The DeVilbiss Co.

National Labor Relations Board - Board Decisions

Dec 8, 1939

18 N.L.R.B. 187 (N.L.R.B. 1939)

In the Matter of THE DEVILBISS COMPANY and AMERICAN FEDERA-
TION OF LABOR
Case No. R-1596.-Decided December 8,1939
Atomizer, Spray Painting Equipment , and Hose Manufacturing Industry-
Investigation of Representatives : question concerning representation : two rival
unions have membership contracts ; petitioning union has secured recognition
as representative for its members ; membership contract of rival union no bar
to petition-Unit Appropriate for Collective Bargaining : production and main-
tenance employees , including shipping and receiving clerks, stockroom clerks,
and timekeepers , exclusive of foremen and supervisory employees , time-study
men, and office employees , stipulated ; engineering and drafting department
employees : wages and functions ; excluded from unit-Representatives : eligi-
bility to participate in choice : additional employees hired after strike ; tem-
porary backlog of unfilled orders; temporary nature of employment ; employees
previously employed and on Company 's "recall list"-Petition to Intervene:
filed after close of hearing ; claim to represent engineers and draftsmen ; dis-
missed, as claim unaffected by this decision-Election ordered
Mr. Max W. Johnstone, for the Board.
Marshall, Melhorn,Davies, Wall d Bloch, by Mr. Henry R. Bloch,
of Toledo, Ohio, for the Company.
Mr. Francis J. Dillon and Mr. Samuel R. Isard, of Toledo, Ohio,
for the A. F. of L.
Edward Lamb, by Mr. Lowell Goerlich, and Mr. Richard Gosser,
of Toledo, Ohio, for the U. A. W.
Mr. Oscar J. Smith, Mr. Irving J. Blumberg, and Mr. Milden D.
Murphy, of Toledo, Ohio, for the Association.
Mr. Marcel Scherer, of Detroit, Mich., for the Society.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 28, 1939, American Federation of Labor, herein
called the A. F. of L., by its representative, F. J. Dillon, filed with
the Regional Director for the Eighth Region (Cleveland, Ohio) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The DeVilbiss Company,
Toledo, Ohio, herein called the Company, and requesting an investi-
1S N. L. R. B., No. 29.
187
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On October 18, 1939, 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, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On October 25, 1939, the Regional Director issued and duly served
a notice of hearing upon the Company and the A. F. of L., upon Local
12, International Union, United Automobile Workers of America,
C. I. 0., herein called the U. A. W., and Employees of The DeVilbiss
Company Association, herein called the Association, labor organiza-
tions claiming to represent employees directly affected by the investi-
gation, and upon Metal Polishers, Buffers, Platers & Helpers
International Union, Local No. 2, affiliated with the A. F. of L., herein
called the Polishers Union. Pursuant to the notice, a hearing was
held on November 2, 1939, at Toledo, Ohio, before Earl S. Bellman,
the Trial Examiner duly designated by the Board. The Board, the
Company, the U. A. W., and the Association were represented by
counsel, the A. F. of L. by its representatives, and all participated in
the hearing. The Polishers Union did not appear at 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. During the course of the hearing, the Trial Examiner made
several rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On November 18, 1939, after the close of the hearing, Local 204,
Society of Designing Engineers, International Federation of, Archi-
tects, Engineers, Chemists and Technicians, affiliated with the C. I. 0.,
herein called the Society, filed with the Board a petition to intervene
in the proceeding. This petition is dealt with below in Section VII.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The DeVilbiss Company is an Ohio corporation, incorporated in
1905, with its plant at Toledo, Ohio, and with warehouse facilities in
New York, Pennsylvania, Michigan, Illinois, Kansas, Wisconsin,
Missouri, Texas, California, and Utah. Its principal manufactures
are atomizers, spray-painting equipment, and hose. The principal
raw materials used in the manufacture of its finished products are
THE DEVILBISS COMPANY 189
crude rubber, brass rods, and glass. Ninety per cent of these raw
materials come from without the State of Ohio. Ninety per cent of
its finished products are shipped to points outside the State of Ohio.
The total amount of sales and purchases for the year 1938 each
exceeded $500,000 in value. The Company has employed an average
of 650 persons in production and maintenance work during the last
few years.
H. THE ORGANIZATIONS INVOLVED
American Federation of Labor, the petitioning union herein, is a
parent labor organization with which are affiliated international,
federal labor, and other unions. It distributed applications for
membership in the A. F. of L. among employees of the Company at
its Toledo plant and claims to have secured approximately 325 signa-
tures on such application cards. A temporary committee has been
set up to conduct the affairs of the organization at the Company's
plant until such time as a charter for a local labor organization is
granted by the A. F. of L.
Local No. 12, International Union, United Automobile Workers of
America, is a labor organization affiliated with the Congress of Indus-
trial Organizations. It admits to membership employees of the
Company at its Toledo plant.
Employees of The DeVilbiss Company Association is an unaffiliated
labor organization admitting to membership employees of the
Company at its Toledo plant.
