Cushman Motor Works

National Labor Relations Board - Board Decisions

Mar 29, 1946

66 N.L.R.B. 1413 (N.L.R.B. 1946)

In the Matter of CUSIIM AN MOTOR WORKS and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MIENT WORKERS OF AMERICA (UAW-CIO), LOCAL No. 751
Case No. 17-R-1290.-Decided Marcie 29, 1946
Messrs. Ralph W. Slocum and Wayne L. Coope;^, both of Lincoln.
Nebr., for the Company.
Mr. William E. Lewis, of Omaha, Nebr., and ^ilesars. _1 rthur L.
Larson and Ralph Smith, both of Lincoln, Nebr., for the C. I. O.
Messrs. E. M. Scheele and C. M. Pierson, by Mr. E. M. Scheele. of
Lincoln, Nebr., and Mr. Harold G. Fee, of Lincoln, Nebr., for the
Independent.
Mr. Kenneth P. Lewis, of Lincoln, Nebr., and Mr. John J. Guen-
ther, of Omaha Nebr., for the A. F. L.
Cllr. Jerome J. Dick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF TIIE CASE
Upon a petition duly filed by International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO ), Local No. 751 , herein called the C. I. 0., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Cushinau Motor Works, Lincoln , Nebraska , here-
in called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Elmer L.
Ilunt, Trial Examiner . The hearing was held at Lincoln , Nebraska,
on .January 3 and 4, 1946. At the hearing , the Trial Examiner
granted the motions of Union of Associated Crafts , herein called the
Independent , and Lincoln Central Labor Union. A. F. of L., herein
called the A . F. L., to intervene in the proceeding . The Company.
the C. I. O., the Independent , and the A. F. L. appeared and par-
ticipated . All parties were afforded full opportunity to be heard, to
examine and cross -examine witnesses , and to introduce evidence bear-
ing on the issues . At the hearing , the Independent moved on various
66 N. L . R. B., No. 174.
1413
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grounds to dismiss the petition. For various reasons hereinafter
stated, the motion is denied. 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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Cushman Motor Works is a partnership composed of Charles D.
Ammon, R. H. Ammon, W. B. Amnion, E. B. Ammon, W. L. Cooper,
P. A. De Les Dernier, John Worrest, Dorothy Ammon, and William
Artz, organized and existing under the laws of the State of Nebraska.
Its principal place of business is in Lincoln, Nebraska. The Com-
pany is engaged in the manufacture of machines, motors, and scooters
in two buildings in Lincoln, Nebraska. During the year 1945, the
Company purchased raw materials in an amount exceeding $500,000,
approximately 75 percent of which was shipped from points outside
the State of Nebraska. During the same year, the Company's sales
of finished products were in an amount exceeding $1,000,000, approxi-
mately 90 percent of which was shipped to points outside the State
of Nebraska.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
IT. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, Local No. 751, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the Company.
Union of Associated Crafts is an unaffiliated labor organization, ad-
mitting to membership employees of the Company.
Lincoln Central Labor Union is a labor organization affiliated with
the American Federation of Labor, admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated November 19, 1944, the C. I. O. advised the Com-
pany that it represented a majority of the employees within an
alleged appropriate bargaining unit and requested recognition as their
exclusive bargaining representative. In an answering letter dated
November 22, 1944, the Company advised the C. I. O. that it had a
CUSHMAN MOTOR WORKS 1415
contract with the Independent, and that it could not accord the
C. I. O. the recognition sought. Subsequently, the Company and
the Independent entered into a new contract dated March 26, 1945,
containing a union-shop clause with an escape provision. This agree-
ment was for a term of 1 year and provided for automatic renewal
for annual periods thereafter, in the absence of notice to terminate
given by either party to the other at least 30 days before any anni-
versary date. On November 26, 1945, the C. I. O. filed its petition
herein.
