The Aviation Corp.

National Labor Relations Board - Board Decisions

May 22, 1944

56 N.L.R.B. 803 (N.L.R.B. 1944)

In the Matter of LYCOMINO DlvlsioN-THE AVIATION CORPORATION and
INTERNATIONAL UNION5 UNITED AU OMOBILE, AIRCRAFT & AGRICIIL-
TIIRAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
Case No. 4 R-1399.Decided May 22, 1944
Mr. John J. Grealis, of Chicago, Ill.,,,and Mr. C. Wr Bishop, of Wil-
liamsport , Pa., for the Company.
Messrs. Maurice Sugar and N. L. Smokier, of Detroit; Mich., for
the C. 1. 0.
Mr. W. Darland Rouse, of Williamsport, Pa., for the Association.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND ,
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Iriterndtional Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America
(UAW-CIO), herein called the C. 1. 0., alleging that a question affect-
ing commerce had arisen concerning the representation of employees of
Lycoming Division-The Aviation Corporation, Williamsport, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
C. W. Whittemore, Trial Examiner. Said hearing was held at Wil-
liamsport, Pennsylvania, on April 6, 1944. The Company, the C. I. 0.,
and The Aviation Corporation Employees Association, herein called
the Association, 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
reserved ruling on the motion of the Company, joined in by the Asso-
ciation, , to dismiss the petition on the ground that (1) 'a contract be-
tween the Company and,the Association constitutes a bar to this pro-
ceeding, and (2,) the current Appropriations' Act deprives the Board
of jurisdiction herein. ' For reasons stated in Section III, infra, said
' National Labor Relations Board Appropriations Act, 1944, Title IV, Act of July 12,
' 1943 , P. L. 135, 78th Congress, 1st Session.
56 N. L. R. B., No. 148.
803
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion is hereby denied: 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
,3 .1 f .. ' ' ' ' -
I. THE BUSINESS' OF THE COMPANY
Lycoming Division-, The Aviation Corporation , a division of The
Aviation Corporation , is located at Williamsport , Pennsylvania, where
it i's - engaged in- the production of aircraft ' and' tank engines: The
annual - value of the raw -materials used by the Company exceeds
$100,000, of 'Which , approximately 50 percent represents shipments
from points outside the Commonwealth of Pennsylvania .' The' an-
nual value of the ,finished products' exceeds •$100,000, of which almost
100 percent represents, shipments to-points outside the - Commonwealth
of Pennsylvania. ,
The Company concedes , and we'find, 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 (UAW-CIO), affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
The Aviation Corporation Employees Association is an unaffiliated
labor- organization admitting to membership•,employees of .the Com-
pany. ,
III. THE QUESTION CONCERNING REPRESENTATION
In a'series of letters dating from April 29 to May 20;"1943, the
C'. L-O. claimed to represent a' substantial 'number of the Company's
employees, requested recognition as bargaining agent for its mem-
bers among said employees, and advised' the Company to refrain from
negotiating or renewing a contract with' any other labor organiza-
tion. The Company declined` to bargain with the C.' I. O. on the
ground that it was under contract with the Association. On or about
June 15, 1943, a C.• I.• O. represeritative'telephoned to the' Company's'
assistant personnel manager, informed him that the C. I. O. now repre-
sented a majority•of the employees and requested recognition-as their
bargaining representative. • The Company `official' rejected the re-
quest. On September 29,1943, the C. 1. 0. wrote to the Company ,"again
claiming to represent a majority of its employees and admonishing
the Company to refrain from entering into an agreement with any
LYCOMING DIVISION-THE AVIATION CORPORATION 805
other labor organization.' This letter was received by the Company
on September 30.
The Company, or its predecessors, has had collective bargaining
agreements with the Association, annually renewed, since 1938. The
current contract, asserted by the Company and the Association as a
bar to this proceeding, was executed on September 23, 1943, to go
into effect on October 1, 1943, the expiration date of the 1942 contract.
The Company contends that this contract constitutes a bar to a
present determination of representatives, since, prior to the date of its
execution (September 23, 1943), the Company was not on notice of a
sufficient claim of interest by the C. I. O. to raise a question of repre-
sentation. We find no merit in, this contentiori,.for, even if it be
assumed that none of the claims of interest asserted prior to Septem-
ber 23 was adequate, nevertheless the letter of September 29, embodied
a sufficient claim of interest and was received by the Company prior
to the effective date of the current agreement (October 1, 1943). That
the effective date of an agreement, rather than the date of execution is
decisive, was determined by the Board in two recent decisions, wherein
the Board held that notice of a conflicting claim ' of representation
given prior to the effective date of a contract is sufficiently timely to
prevent that contract from operating as a bar2 We find, therefore,
that the agreement. executed on September 23, to go into effect on
October 1, constitutes no bar to a present determination of representa-
tives.
-The Company's contention that the restriction upon the expenditure,
of funds imposed upon the Board by the current Appropriations .Act
constitutes an effective bar to this proceeding is clearly without
merit, since the aforesaid restriction has 'no application to a'repre-'
sentation proceeding.3
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing,, indicates, that the C. I. O. represents a sub-
stantial number of employees in the unit hereinafter found
appropriate.4
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.
9 See Matter of Foster - Grant Co ., Inc., '54 N. L. R. B 802 ; -Matter of Kimberly-Clark
Corporation, 55 N. L. R. B. 521.
' See Matter of Triangle Lake Lumber-Company , 52 N. L.- ' R. B. 27; Matter of Humble
Oil & Ref ning Company, 53 N. L. R. B. 116. .
The Field Examiner reported that the C. I. O. submitted 1,419 application cards ; that
the names of 995 persons appearing on the cards were listed on,the Company ' s pay roll of
January 9 , 1944, which contained the names of 2,451 employees in the appropriate unit ;
and that the majority of the cards were dated from March 1943 to January 1944. The
Association relied upon its contract with the Company to establish its interest in this
proceeding.
806 , DECISIONS, OF NATIONAL, LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The parties stipulated, and we find, that all production and mainte-
nance employees of the Company, including tool designers,but ex-
cluding plant-protection employees, clerical and 'offce employees,
cafeteria employees, engineers, metallurgists, draftsmen, time-study
men, timekeepers, -shop clerks, personnel department employees, ac-
counting and pay-roll clerks, purchasing department employees,
trainees and apprentices, and all supervisory employees with author-
ity 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 bargain-
ing, within the meaning of Section 9 (b) of the Act.6
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 Act, and pursuant to Article-III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for- the purposes of collective bargaining with Lycoming
Division-The Aviation Corporation, Williamsport, Pennsylvania,
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
Fourth 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 temporarily' laid off, and
including employees in the armed forces of the United States who
This Is substantially the same unit provided for in the contracts between the Associa-
tion and the Company. '
LYCOMING DIVISION-THE AVIATION CORPORATION 807
present themselves in person at 'the polls, 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 election, to
determine whether they desire to be represented by International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), or by The Aviation Corporation
Employees Association, for the purposes of collective, bargaining,
or by neither.
I