III. THE QUESTION CONCERNING REPRESENTATION
On April 20, 1938, after a petition for investigation and certification
of representatives had been, filed by the U. A. W. and after the Board
had conducted an election, the Association was certified by the Board
as the exclusive bargaining representative of the production employees
of the Company who were paid on an hourly or piece-work basis,
excluding clerical and supervisory employees.' The Association had
previously, on August 6, 1937, entered into a collective bargaining con-
tract with the Company under which the Association was recognized
as the exclusive representative of the Company's employees, excluding
direct representatives of the management, such as salesmen, superin-
tendents, foremen, group leaders, time-study men, watchmen, and
confidential salaried employees. The contract was to remain in effect
until July 1, 1938, and thereafter until terminated by 30 days' notice
of either party. The Association terminated this contract in 1939
as set forth below.
On September 14, 1939, a strike was called at the plant by the
U. A. W. which continued until October 5, 1939, at which time the
1 Matter of The DeVilbiss Company and International Union, United Automobile Workers
of America, #12, 6 N. L. R. B. 8.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company entered into a collective bargaining contract with the
U. A. W. in which the U. A. W. was recognized as the bargaining agent
for its members. On October 6, 1939, the Company entered into a
similar membership contract with the Association, which had just
previously terminated its exclusive bargaining contract with the Com-
pany. Each contract is to continue in effect until July 15, 1940, and
thereafter until modified or amended by 30 days' notice of either party.
Several days after the beginning of the strike on September 14, 1939,
the A. F. of L. began to organize among the Company's employees and
claims to have secured approximately 325 signed application cards.
After filing its petition in this case, representatives of the A. F. of L.
conferred with Company officials on October 7, 1939. No grievance or
proposed contract was presented to the Company; however, the A. F.
of L. requested and obtained recognition as the bargaining agent for
its members among the Company's employees.
The U. A. W. claims that its membership contract of October 5,1939,
constitutes a bar to any determination of representatives by the Board.
We do not agree with this contention. The contract presents no bar
to the petition because it was signed after the filing of the petition on
September 28, 1939,2 and also because it does not grant the U. A. W.
recognition as the exclusive bargaining representative but only as a
bargaining agent for its members.'
We find that a question has arisen concerning representation of
employees of the Company.
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 de-
scribed in Section I above, has a close, intimate, and substantial rela-
tion 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 A. F. of L., the U. A. W., and the Association
stipulated that all employees of the Company at its Toledo plant en-
gaged in production and maintenance work, including shipping and
receiving clerks, stockroom clerks, and timekeepers, exclusive of fore-
2 See Matter of Florence Pipe Foundry & Machine Co . and Steel Workers Organizing
Committee, etc., 15 N. L. It. B. 250, and cases there cited.
2 See Matter of Aluminum Company of America and Aluminum Employees Association,
9 N. L. R . B. 944; Matter of Sloss Sheffield Steel & Iron Company and O3rotherhood of
Railroad Traintnen, 14 N. L, R. B. 180,
THE DEVILB1:SS COMPANY 191
men and other supervisory employees with authority to hire and fire,
time-study men, and office employees, constitute an appropriate bar-
gaining unit. We see no reason for deviating from the desires of the
parties in this respect.
The sole question as to the appropriate unit concerns the engineers
and draftsmen. The U. A. W. and the Company desire that these
employees be excluded from the unit. The A. F. of L. representative,
although at first expressing a preference for their inclusion, thereafter
stated, "It doesn't make any difference." The engineering and drafting
department consists of 48 employees, exclusive of supervisors, and
includes designing engineers, draftsmen, experimental machinists,
clerks, and apprentice draftsmen. Some of these employees are also
known as sales engineers, experimental engineers, and experimental
test men. All of them are paid on a weekly or monthly basis, whereas
the production and maintenance employees receive an hourly wage. In
general the engineering and drafting department plans and designs
objects for regular production and for special work. After a design
is approved, models are constructed, chiefly in metal, and are then
tested. Thereafter, the article is manufactured by the production
employees. After an article is in the process of regular manufacture,
the engineering and drafting department continues to examine and
test the product with a view to improvement and to insure that the
article is made according to design. In addition, sales engineers,
working in cooperation with salesmen, design products to meet the
needs of customers on the latter's premises. In the light of all the
circumstances, we find that the employees of the engineering and draft-
ing department may properly be excluded from a unit of production
and maintenance employees.4
We find that all employees of the Company at its Toledo plant en-
gaged in production and maintenance work, including shipping and
receiving clerks, stockroom clerks, and timekeepers, exclusive of fore-
men and other supervisory employees with authority to hire and fire,
time-study men, office employees, and employees in the engineering and
drafting department, constitute a unit appropriate for the purposes of
collective bargaining and that said unit will insure to employees of
the Company the full benefits of their right to self-organization and
to collective bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
As stated above, the U. A. W. and the Association have membership
contracts with the Company, and the A. F. of L. has been recognized
4 See Matter of Northrop Corporation and United Automobile Workers, Local No. 229,
3 N. L. R. B. 228; Matter of Atlantic Basin Iron Works and Industrial Union of Marine
and Shipbuilding Workers of America, Local No. 13, 5 N. L. R. B. 402; Matter of Walker
Vehicle Company et al. and Walker-Automatic Independent Labor Associaiton , 7 N. L. R. B.