Asserting that the C. I. O. did not represent a majority of the
Company's employees on November 19, 1944, the date it first served
notice of its rival claim, the Independent urges that the contract of
March 26, 1945, constitutes a bar to the proceeding. But the C. I. O.
filed its petition on November 26, 1915, and this was seasonable
insofar as the 1946 renewal date of the contract was concerned. And,
assuming that the C. I. O.'s showing at the time it initiated this pro-
ceeding is a relevant consideration in determining whether or not
there is a contract bar, there is no question that, prima facie, it then
represented a substantial number of the Company's employees.'
That proof of majority status is not needed to invoke the Board's
processes in representative cases is well established doctrine. We
conclude, therefore, that the contract of March 26, 1945, does not
prevent a current determination of representatives.
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 UNITS
The unit sought by the C. I. O. would comprise all maintenance
and production employees of the Company, including set-up men and
the foreman-heat treater,3 but excluding office clerical employees, the
head watchman, Peter G. Wiens, assembler, and all supervisory em-
ployees. The Independent, the A. F. L., and the Company contend,
contrary to the C. 1. 0., that the unit should include the office clericals
and the named assembler. In addition, although the Company and
L A statement of a Board agent, introduced into evidence at the hearing, reveals the
following facts : The C. I. O. submitted 418 authorization cards dated from December
1944 through December 1945, and as of October 1945 had 381 of such designations.
There are approximately 810 employees in the unit alleged by the C. I. O. to be appropriate.
For its interest in the proceeding, the Independnt relies in part upon its contract with
the Company , and also submitted at the hearing 835 authorization cards. The A. F. L.
submitted at the hearing 47 designations . There are about 840 employees in the unit
sought by the Independent and the A. F. L.
v See e . g. Matter of Grand Rapids Fibre Cord Company , 56 N. L. R. B. 543.
BThe record clearly shows, and the parties agree, that set-up men and the foreman-
heat treater are not supervisory employees within the meaning of our customary definition.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the A. F. L. agree with the C. I. 0. that the head watchman be ex-
cluded as a supervisory employee, the Independent seeks his inclusion.
The head watchman is in charge of all other watchmen, and has
the authority to recommend their discharge. His recommendations
are usually favorably received by the general manager. It is clear
that the head watchman is a supervisory employee, and we shall
exclude him.
Peter Wiens, who had been a leadman on the day shift, was trans-
ferred to a new night shift in the machine department. All the shifts
in this department, with the exception of the new shift, are under
the immediate supervision of an employee classified as assistant fore-
man, who works under the direction of the general department fore-
man. It is conceded that assistant foremen are supervisory employees.
Although Wiens does not have the full authority of an assistant
foreman and does not receive an assistant foreman's wages, the testi-
mony indicates that his recommendations for discharge would be
effective. It appears that Wiens is a supervisory employee, and we
shall exclude him.
The classifications regarded by the Company as office clericals are
listed below.4 These clericals have been represented and bargained
for by the Independent since 1943. The past bargaining history is
the only basis relied on by the Company, the Independent, and the
A. F. L., for including the office clericals in the production and main-
tenance unit. We do not regard the fact that office clericals have
been included in bargaining relations between the Company and the
Independent as determinative of the issue herein. For the functions
and interests of these office clericals are essentially different from
those of the production and maintenance employees. In view of the
above, and despite the history of collective bargaining, we shall adhere
to our customary policy of excluding office clerical employees from
units of production and maintenance workers.5 Accordingly, office
clerical employees will be excluded. However, we shall establish a
separate unit of office clerical employees, inasmuch as both the Inde-
pendent and the A. F. L. have evinced an interest in representing
them.
We find that (1) all production and maintenance employees of the
Company, including set-up men and the foreman-heat treater, but
excluding office clerical employees, the head watchman, assistant fore-
man,e and all other supervisory employees with authority to hire,
+ Inventory clerk, stenographer, personnel clerk, cost clerk, accounts payable and order
control clerk, receptionist, bookkeeping department clerk, registered nurse, comptometer
operator, cost account clerk, pay-roll clerk, order and filing clerk, typing and tracing
clerk , clerk order department, billing clerk, time-study clerk, and secretary-private.
