Francis Keil & Son, Inc.

In the Matter'of FRANCIS KEI(. & SON, INC. and UNITED CONSTRUCTION WORKERS, UNITED MINE WORKERS OF AMERICA Case No. 2-R-5488.-Decided Jude 1, 1945 Messrs. J. Leon Israel and John P. Hackett, of New York City, for the Company. Messrs. Michael E. Rosenstein and Leon Zwicker, of New York City, for the UMW. Messrs. Hiram G. Shields and Martin V. Kornreich, of New York City, for the AFL. Mr. A. Sumner Lawrence, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Construction Workers, United Mine Workers of America, herein called the UMW , alleging that a question affecting commerce had arisen concerning the representation of employees of Francis Keil & Son, Inc., New York City, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Jerome I. Macht, Trial Examiner. Said hearing was held at New York City, on April 19, 1945. The Company, the UMW, and Plumbing , Hardware, Paint Employees Union, Local 1146, Retail Clerks International Protective Association , A. F. of L., herein called the AFL, 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. The Com- pany's request for leave to present oral argument is hereby denied . All par- ties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: 62 N. L. R B., No. 1. 1 Z DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Francis Keil & Son, Inc., a New York corporation, has its principal office and place of business in New York City, where it is engaged in the manufacture, sale, and distribution of keys, locks, letter boxes, key ma- chines, and other miscellaneous hardware products. During the past year, the Company purchased'for use at its New York City plant raw materials consisting principally of steel, copper, and brass, valued in excess of $100,000, of which approximately 66 percent was shipped to its plant from points outside the State of New York. During the same period, the Com- pany sold finished products amounting in value to more than $500,000, of which approximately 75 percent was shipped to points outside the State of New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Construction Workers, United Mine Workers of America, is a labor organization admitting to membership employees of the Company. Plumbing, Hardware, Paint Employees Union, Local 1146, Retail Clerks International Protective Association, affiliated with the American Federation of Labor, is a labor organization admitting, to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company refuses to recognize either the UMW or the AFL until such time as one or the other is certified by the Board. A report of a Field Examiner for the Board, introduced into evidence at the hearing, indicates that the UMW and the AFL each represents a sub- stantial number of employees of the Company in the unit claimed by each to be appropriate! We find that a question affecting commerce has arisen concerning the representation of employees of the Company within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The UMW and the AFL both urge with certain differences2 a proposed i The Field Examiner reported that the UMW had submitted 68 authorization cards, of which 61 appear on the Company's pay roll of April 2, 1945, containing the names of 100 employees in the unit claimed appropriate by the UMW; that the AFL had submitted 30 authorization cards, all of which appear on the said pay roll containing the names of 95 employees in the unit claimed appropriate by the AFL. 2 The only disagreement between the UMW and the AFL concerns the classifications of truck driver, watchmen, firemen , and building maintenance employees whom the UMW would include and the AFL exclude from the plant -wide unit. FRANCIS KEIL & SON, 1NC. 3 unit consisting of all production, shipping, and pnamtenance employees of the Company, excluding the engineer, the timekeeper , office, clerical, and sales employees , superintendents , executives , foremen, and all other super- visory employees. The Company supports the position of the AFL with respect to the latter's requested exclusion of employees in the classifications of truck driver, watchmen , building maintenance employees , and firemen, and also contends that the craft employees in certain departments should he given the opportunity to vote in separate elections as to whether they desire to be represented by either the UMW, the AFL, or by neither organ- ization. The position of the Company is in effect a request that the principle of self-determination for employees in craft groups be applied. While we have frequently directed self-determinative elections among craft em- ployees identifiable as separate groups in the absence of a controlling history of collective bargaining inconsistent therewith and upon the request of craft labor organizations claiming representation among such employees, the record in the present instance discloses that bgth labor organizations herein concerned have organized upon a plant-wide basis and that no other labor organization has presented evidence of organization among such craft employees . Since there is nothing in the evidence to indicate a desire on the part of craft employees for separate representation , we find that the principle of self-determinative elections is inapplicable under the circum- stances disclosed in the present proceeding 8 There remains for consideration the question of separate inclusions and exclusions from the production and maintenance unit hereinafter found appropriate. Truck drivers The Company employs one truck driver who is attached to the shipping department. This employee drives a truck three mornings each week in making deliveries for the Company outside the plant to customers within the City of New York. As part of his duties as truck driver, he loads and unloads the truck and makes reports as to any repairs needed with respect to the operation thereof. During the remainder of the time, he works in the shipping department, preparing packages for shipment. We find that he has substantial interests in common with the plant employees in the pro- duction and maintenance group. We shall, accordingly, include him within the unit. r Watchmen With respect to three watchmen whom the AFL and the Company coil- , 8 See Matter of Armour & Company of Delaware, 48 N. L. R B. 1144; Matter of General Petrole- nm Corporation of California, 56 N. L R. B. 1366; Matter of Phelps Dodge Corporation, 60 N. L. R. B. 1431. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tend should be excluded from the appropriate unit, it appears that none of the watchmen in question are militarized, deputized, armed, or uniformed that all perform the ordinary duties of watchmen and occasionally perform production and general maintenance work Following our usual practice under such circumstances, we shall include the watchmen aforesaid within the unit hereinafter found appropriate.'- Budding maintenance employees The AFL and the Company would exclude two building maintenance employees who work in the maintenance department, which includes the three watchmen hereinabove mentioned. Of the two employees in question. one is a maintenance worker who makes minor repairs on the machines and does general maintenance work in the plant building. The other employee is a fireman, an hourly paid employee, who works in the boiler room. His duties consist of keeping the premises warm, firing the furnace, and dump- ing the ashes. We find that the two building maintenance employees in question have substantial interests in common with the production and maintenance employees. Accordingly, we shall include them within the unit. .We find that all production, maintenance, and shipping employees of the Company, including truck drivers, watchmen, firemen, but excluding the timekeeper, office, clerical, and sales employees, executives, general man- ager, assistant plant manager, superintendent, general foremen, foremen,` and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute an appropriate unit within the meaning of Section 9 (b) of the At. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen he resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period inune- diately 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 111, 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 representatives J See Matter of Syracuse Chilled Plow Co, Inc, 61 N L R B 717 5 Included among such foremen is an employee in the classification of engineer who also acts as foreman with supervisory authority FRANCIS KEIL & SON, INC. 5 for the purposes of collective bargaining with Francis Keil & Son. Inc., New York City, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of the Direction, under the direction and supervision of the Regional Director for the Second 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 Sec- tion IV, above, who were employed during the pay-roll period immediately preceding the date of the Direction, including employees who did not work during the 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 employees 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 United Construction Workers, United Mine Workers of America, or by Plumbing, Hardware, Paint Em- ployees Union, Local 1146, Retail Clerks International Protective Asso- ciation, AFL, for the purposes of collective bargaining, or by neither.