American Radiator Co.

In the Matter of AMERICAN RADIATOR COMPANY and LOCAL No. 1770 AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, C. I. O. Case No. R-1097.-Decided March 14, 1939 Radiator Manufacturing Industry-Investigation of Representatives: con- troversy concerning representation of employees: rival organizations; duplica- tion in membership in rival organizations-Contract: executed subsequent to service of notice of hearing on petition filed by one of the contending organiza- tions; no bar to an election-Unit Appropriate for Collective Bargaining: controversy as to : production and maintenance employees, including shipping- room employees, janitors, and charwomen, but excluding supervisory, office, and salaried employees, and watchmen who also have the status of deputy sheriffs-Election Ordered Mr. Alan Perl, for the Board. Fordyce, White, Williams & Hartman, by Mr. S. W. Fordyce and Mr. James Ware, Jr., of St. Louis, Mo., for the Company. Mr. John L. Sullivan, of St. Louis, Mo., for Local No. 1770. Mr. Dennis Godfrey, of Litchfield, Ill., for the Association. Mr. Bliss Daffan, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 4, 1938, Local No. 1770 Amalgamated Association of Iron, Steel & Tin Workers of North America , C. I. 0., herein called Local No. 1770, filed with the Regional Director for the Fourteenth Region (St. Louis, Missouri), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of the American Radiator Company , Litchfield, Illinois, herein called the Company , and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. Under date of October 14, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act 11 N. L. R. B., No. 101. 1127 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. Pursuant to a notice of hearing issued by the Regional Director, copies of which were duly served upon the Company, Local No. 1770, and Litchfield Radiator Workers' Association, herein called the Association, a labor organization claiming to represent employees directly affected by the investigation, a hearing was held from Octo- ber 20 through October 22, 1938, at Litchfield, Illinois, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, the Company, Local No. 1770, and the Association were repre- sented by counsel. At the beginning of the hearing both counsel for the Company and counsel for the Association announced they were appearing specially for the purpose of objecting to the jurisdiction of the Board. The Trial Examiner overruled the said objections. Thereupon, expressly reserving their objections relative to jurisdic- tion, the Association and the Company entered general appearances and all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all the parties. During the course of the hearing the Trial Examiner made several rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 15, 1938, the Company submitted a memorandum in the form of a mo- tion to dismiss the petition. The motion is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FAO-r I. THE BUSINESS OF THE C()MPANY American Radiator Company is a New Jersey corporation, en- gaged in the manufacture and sale of heating equipment, boilers, radiators, water heaters, Arcola Heaters, hot water supply heaters, steel castings, malleable castings, and enameled sheet products. The Company is the leading manufacturer of heating apparatus in the United States, with approximately 14 factories and representatives and sales agencies in most of the leading cities of the country. The proceedings herein involve only the Litchfield, Illinois, plant, at which the Company manufactures steam and hot water cast iron radiators. The materials used in the manufacture of these products include pig iron, stove plate, coal, coke, core sand, fuel oil, lime- stone, nipples, fire clay, ground coal, fluorspar, fire brick, fire stone, AMERICAN RADIATOR COMPANY ET AL. 1129 lumber, linseed oil, ferro-silicon, paint, chaplets, and oleum spirits. About 50 per cent of these materials are received from outside the State of Illinois. In the operations of the Company at the Litchfield plant during a period of approximately 4 months in 1938 raw mate- rials valued at $100,000 were used, and 1,680,000 square feet (8,600,000 pounds) of cast-iron radiation produced. About 80 per cent of the manufactured products of the Litchfield plant are shipped to points outside the State of Illinois. II. THE ORGANIZATIONS INVOLVED Local No. 1770 Amalgamated Association of Iron, Steel & Tin Workers of North America is a labor organization affiliated with the Committee for Industrial Organization, apparently admitting to its membership all production and maintenance employees of the Com- pany taking part in the production of radiation until its completion, excluding supervisory, office, and salaried employees. Litchfield Radiator Workers' Association is an unaffiliated labor organization, apparently admitting to its membership all production and maintenance employees of the Company, excluding supervisory, office, and salaried employees. III. THE QUESTION CONCERNING REPRESENTATION On June 7, 1938, the Company reopened its Litchfield plant which had been