Goldsmith Metal Lath Co.

In the Matter of GOLDSMITH METAL LATH COMPANY amd UNITED METAL LATH WORKERS Case No. 9-R-0038.-Decided April 25, 19/6 Frost and Jacobs, by Mr. Cornelius J. Petzhold, of Cincinnati, Ohio, for the Company. Mr. Philip J. Kennedy, of Cincinnati, Ohio, for the Lath Workers. Mr. James P. Gallagher, of Cincinnati. Ohio, for the CIO. Miss Helen Hart, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Metal Lath Workers, herein called the Lath Workers, alleging that a question affecting commerce had arisen concerning the representation of employees of Goldsmith Metal Lath Company, Cincinnati, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hear- ing upon due notice before Harold M. Weston, Trial Examiner. The hearing was held at Cincinnati, Ohio, on March 1, 1945. At the com- mencement of the hearing, the Trial Examiner granted a motion to in- tervene made by United Steelworkers of America, CIO, herein called the CIO. The Company, the Lath Workers, and the CIO appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues. The Trial Examiner's rulings made at the hearing free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following: FINDINGS or FACT I. THE BUSINESS OF THE COMPANY Goldsmith Metal Lath Company, an Ohio corporation with its prin- cipal office and place of business in Cincinnati, Ohio, is engaged in the manufacture of steel building products, consisting principally of metal 67 N. L. R. B., No. 102. 788 GOLDSMITH METAL LATH COMPANY 789 laths, forms for concrete work, concrete accessories, and metal roof decks. During 1945, the Company purchased sheet steel and other raw materials, valued in excess of $50,000, of which over 50 percent was shipped to the Company's plant from points outside the State of Ohio. During the same period, the Company manufactured finished products, valued in excess of $100,000, of which more than 50 percent was trans- ported to points outside Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Metal Lath Workers, unaffiliated, is a labor organization ad- mitting to membership employees of the Company. United Steelworkers of America, affiliated with the Congress of In- dustrial Organizations, is a labor organization admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has bargained with the CIO as representative of its employees since 1937. On September 15, 1942, the Company and the CIO signed a written contract, effective until October 1, 1943, and to continue "thereafter until changed through negotiations of the par- ties hereto." In November 1943, the CIO wrote the Company setting forth proposals to change the 1942 contract; in January 1944, the CIO referred these proposals to the National War Labor Board.' In September 1944, the National War Labor Board, in turn, transferred the case to its regional office to be processed after the issuance of the "Basic Steel" decision. Later in the same month, the CIO again wrote the Company proposing changes in the 1942 agreement which the CIO stated was still in effect. The Company refused to negotiate in view of the War Labor Board proceedings which were still pending. In November 1944, the "Basic Steel" decision was announced and the CIO wrote the Company asking for bargaining in accord with this decision., In May 1945, the Company received new contract proposals from the CIO and in June a meeting was held between the Company and one representative of the Union. The Company refused to bar- gain further in view of the question raised at the June meeting con- 3 The Company's counsel testified that the CIO filed a supplemental petition with the National War Labor Board under the "Basic Steel" case ; the petition stated that the collective bargaining contract with the Company was subject to termination upon the giving of notice by the Union to the Company and that such notice had been given. The witness contended that the National War Labor Board had assumed jurisdiction on a misrepresentation of the facts , because the termination clause of the CIO's 1942 contract with the Company did not lead to that effect. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning the representative status of the CIO; 2 thereafter, proceed- ings were again filed by the CIO with the Regional War Labor Board. In September 1945, two hearings were held before that Board.3 On December 14, 1945, the Lath Workers wrote the Company requesting recognition as the exclusive bargaining agent of its employees and asking to negotiate a contract pursuant thereto. In a letter of Decem- ber 17, 1945, the Company refused to grant recognition to the Lath Workers until it had been certified by the Board. On December 28, 1945, the Regional War Labor Board issued its recommendations 4 which were never incorporated into a contract. The CIO argued at one time at the hearing that the 1942 contract was still in effect, and at another time that the recommendations of the National War Labor Board, issued on December 28,1945, precluded a present determination of representatives. The Lath Workers con- tends that the 1912 contract does not bar an election because it was not renewed, and that the recommendations of the Regional War Labor Board are ineffective as a contractual bar to such an election. The Company apparently takes no position. It is clear that the 1943 contract does not constitute a bar to this proceeding, because, after October 1, 1943, it became a contract of in- definite duration.5 The War Labor Board proceedings do not warrant a dismissal of the petition, inasmuch as the CIO was not a newly cer- tified or newly recognized representative at the time they were in- stigated.6 Furthermore, the recommendations issued on December 28, 1945, cannot preclude a present determination of a bargaining agent in view of the fact that they became effective subsequent to the Lath Workers' claim to representation and were not signed as a contract by the CIO or the Company. Accordingly, we find that no bar exists to a present determination of representatives. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Lath Workers represents a substantial number of employees in the unit hereinafter found appropriate T We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) t.nd Section 2 (6) and (7) of the Act. z The Company' s counsel testified that the CIO's representative at the June meeting stated that there "was no local any more' at the Company's plant. 3 The War Labor Board reserved the question of representation for the National Labor Relations Board and stated that it would make contract recommendations only. 4 At that time the war Labor Board no longer handed down directives in these matters but confined itself to recommendations. 5 See Matter of Standard Oil Company of California , 58 N. L. R B 560. 6 Matter of MacClatchie Manufacturing Company, 53 N L R. B. 1268 R The Field Examiner reported that the Lath workers submitted 16 authorization cards, bearing the names of 13 employees listed on the Company's pay roll of February 10, 1946; that the CIO relied on its contract with the Company as evidence of its interest ; and that there were approximately 16 employees in the alleged appropriate unit. GOLDSMITH METAL LATH COMPANY IV. THE APPROPRIATE UNIT 791 We find, in accordance with the agreement of the parties, that all production and maintenance employees of the Company, excluding clerical employees, foremen, assistant foremen, and all other 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 within the meaning of Section 9 (b) of the Acts 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 employees 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 Rela- tions 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 Goldsmith Metal Lath Company, Cincinnati, Ohio, 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 supervi- sion of the Regional Director for the Ninth 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 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 present themselves in person at the polls, but excluding those 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 Metal Lath Workers, unaffiliated, or by United Steelworkers of America, CIO, for the purposes of collective bargaining, or by neither. 8 This unit is substantially the same as the unit covered from 1937 to 1943 by the CIO's contracts and memoranda negotiated with the Company . The Company no longer employs office porters , watchmen , or firemen who were excluded from the former contracts. The 1942 contract also specifically excluded salaried employees.