Joseph Dyson & Sons, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1945

60 N.L.R.B. 867 (N.L.R.B. 1945)

In the Matter of JOSEPH DYSON & SONS, INC . and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (CIO )
Case No. 8-B-1741.-Decided February 23, 1945
Messrs. Charles W. Sellers and R. H. McGrath, of Cleveland, Ohio,
for the Company.
Mr. Stanley J. Kwiat, of Cleveland, Ohio, for the C. I. O.
Mr. Anthony Rossman, of Cleveland, Ohio, for the Independent.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America
(CIO), herein called the C. I. 0., alleging that a question affecting
•commerce had arisen concerning the representation of employees of
Joseph Dyson & Sons, Inc., Cleveland, Ohio, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Thomas E. Shroyer, Trial Exam-
iner. Said hearing was held at Cleveland, Ohio, on January 16, 1945.
The Company, the C. I. 0., and Joseph Dyson Victory Club, herein
called the Independent, 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. All parties were afforded an opportunity
to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Joseph Dyson & Sons, Inc., an Ohio corporation, is engaged in the
manufacture of products which ultimately go to the armed services.
60 N. L. R. B., No. 147. 867
E
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the calendar year 1944 the Company's total volume of business
exceeded $1,000,000. A substantial portion of the products manu-
factured and the raw materials purchased was shipped in interstate
commerce.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft- & Agricultural
Implement Workers of America, affiliated with the Congress of Indus-
trial Organizations, is a labor organization admitting to membership
employees of the Company.
Joseph Dyson Victory Club, unaffiliated, is a labor organization
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused the C. I. O.'s request for recognition as
the collective bargaining representative of its employees on the
ground that a presently existing contract with the Independent pre-
cludes such recognition. On May 1, 1942, the Company and the Inde-
pendent entered into a contract for the term of 1 year, renewable
automatically from year to year thereafter unless either party serves
notice of termination 30 days prior to any anniversary date. No
notice of termination has been served by either party to the contract
and the Company claims, therefore, that the said contract has been
extended to May 1, 1945, and consequently is a bar`to this proceeding.
The parties disagree as to whether the contract is an exclusive bar-
gaining contract or is one for members only. However, we find it
unnecessary to determine the issue thus raised. Since the contract, may
be terminated in approximately, 2 months upon appropriate notice by
the parties thereto, we find the contract is not a bar to a determination
of representatives within the next 30 days pursuant to our usual Direc-
tion of Election. However, any certification of representatives which
we may issue as a result of the election shall be for the purpose of desig-
nating a bargaining representative to negotiate a new contract to
become effective upon the expiration of the existing contract.'
The Company further contends that a limitation contained in the
current Appropriation Act enjoins the present proceeding while the
contract between the Company and the Independent is in existence.
The limitation adverted to by the Company applies solely to complaint
1 See Matter of American Stores Company , 54 N L . R. B 756; Matter of Chrysler
Motors Corporation , 38 N L. R B. 1379 . Matter of Iloude Engineering Corporation, 36
N. L R. B. 587.
JOSEPH DYSON & SONS, INC. 869
cases and not to representation proceedings.2 Accordingly, we find
the Company's contention to be without merit.'
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.4
We End 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 generally that a unit comprising all production
and maintenance employees, including the watchman, but excluding
clerical employees and supervisors, is appropriate. The parties are
in disagreement, however, concerning the inclusion or exclusion of the
timekeeper whom both unions would include, and the Company would
exclude. In accordance with our customary practice, we shall exclude
him from the production and maintenance unit.5
We find -that all production and maintenance employees, including
the watchman, but excluding clerks, the timekeeper, and all super-
visory 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 with the meaning of Section 9 (b) of the Act.
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 em-
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
Labor-Federal Security Appropriation Act, 1945, approved June 28, 1944 , Chapter
302-Public Law 373, provides : "No part of the funds appropriated in this title shall
be used in any way in connection with a complaint case.... 11 ( Emphasis supplied).
8 Matter of Letellier-Phillips Paper Co., Inc, 54 N . L R. B. 1111, and cases cited therein.
4 The Field Examiner reported that the C . I. 0 submitted 36 application cards , that
there are approximately 40 employees in the appropriate unit , and that 10 of the
application cards were dated in December 1944 , 25 were undated , and 1 card was unsigned.
At the hearing the Independent submitted 26 application cards , all dated in January
1945
5 Matter of Goodman Manufacturing Company, 58 N. L. R. B. 531.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Joseph Dyson &
Sons, Inc., Cleveland, Ohio, an election by secret ballot shall be con-
ducted 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
said pay-roll period because they were ill or on vacation or tem-
porarily 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 International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (CIO), or by Joseph Dyson Victory Club, for
the purposes of collective bargaining, or by neither.