There are approximately 30 clericals.
6 See e.g., Matter of Sharp R Dohnre, Inc., 56 N. L. R. B. 1471.
B Including Peter Wiens, classified as an assembler.
CUSHMAN MOTOR WORKS 1417
promote, discharge , discipline , or otherwise effect changes in the
status of employees , or effectively recommend such action , constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act ;
(2) All office clerical employees , including registered nurses, but
excluding salesmen , bookkeepers , engineers , and draftsmen , and all
supervisory employees with authority to hire, promote , discharge,
discipline , or otherwise effect changes in the status of employees, or
effectively recommend such action , constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act .7
V. THE DETERMINATION OF REPRESE XTATIVES
We find that the questions concerning representation which have
arisen can best be resolved by an election by secret ballot .8
The Company requests, if elections are directed, that we permit the
use of mail ballots by employees in the armed services.9 We are of
the opinion that the facts in this case are not substantially different
from those in Matter of South West Pennsylvania Pipe Lines."' Ac-
cordingly, as in that case, we shall provide for the mail balloting of
employees in the armed services who fall within the appropriate
units, subject to the conditions hereinafter mentioned.
We shall direct that the questions concerning representation which
have arisen be resolved by separate elections by secret ballot among
the employees in the appropriate units who were employed during
ing the pay-roll period immediately preceding the date of the Direc-
tion of Elections herein, subject to the limitations and additions
set forth in the Direction. The Regional Director shall mail ballots
to employees within the appropriate units on military leave, provided
one or more of the parties hereto, within seven (7) days after the
receipt of the Direction of Elections, files with the Regional Director,
lists containing the names, most recent addresses, and work classifi-
cations of such employees in each event. The Regional Director
shall open and count the ballots cast by mail by employees on military
leave, Provided that such ballots must be returned to and received
The above inclusion, and exclu,monm conform to the contract between the Company
and the Independent
'Time Independent's iequest that it be certified on the record is denied We also deny
the C I O's demand that the A I' L be omitted from the ballot in the election among
the employees of the production and maintenance unit. Though slight, the A. F L
showing is sufficient to warrant a pace on the ballot See Matter of Etain National
Watch Company, 56 N L R B 30
The C I. 0 requests that it appear on the ballot as "II. A W -C I 0., Local No
751." The A F L requests that it appear on the ballot as "A F of L." The requests
are granted However, if either union wins any election, it will be certified as its name
appears in Section II, above
•There are approximately 140 employees in the armed services,
?► 64 N. L. R. B. 1294.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Office within thirty (30) days from the date they
were mailed to such employees by the Regional Director."
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations 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 Cushman Motor
Works, Lincoln, Nebraska, separate elections by secret ballot shall
be conducted as early as possible, but not later than forty-five (45)
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Seventeenth 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 employees in the units 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 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, but excluding those em-
ployees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the elections to
determine :
(1) Whether the employees in unit (1), described in Section IV,
above, desire to be represented by U. A. W.-C. I. 0., Local No. 751,
or by Union of Associated Crafts, or by the A. F. of L., for the
purposes of collective bargaining, or by none;
(2) Whether the employees in unit (2), described in Section IV,
above, desire to be represented by Union of Associated Crafts, or
by the A. F. of L., for the purposes of collective bargaining, or by
neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.
SI A free interchange between the interested parties of information on the addresses
and work categories of the employees to be voted by mail will be necessary , in order to
avoid challenges and post election objections Accordingly , the Board will make available
to all interested parties any information of this nature furnished by any other party.
In the event that the parties should send the absentee voters information or literature
bearing directly or indirectly on the pending election, copies of all such documents should
be simultaneously filed with the Regional Office for inspection by or transmittal to the
other parties . However, acceptance or transmittal of such literature by the Board's
office is not to be construed as conferring immunity on the filing party in the event that
objections are later interposed concerning Its content The usual principles will apply.