The Kinnear Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 10, 1938

4 N.L.R.B. 773 (N.L.R.B. 1938)

In the Matter of THE KINNEAR MANUFACTURING COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE affiliated with COMMITTEE FOR
INDUSTRIAL ORGANIZATION
Case No. R-359.-Decided January 10, 1938
Rolling Door Manufacturing-Investigation of Representatives : controversy
concerning representation of employees : rival organizations ; prior contract
recognizing one of rival organizations as representative of employees held no
bar to petition for investigation , because supervisory employees were included
in the bargaining unit described in such contract ; such inclusion raises a doubt
as to majority status of such organization-Unit Appropriate for Collective
Bargaining: all employees , except office , field, and supervisory employees-
Election Ordered
Mr. Oscar Grossman, for the Board.
Mr. Ed D. Shorr, of Columbus, Ohio, and Mr. Manuel Koslen, of
Columbus, Ohio, for the Company.
Mr. Francis H. Kearns, of Columbus, Ohio, for the Independent
Union.
Mr. J. P. Harris, of Columbus, Ohio, for the S. W. O. C.
Mr. Melvin S. Frazier, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 14, 1937, a petition , signed by G. George De Nucci,
District Director of the Committee for Industrial Organization, was
filed on behalf of the Steel Workers Organizing Committee, herein
called the S . W. O. C., with the Regional Director of the Ninth
Region ( Cincinnati , Ohio ) alleging that a question affecting com-
merce had arisen concerning the representation of employees of
The Kinnear Manufacturing Company, Columbus, Ohio, herein called
the Company , and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On October 5, 1937,
the National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
773
774 NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for all appropriate hearing
upon due notice.
On October 26, 1937, the Regional Director issued a not ice of
hearing, copies of which were duly served upon the Company, the
petitioner, and Independent Union of Rolling Door Workers,' herein
called the Independent, a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to the
notice a hearing was held on November 3, 1937, at Columbus, Ohio,
before Robert M. Gates, the Trial Examiner duly.designated by the
Board. The Board, the Company, and the Independent Union
were represented by counsel and participated in the hearing. The
S. W. O. C. was represented by an organizer for the Committee for
Industrial Organization and participated in the hearing. Full
opportunity to be heard, to examine and to 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF. FACT
I. THE BUSINESS OF THE COMPANY
The Kinnear Manufacturing Company is an Ohio corporation
with its principal office and factory in Columbus, Ohio. It has sales
offices in New York, Boston, Washington, Chicago, New Orleans,
Cleveland, and Cincinnati. The Company is engaged in the manu-
facture, distribution, and sale of wood and metal rolling doors, wood
and metal upward acting doors, and operating mechanisms for such
doors. During the calendar year 1936, sales,amounted to approxi-
mately $1,000,000 and purchases of raw materials amounted to
approximately $400,000.
The Company purchases the greater portion of the raw materials
used, consisting principally of steel and wood, from outside the
State of Ohio. Approximately eighty-five per cent of its finished
products are shipped to points outside the State of Ohio.
'The notice of hearing was addressed to the "Independent Union of Kinnear Em-
ployees", but the record in this case shows that the correct name of the union is
"Independent Union of Rolling Door Workers".
DECISIONS AND ORDERS 775,
The Company employs approximately 300 persons , of which num-
ber approximately 200 are production workers employed in the Co-
lumbus factory.
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization affili-
ated with the Committee for Industrial Organization. A local of-
the S. W. O. C. for employees of the Company was formed about May-
1, 1937. The local admits to membership all factory employees of
the Company except office, field and supervisory employees.
Independent Union of Rolling Door Workers is a labor organi--
zation, not affiliated with any other organization, which admits to.
membership all factory employees of the Company except office and
field employees.
III. THE APPROPRIATE UNIT
The S. W. O. C. contends that the appropriate unit for collective
bargaining is all factory employees of the Company, excluding office,-
field and supervisory employees. The Independent contends that
the appropriate unit is all factory employees of the Company, ex-
cluding office and field employees. The only disagreement be-
tween the S. W. O. C. and the Independent as to the appropriate
unit relates, therefore, to the supervisory employees.
The supervisory employees of the Company have the duty not
only of supervising the work of other employees but also of making-
recommendations regarding the tenure of employment of personnel..
Their duties and responsibilities therefore relate them more directly
to the management than to the factory workers.
We find that the factory employees of the Company, excluding-
office, field and supervisory employees, constitute a unit appropriate-
for the purposes of collective bargaining and that said unit will in-
sure to employees of the Company the full benefit of their right to
self-organization and to collective bargaining and otherwise effectuate.
the policies of the Act.
IV. THE QUESTION CONCERNING REPRESENTATION
During April and May, 1937, a group of employees of the Company-
joined the S. W. O. C. and another group organized the Independent.
The S. W. O. C. and the Independent, each claiming to represent a
majority of the factory employees of the Company, attempted to
bargain with the Company. The Company refused in view of the
conflicting claims to bargain with either as the exclusive representa--
tive of the factory employees of the Company. The Company, how-
ever, submitted a proposed contract to the representatives of the..
