The Daybrook Hydraulic Corp.

National Labor Relations Board - Board Decisions

Aug 2, 1945

63 N.L.R.B. 107 (N.L.R.B. 1945)

In the Matter of THE, DAYBROOK HYDRAULIC CORPORATION and INTER-
NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAI.
IMPLEMENT WORKERS OF AMERICA (U. A. W.-C. I. 0.)
Case No. 8-R-1835.-Decided August 2,1945
Mr. A. F. Brooker, of Bowling Green, Ohio, for the Company.
Mr. Orville J. Beemer, of Toledo, Ohio, for the C. I. O.
Mr. William V. Montague, of Cincinnati, Ohio, for the A. F. L.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by the International Union, 'United
Automobile, Aircraft & Agricultural Implement Workers of America
(U. A. W.-C. I. O.) , herein called the C. I. 0., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Daybrook Hydraulic Corporation, Bowling Green,
Ohio, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Thomas
E. Shroyer, Trial Examiner. Said hearing was held at Bowling Green,
Ohio, on June 1, 1945. The Company, the C. I. 0., and United Auto-
mobile Workers, Local Union No. 719 (A. F. L.),1 herein called the
A. F. L., appeared,2 participated, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The A. F. L. moved at the hearing for
a dismissal of the petition herein. The Trial Examiner reserved
ruling on this motion for the Board. For reasons stated herein the
motion is hereby denied .3 The Trial Examiner's rulings made at the
i The record indicates that this is the local organization more particularly concerned
herein.
2 The A. F. L., as part of its motion to dismiss, discussed , infra, contended that its
correct name was not stated in the petition filed herein However, the record indicates
that the proper parties to this proceeding were duly notified and appeared , and that no
prejudice resulted from this erfbr. Accordingly , we find this contention to be without merit.
8 See footnote 2, supra, and Section III.
63 N. L. It. B., No. 12.
107
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Daybrook Hydraulic Corporation, an Ohio corporation with
its place of business located at Bowling Green, Ohio, is engaged in the
manufacture of hydraulic hoists and dump bodies. More than 50 per-
cent of the raw materials annually used by the Company, which are
valued in excess of $100,000 per year, is received from points outside
the State of Ohio, and all products annually finished, valued in excess
of $300,000, are eventually shipped to points outside said State.
The Company admits that it is engaged in commerce within the
meaning, of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America, affiliated with the Congress of Indus-
trial Organizations, and United Automobile Workers, Local Union
No. 719, affiliated with the American Federation of Labor, are Labor
organizations, admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
It appears from the record that the Company is willing to bargain
collectively only with that labor organization which is certified by the
Board. The A. F. L. contends that its collective bargaining contract
with the Company, dated March 18, 1944, has been automatically
renewed and constitutes a bar to a current determination of representa-
.tives.
Article IX of said contract provides as follows :
This agreement shall be effective, from and after its date, for
a period of one (1) year.
If either party wishes to alter or amend this Agreement, it shall
inform the other in writing at least thirty (30) days prior to the
expiration of the Agreement. Negotiations shall begin within
one (1) week after such notice; otherwise the Agreement shall
automatically renew itself from year to year.
In a letter to the Company dated February 12,1945, the A. F. L.
stated :
THE DAYBROOK HYDRAULIC CORPORATION 109
Please accept this as official notification of (the A. F. L.), of our
intention and desire to amend our present union contract with your
Company.
Please find enclosed our amendments.
The Company failed to reply, and the following letter, dated March
6, 1945, was sent by the A. F. L. to the Company :
I have failed to receive a reply to my communication requesting
that certain amendments be made in our 1944 agreement.
As you know, Article IX of our present Agreement says that
negotiations shall begin within' one week after either party is
notified.
We have failed to receive from you any reply. Realizing of
,course, that business takes up a lot of your time, we still must in-
sist on a meeting being held as soon as possible.
It cannot be questioned that the A. F. L.'s letter of February 12,
1945, constituted a seasonable notice "to alter or amend ." However,
the A. F. L. insists that the contract was renewed because negotia-
tions did not follow within one week of the notice. Yet, by the very
letter of February 12, in which were enclosed its proposed amend-
ments, the A. F. L. attempted to institute negotiations. That the
Company failed to respond, thus precluding both parties from meet-
ing, cannot serve to support the assertion that the contract was con-
tinued in existence beyond its anniversary date. It is not reasonable
to assume that one of the contracting parties was given unilateral
authority to cause a renewal of the agreement by inaction, in the face
of the other 's expression of a contrary desire, buttressed by all possible
steps taken by it to forestall renewal.4 If the contract were to be so
construed , it would constitute an undue restriction of the employees'
freedom to change representatives at reasonable intervals . We are
of the opinion that the A . F. L.'s actions were those contemplated by
the parties at the time of the execution of the agreement as sufficient
to prevent its automatic renewal, and , consequently , we find that the
agreement does not constitute a bar to a current determination of
representatives.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing , indicates that the C. I. 0. represents a
substantial number of employees in the unit hereinafter found
appropriate.'
' We also note that it was the A P. L which desired amendment, and, therefore , termina-
tion of the contract , although it now urges, in effect, that its actions were a nullity.
' The Field Examiner reported that the C I. O. submitted 125 authorization cards, of
which 120 "checked" with the Company 's pay roll for the period ending May 11, 1945;
and that there were approximately 185 employees in the unit sought.
The A . F. L relies upon its contract with the Company , dated March 18, 1944, for the
establishment of its interest in this proceeding.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 C. I. O. seeks a unit comprised of all production and main-
tenance employees of the Company, including guards and watchmen,,
foremen and assistant foremen, but excluding clerical and super-
visory employees. The A. F. L. and the Company agree, substan-
tially, with this - proposed unit, except that they would exclude
foremen.
The unit sought by the C. I. O. is substantially the same as that
currently represented by the A. F. L. under its contract. However,
the record, 'indicates that the foremen are supervisory employees
within the meaning of our customary definition, whereas assistant
foremen are not, and that such guards and watchmen as the Company
now employs are militarized. Accordingly, in keeping with our usual
policies, we shall exclude the foremen and militarized personnel, from
this unit, but shall include the assistant foremen.
We find that all production and maintenance employees of the Com-
pany, including assistant foremen, but excluding clerical employees,
militarized guards and watchmen, foremen, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recom-
mend 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 The Daybrook
Hydraulic Corporation, Bowling Green, Ohio, an election by secret
THE DAYBROOK HYDRAULIC CORPORATION 111
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 sub-
ject to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate in Section IV,
above, who were employed during the pay-roll period immediately pre-
ceding the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but exclud-
ing any who have since quit or been discharged for cause and who have
not been rehired or reinstated prior to the date of the election, to deter-
mine whether they desire to be represented by International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America, affiliated with the Congress of Industrial Organizations, or
by United Automobile Workers, Local Union No. 719, affiliated with
the American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.