The Trailer Co. of America

National Labor Relations Board - Board Decisions

Aug 6, 1943

51 N.L.R.B. 1106 (N.L.R.B. 1943)

In the Matter of THE TRAILER COMPANY QF AMERICA and UNITED
AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS- OF
AMERICA, LOCAL 392, U. A. W.-C. I. O.
In the Matter Of HIGHLAND BODY MANUFACTURING COMPANY and
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, LOCAL 392, U. A. W.-C. I. O.
Lases Nos. 8-5562 and R-5563, respectively. Decided August 6, 1943
Mr. Thomas E. Shroyer, for the Board.
Waite, Schindel & Bayless, by Mr. Philip J. Schneider, of Cin-
cinnati, Ohio, for the Companies.
Messrs. Maurice Sugar and N. L. Smokier, of Detroit, Mich., and
Mr. Sol Goodman, of Cincinnati, Ohio, for the C. 1. 0.
Mr. Joseph A. Padway, by Mr. Robert A. Wilson, of Washington,
D. C.; and Mr. Morris Weintraub, of Newport, Ky., for the A. F. of L.
,Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon separate petitions duly filed by United Automobile, Aircraft
& Agricultural Implement Workers of America, Local 392, U. A. W.-
C. I. 0., herein called the, C. I. 0., alleging that questions affecting
commerce had arisen concerning the representation of employees of
The Trailer Company of America,' herein called Trailer, and High-
land Body Manufacturing, Company, herein called Highland, both in
Cincinnati, Ohio, the National Labor Relations Board consolidated
the petitions herein and provided for an appropriate hearing upon
due notice before Charles E. Persons, Trial Examiner. Said hearing
was held at Cincinnati, Ohio, on June 18, 1943. The Board, the Com-
pany, the C. I. 0., and International Union, United Automobile Work-
Incorrectly appearing in the formal papers in this proceeding as Trailmobile Company
of America The Trial Examiner granted the motion of the Board at the hearing to cor-
=rect the designation of. Trailer wherever it appears to The Trailer Company of America.
51 N L. R. B, No. 177.
1106
THE TRAILER COMPANY OF AMERICA 1107
ers of America, A. F. of L., Local No. 131, herein called the A. F. of L.,
appeared, participated, and 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. All
parties were afforded opportunity to file briefs with the Board. Pur-
suant to notice, a hearing for the purpose of oral argument was held
on July 29, 1943, before the Board at Washington, D. C. All parties
herein appeared and participated in the hearing. ,
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
The Trailer Company of America is an Ohio corporation with its
principal office and plant in Cincinnati, Ohio, where it is engaged in
the manufacture, sale, and distribution of trailers. The principal
raw material used by Trailer is steel, over 50 percent of which is shipped
to the plant from points outside Ohio. Approximately 90 percent of
the trailers produced is sold to the Government of the United States
and shipped ultimately to points outside Ohio. During 1942, such
shipments exceeded $500,000 in value.
Highland Body Manufacturing Company is a corporation, wholly
owned and managed by The Trailer Company of America, with its
principal office and plant in Cincinnati, Ohio, where'it, too, is engaged
in the manufacture, sale, and distribution of trailers and also in the
manufacture of cabs. The principal raw material used by Highland
is steel, over 50 percent of which is shipped to the plant from points
outside Ohio. Approximately 90 percent of the trailers produced at
the plant is sold to the Government of the United States and shipped
ultimately to points outside Ohio. During 1942, such shipments
exceeded $500,000 in value. The operations of the two Companies are
integrated and we find that they constitute, jointly, an employer within
the meaning of Section 2 (2) of the Act.
The Companies concede that they are engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Automobile, Aircraft & Agricultural Implement Workers of
America, Local 392, U. A. W.-C. I. 0., is a labor organization affil-
iated with the Congress of Industrial Organizations, admitting to
membership employees of the Company.
International Union, United Automobile Workers of America, A.
F. of L., Local No. 131, is a labor organization affiliated with the
540612-44-vol. 51-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Labor, admitting to membership employees
of the Company.
0
III. THE QUESTION CONCERNING REPRESENTATION
In 1936, employees of Trailer were organized by a union local then
affiliated with the Committee for, Industrial Organization, and entered
into a collective bargaining contract with Trailer. The contract was
renewed from year to year until July 1940.