67573-38-vol tv-50
776 NATIONAL LABOR RELATIONS BOARD
S. W. O. C. and a proposed contract to the representatives of the
Independent. The two contracts were identical in all respects ex-
,cept that the representatives of the S. W. O. C. were named as
parties to one contract and the representatives of the Independent
were named as parties to the other contract. On June 7, 1937, the
,Company and three representatives of the S. W. O. C. executed one
,contract and the Company and three representatives of the Inde-
pendent executed the other.
Each contract provides, in effect, as follows: (1) any employee of
the Company may become a party to the contract by filing with the
Company a signed notice of election to become a party, such notice to
be in the form set forth in the contract; (2) the unit appropriate
-for the purposes of collective bargaining shall be all of the ein-
-ployees of the Company employed in the factory, but shall not in-
clude employees employed in the office or in the field; (3) in the
event a majority of the employees of the unit become parties to the
contract the representatives named in the contract or their successors
-shall be the exclusive representatives of all employees of the unit for
the purposes of collective bargaining; and (4) it shall be effective
until May 1, 1938, and thereafter until terminated upon clue notice,
but in the event a majority of the employees of the Company in the
unit defined in the, contract designate as their representatives for
,collective bargaining persons other than the parties named in the
contract or their successors, the agreement shall be void.
The Independent submitted in evidence a list of persons who it
.claims signed and filed with the Company notices of election to be-
come parties to the contract signed by the Company and the repre-
sentatives of the Independent. The list contained 105 names. At
the hearing, the names were checked against the Company's pay rolls
,of June 3, 1937, and November 3, 1937. Each pay roll showed 204 em-
ployees, exclusive of office and field employees, but inclusive of 14
supervisory employees and each pay roll contained the names of all
persons on the list submitted by the Independent.
The Independent contends that no question concerning representa-
tion exists and the Board should dismiss the petition of the S. W.
-O. C. since the'majority of the employees in the unit specified in the
,contract have filed notices electing to become parties to the contract
and since the contract provides that in such event the representatives
named in the contract shall be the exclusive representatives of all
the employees of the unit for the purposes of collective bargaining.
The contract provides, however, that the appropriate unit shall be
.all the employees of the Company employed in the factory, but shall
not include employees of the Company employed in the office or in
-the field. The Independent and the Company both took the position
.at the hearing that the unit described in the contract included super-
DECISIONS AND ORDERS 777
visory employees. That the contract was executed and the notices
were signed upon the basis that the supervisory employees were in-
cluded within the unit appears clear . Indeed , a number of super-
visory employees signed notices and filed them with the Company.
It must be concluded, therefore, that the unit which the contract
described included supervisory employees.
The Board has found that the factory employees of the Company,
excluding office, field, and supervisory employees, constitute an appro-
priate unit. The unit described in the contract as appropriate, and
on the basis of which the contract designates representatives for the
purposes of collective bargaining differs, therefore, from the unit
which the Board has found to be appropriate. Under the circum-
stances of the case the Board is not precluded from investigating and
certifying representatives for the purposes of collective bargaining.2
We find that a question has arisen concerning representation of
employees of the Company.
V. 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, traic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE DETERMINATION OF REPRESENTATIVES
The pay roll of the Company as of November 3, 1937, the date
of the hearing, showed 204 employees, exclusive of office and field
employees. The plant manager testified that 14 of the 201 employees
were supervisory employees.
The S: `V. 0. C. claims that on November 3, 1937, and at all times
since May 7, 1935, at least 110 employees of the Company, exclud-
ing office, field, and supervisory employees, have been members of
the S. W. 0. C. It submitted in evidence a membership card and
asserted that 110 employees of the Company duly executed such
cards. The Company and the Independent claim that approximately
30 of the cards were not properly executed.
The Independent claims that by virtue of the notices of election
referred to above 105 employees desire the Independent to represent
them. It is apparent from the record that eight and possibly 14
of the 105 persons signing notices are supervisory employees. Fur-
2 See In the Matter of Northiop Corporation and United Automobile TPorhers, Local No
299, Case No. R-185, decided October 6, 1937, 3 N. L. R. B 228
778 NATIONAL LABOR RELATIONS BOARD,
thermore, the names of 21 of the persons signing notices of election
appear upon the membership cards of the S. W. O. C.
It is clear, therefore, that there is not a sufficient basis for the
Board without an election to certify either the S. W. O. C_ or the
Independent as the exclusive bargaining representative of the
employees in the appropriate unit.
We find that the question which has arisen concerning the repre-
sentation of employees of the Company can best be resolved by the
holding of an election by secret ballot to determine whether the
employees in question desire the S. W. O. C. or the Independent to
represent them for the purpose of collective bargaining, or neither.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Kinnear Manufacturing Company,
Columbus, Ohio, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
2. The factory employees of the Company, excluding office, field,
and supervisory employees, constitute a unit appropriate for the pur-
poses 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-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with The Kinnear Manufacturing Company, Columbus, Ohio,
an election by secret ballot shall be conducted within fifteen days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Ninth 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 the
factory employees of the Company who were employed on August
14, 1937, excluding those who have since quit or been discharged for
cause and excluding office, field, and supervisory employees, to deter-
mine whether they desire to be represented by the S. W. O. C. or the
Independent for the purposes of collective bargaining, or by neither.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Direction of Election.