827.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Company as the bargaining representative of its members.
At the hearing the A. F. of L. had approximately 325 membership
cards, but did not introduce them in evidence. Under the circum-
stances, we find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
Evidence at the hearing revealed that after the strike at the plant
had ended on October 5, 1939, the Company, on October 9, 1939, and
during the following 3 weeks, engaged about 250 production workers in
addition to those who had been employed prior to the strike. Of these,
about 220 were persons never previously employed by the Company.
The remaining 30 persons had previously been employed by the Com-
pany, and, although they had lost their seniority by being absent from
work at the plant for over a year, were on the Company's "recall list."
The seniority rules which at present govern at the Toledo plant of the
Company provide for a form of permanent seniority so that employees
no longer lose their seniority status by a year's absence from work.
The Company, the A. F. of L., and the Association contend that none
of the 250 employees should be eligible to vote because they are tempo-
rary employees. The U. A. W. agrees with this position except that it
believes that the 30 persons who were on the "recall list" should be
permitted to vote. The president of the Company testified that the
employment of the 250 additional persons after the strike was due in
part to the backlog of unfilled orders which had accumulated during
the strike and in part to increased business. Although not certain
whether the additional employees would be temporary or permanent,
he further testified that business in the atomizer and perfume-spraying
division would slacken after December 1, 1939, necessitating the lay-
off of the additional help in that division, that it was likely that the
backlog of unfilled orders might be eliminated by that time, and that
the Company had about 830 production and maintenance employees
on its pay roll at the time of the hearing although, the average number
of employees for the last few years had been about 650. Under the
existing seniority rules of the Company, new employees do not secure
a seniority status in the plant until the expiration of 90 days, so that
persons employed in October 1939 would secure seniority status only
in January 1940. No further evidence appears concerning the prob-
ability of future employment with the Company of the new employees
who may be laid off before January 1940. Under the circumstances,
we are of the opinion that persons hired after October 9, 1939, who
were not on the "recall list," should not be eligible to vote. We shall
accordingly direct that those eligible to vote in the election will be
the employees in the appropriate unit whose names appear on the pay
roll of the Company immediately preceding the strike which occurred
THE DEVILBISS COMPANY 193
from September 14 to October 5, 1939,6 and those of the employees in
the appropriate unit newly hired on or after October 9, 1939; whose
names appear on the Company's "recall list," including employees who
did not work during the aforesaid pay-roll period because they were
ill or. on vacation, and employees who were then or have since been
temporarily laid off, but excluding employees who have since quit
or been discharged for cause.
VII. PETITION TO INTERVENE
Claiming to represent employees in the engineering and drafting
department of the Company, the Society, as stated above, filed with
the Board, after the close of the hearing in this proceeding, a petition
to intervene for the purpose of reopening the record to present evi-
dence in support of its claim to represent the designing engineers and
draftsmen or, in the alternative, to be represented on the ballot in the
event an election involving designing engineers and draftsmen is
directed. Since we, have, without the participation of the Society
as a party to this proceeding, determined that an election should be held
among employees in an appropriate unit which excludes employees in
the engineering and drafting department, the claim of the Society
that it represents employees in that department is in nowise affected.
Accordingly, the Society's petition to intervene in this proceeding is
hereby denied.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONOLusIONs OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The DeVilbiss Company, Toledo, Ohio,
within, the meaning of Section 9 (c) and Section 2 (6) and (7) of the
National Labor Relations Act.
2. All employees of the Company's plant engaged in production
and maintenance work, including shipping and receiving clerks, stock-
room clerks, and timekeepers, exclusive of foremen and other super-
visory employees with power to hire and fire, time-study men, office
employees, and employees in the engineering and drafting department,
constitute a unit appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor Relations
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-
6 All employees who struck on September 14, 1939, subsequently returned to work at the
end of the strike on October 5, 1939.
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
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 DeVilbiss 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 Regulations, among
all employees of The DeVilbiss Company, at its Toledo, Ohio, plant,
engaged in production and maintenance work, including shipping
and receiving clerks, stockroom clerks, and timekeepers, whose names
appear on the pay roll of the Company immediately preceding Septem-
ber 14, 1939, and those of the employees newly hired on and after
October 9, 1939, whose names appear on the "recall list" of the Com-
pany, including any who did not work during the aforesaid pay-roll
period because they were ill or on vacation, and employees who were
then or have since been temporarily laid off, but excluding foremen
and other supervisory employees with power to hire and fire, time-
study men, office employees, employees in the engineering and drafting
department, and employees who have since quit or been discharged.
for cause, to determine whether they desire to be represented by
American Federation of Labor, by Local No. 12, International Union,
United Automobile Workers of America, affiliated with the Congress
of Industrial Organizations, or by Employees of The DeVilbiss Com-
pany Association, for the purposes of collective bargaining, or by
none of them.