In 1937, employees of Highland were organized by the same union
local and entered into a collective bargaining contract with Highland
which was renewed from year to year until July 1940.
During this period the contracting union local changed its affiliation
from the Committee for Industrial Organization -(now the Congress
of Industrial Organizations) to the American Federation of Labor.
During the same period the employees of each plant constituted sep-
arate autonomous bargaining units.
In 1940 the A. F. of L. entered into a single collective bargaining
contract with the Companies embracing the employees previously
covered by the separate contracts. The contract provided for sep-
arate bargaining committees at each plant but otherwise treated the
employees of the Companies as a single industrial unit. This con-
tract expired in 1942 and was replaced by another single contract cov-
ering the same categories of employees and providing for a closed
shop. The last contract was effective July 1, 1942, for 1 year or the
duration of the war, whichever period is the longer. It contains no
provision for unilateral termination and is thus a contract of indefinite
duration terminable upon the happening of a future contingency,
which may not occur for several years.
On May 25, 1943, the C. I. O. requested recognition as exclusive
bargaining representative of the employees of Trailer. Trailer re-
fused the request stating it was precluded from extending such recog-
nition by the existing contract with the A. F. of L. Thereupon the
C. I. O. filed the petitions in this proceeding.2 No similar request was
made as to the employees of Highland, but at the hearing the Com-
panies stated that the A. F. of L. contract was considered binding on
both of them and that both refused to accord recognition to the C. 1. 0.
Since by its terms the contract is now to remain in effect for the dura-
tion of the war, the A. F. or L. asserts it to be a bar to this proceeding.
The principal issue in the case is whether or not this contract is
indeed a bar to a direction of election at this time. It will be noted
that a year has elapsed since the execution of the contract. One of
2 Although directed separately to Trailer and Highland, each petition requests a unit
embracing the employees of both Companies.
THE TRAILER COMPANY OF AMERICA 1109
the earliest decisions of the Board 3 was that a contract for a term of
several years or of an indefinite duration would not be deemed a
bar to a representation proceeding filed at the end of the first year.
This doctrine has been repeated so often subsequently that it is well
recognized as part of the law of collective bargaining.4 We have, of
course, given effect to 2-year contracts where the evidence established
that collective bargaining on this basis was the custom in the industry,5
but these cases are clearly not applicable here since the alternative
terminal date of the instant contract was 1 year after the date of execu-
tion. A case which does seem to be controlling, however, is a recent
decision e holding that a contract terminable 90 days after the armi-
stice ending the present war was not a ground for dismissing a peti-
tion filed at a time when the contract had been in effect for more than
12 months.
Counsel for the A. F. of L. argued earnestly in this proceeding that
the rule established and consistently adhered to in the afore-mentioned
decisions should not be, regarded as determinative of the case at bar.
The A. F. of L. does not contend that a general exception to such rule
should be made with respect to all contracts for the duration of the
war,7 but rather, that the Board may and should treat this case as
.iui getleris. Arguing from the premise that the Board's power to
treat any contract as a bar to a representation proceeding is purely
discretionary, since the Act contains no express limitation upon the
right of employees under Section 7 to select representatives at any time,
counsel for the A. F. of L. contended that the Board's discretion in
this respect is entirely without limitation. We cannot agree with
this reasoning. The Board has always held to the view, we think
correctly, that its discretion with respect to the effect to be given to a
collective bargaining contract in a representation case is limited by
the necessity of balancing two separate interests of employees and
society which the Act was clearly designed to foster and protect:
namely, the interest in such stability as is essential to encourage "the
practice and procedure of collective bargaining," 8 and the sometimes
conflicting interest in the freedom of employees to select and change
their representatives at will. In weighing these conflicting interests,
the Board has developed its doctrine that a contract will bar an in-
,Matter of Metro-Goldwyn-Mayer Studios, 7 N. L. R. B. 662; Matter of Wichita Union
Stockyards Company, 40 N. L. R B. 369.
4Matter of Columbia Broadcasting System, Inc, 8 N L. R. B. 508; Matter of M. & J.
Tracy, Inc, 12 N. L. R. B. 936; Matter of The Riverside and Fort Lee Ferry Company, 23
N L R B. 493; Matter of Wichita Union Stockyards Company, supra.
° Matter of Owens-Illinois Pacific Coast Co., 36 N. L. R. B. 990; Matter of American
Finishing Company, 50 N. L R. B., No. 45.
