The Toledo Desk and Fixture Co.

National Labor Relations Board - Board Decisions

May 29, 1944

56 N.L.R.B. 1022 (N.L.R.B. 1944)

I
In the Matter of THE TOLEDO DESK AND FIXTURE COMPANY and UNITED
WHOLESALE, WAREHOUSE AND DEI.IvERY EMPLOYEES , LOCAL 363
(CIO)
Case No. 8-B-1474.-Decided May 29, 1944
Messrs. Fred A. Smith and Lester Cope, of Toledo, Ohio, for the
Company.
Messrs. Edward Lamb and No Erwin, of Toledo, Ohio, for_the CIO.
Messrs. Isadore Kohler and E. J. Rieger, of Toledo, Ohio, for the
A.'F.ofL.
Mr. William Whitsett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Wholesale, Warehouse and
Delivery Employees,^Local 363 (CIO), herein called the C. I. 0., alleg-
ing that a question affecting commerce had arisen concerning the rep-
resentation of employees of The Toledo Desk and Fixture Company,
Toledo, Ohio, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice.
before Arthur Stark, Trial Examiner. Said hearing was held at
Toledo, Ohio, on April 25, 1944. At the commencement of the hear-
ing the Trial Examiner granted the motion of the Maumee Valley
District Council of Carpenters, Local 1359, A. F. of L., herein called
the A. F. of L., to intervene. The Company, the C. I. 0., and the
A. F. of L. appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. For the reasons set forth in paragraph III, below,
the motion of the A. F. of L. to dismiss the petition on the ground that
its contract with the Company is a bar to this proceeding, is denied.
All parties were afforded an, opportunity to file briefs with the Board.
Upon the entire record in the case, the Board 'makes the following:
56 N. L . R. B., No. 181.
1022
'--- --
THE TOLEDO DESK AND FIXTURE COMPANY 1023
FINDINGS OF FACT
I. THE BUSINESS OF TIE COMPANY
'The Company, an Ohio corporation, is engaged at its plant at To-
ledo, Ohio, in the fabrication of steel and wood. It purchases an-
nually raw materials, semi-finished material, and parts, valued in
excess of -$100,000. Approximately 90 percent of said materials and
parts is purchased outside the State of Ohio. Its finished products
are valued in excess of $400,000. Approximately 90 percent of such
products is.sold outside the State. `
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Wholesale, Warehouse and Delivery Employees, Local 363,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
Maumee Valley District Council of Carpenters, Local 1359, affiliated
with the American Federation of Labor; is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The record shows that the A. F. of L. has represented the Company's
employees and has had a contract with the Company continuously
since 1937. The A. F. of L. contract, executed on May 1, 1943, and due
to expire April 30, 1944, contained a clause providing for a 1-year
renewal unless 60 days prior to the expiration date the parties agree
to negotiate a new agreement ., On or about February 22, 1944, the A.
F. of L. and the Company met and discussed the terms and conditions
of a new contract. On March 6, 1944, the C. I. O. sent the Company
notice, by registered mail, of its claim of representation. The record
shows that this notice was received by the Company the following day.
On or about, March 15, 1944, the Company told the C. I. O. that it could
not deal with it until it was properly certified. Sometime during the
second-or third week of March 1944, the A. F. of L. and the Company
entered into a new agreement which was to run from May 1, 1944, to
April 30, 1945. On, March 20, 1944, the C. I. O. filed its petition with
the Board.
,The A. F. of L. contends that the 60-day renewal clause in its 1943
contract is a bar to the present proceeding, since the C. I. O.'s petition
was not filed before this 60day period. This contention; is without
merit because the automatic renewal clause became inoperative when
the ,contract was opened for negotiation in February, prior to the 60-
I
I
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day period. The A. F. of L. further contends that if,the 1943 contract
is not a bar, then the contract executed in March 1944 is a bar. This
contention is likewise without merit since the C. I. O. notified the
Company of its representation claim on March 6, 1944, and the con-
tract was thereafter entered into with the full knowledge of the -
C. I. O.'s claim of interest.
A statement of' a Board agent, introduced into evidence at the hear-
ing, indicates that the C. I. O. represents a substantial number of
employees in the unit hereinafter found appropriate.'
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 Company, the C. I. 0., and the A. F. of L. agree that the appro-,
priate unit should consist of all employees of the Company with
the exception of office workers, spot laborers, and supervisors. This
proposed unit includes employees known as working foremen'who'
check production, follow production through, are paid at a higher rate
than ordinary employees,,and have final'authority to discharge em-
ployees. Although these working foremen have been covered by the
A. F. of L. agreement since 1937, we shall, in accordance with our
established practice, exclude them from the unit.
We find that all employees of the Company, but excluding office
workers, spot laborers, supervisors, working foremen, and all other
supervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effec=
tively 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
In ascertaining the employees eligible to vote, the C. I. O. requests
that the Board use the pay roll as of the time its petition for certifica-
tion was filed, due to the fact that subsequent to that time several em-
ployees were temporarily laid off as a result of the Company's failure
to secure certain contracts. Since our usual practice is to allow tem-
porarily laid off employees to vote, its request is denied.
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
The, Field Examiner reported that the C. I. O: submitted 72 cards ; that the names of
66 persons appearing on the cards were listed on the Company' s pay roll of March 23, 1944,
which contained the names of 136 employees in the appropriate unit; and that the cards
were all dated during March 1944.
THE TOLEDO DESK AND FIXTURE COMPANY 1025
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, it is hereby
DrREOTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Toledo Desk
and Fixture 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, 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 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 they desire to be represented by United Whole-
sale, Warehouse and Delivery Employees, Local 363 (CIO), or by
Maumee Valley District Council of Carpenters, Local 1359, A. F. of L.,
for the purposes of collective bargaining, or by neither.
0