closed down since May 7, 1937. Upon the reopening of the plant, Local No. 1770 and the Association each met with Edward L. Grenagle, plant manager, and demanded recognition as bargaining representative of the Company's employees. In the case of Local No. 1770, a copy of a proposed contract was presented which provided for recognition of the organization as the "Bargaining agency for all of its employees, excluding Foremen and Watchmen." Neither organiza- tion was granted the recognition requested and they do not appear to have pursued the matter further at that time. On some date shortly after September 12, 1938, representatives of Local No. 1770 met again with Grenagle and requested recognition as the bargaining representative of the employees. The request was accompanied by representations that Local No. 1770 represented a majority of the employees by reason of signatures obtained on a peti- tion circulated, among the employees on September 12, 1938, and on membership cards that had been signed several months prior to that time. Grenagle stated that the matter of a contract was entirely out of his hands and that he would submit the evidence to his attorney. The representatives of Local No. 1770 did not present any evidence to Grenagle in support of the statement that the organization repre- 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented a majority of the employees. At about the same time this demand was made, the president of the Company, at Detroit, Michi- gan, received a letter dated September 16, 1938, from Local No. 1770 demanding recognition as the exclusive bargaining agent for all pro- duction and maintenance employees at the Litchfield plant of the Company. On September 19, 1938, pursuant to a petition by the Board for enforcement of an order 1 issued by it on June 24, 1938, against the Company, the United States Circuit Court of Appeals for the Eighth Circuit entered a consent decree ordering the Company to cease and desist (a) from dominating or interfering with any labor organiza- tion; (b) from discouraging membership in any organiza- tion by discriminating in regard to hire and tenure of employment; and (c) from interfering with the rights of employees under Section 7 of the Act. The consent decree also provided that the Company should reinstate a named employee with back pay and "subject to the provisions of the National Labor Relations Act, bargain col- lectively with the representatives of its production and maintenance employees at its Litchfield, Illinois, plant if and when any such repre- sentatives are designated or selected for the purpose of collective bar- gaining by, a majority of such employees in a unit appropriate for that purpose." A short time after the entry of the consent decree on September 19, 1938, a committee of the Association met with Grenagle, asked for recognition, and was informed that the matter would be taken up with the attorney for the Company, and that the Association would be advised as to the result. About the last of September both of the organizations received let- ters from Samuel W. Fordyce, attorney for the Company, stating that the Company desired each organization to submit its evidence of a majority representation; and setting different hours for the two organizations to submit such evidence on October 3, 1938. The bargaining committee from Local No. 1770 met with Fordyce at 3: 30 p. m. on October 3, 1938. At that time the representatives of Local No. 1770 stated to Fordyce that the organization represented 129 of the Company's employees. Fordyce advised the committee to leave the evidence that it had as to membership with him; and that he would have to see "what the other side had." The committee had the petition in its possession that had been circulated on September 12, 1938, but refused to leave it with Fordyce, and also refused to sub- mit any evidence in support of the membership claim of Local No. 1770. 'Matter of American Radiator Company, a corporation and Local Lodge No. 1770, Amal- gamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Committee for Industrial Organization, 7 N. L. R. B. 1127, AMERICAN RADIATOR COMPANY ET AL. 1131 A committee from the Association met with Fordyce at 4 o'clock on the same day. Fordyce asked the committee for evidence of the Association's membership and was presented with a petition dated September 20, 1938, containing the names of 124 of the respondent's employees. At the request of Fordyce, this petition was left in his possession for the purpose of comparing the names thereon with the pay roll of the Company. The following day, October 4, Local No. 1770 filed the petition for investigation and certification herein. On or about October 7, Fordyce advised both organizations by letter that they would be given until noon October 8 to produce further proof of membership. It does not appear that either organization took advantage of this offer. Shortly after noon on October 8 the Association received notice from Grenagle that the Company would recognize this organization as the bargaining representative of the employees. On October 10 the Association had a meeting at which authority was given a committee to bargain with the Company. Prospective demands were discussed and agreed on and, thereafter, the committee met several times with the Association's attorney, Grenagle, and the Company's attorney. These several meetings resulted in an agree- ment being reached which was signed by the Company and ratified by action of the membership of the Association as a whole at a meeting held on the night of October 18. The agreement dated October 18, 1938, covers all production and maintenance employees of the Com- pany at its Litchfield plant and by its terms expires on December 31,1939. The Association and the Company state that the agreement of October 18,1938, was entered into pursuant to the terms of the consent decree and contend that the agreement constitutes a bar to action by the Board in the present proceedings. We find such contention to be without merit. The provision of the consent decree that the Com- pany shall bargain collectively with the representatives of the produc- tion and maintenance employees at the Litchfield plant is expressly "subject to the provisions of the National Labor Relations Act" and such bargaining is to take place "if and when any such representatives are designated or selected for the purpose of collective bargaining by a majority of such employees in a unit appropriate for that purpose." It is clear, therefore, that the consent decree does not in any wise affect the authority of the Board to investigate and certify bargaining repre- sentatives. It is to be noted also that the agreement between the Com- pany and the Association was executed and the negotiations with respect thereto carried on subsequent to October 14, 1938, at which time the Company and the Association had been served with notice of the hearing in the present proceedings. Under these circumstances 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the agreement constitutes no barrier to the determination by the Board of representatives for the purpose of collective bargaining.2 We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Local No. 1770 seeks a bargaining unit composed of the production and maintenance employees of the Company at its Litchfield plant, exclusive of all supervisory employees, office employees, salaried em- ployees, certain shipping-room employees, a janitor, a charwoman, two watchmen, a sand tester and errand boy, and one part-time em- ployee. The Association and the Company claim that the shipping- room employees, the janitor, the charwoman, the two watchmen, the sand tester and errand boy, and the part-time employee are properly included within the bargaining unit. The Association and the Com- pany also claim that certain persons Local No. 1770 would exclude as supervisory employees should not be so classified and should be in- cluded within the bargaining unit. In the final stage of production, radiators are placed upon a so- called paint chain. They are then dipped in a paint tank, go through a dry-out, and are taken off and put into a warehouse or shipped out. The paint chain is located in the shipping room, or wareroom, which consists of two large rooms under the same roof as the rest of the plant. Although it is not entirely clear as to precisely what shipping- room employees Local No. 1770 desires to exclude from the unit, the record indicates with reasonable clarity that it desires to exclude all shipping-room employees engaged in the taking of radiators from the paint chain and the operations subsequent thereto. Local No. 1770 apparently desires to include within the unit the shipping-room em- ployees who place the radiators on the paint chain or who engage in operations prior to the taking of the radiators from the paint chain. 2 Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. R. B. 1086. Matter of Tennessee Electric Power Company and Inter- national Brotherhood of Electrical Workers, 7 N. L. R. B. 24. AMERICAN RADIATOR COMPANY ET AL. 1133 Local No. 1770 states in support of its position : that the shipping room is next to the office of the Company; that the shipping-room employees are in and out of the office more than the other employees and for that reason are more closely identified with the management; that the shipping-room employees work 44 hours per week whereas the pro- duction employees work • only 40 hours per week ; and that salaried personnel of the Company performed the work of the shipping-room employees during a past shut-down period. Many of the reasons advanced by Local No. 1770 would apply equally as well to the shipping-room employees Local No. 1770 would include within the unit as to those it would exclude. More- over, the entire operations at the Litchfield plant are closely inte- grated and thus the operations of all the shipping-room employees are closely related to those of the other employees. The evidence indicates that all the shipping-room employees are eligible to mem- bership in Local No. 1770 as well as in the Association and that Local No. 1770 has solicited employees throughout the shipping room for membership. The record further indicates that in the past