°Matter of Solar Aircraft Company, 48 N. L. R. B 242; Matter of Los Angeles Ship-
building & Drydock Company, 40 N. L R. B. 1150.
7 Brief filed herein by the A. F. of L., pp. 3, 4, and 5.
s Section I of the Act.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vestigation to determine representatives for a definite and reasonable
period, but no longer.,, Although the functions of the Board have
been augmented and modified several times by Congress subsequent
to the Board's enunciation of this rule, no amendment affecting the
doctrine has ever been enacted.1° To depart from it now would seem
a demonstration of caprice rather than an exercise of discretion.
It is urged by the A. F. of L. and the Companies in this case that
sound policy requires us to make an exceptional ruling herein, in part
because the application of our general doctrine would encourage em-
ployees irresponsibly to change their union affiliation rather than to
submit to the reasonable and necessary discipline of their international
officers. According to an offer of proof rejected by the Trial Examiner,
the Trailer employees are in sharp disagreement with the Highland
employees in respect to seniority. The dispute, by consent of both
groups, was certified to the International Executive Board, United
Automobile Workers, A. F. of L., for adjudication. The ruling of that
-board was displeasing to Trailer employees and the dispute has con-
tinued without abatment within the union local. As a result of the
continuation of the dispute the International removed the local officers
and appointed an administrator. Subsequently a group of ex-officers
and members of the local instituted a civil action in a State court seek-
ing to regain control of the local and to oust the administrator. The
action was dismissed and the petitioners were expelled from the Union.
The Companies, consequent to the request of the administrator and
pursuant to the closed-shop provision of the contract, dismissed the
petitioners from their employment. Thereupon the Trailer employees
struck. Subsequent to the above events most of the Trailer employees
sought affiliation with the C. I. 0. Assuming the truth of the
proffered testimony, the Board is asked to give weight to the fact that
the leaders of the insurgents are really rebelling against a lawful and
reasonable award of the union to which they had bound themselves
and here, again, we are urged to disregard a sound policy early estab-
lished and consistently adhered to by the Board. We concede the
desirability of encouraging local union officers and members to accept
the arbitration machinery of their internationals, but we think it is
clear that the function of this Board under Section 9 (c) of the Act is
to ascertain the desires of employees with respect to their collective
bargaining representative, not to pass judgment upon the reasonable-
ness of wisdom of such desires. The Board has never inquired into the
motives of employees who secede from one union and join another.
0 Cf Matter of Mill B, Inc , dnvision of Irwin ct Lyons, partners doing business under
the assumed name of Irwin c6 Lyons, 40 N. L. R. B. 346
10 Fair Labor Standards Act of 1938, 52 Stat. 1060 ; War Labor Disputes Act, Ch. 144
P. L, 89; Communications Act of 1934, as amended , 57 Stat. 5 ; National Labor Relations
Board Appropriation Act, 1944, Title IV, Act of July 12, 1943, P. L. 135, 78th Congress,
1st Session.
THE TRAILER COMPANY OF AMERICA 1111
Their reasons may be foolish or unjust, but such factors are not within
the contemplation of a statute which makes the sole test of a bona fide
bargaining agent's status depend upon whether or not a majority of
the employees wish it to represent them. Our only proper function
here is to decide whether the majority of the employees have com-
mitted themselves irretrievably by the indefinite length of the,contract
term. To answer this question in the light of our opinion as to the
employees' moral justification for desiring to change their representa-
tive is to assume a police power which is not conferred upon us by the
Act either expressly or by any reasonable implication."'
It is also contended by counsel representing both the A. F. of L.
