50 N.L.R.B. 36 (N.L.R.B. 1943)

The Yoder Co.

National Labor Relations Board - Board DecisionsJun 2, 1943

50 N.L.R.B. 36 (N.L.R.B. 1943)

I In the Matter of THE XODER COMPANY and INDEPENDENT WELFARE ASSOCIATION, INC. Case No. R-528P.Decided June 2, 1943 Mr. Arthur Stark, for the Board. Mr. Harvey ,0. Yoder, of Cleveland, Ohio, for the Company. Mr. Harry Reamer, of Cleveland, Ohio, for the Association. Mr. Henry Fiering, of Cleveland, Ohio, for the U. E. Mr. David V. Easton, of counsel to the Board. DECISION' AND DIRECTION, STATEMENT OF THE CASE â€¢ Independent Welfare Association, Inc., herein called the Associa- tion, duly filed a petition, alleging that a question affecting commerce had arisen concerning the representation of employees of The Yoder Company, Cleveland, Ohio, herein called the Company. On Mai;ch 27, 1943, before a hearing was held, the Company, the Association, the United Electrical, Radio & Machine Workers of America, local 735 (CIO), herein called the U. E., and the Regional Director for the Eighth Region (Cleveland, Ohio), entered into a "STIPULATION FOR CERTIFICATION UPON CONSENT ELECTiON." ,Pursuant to the stipulation, an election by secret ballot was con- ducted on April 16, 1943, under the direction and supervision of the Regional Director among all production and maintenance workers of the Company, excluding office employees, engineers, draftsmen, plant .guards, pattern makers, and supervisory employees of the rank of foremen and above,, to determine whether they desired to be repre- sented by the Association, or by the U. E., for the purposes, of col- lective bargaining, or by neither. On .April 16, 1943, the Regional Director issued and duly served upon the parties an Election Report on the ballot. As to the balloting and its -results, the Regional Director reported as follows : 50 N L R B., No 10. 36 I THE YODER COMPANY 37 Approximate number of eligible voters------------------------ 494 Total ballots cast------------------------------------------- 445 ,Total ballots challenged------------------------------------- 18 Total void ballots------------------------------------------- 1 Total valid votes counted------------------------------------ 426 Votes cast for United Electrical, Radio & Machine Workers of America, Local 735 (CIO) ---------------------------------- 215 Votes cast for Independent Welfare Association, Inc----------- 189 Votes cast for neither-------------------------------- --- 22 On April 27, 1943, the Association and the Company, and on April 28, 1943, the U. E. filed objections to the Election Report, all of which have been considered by the Board. The objections of both labor organizations and the Company., relate only to the Regional .Director's disposition of the challenged ballots. Upon the basis of the stipulation, the Election Report, the Objec- tions to the Election Report filed b3T the parties, the Report on Objections, and the entire record in the case, the Board makes the following : FINDINGS OF FACT A question affecting commerce has arisen concerning the repre- sentation of employees of The Yoder Company, Cleveland, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. - All production and maintenance workers of the Company, excluding office employees, engineers, draftsmen, plant guards, pattern makers, and supervisory employees of the rank of foremen and above, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In view of the fact that the counting of the challenged ballots was. essential to determine the results of the election, the Regional Director investigated the validity of the 18 challenged ballots and reported his findings and recommendations with respect to each of them., L. J. Brown was challenged by the Association on the ground that lie was not employed by the Company on the date of the election. Investigation showed that his employment was severed on the day following the election. We shall, therefore, consider his ballot valid and direct that it be counted. ' Elmer Lacey was challenged by the Board Agent inasmuch as the record indicated that his employment by the Company commenced March 26, 1943. Inasmuch as the date of eligibility in this election was March 20, 1943, his ballot is invalid. 'The stipulation provided that all procedures subsequent to the election shall be in conformity with Article III, Section 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended. 536105-44--4 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Hunnbel was challenged by the U. E. as an office worker. He is a stock chaser or "expediter" who receives orders from the assistant production manager: Although he has a desk in the front office, he is listed,on the factory pay roll, is hourly paid, has no supervisory authority, and his position is more related to production than to office work. We agree with the Regional Director's recommendation that Humbel's ballot be opened and counted. Joseph k ovaclz was challenged by the U. E. He is a shipping clerk and has his desk within the shop. He is paid on an hourly basis and receives his orders from the superintendent. He is in charge of sending out the products of the Company, and supervises the truck drivers to whom he gives the destination of the products. He has no authority to recommend hiring or discharge of any employees. Inas- much as the stipulation provided that supervisors of the drank of foremen and above were to be excluded, and inasmuch as this em- ployee is definitely ranked below the foremen and exercises no super- visory duties, we agree with the recommendation of the Regional Director and shall order that Kovach's ballot be opened and counted. Lester Ferguson was challenged by the Board Agent on the ground that he was hired after the eligibility date. The Regional Director reported that Ferguson was hired on March 23, 1943. In accordance with the recommendation of the Regional Director, we shall declare his ballot invalid. Charles Detlefs, who was challenged by the U. E., and H. Murphy, who was challenged by the Association, are employed by the Company as chief inspectors, the former in Plant No. 1, and the latter in the Shell Division. They are in charge of the respective inspection departments in the sites wherein they work. They are paid on an hourly basis, and, according to the Company, have no authority to hire or discharge or to recommend such action. They report directly to the superintendent. 'Their rank corresponds to leaders who are in the supervisory class below the foremen. They do not attend fore- men's meetings and their salary is less than that of foremen. Inas- much as the stipulation provided for the exclusion of supervisory employees of the rank of foremen or over, we agree with the Regional Director's recommendation and shall order that these two ballots be opened and counted. Tony Artner was challenged by the U. E. on the ground that he is a foreman. He is in charge of the maintenance department, receives foreman's wages, and attends foremen's meetings. Although he per- forms some manual labor, he has the authority to recommend the discharge of employees. In accordance with the Regional Director's recommendation, we shall declare his ballot invalid. L. Freese was challenged by the U. E: on the ground that he is a foreman. This employee has taken the place of, the night foreman THE TOnER COMPANY 39 in one of the departments of the Company, and although he does not receive a foreman's wage , and although this appointment is merely - temporary , at the time of the election he was performing the duties of a foreman and was considered as such by the employees in the department. Under these circumstances, we agree with the recom- mendation of the Regional Director and shall declare his ballot invalid. A. Bishop was challenged by the U. E. This employee is the re- ceiving clerk whose position is analogous to that of Kovach, the shipping clerk . He has six employees in his department , but has no authority to recommend the discharge of any of them. For reasons indicated in the discussion of Kovach 's challenge , we shall order that Bishop's ballot likewise be counted. = L. Rob was challenged by the U. E. He is a roll tester and service- man who constitutes a one -man department .' He'works under a fore- man, is hourly paid, and has no supervisory authority whatsoever. Although he . has received a production supervision certificate, he is not rated as a foreman. We shall, therefore, order'that his ballot be opened and counted. Fred Mills was challenged by the Board Agent on the ground that he was not employed within a department included 'within the stipu- lated unit . He is engaged in the blueprint division of the engineering department and his name is included in an appropriate unit estab- lished in 'another case involving different employees of the same Company. , We shall, therefore, declare his ballot invalid. Anna Zinnmer, Lyda Cof rnais, Anton Chap, Frank Veits, Eleanor Flame? t, and Mary Lou Peter, were challenged by the Board's Agent on the ground that they were employed in the Company's cafeteria which was not included within the appropriate unit. These em ployees are all`paid on an hourly basis with the exception of Mary Lou Peter; they wear badges which are worn only by production and maintenance employees, and they are on the factory pay roll. How- ever, they are not production and maintenance employees inasmuch as they have no actual connection with the finished products of the Company. In accordance with the Regional Director's recommenda- tions we find that these employees were not entitled to vote and shall declare their ballots invalid. For the reasons indicated above we conclude and find that Elmer Lacey, Lester Ferguson, Tony Artner, L. Freese, Fred Mills, Anna Zimmer, Lyda Coffman, Anton Chap, Frank Veits, Eleanor Klamert, and Mary Lou Peter , were not eligible to vote in the election and their ballots are hereby declared invalid. We further find that L. J. Brown, A. Huunbel, Joseph Kovach, Charles Detlefs, H. Murphy, A. Bishop, and L. Rob, were eligible 40 DECISIONS OF N'*TIONAL LABOR RELATIONS BOARD - J 1 to vote in the election and their ballots are hereby declared valid. Since the results of the election - may depend upon the counting of the challenged ballots declared valid, we shall direct that they be opened and counted. DIRECTION 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 10, 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 for the purposes of collective bargaining with The Yoder Company, Cleveland, Ohio, the Regional Director for the Eighth Region shall, pursuant to the Rules and Regulations of the Board, set forth above, and subject to Article III, Sections 9 and 10, of said Rules and Regulations, within ten (10) days from the date of this Direction, open,and count the ballots of L. J. Brown, A. Humbel, Joseph Kovach, Charles Detlefs, H. ,Murphy, A. Bishop, and L. Rob, and, thereafter, prepare and cause to be served upon the parties in 'this proceeding a supplemental election report embodying therein his findings and his recommendations as to the result of the balloting. 4 N