Central Pattern & Foundry Co.

In the Matter Of CENTRAL PATTERN & FOUNDRY COMPANY and UNITED FOUNDRY WORKERS LOCAL 738 (INDEPENDENT) Case No. R-5444-Decided July 17, 1943, Mr. Lester Asher, of Chicago, Ill., for the Board. Mr. Otto A. Jaburek, of Chicago, Ill., for the Company. Mr. Leon M. Despres, of Chicago, Ill., for the Independent. Messrs. Ben Meyers and A. C. Skinner, of Chicago, Ill., for the International. - Mr. Arthur Leff, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by United Foundry Workers Local 738 (Independent), herein called the Independent, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Central Pattern & Foundry Company, Chicago, Illinois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Henry J. Kent, Trial Examiner. The hearing was held at Chi- cago, Illinois, on May 24, 25, and 26, 1943. The Company, the Inde- pendent, and International Union of Mine, Mill and Smelter Workers, C. I. 0., herein called the International, appeared, participated, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the hearing the Company and the International moved to dismiss- the petition. For the reasons indicated below the said motions are denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs. On June 9, 1943, briefs were filed with the Board by the Company, the Independent, and the- International. . Upon the entire record in the case, the Board makes the following:- 51 N. L. R. B., No. 80. 400 CENTRAL PATTERN & FOUNDRY COMPANY 401 FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Central Pattern & Foundry Company is an Illinois corporation with its general office and only plant located in Chicago , Illinois. The Company is engaged in the operation of a jobbing foundry. Its principal raw materials are aluminum, brass, and bronze, and its finished products are castings and patterns . During the year 1942, the Company purchased raw materials valued at approximately $600,000 , approximately 25 percent of which was shipped to the Com- pany's plant at Chicago from points outside the State of Illinois. During the same year , the Company's sales of finished products amounted in value to approximately $2,000,000, of which approxi- mately 70 percent represented shipments to points outside the State of Illinois. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Foundry Workers Local 738 is an unaffiliated labor organ- ization admitting to membership employees of the Company. International Union of Mine, Mill and Smelter Workers affiliated with the Congress of Industrial Organizations, is a labor organiza- tion admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In November 1940, the Company entered into a collective bar- gaining agreement with the National Association of Die Casting Workers, affiliated with the Congress of Industrial Organizations, Local No. 38, for a term expiring January 31, 1943. In January 1942, the National Association of Die Casting Workers merged with the International, and Local 38 became known as Local 738 of the International. The Company recognized the International as the successor collective bargaining representative for the balance of the term of the unexpired contract. Negotiations with the Company for a new contract began about January 1943. Representatives of the International and a negoti- ating committee of Local 738, headed by Bennie Banks, the Local president, participated in the conferences which followed. With the aid of a Federal conciliator, an accord was reached on March 30, 1943, on all issues except wages and vacations which it was agreed would be submitted to the National War Labor Board. The terms ,and conditions of the accord were then reduced to writing in the 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form of a written agreement, dated March 31, 1943, which named as the parties thereto the Company and the International "on behalf of their Local Union No. 738." 1 The written form of agreement, which was not signed, expressly stated that "this agreement shall not be binding upon either party until ratified and accepted by Local Union No. 738." On April 1, 1943, a membership meeting of Local Union No. 738, was held to consider ratification of the agreement. Concerning the action taken at this meeting, there is a sharp conflict in the testi- mony. According to the testimony of International witnesses, a motion was carried to ratify the agreement in the form drafted; but according to Independent witnesses ratification was rejected unless certain changes were made in the agreement, including a correction to name Local Union No. 738 instead of the International as the con- tracting party. At this meeting, or shortly thereafter, a schism developed in the ranks of Local Union No. 738, as a result, of which one group, led by Bennie Banks, voted at a meeting held on April 7, 1943, to disaffiliate from the International and set itself up as an independent labor organization, styled United Foundry Workers, Local 738, Independent, the petitioner in this proceeding. The other group, led by Al Skinner, International representative, at a separate meeting held on April 4, 1943, suspended Banks as president, elected an administrative committee to run the affairs of the Local in place of its former