and the Companies that the national interest in stabilizing labor
relations during the war requires us here to respect the agreed term
of the contract. In this connection there were cited two recent de-
cisions of the National War Labor Board where parties were directed
to make collective bargaining agreements containing similar provi-
sions. Those cases appear to be distinguishable,12 however, and do
not represent the settled policy of that agency. Because of the argu-
ments directed to us, however, we have reexamined the reasoning
which underlies our earlier decisions and are more firmly convinced
of their essential soundness. There is nothing that is more likely
to breed discontent among the employees or make for irresponsible
union leadership than a policy which deprives workers of any voice
in the conduct or identity of their representatives for an unreasonable
length of time. Perhaps an appearance of stability may be achieved
by a contract of extended duration but the ephemeral quality of such
stability is no better exemplified than in the case now before us. That
there is now an acrimonious dispute concerning the representation
of the employees here involved is conceded by all the parties. Such
disputes constitute it threat to industrial peace and the flow of war
production. We believe that to deny to employees the opportunity
to select new bargaining representatives after a reasonable time serves
to aggravate rather than minimize discord and to remove the founda-
tion upon which stability may be based. In asserting that the dis-
missal of the petition would foster stability in the case at bar, counsel
for the Companies based part of his argument on the fact that in
recent weeks industrial peace has prevailed in both plants and pro-
"'See Matter of Central Pattern & Foundry Company , 51 N. L. R. B 400 , where we
stated that, "where a schism occurs in a labor organization we will not undertake to re-
solve questions , involving an interpretation of a union constitution to determine which
faction enjoys legal successorship . The right to require adherence to the provisions of a
union constitution is, in any event, subordinate to the right, protected by the Act, of
employees to exercise their full freedom of association , self-organization , and designation
of representatives of their own choosing."
12 In that provision is made for modification or termination of the contract by the
National War Labor Board or any other authorized governmental agency.
1112 DECISION'S OF NATIONAL LABOR RELATION'S BOARD
duction has materially improved. It does not appear, 'however, that
the continuance of the contract is responsible for this condition, but
rather that this state of affairs has prevailed only since a recent interim
order or recommendation of a regional board of the National War
Labor Board.13 The matter came before that agency because of a
threatened strike precipitated by the insistence of the contracting
union that the employees engaging in activities for the petitioning
organization be discharged under the terms of the closed-shop pro-
vision. The effect of the Regional Board's opinion was merely to
require the parties to maintain the status quo by ceasing to enforce
the closed-shop clause until this Board could dispose of the question
of representation then pending before it.14 Should this Board, how-
ever, decide that the contract term bars a new determination of rep-
resentatives, its decision would have the effect of reinstating all the
provisions of the contract including the closed-shop provision. Since
such provisions are expressly made legal under the proviso to Sec-
tion 8 (3) of the National Labor Relations Act, neither this Board
nor the National War Labor Board could validly prevent the Com-
pany and the signatory union from enforcing its terms irrespec-
tive of what view either tribunal might entertain with respect to
the effect of such measures upon the prosecution of the war. In other
words, the legal situation which occasioned the work stoppage would
immediately recur at the Trailer plant were this petition to be
dismissed.
Since the contract involved herein has been in effect for more than
1 year; since it appears that a substantial number of employees de-
sire an, investigation to determine representatives; and since the
denial of the' petition herein might therefore frustrate the rights of
the employees under the Act, we find that the contract does not con-
stitute a bar to a present investigation of representatives.
A statement of the Regional Attorney, introduced into evidence
at the hearing, indicates that the C. I. 0. represents a substantial
number of employees in the unit hereinafter found appropriate'5
We find that a question affecting commerce has arisen concerning
the representation of employees of the Companies within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
is 12 LRR 737.
14 Cf. Rutland Court Owners, Inc ., 44 N. L R. B. 587.
16 The Regional Attorney stated that the C. I. 0 submitted 1,016 cards of which 45
bore printed signatures and 971 apparently genuine original signatures . Fifty-one cards
were undated and the remainder bore dates in May and June 1943. Nine hundred and
seventy-five cards bore the names of persons whose names appear on the pay roll of May
30, 1943 , of The Trailer Company of America. Said pay roll bears the names of 1,139
persons within the appropriate unit . None of the cards bore the names of employees of
Highland Body Manufacturing Company where 174 persons are employed in the unit.
The A F. of L claims 204 members at the Trailer plant and 131 at the Highland plant.
It relies also upon its contract to establish its interest.
THE TRAILER COMPANY OF AMERICA 1113
IV. THE APPROPRIATE UNIT
Since July 1940 the employees of the Companies have been repre-
sented by one union local in a single industrial unit. The Company
and the C. I. 0. agree essentially that this unit is appropriate. The
A. F. of L. agrees to the categories of employees included but urges
that each plant should constitute a separate unit arguing that the in-
terests of the employees at Highland are opposed to those of the
employees at Trailer. In determining the appropriate collective bar-
gaining unit we ordinarily, in the absence of a prior Board decision,
give great weight to the prior bargaining history concerning the em-
ployees involved.," This rule of decision developed from the pre-
sumption that what the parties themselves have done affords the best
test as to what unit is appropriate. However, this presumption is
not irrebuttable 17 and, in consideration of the following, we incline
to the belief that collective bargaining could be encouraged more
effectively by returning to the original separate units of Trailer and
Highland employees.
