The Yale & Towne Mfg. Co.

National Labor Relations Board - Board Decisions

Dec 14, 1944

59 N.L.R.B. 970 (N.L.R.B. 1944)

In the Matter of AUTOMATIC TRANSPORTATION COMPANY, DIVISION or
THE YALE & TOWNE MFG. Co. and FEDERAL LABOR UNION 23628,
A. F. L.
Case No. 13-R-2380.-Decided December 14, 194.4
Fyffe do Clarke by Mr. David R. Clarke, of Chicago, Ill., for the
Company.
Daniel D. Carmell by Mr. Leo Segall, of Chicago, Ill., for the AFL.
Meyers & Meyers, by Mr. H. E. Baker, and Mr. Pat Greathouse, of
Chicago, Ill., for the CIO.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Federal Labor Union 23628, A. F. L.,
herein called the AFL, alleging that a question affecting commerce
had arisen concerning the representation of employees of the Auto-
matic Transportation Company, Division of The Yale & Towne Mfg.
Co., herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before David
Karasick, Trial Examiner. Said hearing was held at Chicago, Illi-
nois, on November 6, 1944. The Company, the AFL, and the United
Automobile, Aircraft & Agricultural Implement Workers of America,
Local 68, C. I. 0., herein called the CIO, 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 is-
sues. The Trial Examiner reserved for the Board rulings on the
CIO's motion to dismiss the petition because o the alleged insufficient
showing of interest made by the AFL, and on the Company's motion
to strike the CIO from the proceeding as a party because of the CIO's
alleged failure to make any showing of interest. For reasons herein-
after stated, the said motions are hereby denied. The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board.
59 N. L. R B, No. 187.
970
AUTOMATIC TRANSPORTATION COMPANY 971
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Automatic Transportation Company is a division of The Yale &
Towne Mfg. Co., a Connecticut corporation with an office and plant
located at Chicago, Illinois, with which this proceeding is concerned.
The Company is engaged at its Chicago plant in the manufacture, sale,
and distribution of industrial trucks. During the past year, the Com-
pany purchased for use at its Chicago plant raw materials valued
at approximately $500,000, 60 percent of which materials was obtained
from sources outside the State of Illinois. During the same period, the
Company sold and distributed finished products valued at about
$3,500,000, about 80 percent of which was sold and shipped to points
outside the State of Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union 23628, affiliated with the American Federation
of Labor, is a labor organization admitting to membership employees
of the Company.
United Automobile, Aircraft & Agricultural Implement Workers of
America, Local 68, affiliated with the Congress of Industrial Organza=
tions, is,a labor organization admitting to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On April 20, 1942 the Board, following an election, certified the CIO
as the bargaining representative for the Company's production and
maintenance employees., Because of the inability of the CIO and the
Company to agree on the terms of a contract although aided by the
United States Conciliation Service, the latter certified the dispute to
the War Labor Board in September 1942. Following a series of con-
ferences, the War Labor Board on April 14, 1943, issued a directive
requiring the CIO and the Company to execute a contract incorporat-
ing the recommendations of the panel as modified by the War Labor
Board directive to be effective until April 15, 1944. After repeated re-
fusals, the Company, on January 19, 1944, finally signed a contract
for the unexpired portion of the directive period to April 15, 1944.
At the time of the hearing there were three matters in dispute pending
before the. War Labor Board : (a) a case involving wage issues now on
1 Matter of Automatic Transportation Company, 40 N. L. R B 761.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appeal to the National War Labor Board from a directive of the
Regional War Labor Board; (b) a case involving discharges made
by the Company on February 15. 1944; and (c)" a motion made by the
CIO to the National War Labor Board on May 30, 1914, asking for an
order extending the term of the contract which expired on April 15,
1944.
The CIO contends that the War Labor Board proceedings con-
stitute a bar to this proceeding within the principle enunciated in the
Allis=Chalmers case.2 The rule there applied is not applicable to the
facts of this case. Submission to the procedures of the War Labor
Board following certification as the bargaining representative by this.
Board will not in every case serve to constitute a bar to a new repre-
sentation proceeding initiated by a rival union. It is only where the
submission of matters in dispute to the orderly procedures of the War
Labor Board is the primary and proximate cause for the certified
union's failure to secure the benefits of collective bargaining for the
employees whom it represents that the proceedings before the War
Labor Board will be held a bar to a new petition filed by a rival union.3
The CIO's certification is now 32 months old. During that time four
petitions prior to the one in the instant-case-were filed, three by-rival
unions and one by the Company. Three of the petitions were dis-
missed by the Board and the fourth was withdrawn by the petitioning
union. During the same period, the CIO filed with this Board numer-
ous charges and amended charges of unfair labor practices against the
Company, two of which were sustained in an Intermediate Report sub-
mitted by a Trial Examiner following a hearing thereon. The history
of the troubled bargaining relationship which has existed between the
CIO and the Company since the CIO's certification indicates that the
CIO failed to secure the expected benefits of its certification for rea-
sons wholly apart from the fact that matters in dispute were sub-
mitted to the War Labor Board. Thus, on April 14, 1943, the War
Labor Board had disposed of substantially all of the issues except the
wage issue between the parties and directed the CIO and the Company
to sign a contract for 1 year. For 9 months the Company ignored
the.directive, finally signing a contract 3 months prior to the expira-
tion period. Less than 2 weeks after it had signed the contract, the
Company refused to meet with the CIO's representatives on the ground
that the CIO did not represent a majority of the Company's employees.
Thereupon the Company's employees staged a protest walk-out and as
the result thereof the Company discharged eight employees. The
validity of these discharges was challenged by the CIO and the cases
2 Matter of Allis-Chalmers Manufacturing Company, 50 N L R. B 306
3 Cf. Matter of Diamond Magnesium Company, 57 N L R B 393 Matter of Columbia
Protektos1te Co , Inc, 52 N L R B 595.
AUTOMATIC TRANSPORTATION COMPANY 973
were taken through the first two steps of the grievance procedure
provided by the contract without an agreement being reached, the
Company declining to submit the dispute to arbitration, the third
step in the contract grievance procedure. At the time of the hearing
the question of these discharges was still pending before the War
Labor Board. The difficulties between the Company and the CIO
point incontestably to the conclusion that the CIO's inability to secure
substantial benefits for the employees was not attributable to the fact
that it had submitted to the procedures of the War Labor Board.
Furthermore, the CIO has had ample time to secure a contract since
it has remained the certified bargaining representative of the Com-
pany's employees for 32 months. At the present time there are still
matters in dispute pending before the War Labor Board. Were we
to decline to entertain a petition until those matters are finally settled
and the CIO has enjoyed the benefits of a contract for the term of 1
year, as the CIO inferentially suggests, it might well be many months
longer than the 32 months that have already elapsed,before the
employees of the Company would have an opportunity to express their
choice of a bargaining representative. This would be an unreasonable
length of time to deprive employees of their right to exercise their
free choice in the selection of their bargaining representatives.4
Accordingly, we find that the prior certification and the, pendency
of proceedings before the War Labor Board are not a bar to a present
determination of representatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the AFL 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 Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties agree that the appropriate unit is one comprising all
production and maintenance employees of the Company at its Chi-
cago, Illinois, plant, located at 101 West 87th Street (including those
See Matter of Bethlehem Supply Company, 56 N L. R B. 439.
The Field Examiner reported that the AFL submitted 319 authorization cards ; that
128 of the cards were undated with the remainder dated between March 1944 and August
1944 ; that there were 550 employees in the appropriate unit ; and that the Company
had refused to submit a pay roll for comparison of the signatures on the authorization
cards with those on the pay roll . This showing of interest constitutes substantial repre-
sentation within principles enunciated by the Board, and we so find. The CIO as a party
to a recently expired collective bargaining contract , and on the basis of its previous
certification by the Board , is entitled to be a party to this proceeding and to have its
name on the ' ballot without any further showing of interest. See Matter of Southern
Car and Manufacturing Company, 29 N. L. R. B. 1061 , Matter of Diamond Crystal Salt
Division etc., 37 N L. R. B 481.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the pay roll of the Company who are temporarily located on the
premises at 2900 North Western Avenue), including plant production
stock record clerks, stock clerks, shipping room employees, field
service mechanics, and operating engineers, but excluding office cleri-
cal employees, timekeepers, plant guards, watchmen, foremen, assist-
ant foremen , working foremen, and other supervisory personnel.
The AFL and CIO are in disagreement, however, concerning the
inclusion or exclusion of the production stock record clerks working
in the office; the AFL would include, while the CIO desires to exclude
these employees from the unit.
There-are 18 production stock record clerks employed by the Com-
pang, 12 work in the office, and 6 in the plant. Both groups of
production stock record clerks are members of the same department
and are under the general supervision of the production manager.
Both groups of employees, too, are engaged in similar clerical work
involving inventory control. The sole difference in the work of the
2 groups relates to the sphere of their work; while the plant produc-
tion stock record clerks confine their activities to specific sections of
the stockroom, the duties of their counterparts in the office extend over
the entire production department. Neither group of record clerks
does any manual work. The office production stock record clerks,
although stationed in the office because,it is convenient for the Com-
pany to have them located there, frequently go out into the plant.
While the office production stock record clerks are on the weekly
pay roll, whereas those working in the plant are on the hourly pay'
roll, the earnings of both groups of employees are substantially the
same. In view of the fact that the office record clerks have the same
duties and are under the same general supervision as plant record
clerks, whom all parties agreed to include in the unit, we shall also
include the office production stock record clerks therein.
We find that all production and maintenance employees of the
Company at its Chicago, Illinois, plant, located at 101 West 87th
Street (including those 'on the pay roll of the Company who are
temporarily located on the premises at 2900 North Western Avenue),"
including both office and plant production stock record clerks, stock
clerks , shipping room employees, field service mechanics, and operat-
ing engineers , but excluding office clerical employees, timekeepers,
plant guards, watchmen, foremen, assistant foremen, working fore-
men, and all other supervisory employees with authority to hire,
promote , discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
O The approximately 14 machine operators on the Company 's pay roll thus included are
temporarily located at a building housing another division of the Company.
AUTOMATIC TRANSPORTATION COMPANY 975
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act .7
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
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 e
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 Rela-
tions 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 Automatic Trans-
portation Company, Division of The Yale & Towne Mfg. Co., Chicago,
Illinois, 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 Di-
rector for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 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 any 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 Federal Labor Union 23628, A. F. L.,
or by United Automobile, Aircraft & Agricultural Implement Work-
ers of America, Local 68, C. I. 0., for the purposes of collective bar-
gaining, or by neither.
' This is substantially the same unit previously found appropriate by the Board in Matter
of Automatic Transportation Company, 39 N. L. It. B. 898.
8 The requests of the AFL and the CIO to appear on the ballot as Local 23628, American
Federation of Labor , and Local 68, U. A. W.-C. I. 0., respectively, are both hereby granted.
618683-45-vol. 59-63