officers, and, on April 9, 1943, proceeded to execute the theretofore unsigned collective bargaining agreement, dated March 31, 1943. Each of these groups now contends that it is the legal successor of the local labor organization previously recognized as the bargaining representative for employees of the Company, and disputes the right of the other to hold itself out as such. The Independent asserts that the action taken by the Skinner group at its meeting of April 4, 1943, was unauthorized under the International constitution and therefore without legal effect. The International similarly relies on the union constitution in asserting that the defection of the Banks group was invalid and that consequently the Independent never attained any status and is not now entitled to recognition as an independent labor organization. As we have under analogous circumstances indicated in the past, where a schism occurs in a labor organization we will not undertake to resolve questions involving an interpretation of a union constitution, to determine which faction enjoys legal successor- ship.'- The right to require adherence to the provisions of a union 1 At a convention of the International held in September 1942, a resolution was adopted requiring all local contracts to be drawn in this form. z Cf Matter of Brenizer Trucking Company, 44 N. L. R. B . 810. Matter of Harbison- Walker Refractories Company, 44 N. L. R. B. 816; Matter of 4tlantso Waste Paper Company, Inc., 45 N. L. R. B. 1087. CENTRAL PATTERN & FOUNDRY COMPANY 403 constitution is, in any event, subordinate to the right, protection by the Act, of employees to exercise their full freedom of association, self-organization, and designation of representatives of their own choosing. It is clear from the record in this case that each of the rival factions is organized as a labor organization within the meaning of the Act. Although the Company by virtue of the contract executed April 9, 1943, has chosen to recognize the International, a statement of_the Regional Director, introduced in evidence at the hearing, indi- cates that a substantial number of employees in the unit hereinafter found appropriate have associated themselves with the Independent and have designated it as their bargaining representative.3 Under the circumstances we are of the opinion that the conflicting claims of successorship, asserted by the rival factions, in themselves, establish that there is an unresolved doubt, and hence a question concerning representation, as to the identity of the labor organization which the employees desire to represent them. We have next to consider the question of the effect to be given to the contract, dated March 31, 1943, which was executed by the Inter- national and the Company on April 9, 1943. Both the International and the Company argue that since the terms of this contract were fully agreed upon on March 30, 1943, and, as they claim, were ratified at the Local membership meeting held on April 1, 1943, before there was any split in the ranks of the Local, the contract operates as a bar to, the Independent's representation claim. This argument is predicated on the premise that the contract was finally consummated on or prior to April 1, 1943, and that the signing of the contract on April 9, 1943, was a mere formality. The argument, however, over- looks the principle which we enunciated in the Eicor case,' and which we now reaffirm, that the signing of a collective bargaining agreement cannot be regarded as a mere formality and that such an agreement which has not been reduced to writing and signed does not constitute a bar to a determination of representatives. In view of the applica- bility of this principle, it is unnecessary for us to resolve the conflict- ing testimony concerning the action taken.by the membership of Local 738 at the ratification meeting held on April 1, 1943. It is necessary only to consider whether the Company had notice of the Independent's representation claim on April 9, 1943, when its contract with the International was formally signed. 3 The Regional Director reported that the Independent submitted 198 designation cards, 187 of which bole apparently genuine original signatures and that the names of 156 per- sons appearing on the cards were listed on the Company 's pay roll of April 11 , 1943, which contained the names of 277 employees in the appropriate unit . The cards were dated as follows : 3 in March 1943; 1 on April 2, 1943; 26 on April 7, 1943; 101 on April 8, 1943; and 15 were undated Hatter of Eieor, 46 N L R. A. 1035. 