The bitter seniority dispute indicates that the interests of the em-
ployees in the two plants are sufficiently disparate to warrant a find-
ing that the employees in each constitute a separate bargaining unit.
The disparity is emphasized by the overwhelming prima facie show-
ing of C. I. 0. membership at Trailer and the utter lack of such
showing at Highland. Further, although the terms of the A. F. of
L. contract have applied with equal force to the employees of both
Trailer and Highland, each group of employees has retained separate
identity. Agreements with the Companies have been subject to the
separate approval of each group and the choice of the Trailer em-
ployees has not been imposed upon the Highland employees without
the separate consent of the latter. Thus, essentially, the employees of
the Companies have constituted two clearly identifiable bargaining
groups, but the progressive merging of the physical operations of the
Companies is serving to erase the lines of demarcation. The High-
land employees are being transferred to the Trailer plant and pay
roll and are thereby losing their separate identity. To return now
to the original separate units would permit employees of the same
skills, performing the same duties for the same employer to desig-
nate separate bargaining representatives, contrary to the dictates of
sound policy.
There is, however, a group of Highland employees who will remain
relatively unaffected by the merger and who now are working in the
19 See Third Annual Report, pp. 160, 161. See also Matter of AckLin Stamping Company,
2 N. L R. B. 872, and subsequent Board decisions.
'T See Matter of Indianapolis Power et Light Company, 51 N. L. R. B. 670, and prior
Board decisions.
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recently acquired building adjacent to the Trailer plant. We refer
to the employees in the cab and woodworking departments. These
employees, approximately 100 in number, are engaged in the manu-
facture of wood cabs. This manufacture until recently was per-
formed only at Highland and the physical transfer of machinery and
employees has not resulted in an intermingling with Trailer em-
ployees. While the two departments are not physically separated
from the other operations of the Companies, the work therein is
performed independently of the other departments and the employees
possess skills of a different nature from those of the metal workers
surrounding them. Since we are convinced that, Trailer employees
and Highland employees have separate and conflicting interests and,
therefore, should, where feasible, be represented in separate bargain-
ing units, we shall exclude the employees in the cab and woodwork-
ing departments from the unit requested by the C. I. O.
The Companies would exclude from the unit watchmen, firemen,
plant engineers, and all maintenance employees who protect the safety
of the plant and equipment so that they would remain at work in the
event of a strike. The watchmen are neither uninformed nor armed
and have no police powers. The firemen, plant engineers, and main-
tenance men are employed in the powerhouse or are engaged in the
care and repair of the Companies' equipment. The C. I. O. desires
their inclusion; the A. F. of L., while requesting separate units at each
plant, would include them in an industrial unit. It is our custom to
include such employees, at the request of the unions involved, and we
shall include them here.
The progressive physical merger of the operations of the Companies
renders impracticable and unworkable the designation of separate bar-
gaining units using as a guide the antecedent employment relations of
the employees to the Companies. While we are convinced and have
found, above, that this disability does not attach to employees in the
cab and woodworking departments, all remaining employees of both
Companies in the claimed unit, including the watchmen, firemen, plant
engineers, and maintenance employees, will be completely intermingled
at the Trailer plant. While the process of merger is not accomplished
at this date, it appears certain that after October 31, 1943, Highland
will cease to be an employer. In consideration of this circumstance
and in accordance with the discussion above, we find that all pro-
duction and maintenance employees of the Companies, working at the
Highland and Trailer plants, including watchmen, firemen, and plant
engineers, but excluding armed guards, cab department and word-
working department employees, superintendents, foremen, and any
other supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees or
THE TRAILER COMPANY OF AMERICA 1115
effectively recommend such action, constitute a single unit appropriate
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees 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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Trailer Com-
pany of America, Cincinnati, Ohio, and Highland Body Manufactur-
ing Company, Cincinnati, 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 Ninth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 10, 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 such 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 any who have
since quit or been discharged for cause, to determine whether they
desire to be represented by United Automobile, Aircraft & Agricul-
tural Implement Workers of America, Local 392, U. A. W.-C. I. 0., or
by International Union, United Automobile Workers of America,
A. F. of L., Local No. 131, for the purposes of collective bargaining, or
by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.