Henry Weis Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

May 5, 1943

49 N.L.R.B. 511 (N.L.R.B. 1943)

In the Matter Of HENRY WEIS MANUFACTURING COMPANY , INCORPO-
RATED and UNITED PAPER , NOVELTY & Tor WORKERS INTERNATIONAL
UNION-C. I. O.
Case No. R-50414.-Decided May 5, L9.43
Mr. Verne G. Cawley, of Elkhart, Ind., for the Company.
Mr. Leonard Shaw and Mr. Nicholas C. Vratric, of Elkhart, Ind.,
for the C. I. O.
Mr. Thomas V. Happer, of Elkhart, Ind., for the Association.
Mr. Joseph E. Cub bins, of counsel to the Board.,
DECISION
AND
DIRECTION' OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Paper, Novelty & Toy Workers
International Union, affiliated with the C. I. 0., herein called the
C. I. 0., alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Henry Weis Manufactur-
ing Company, Incorporated, Elkhart, Indiana, herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon clue notice before David Karasick, Trial
Examiner. Said hearing was held at Elkhart, Indiana,,on March
23, 1943. The Company, the C. I. 0., and Weis' Employees' Asso-
ciation, unaffiliated, herein called the Association, appeared, par-
ticipated, 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 mad e at the hearing are free
from prejudicial error and are hereby affirmed.
The Company and the Association filed briefs on April 5, 1943,
which the Board has considered.'
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Henry Weis Manufacturing Company, Incorporated, an Indiana
corporation, with its general office and plant at Elkhart, is engaged
x In its brief , the Association requested permission to argue orally before the Board.
The i equest is hereby denied ,
49 N. L R. B, No. 71.'
511
i
512, DEaISIONS OF' NATIONAL LABOR RELAT1ON, S BOARD
,in the manufacture and sale of 'shower cabinets and metal compart-
ments. - The Company's purchases of raw materials, during the year
1942, amounted to approximately $250,000, 75 percent of which was
shipped. to its plant from sources outside, the State of Indiana.
During the same period the Company's sales amounted to approxi-
mately $850,000, approximately 90 percent of which was shipped to
points outside of the State of Indiana. The Company admits that
it is engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
United. Paper, Novelty & Toy Workers International Union, affili-
ated with the Congress -of Industrial Organizations, and Weis'
Employees' Association, unaffiliated, are labor organizations admit-
ting to-membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On January 22, 1941, the Association requested the Company to
recognize it as the bargaining agent for the Company's employees.
Following a check of the Association's membership cards against the
pay roll the Company issued to the Association a certificate of recog-
nition on February 5, 1941, recognizing the Association as the repre-
sentative of its members until February 5, 1942. Shortly thereafter
a memorandum agreement was entered into by the parties. On Janu-
ary 29; 1942, the Company again issued a certificate of recognition
to the Association, after a check of the Association's membership
cards against a pay roll of the Company had revealed that the
Association represented a majority. On February 20, 1942, the par-
ties entered into an exclusive bargaining contract which was to be in
effect to and including January 28, 1943. On January 25, 1943, the
Company again issued a certificate of recognition to the Associa-
tion, recognizing, it as the exclusive representative for a period
of 1 year, beginning January 29, 1943. On this occasion, however,
no check was made of the Association's membership against the Com-
pany's,pay roll for the purpose of determining whether or not the
Association continued to represent a majority.2 On or about Febru-
ary 18, 1943, the Company and the Association signed an exclusive
bargaining contract, dated January, 27, 1943.
On February 3, 1943, the C. I. O. requested the Company to rec-
ognize it as the exclusive representative of its employees. The Coln-
2-The president of, the Association testified , after checking membership ' cards of the
Association , that it represented 43 of the 47 employees in the appropriate unit on January
X25, 1943. ' In the recognition agreenfent the Company stated it assumed the truth of the
statement made to it by the Association 's representatives that "a big majority " of the em-
ployees in the unit were up to date or in advance in their dues payments , and conse-
quently the Company would not require the Association to submit its records for verifica-
tion , "as was done last year." _
HENRY `VEIS MANUFACTUURING COMPANY, INIc. 513
pany denied this request stating that it had already recognized the
Association as-such representative.
The Company and, the -Association argue that the written certifi-
cate-of recognition is tantamount to a written collective bargaining
contract and that, since it was executed prior to the assertion of any
claim by the C. I. O. and when the Association represented a major-
ity of the employees, it should operate as a bar to 'a determination of
representative at' this time. We do not accept this contention.
While a written recognition agreement is a customary and desirable
preliminary step in the collective bargaining process, it cannot be
regarded as an effective substitute for the signed collective bargaining
agreement embodying terms and conditions of employment. As we
stated in the recent Eicor case,3 "experience has indicated that true
stability of labor relations is not attained until collective agreements
have 'been reduced to writing and signed." The 'recognition of a
labor organization as the exclusive bargaining agent, whether made
orally or in writing, does not alone achieve the objective of collective
bargaining-"an agreement . . . as to wages, hours and working
conditions evidenced by a signed contract or statement in writing" a-
which indicates that relations have been stabilized.
It is the further contention of the Company and the Association
that the Board has heretofore held that a recognition agreement
alone operates as a bar to a determination of representatives. In the
first Adam c Westlake case 5 we dismissed a petition based upon a
claim to representation which was first made after written exclusive
recognition for a unit including the employees claimed by the peti-
•tioner had been granted. While the case appears to be authority for
the view urged upon us here, the Board did not there lay down a
rule that a grant of exclusive recognition (assuming a majority in
an appropriate unit) of itself is sufficient to preclude an election.
In the second case," the petitioner requested recognition on Septem-
ber 30, 1941, after exclusive recognition had been granted another
organization, upon proof of majority, on September 29, 1941. The
Board expressly rejected the contention that the recognition agree-
ment operated as a bar stating : - -
We do not find, as urged by the Company and the Association,
that either the recognition accorded the Association on Septem-
ber 29, 1941, or the contract of October 21, 1941, executed after
the petition was filed, constitute a bar to an investigation of
representatives.
'Matter of Eicor, Inc and District No 8, International Association of Machinists, A. F.
of L., 46 N. L R B, 1035
4 H J Heinz Co. v. N L. R. B, 311 U. S. 514.
6 Matter of The Adams & Westlake Company and Lodge x-1344, International Association
of Machinists, 30 N L R B 1222.
"Matter of Thee Adams & H'esttalce Company and United Automobile, Aircraft and Agri-
cultural Implement Workers of America, C. I. 0., 37 N. L. R. B. 829.
514 DWISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board dismissed the petition because of the inadequate repre-
sentation showing made by the petitioning organization.',
'Be
'
cause, a recognition agreement alone does not achieve the desired
stability in labor relations, we find that the written recognition
accorded the Association on January 25, 1943, is not a bar to a deter-
mination of representatives.' To the extent that the decision in the
first Adam cC Westlake case is inconsistent herewith,' it is overruled.
. Membership cards, submitted by the C. I. O. to the Trial Exam-
iner at the hearing, indicate that the C. I. O. represents a substantial
number of employees in the unit hereinafter found to be appropriate.,,
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
i
I
The parties agree that all production 'and maintenance employees
should be included in the bargaining unit.10' They also agree that
foremen and office employees should be excluded from the unit. How-
ever, there is a controversy over three employees classified as super-
visors ; the C. I. O. would include them, whereas the Company and
the Association would exclude them.
The record shows that the three employees in dispute were made
supervisors by the Company about the middle of March 1943. They
have supervisory authority over a small number of employees at the
present time but, as a result of an expansion program, it is antici-
pated that they will in the future have supervision over a larger
number of employees. In view°of the fact that the three supervisors
direct' the work of other employees and since their title indicates'
that they have supervisory authority, we shall exclude them from the
unit.
Accordingly, we find that all production and maintenance employ-
ees, including leadmen, but excluding supervisors, foremen, and office
employees, constitute a unit appropriate for the purposes of-collective
bargaining, within, the meaning of Section 9 (b) of the Act.
' The showing at the time recognition was requested was 26 percent of the employees in
the unit alleged to be appropriate, whereas the recognized union had -demonstrated that
it had as paid-up members 63 percent of the employees prior to receiving recognition.
8 The contract signed on or about February 18, 1943, obviously is not a bar, since it
was, executed after the C. I 0. had made its claim.
0 The C. I. 0. submitted 37 membership cards, all of which bear apparently genuine
signatures, and 35 of which bear the names of persons whose names appear on the Com-
pany's pay roll of March 13, 1943; the pay roll contains the names of 52 employees in the
appropriate unit The cards were signed as follows, I on January 2, 1943; 22 on Febru-
ary 2. 1943 , 2 on February 4, 1943 ; 10 on F ebruai y 3, 1943 , and 2 undated
i° The Conipaiiv expects to halve an employee classification of ` leadmen" within the next
30 or 60 days. Such employees will be assigned to help train new employees, with whom
they ii ill work They will have no disciplinary authority or power to recommend hire or
discharge The parties agreed and we find, upon these facts, that leadmen, if any, will
be deemed included in the unit
HENRY WEIS MANUFACTURING COMPANY, INC. 515
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot. The Company
and the Association urge that eligibility to vote be determined as of
January' 20, 1943, the date upon which oral recognition was accorded
the Association, because the Company anticipates hiring some tem-
porary employees. The C. I. O. requests that a current pay roll be
used. Although the Company expects to hire approximately 25 to 125
new employees, the record does not establish whether they will be
temporary or not, in view of 'the- uncertainty respecting further
orders beyond August 1943. We shall therefore, adopt our usual
practice and direct that those eligible to vote shall be the employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of our Direction of Election herein,
subject to the limitations and additions set forth in said 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 Rela-
tions 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 foe the purposes of collective bargaining with Henry Weis
Manufacturing Company, Incorporated, Elkhart, Indiana, an elec-
tion 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 Thir-
teenth 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 employ-
ees 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 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 repre-
sented by United Paper, Novelty & Toy Workers International
.Union, C. I. 0., or by Weis' Employees' Association, unaffiliated, for
the purposes of collective bargaining, or by neither.
O
531647-43-vol. 49-34