Local No. 1770 has attempted to bargain for all the production and main- tenance employees. There is no showing that the term production and maintenance employees was not at such time deemed to be inclusive of the shipping-room employees. Under all the circumstances, we conclude that the shipping-room employees are properly to be included within the bargaining unit. Local No. 1770 contends that Fred Andres, Arthur Dietrich, George Mumme, Harry Yates, John Rill, Oliver Smith, Frank Sacha, Lester Batty, and Walter Roach are supervisory employees and should be excluded as such from the unit. The Association denies that these persons are supervisory employees and contends that they should be included within the unit. As far as Andres, Dietrich, Mumme, Yates, and Rill are concerned, the record does not support the con- tention of Local No. 1770. Andres is a maintenance employee, re- pairing machines in the foundry. In 1937 he was a member of Local No. 1770 and it was undisputed that he is still performing the same work that he has been engaged in for the past 10 years. Diet- rich is also a maintenance employee especially skilled in pipe fitting, repairing and setting up machines. Because of Dietrich's experi- ence he sometimes serves as lead man when a group of three or four are working together. There is no evidence in the record that he exercises any supervisory authority. At one time George Mumme acted in the place of an assistant foreman while the regular assistant foreman was on his vacation. Mumme's temporary substitution for the assistant foreman, terminated at the time of the hearing, would not justify his exclusion. The same conclusion is reached regarding 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yates and Rill. Yates is a machinist and serves at times as lead man, and Rill is a trucker part of the time and also does odd jobs. Among the odd jobs that he performs is that of keeping time for about 15 minutes a day. The duties of neither of these men place them within the supervisory category. A different situation exists with reference to Oliver Smith, Frank Sacha, Lester Batty, and Walter Roach. Smith is listed on the pay roll of the Company as chief inspector. For 20 years it has been Smith's duty to make the final inspection of the completed radiators for defects. The record shows that he has the power to report em- ployees doing work having a high percentage of defects and to recommend their discharge. Frank Sacha is a machinist who writes orders for all the material used on jobs on which he is engaged. In addition, he assigns men to do particular work and directs the manner of its performance. Sacha receives a slightly higher wage rate than other machinists. Lester Batty attends to the ladles part of the day and then runs the cupola. The cupola runs a shift and a half, and when the foreman leaves at the end of the shift, Batty takes over and performs his duties. The manager of the Company testified that the foreman of the cupola leaves orders with Batty who sees that they are carried out. Walter Roach is employed in the powerhouse. Like Batty, Roach takes over the duties of the foreman of the powerhouse when the foreman leaves at the end of the shift and performs them for the balance of the day. We shall exclude Oliver Smith, Frank Sacha, Lester Batty, and Walter Roach from the unit as supervisory employees. Local No. 1770 desires to exclude from the unit William Schmuck, a janitor; Goldie Crane, a charwoman; T. J. Nagle and M. L. Gonterman, watchmen; Francis Fellers, a sand tester and errand boy; and Bernard J. Kelly, a wood-pattern maker. The Associa- tion wants these employees included within the unit. The janitor and charwoman appear to be eligible to both organi- zations and are engaged principally in cleaning and caring for plant property. We conclude that Schmuck and Crane should be included within the unit. The Company employs Nagle and Gonterman as full-time watch- men and Martin Furlong as a part-time watchman. The plant manager of the Company testified that Furlong worked 4 days a week as watchman and 1 day a week as a maintenance employee. Local No. 1770 desires to exclude Nagle and Gonterman from the unit, but to include Furlong therein. The Association desires that all three men be included within the unit. A witness on behalf of Local No. 1770 testified that Nagle and Gonterman held com- missions as deputy sheriffs. This testimony was not denied. The AMERICAN RADIATOR COMPANY ET AL. 1135 record is silent as to whether Furlong had been deputized. The Board has customarily held that watchmen should be excluded from the bargaining unit if a participating labor organization desires their exclusion.8 While Local No. 1770 desires that Nagle and Gonterman be excluded on the ground that they also occupy the status of deputy sheriffs, Furlong apparently has a somewhat different status, and no objection was raised to his inclusion within the unit. We shall, therefore, include him within the unit unless he is also a deputy sheriff. In the latter event, he shall also be excluded from the unit. Fellers works under the supervision of the plant chemist. The major portion of his time is spent in making hourly tests of sands se- cured from the foundry. This work is clearly a part of the production process and requires no particular skill. Fellers at times also acts as errand boy. His earnings are approximately three-fourths of those the average production employee receives. We conclude that he should be included within the unit; Local No. 1770 desires Kelly's exclusion from the unit on the ground that he is an intermittent employee and as such not eligible to its membership. The evidence shows that Kelly first started to work for the Company on August 28, 1938, and that he has worked for the Company 123/4 hours per week since that date. His name is carried on the pay roll of the Company. We conclude that he is an employee of the Company and should be included within the unit. We find that the production and maintenance employees of the Company at its Litchfield plant, including the shipping-room em- ployees, janitors, and charwomen, but excluding supervisory, office, and salaried employees, and watchmen who also have the status of deputy sheriffs, constitute a unit appropriate for the purposes of col- lective bargaining and that said unit will insure to employees of the, Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES There was introduced in evidence at the hearing the Company's pay roll for the week ending October 1, 1938. It was stipulated that the name of Charles Cayce should be substituted on the pay roll for that of Charles Booker. The record shows that Earl Canaday, whose name appears on the pay roll, had since been discharged. The pay roll, excluding the names of Booker and Canaday and including that S See Matter of. Plankinton Packing Company and Packing House Workers Organizing Commtittee on behalf of Local 881 of the United Paekino House Workers of America, 5 N. L. R . B. 813, and cases cited therein. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Cayce, contains the names of approximately 223 persons within the unit which we have found to be appropriate. It appears from a stipulation of the parties that between October 7 and 12, 1938, approximately 107 employees within the appropriate unit signed membership cards of Local No. 1770. On the other hand, approximately 119 persons within the appropriate unit about Sep- tember 1938 signed a petition designating the Association as bar- gaining representative. It appears that of the 119 persons 7 signed membership cards or petitions of Local No. 1770. In view of the existence of certain duplications in the claims of the two labor organizations, and inasmuch as the majority of the Asso- ciation, if any, on the basis of the petitions is very slight, we think that an election is necessary to determine the present desires of the employees concerning representation. The persons eligible to vote in thel election shall be those within the appropriate unit whose names appear on the pay roll of the Company for the week ending October 1, 1938, revised to include the name of Charles Cayce, but excluding those persons who have since quit or been discharged for cause. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of American Radiator Company, Litchfield, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company at its Litchfield plant, including shipping-room employees, janitors, and charwomen, but excluding supervisory, office, salaried employees, and watchmen who also have the status of deputy sheriffs, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with American Radiator Company, Litchfield, Illinois, an election by secret ballot shall be conducted within fifteen (15) days from the date of this AMERICAN RADIATOR COMPANY ET AL . 1137 Direction under the direction and supervision of the Regional Direc- tor for the Fourteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production and main- tenance employees of the Company at its Litchfield plant whose names appear upon the pay roll of the Company for the week ending October 1, 1938, revised to include the name of Charles Cayce, includ- ing shipping-room employees, janitors, and charwomen, but excluding supervisory, office, and salaried employees, and watchmen who also have the status of deputy sheriffs, and excluding also those employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Local No. 1770, Amalga- mated Association of Iron, Steel & Tin Workers of North America, affiliated with the Committee for Industrial Organization, or by Litchfield Radiator Workers' Association, for the purposes of col- lective bargaining, or by neither. SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION March 21, 1939 On March 14, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be held within fifteen (15) days from the date of the Direction, under the direction and super- vision of the Regional Director for the Fourteenth Region (St. Louis, Missouri). The Board hereby amends its Direction of Election by striking therefrom the words, "within fifteen (15) days from the date of this Direction" and substituting therefor the words, "at such time as the Board may in the future direct." 11 N. L. R. B., No. lOla.