, Lodge No. 105.2
During the course of the hearing the. Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed- the rulings. of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed. At the close of the hearing, the A. F. of L.
moved to dismiss the petition herein on the ground that the evidence
disclosed that no question concerning representation had arisen con-
cerning the employees, of the Company. The. Trial Examiner did
not rule .on this motion but reserved action thereon for the Board.
For the reasons appearing hereinbelow, the motion is denied.
On July, 19 and 22, 1940, respectively, the M. E.. S. A. and the
A. F. of L. filed briefs with the Board.
' On June 4, 1940, a petition was filed in the United States District Court for the
Western -Division, Northern District of Ohio, for the pu•pose of reoreanizing the. Company
under Chapter 10 of the Bankruptcy Act of the United States . On June 7, 1940. Thomas
A. Cunningham was appointed trustee and granted the general authority to continue
operation of the Company . Thereafter , on June 17 , 1940 , Edwin C. Kirschner was made
trustee and Cunningham co-trustee in charge of operations of the Company 's plants.
The notice of hearing was served on Cunningham on June 20, 1940. No question was
raised by the Company during the , hearing regarding the validity of service of the notice
on Cunningham.
The International Association of Machinists , Lodge No .' 105, sought to intervene
because of ex'sting contracts between it and the Comp:iny covering the tool makers, die
makers , machinists , and machine repairmen and their apprentices employed by the Com-
pany.-The Trial Examiner denied the motion to intervene because of the stipulation of
the parties that the employees covered by those contracts ehcu ' d not be included in the
unit found herein to be appropriate for the purposes of collective bargaining.;;. S,
24 DECISIONS OF. NATIONAL LABOR • RELATIONS BOARD
Upon the'entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The American National Company is an Ohio corporation with
plants located in Toledo and Perrysburg, Ohio. It is engaged in the
manufacture of children's vehicles, doll .carriages, and wheel chairs.
During. 1939 the Company used raw materials of the value of $1,-
250,000, approximately 60 per cent of which it obtained outside the
State of Ohio. During the same year the Company manufactured
and :sold finished products of the value of $2,500,000, approximately
75 per cent of which were delivered to customers outside the State
of Ohio.
II. THE ORGANIZATIONS INVOLVED
Mechanics Educational Society of America, Local No. 3, is a labor
organization admitting to its membership production and mainte-
nance employees of the Company, excluding supervisory, clerical, tool,
die, and machinery repair employees, metal polishers, metal platers,
engineers, and firemen.
Juvenile Wheel Workers Federal Labor Union, No. 18528, is a
labor organization, affiliated with the American Federation of Labor,
admitting to its membership production and maintenance employees
of the Company, excluding supervisory, clerical, tool, die, and machin-
ery repair employees, metal polishers, metal platers, engineers, and
firemen.
III. THE QUESTION CONCERNING REPRESENTATION
Collective bargaining agreements granting exclusive recognition
to the A. F. of L. as the bargaining representative of the employees
in the unit herein found to be appropriate for the purposes of col-
- lective bargaining 3 have been in effect between the A. F. of L. and
the Company since April 9, 1934. The last such agreement, entered
into on June 15, 1939,; was, by its terms, to remain in effect until
June 30, 1910, and thereafter from year to year, unless either party
should notify the other 30. days prior to any anniversary date thereof
of a desire to negotiate or amend the agreement. No such notice
has been given. The agreement provides that all employees of the.
Company, within the appropriate unit, should be members in good
standing of the A. F. of L..
Shortly after April 1, 1940, a number of the Company's employees
met with an official of the M. E. S. A. with a view to changing.their
$ See Section V, infra.
THE AMERICAN NATIONAL COMPANY 25
affiliation front the A. F. of L. to the M. E. S. A. On April 20,
1940, a further meeting was 'held, attended by approximately 90
persons, including employees of the Company and officials of the
M. E. S. A. On April 22, 1940, the Executive Committee of the
,A. F. of L. met, suspended from its membership 52 employees who
had attended the meeting of April 20, and notified the Company of
the suspension of these employees and requested their discharge on
the ground that they were no longer members in good standing of
the A. F. of L. Pursuant to the request of the A. F. of L., on
April 23, 1940, the Company discharged the employees suspended
from the A. F. of L. All but 19 of these .employees were there-
after reinstated by the A. F. of L. and reemployed by the Company.
Employees reinstated by the A. F. of L. were required. by it to sign
pledges reaffirming their allegiance 'to the A. F. of L. and renouncing
any connection with the formation. of another labor organization
among the employees of the Company.
In. May 1940 the M. E. S. A. requested the Company to recognize
it as the bargaining representative of the employees of the Company
within the appropriate unit. The Company refused such recogni-
. tion because of its existing closed-shop agreement with the A. F. of L.
and because the M. E. S. A. had filed charges with the Board relative
.to the employees discharged by the Company after their suspension
from the A. F. of L 4 As stated above, on June 18, 1940, the M. E.
S. A. filed its petition herein.
There was introduced into evidence at the hearing an analysis
made by a field examiner of the Board showing that the M. E. S. A.
had submitted to him 120 applications for membership, of which
97 were dated in April 1940 and 23 were undated. A check by the
.field examiner of these applications with the seniority list of the
Company disclosed that 51 were applications of employees actually
working 'for the Company at the time the check was made, 61 were
those of employees who were laid off, and 8 were those of persons
either who had quit their jobs or whose names for some other'
reason were not on the Company's seniority list.' At the hearing
the A. F. of L. introduced evidence that as of June 30, 1910, it had
1,061 members in good standing among the employees on the senior-
ity list, of the Company. All the employees who had signed appli-
4 Charges were filed by the M. E. S. A. against the Company on May 8, 1940, in Case No.
VIII-C-702, alleging violations of Section 8 (1) and (B) of the Act. These charges
were withdrawn by the M. E. S. A. on July 24, 1940, no complaint having been issued.
s The Company maintains it seniority list, containing over 1,000 manes, from which it
draws employees at tunes when it increases its working force. On June 29, 1040, there
were only approximately 057 employees within the appropriate unit who were actually
working.
1
26 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
cations'for' membership in the M. E. S. A. are also members of.the
A. F. of L.
The A. F. of L. contends that there is no question concerning rep-
resentation herein because of its closed-shop contract and the fact
,that all the present employees of the Company are members of the
A. F. of L., claiming that none is a member of piny other labor
organizations The M. E. S. A. claims that the contract is no bar to
the existence of a 'question concerning representation and takes the
position that the action. taken by.the A. F. of L. and the Company
under the closed-shop contract has prevented the employees from
making a free choice of bargaining representatives and-that for this
reason the M. E. S. A. has been unable to. make a substantial show-
ing of membership among the employees.
The present contract 'between the A. F. of L.' and the Company
was automatically renewed on June 30, 1940. In May, however, the
Company had been put on, notice of the representation claim of the
'M. E. S. A. Under these circumstances we find that the contract
does not constitute a bar to an investigation and certification of rep-
resentatives.7 We also are of the opinion that the failure of the
M. E. S. A. to make a more substantial showing of membership
among the employees should not bar an investigation and eertifica-
tion of representatives. In view of the provision contained in the
`1939 contract, which is still in effect, compelling membership of the
employees in the A. F. of L. as a condition of their' employment,
and in view of the action taken by the A. F. of L. and the Company
with respect to the employees who sought to change their affiliation
from the A. F. of L. to the M. E. S. A., the fact that more employees
have not openly indicated that they desire to change their affiliation
'from the A. F. of L. to the M. E. S. A. is not conclusive of their
desires regarding representation 8
We find that a question has arisen concerning representation of
employees of the Company. '
6 The A . F. of L. takes the position that all the employees who' had signed applications
in the -Al . E. S. A. who are presently in the employ of the Company renounced their mem-
bership in the M. E . S. A. in order to obtain reinstatement in the A . F. of L. '; and that
-the 19 who were not reinstated in the A. F. of L. were discharged by the Company and
are no longer employees.
T See Matter of Colonic Fibre Company, Inc. and Cohoes Knit Goods Workers Union
No. 2151 11, A. F. of L., 9 N . L. R. B. 658; Matter of Stokely Brothers & Company, Inc. and
.Van Camp 's; 'Inc . and Federal Labor Union No. 21752, affiliated with A. F. of L., 15 N. L.
R. B. 872; Matter • of Malone Bronze Powder Works , Inc. and Malone Aluminum Corpora-
tion and Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the
A. F. of L., 19 N . L. R. B. 449; Matter of J. Edwards & Co. and United Shoe . 7Vorkers
of America, Local 127 , C. I. 0., 20 N. L. R . B. 244; Matter of Precision Casting Company,
. Inc. and National Association of Die Casting Workers, Local No. 4, C. 1. 0., 24 N. L.. R. B.
1045.
8 See Matter of The George W. Borg Corporation and United Clock Workers Union, 25
N. L. R.B.481. 1
THE AMERICAN NATIONAL COMPANY 27
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION -UPON
COMMERCE
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 Company, the M. E. S. A., and the A. F. of L. agreed at the
hearing, and.we find, that all production and maintenance employees
of the Toledo and Perrysburg plants of the Company, excluding
supervisory, clerical, tool, die, and machinery repair employees, metal
polishers, metal platers, engineers, and firemen, constitute a unit
appropriate for the purpose of collective bargaining. We further
find that said unit will. insure to employees of the Company the. full
benefit of their right to self-organization . and to collective bargain-
ing and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre=
sentation of employees of the Company can best be resolved by an
election by secret ballot. .
The two unions disagree as to who shall be eligible to vote in the
election. There were approximately.- 657 employees working for the
Company within the appropriate unit- on June 29, 1940. At the
hearing a seniority list submitted by the Company to the A. F. of L.
on July 9, 1940, containing the names of over 1,000 employees, was
introduced in evidence: The names of the 19 employees discharged
by the Company because of their expulsion from the A. F. of *L. are
not included in this list.' The A. F. of L. contends that this seniority
list should be used to determine eligibility to participate .in the elec-
tion since the Company's business'is seasonal and any employee added
to the present force when production increases will be taken from
the seniority list. While not objecting to the use of such.a seniority
list in determining eligibility to participate in the election, the
M. E. S. A. contends that any seniority list used should include the
names of the 19 employees who were discharged by the .Company
because of their expulsion from the A. F. of L. The evidence indi-
cates that the 19 employees were discharged by,the Company pur-
siiant to the terms of a valid closed-shop contract.. This being so, they
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are no longer employees of the Company and- are not entitled to vote
in the election.
We shall direct that all employees in the appropriate unit on the
Company's seniority list of employees of July 9, 1940, excluding those
on said list who have since quit or been discharged for cause, shall be
eligible to vote in the election.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS QF LAw
1. A question affecting commerce has arisen concerning the repre
sentation of employees . of The American National Company, Toledo,
'Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act. ,
2. All production and maintenance employees of the Toledo and
Perrysburg plants of the Company, excluding supervisory , clerical,
tool , die, and. machinery repair employees, metal polishers, metal
platers; engineers, and firemen , constitute a unit appropriate for the
purposes of collective bargaining , within the meaning of Section
(b) of the Act. 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 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 The American National Company, Toledo, Ohio , 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 Eighth
Region, acting in this matter as agent for the National Labor Relations
Board and subject to Article III, Section 9, of said Rules and Regula-
tions, among all production and maintenance employees of the Toledo
and Perrysburg plants of The American National Company, on the
Company's 'seniority list of employees of July 9, 1940 , excluding
supervisory, clerical, tool , die, and machinery repair employees, metal
polishers ; metal platers, engineers , firemen, and those who since July
Q, 1940, have quit or been discharged for cause, to determine whether
they desire to be represented by Mechanics Educational Society of
America , Local No. 3 , or by Juvenile Wheel Workers Federal Labor
Union, No. 18528 , for the purposes of collective bargaining, or by
neither.
THE AMERICAN NATIONAL COMPANY 29
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
October i7,191o
On August 30,, 1940, the National Labor Relations Board issued a
Decision and Direction of Election in the above-entitled proceedings.
Pursuant to. the. Direction of Election, an election by secret ballot
was conducted on September 23 and 24, 1940, under the direction and
supervision of the Regional Director for the Eighth Region (Cleve-
.land, Ohio).' On September 25, 1940, the Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, issued and duly served
upon the parties, his Election Report. No objections to the conduct
of the ballot or the Election Report have been filed by any of the
parties.
As to the balloting and its results, the Regional Director reported
as follows :
Total number of employees eligible------------------------- 1, 128
Total number of ballots cast------------------------------- 946
Total number of votes cast for Mechanics Educational Society
of America, Local No. 3--------------------------------- 42
Total number of votes cast for Juvenile Wheel Workers Fed-
eral Labor Union No. 18528 (AFL)---------------------- 894
Total number of votes cast for neither organization---------- 5
Total number of blank ballots----------------------------- 2
Total number of void ballots------------------------------ 2
Total number of challenged ballots------------------------- 1
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, 49 Stat. 449, and pursuant to^ Article III, Sections 8 and 9, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, I .
IT IS rIEREBY cERTl_rlEn that Juvenile Wheel Workers Federal Labor
Union, No. 18528, has been designated ancf selected by a majority of
the production and maintenance employees of the Toledo and Perrys-
burg plants of." The American National Company, Toledo, Ohio, ex-
cluding supervisory, clerical, tool, die, and machinery repair employ-
ees, metal polishers, metal platers, engineers, and firemen, as their
representative for the purposes of collective bargaining, and that, pur-
suant to Section 9 (a) of the National Labor Relations Act, Juvenile
Wheel Workers' Federal Labor Union, No. 18528, is the exclusive
representative of all such employees for the purposes of collective bar-
gaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment. ' - _
27 N. L. R. B., No. 4a.