540612-44-vol 51--27 404 DECISIONS OF NATIONAL LABOR REiiLA'TIONS BOARD We are persuaded by the record in this case that the Company did have such notice. On April 2, 1943, the negotiating committee of the Local, headed by Bennie Banks, called on the Company and demanded that the contract be redrawn so as to name Local Union No. 738 in- stead of the International as a party thereto, but the Company declined to effect this change without the consent of the International. On April 5, 1943, the attorney for the Independent advised the Company that although a "rump" group of Local 738 was claiming bargaining rights, the only group that had a right to represent the employees was the group which recognized Banks as the Local president. On April co, 1943, in a letter to the Company, the Independent's attorney advised that he had reason to believe that "an attempt may be made to inveigle you into signing the contract with an unauthorized representative," that such action would violate the Act, and that there was "only one authorized representative of your employees and that representative is United Foundry Workers, Local 738 5 of which Bennie Banks is the president." The letter closed : "In behalf of such exclusive bargain- ing agency, I hereby request that you immediately execute with said bargaining agency and under its title the contract which has been the subject matter of recent negotiations." On April 8, 1943, there came to the attention of the company officials Independent leaflets distribut- ed at the company plant reporting that at a Local meeting held the previous evening Local Union No. 738 had withdrawn its affiliation from the International and had established itself "as an Independent Union to be known as United Foundry Workers Local 738, Independ- ent." The leaflet also stated: "All members of our union are being asked to sign new application cards so we can go before the Labor Board tomorrow and apply for certification." In the meantime, the International faction was also pressing, for recognition. On April 7, 1943, Skinner, the International representa- tive, wrote the Company advising it that a new negotiating committee had been elected and requesting a meeting on April 9, 1943, at 5 p. in. "to complete negotiations of the contract." Skinner's request was granted by the Company, aswas also his subsequent request to advance the time of the meeting to 9 a. in. of the scheduled date. At about 9: 40 a. in. on April 9, 1943, the contract between the Company and the International was executed. At about 9: 52 a. in. on the same morn- ing, the attorney for the Independent telephoned the president of the Company, stated that the Independent represented a majority of the Company's employees and requested recognition, but the Company refused to accord such recognition, basing its refusal on the ground that the Independent had no authority to represent such employees. ' This is the first time the name, "United Foundry Workers" appears CENTRAL PATTERN & FOUNDRY COMPANY 405 On the same morning the Independent filed its petition in the instant proceeding. We cannot attach importance to the contention of the Company and the International that no recognition demand was made by the Independent, acting as an unaffiliated group, until shortly after the contract was signed. The chronology of events recited above makes it clear that even before that time the Company had abundant notice of the unresolved question of representation which, as above noted, arose from the factional dispute within Local Union No. 738, as well as notice that the Independent had been set up as a separate labor organization and, as such, was pressing its representation claim in opposition to that of the International. The Company made no effort to deny that it had full notice of the Independent's position even before the receipt of the telephone call on the morning of April 9, 1943. Having entered into the contract in the face of such notice, the Company may not now urge the existence of the contract as a bar to a present determination of representatives. We accordingly 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 The parties stipulated that the bargaining unit described in the questioned- contract, dated March 31, 1943, -is an appropriate bargain- ing unit. In accordance with this stipulation, as modified by our usual policy concerning the exclusion of supervisory employees, we find that all production and maintenance employees6 of the Company, excluding superintendents, foremen, assistant foremen; pattern makers, truck drivers, watchmen, office workers, salesmen, confidential clerks, time-study men, technical employees, and salaried employees not engaged in production and maintenance work ,7 and excluding also all supervisory 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 Act. 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- 'The liarties stipulated that repair shop equipment employees are included in the pro- duction and maintenance category , and we so find The parties, stipulated that the phrase "not engaged in production and maintenance work,';, applies only to salaried employees. 406 t OISIONS OF NATI NAL LABOR REILA.TIONS BOARD 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 Direc- tion. 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 2, as amended, it is hereby DIRECrED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Central Pattern & Foundry Company, Chicago, Illinois, 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 super- vision of the Regional Director for the Thirteenth 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 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, to determine whether they desire to be represented by United Foundry Workers, Local 738 (Independent), or by International Union of Mine, Mill and Smelter Workers, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither.