Western Pipe and Steel Company of California

In the Matter of WESTERN PIPE AND STEEL COMPANY OF CALIFORNIA and STEEL WORKERS ORGANIZING COMMITTEE In.the Matter of WESTERN PIPE AND STEEL COMPANY OF CALIFORNIA and INTERNATIONAL BROTHERHOOD or BOILERMAKERS, IRON SHIP= BUILDERS, WELDERS AND HELPERS of AMERICA, A. F..oF L. In the Matter Of WESTERN PIPE AND STEEL COMPANY OF CALIFORNIA and INTERNATIONAL ASSOCIATION OF . MACHINISTS, LODGE 311, A. F. OF L. - - - Cases Nos. R-1247 to R-1219, inclusive, respectively.Decided August 11, 1939 Steel Tank and Pipe Manufacturing Industry-lwvestigation of Representa- tives: controversy concerning representation-of employees : rival organizations ; substantial doubt as to majority status; controversy as to appropriate unit- Unit Appropriate for Collective Bargaining: controversy as to' craft or plant wide units or unit of production and maintenance employees, exclusive of super- visory, clerical, and confidential employees: desires of employees to determine- Election Ordered: to determine' appropriate unit or units and representatives. thereof. Mr. Frank A. Mourtisen and-Mr. David Sokol, for the Board. Mr. John B. Beman, of Los Angeles, Calif., for the Company. Mr. Marshall Ross and Mr. Wayne M. Baxter, of Los Angeles, Calif., and Mr. I. Dalrymple, of San Francisco, Calif., for the S. W. 0. C. - Mr. E. V. Blackwell, of Los Angeles, Calif., and Mr. Thomas Crowe, of Kansas City, Kans., for the Boilermakers. Mr. James Morrison, of Los Angeles, Calif., for the I. A. M. Mr. Brice Worley. and Mr. W. A. Kelly, of Los Angeles, Calif., for the I. B. E. W. Mr. Ben Law, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On October 20, 1937, Steel Workers Organizing Committee, herein called the S. W. O. C., filed a petition on behalf of the Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 14 N. L. R. B., No. 43. 473 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 2058, herein called the Amalgamated, with the Regional Director for the Twenty-first Region (Los Angeles, California) alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Western Pipe and Steel Company of California, Vernon, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 15; 1937, the S. W. O. C. filed an amended petition. On August 8, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the National Labor Relations. Act and Article III, Section 3, of the Rules and Regulations-Series 1, as amended, ordered an investiga- tion and authorized the Regional Director to conduct it and to provide for an appropriate hearing on due notice. On August 17, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the S. W. O. C. Pursuant to the notice, a hearing was held on August 25 and 26, 1938, at Los Angeles, California, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. At this hearing motions to intervene were filed by the International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, herein called the Boilermakers; the International Association of Ma- chinists Lodge 311, herein called the I. A. M.; and the International Brotherhood of Electrical Workers, No. 83, herein called the I. B. E. W. On August 26, 1938, the hearing was closed upon a motion for continuance by the Boilermakers, subject to reconvene upon 5 days' notice. On October 10, 1938, the Boilermakers and the I. A. M. filed sepa- rate petitions alleging that a question affecting commerce had arisen concerning the representation of employees of the Company and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act. On January 10, 1939, the Board issued its order consolidating these cases with the case based upon the S, W. O. C.'s petition for all purposes. On January 28, 19,39, the Regional Director issued a notice of hearing which was duly served upon the Company, the S. W. O. C., the Boilermakers, the I. A. M., and the I. B. E. W. On February 2, 1939, the S. W. O. C. filed a second amended petition. Pursuant to the notice, a hearing was held on February 9, 10, and 11, 1939, at Los Angeles, California, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel and the S. W. O. C., the Boiler- makers, the I. A. M., and the I. B. E. W. were represented by busi- ness agents. Full opportunity to be heard, to examine and cross- WESTERN PIPE AND STEEL COMPANY OF CALIFORNIA 475 examine witnesses and to introduce evidence bearing on the issues was afforded all parties. On February 9, 1939, the Boilermakers moved to amend its peti- tion to delete therefrom that part requesting an investigation and cer- tification of representatives of employees at the Company 's plant in South San Francisco , California , and to confine the case to a deter- mination of representatives of employees at the Vernon , California, plant. The petitions filed by the S. W. O. C. and the I. A. M. relate only to the Company's Vernon, California, plant. Ruling upon this motion was reserved by the Trial Examiner for the Board. The motion is hereby granted. During the . course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence . The Board has reviewed the rulings of" the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed.. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Western Pipe and Steel Company of California, a California cor- poration, is principally engaged in the manufacture and sale of steel tanks and steel pipe. It operates through plants of its own located at Vernon, California; South San Francisco, California; and Phoe- nix, Arizona; and, in addition, has a number of subsidiaries which are wholly or partially owned. In 1936 the Vernon, California, plant, which is the only one in- volved in this proceeding, used approximately 50 per cent of all mate- rials purchased and used by the Company and accounted for approxi- mately 50 per cent of its sales. During the same year, total materials used by the Vernon plant were valued at $2,823,357.82. Of this amount $1,072,080.26, or 38 per cent, represents materials purchased by the Company and shipped to it on direct order from eastern mills 'and $1,110,375.31, or 39 per cent, represents. materials purchased by the Company from eastern mills out of stock warehoused by the supplier in California but produced in other States. Materials valued at $640,902.25, or 23 per cent of the total materials used, had their source in California. The value of goods sold by the Vernon plant in 1936 was $4,686,- 218.26. Of this amount $101,728.20, or 2.17 per cent, represented manufactured products sold for use in Arabia, Arizona, Colorado, Hawaii, Idaho, Mexico, Missouri, Nevada, New Mexico, Texas, Utah; Wyoming, and South America. In addition raw materials valued at $26,888.53 were shipped from the Vernon plant to the Company's 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phoenix, Arizona, plant and the Vernon plant sold parts and repairs valued at $43,882.98 for railway cars which might thereafter be used in interstate shipping. Percentages as to materials used having a source outside of California and sales of goods for use outside of California were substantially the same in 1937 and 19.38 as in 1936. Employment in the Company's Vernon plant varies widely accord- ing to general business conditions. The January 31, 1939, pay roll shows 261 shop employees and 28 field employees. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization authorized to act on behalf of Amalgamated Association of Iron,. Steel and Tin Workers of North America for collective bargaining purposes. Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2058, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership pro- duction and maintenance employees at the Company's Vernon plant, exclusive of supervisory, clerical, and confidential employees and field workers. International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America is a labor organization affiliated with the American Federation of Labor. It admits to membership shop . employees at the Vernon plant engaged as casing makers, tackers, trimmer operators, dip-kettle operators, welders, flange help- ers, sledgemen, press operators, layers-out, auto operators, fitters, burners, chippers, tackers, rivet heaters, crane chasers, planer oper- ators, flux mixers, drill .press operators, roll operators, shear opera tors, angle-roll operators, riveters, punch operators, buckers, bolted tank builders, culvert makers and riveters, bull operators, galvanized tank makers, test-rack operators, and various kinds of helpers. The International Association of Machinists Lodge 311, is a labor organization affiliated with the American Federation of Labor, admitting to membership shop employees at the Vernon plant engaged. as machinists, apprentice machinists, machinists' helpers, garage workers, drill-press operators in the machine shop, toolroom men, and oilers. The International Brotherhood of Electrical Workers, No. 83, is a labor organization affiliated with the American Federation of Labor, admitting to membership shop employees at the Vernon plant engaged as electricians, crane men, and composer operators. WESTERN PIPE, AND STEEL COMPANY OF CALIFORNIA 477 III. THE QUESTION CONCERNING REPRESENTATION In September or October of 1937 representatives of the S. W. O. C. net with representatives of the Company in the Board's Regional Office at Los Angeles and requested a consent election to determine whether the Amalgamated through the S. W. O. C. represented a majority of the Company's employees for purposes of collective bar- gaining. The request was refused on the grounds that the Company did not recognize the jurisdiction of the Board to conduct an election or to certify. any bargaining agency for its employees. Further attempts to bargain with the Company were suspended pending decision by the United States Supreme Court in the case of Santa Cruz Packing Co. v. National Labor Relations Board.' Since that decision, the Company's attitude has been one of willingness to bar- gain collectively but of uncertainty as to the union or unions with which it should bargain. We find that a question has arisen concerning 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 The Company's pay roll for January 31, 1939, shows 28 field employees. The 28 field employees are engaged in the assembling, Installation, and erection at the point of use of the finished products sent from the shop. They seldom, if ever, work in the shop. All four unions involved asked that the field employees be excluded from the appropriate unit or units on the grounds that their problems and conditions are different from those of shop employees. Apparently none of the unions involved. admit them to membership. We shall. exclude the field employees. The Amalgamated, through the S. W. O. C., contends that all production and maintenance employees at the Vernon plant, exclu- sive of supervisory, clerical, and confidential employees, constitute an appropriate unit for the purposes of collective bargaining. Of the 1303 U. S. 453. Decided March 28, 1938. 478. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 261 shop employees listed on the Company's January 31, 1939, pay roll, about 250 are within such unit. The Boilermakers contends that an appropriate unit consists of all production employees who are employed on work coining within the Boilermakers' jurisdiction at the Vernon plant, excluding supervisors having power to hire or discharge, and presents a list of those em- ployees over whom it claims jurisdiction. This list shows employees working in the following employment classifications : Casing makers, tackers, trimmer operators, clip-kettle operators, welders, flange help- ers, sledgemen, press operators, layers-out, helpers, auto operators, fitters, burners, chippers, tackers, rivet heaters, crane chasers, planer operators, flux mixers, drill-press operators, roll operators, shear oper- ators, angle-roll operators, riveters, punch operators, buckers, bolted tank builders, culvert makers, culvert riveters, bull operators, gal- vanized tank builders, galvanized tank makers, and test-rack oper- ators. The January 31, 1939, pay roll shows one or more employees in each of the above classifications to make a total of 189 employees in the unit claimed by the Boilermakers to be appropriate. The I. A. M. contends that an appropriate unit consists of all em- ployees employed as machinists at the Vernon plant and presents a list of those it claims are within such unit. This list contains the names of 28 employees as of January 31, 1939, classified variously on the pay roll as machinists, machinists' helpers, apprentice machinists,. drill-press operators, garage helper, garage mechanic, oiler, toolroom man, mechanic and working foreman in the machine shop. All of the listed employees, with the exception of one discussed below, are employed in the machine shop. The I. B. E. W. contends that an appropriate unit consists of em- ployees listed as electricians, cranemen, and compressor men of whom there are 13 on the January 31, 1939, pay roll. The claims of the three American Federation of Labor unions as to the appropriate units do not conflict except in the case of one drill- press operator, Filomeno R. Godinez, in the, punch and roll depart- ment, who is claimed by both the Boilermakers and the I. A. M. It seems apparent from the record that the conflict as to this man is the result of inadvertence rather than active dispute and that the I. A. M.. mistakenly believed him to be employed in the machine shop. We will therefore disregard the claim of the I. A. M. that Filomeno R. Godinez is in the unit it contends is appropriate. Of the 261 shop employees listed on the January 31, 1939, pay roll 230 come within the three units urged by the Boilermakers, the I. A. M., and the I. B. E. W. The three American Federation of Labor unions do not include within the units they claim to be appro- priate 21 non-supervisory employees listed as storekeeper, carpenter, carpenter's helper, steel checker, warehouse helper, blacksmith, pipe WEST UN PIPE AND STEEL COIIPANY OF CALIFORNIA 479 fitter, toolroom man, checker, sweepers, furnace operator, painters, bolt sorter, solderers, shipping clerk, and shipping clerk's helpers. The Boilermakers first attempted to organize in the Company's Vernon plant late in 1933 and obtained a number of members. Owing to wide fluctuations in employment, however, the organization was not perfected.at that time. In the spring of 1937 the Amalgamated started a membership drive and was successful, it claims, in signing tip about 300 of the 500 persons then employed. A subsequent sharp curtailment of employment due to decreased business had the effect of partly disrupting the Amalgamated's organization. In Septem- ber 1938, after the first hearing in this case, the Boilermakers held, several open meetings for all employees of the Company as a result of which it secured membership applications and bargaining authori- zations from a substantial number of employees within the unit it now alleges is appropriate. Representatives of both the I. A. M. and the I. B. E. W. from time to time during 1938 visited the plant endeavoring to secure bargaining authority from various employees within the units they now claim to be appropriate. With the same objective they apparently attended the open meetings conducted by the Boilermakers. Member"s of both-the Amalgamated and the Boilermakers have on various occasions discussed grievances with the plant management but have never been recognized except as employees. The Company has at no time had a contract with any labor organization. At the hearing the Boilermakers introduced some evidence of con-. tracts covering wages, hours, and conditions of employees within its jurisdiction which it has with other employers operating plants sim- ilar to the Company's Vernon plant. Some of these contracts take the form of an agreement between the company involved and the American Federation of Labor Building and Construction Trades 'Council, of which the Boilermakers is a part, and, through the Coun- cil, with every, other union in the Council having members employed by that company. The Vernon plant has several departments, major and minor, through which most of its products flow in the course of production. A tie-up of one department would substantially curtail the operation of the entire, plant. The Company considers some of its employees to be unskilled, others semi-skilled, and still others highly skilled. There is evidence that certain types of employees may be shifted on occasion from one job classification to another. Others, however, are never shifted. Wages at the time of the hearing varied from. 621/2 cents to $1.00 an hour. In March 1937, the wages of all pro- duction employees were increased approximately 10 per cent and the 40-hour week was installed. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the facts described above., it appears that the Company's production and maintenance workers can be considered either as a single unit appropriate for the purposes of collective bargaining as claimed by the Amalgamated, or the bulk of them can be considered as three such units, as claimed by the A. F. of L. unions. In ac- cordance with our previous rulings in this type of case, we hold that. the determining factor is the desire of the employees themselves.2 On this point the record is` inconclusive. At the hearing the Boilermakers submitted evidence in the form of membership, application, and athorization cards that 112 employees. of the group of 189 it claims to be within an appropriate unit as of January 31, 1939, had designated and selected it as their bargaining agency. The I. A. M. presented no membership, authorization, or applica- tion cards for the 28 employees it contends constitute an appropriate unit as of January 31, 1939, but claimed that a substantial number of the 28 wish the I. A. M. to represent them. The I. B. E. W. likewise presented no membership, authorization,. or application cards for the 1.3 employees it contends constitute an appropriate unit as of January 31, 1939, but claimed that a majority of the 13 wish the I. B. E. W. to represent them. Both the I. A. M_ and the I. B. E. W. requested an election on the basis of their respec- tive showings. The Amalgamated, through the S. W. O. C., claimed that it repre- sents at least 60 per cent of all employees within the unit it contends is appropriate and introduced the testimony of one of its organizers and an employee in support of this claim. It further stated that shortly before the hearing its records had been lost or destroyed, thereby causing its inability at the hearing to present more concrete evidence of representation. Counsel for the Company confirmed the destruction of the records and also declared that according to infor- mation received by the management both the "C. I. O. groups and the A. F. of L. groups" had solicited and obtained members among the Company's employees. It is apparent that the record reveals no conclusive evidence of the desires of the employees upon either the question of the appro- priate unit or units, or upon the question of their bargaining repre- sentative or representatives. We conclude that four separate ballots should be prepared and that the desires of the employees as expressed on such ballots should control the determination of the unit or units appropriate for the purposes of collective bargaining. 2Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. S; International Association of Machinists, District No. 5. , 3 N. L. R. B. 294, and subsequent cases. WESTERN PIPE AND STEEL COMPANY OF CALIFORNIA 481. Balloting will be conducted as follows: 1. Among the employees within the classifications claimed by the Boilermakers to constitute an appropriate unit, to determine whether they desire to be represented by the Boilermakers, by the Amalga: mated, or by neither. 2. Among the employees within the classifications claimed by the I. A. M. to constitute an appropriate unit, to determine whether they desire to be represented by the I. A. M., by the Amalgamated, or by neither. 3. Among the employees within the classifications claimed by the I. B. E. W. to constitute an appropriate unit, to determine whether they desire to be represented by the I. B. E. W., by the Amalgamated, or by neither. 4. Among all remaining production and maintenance employees, exclusive of supervisory, confidential, and clerical employees, to de- termine whether or not they desire to be represented by the Amalgamated. In the event that a majority of the employees voting in one of these groups choose the Amalgamated, all employees within that group will be combined with employees within any other groups which similarly choose the Amalgamated, to constitute a single unit for purposes of collective bargaining. Thus, if the Amalgamated is- accorded a majority on each of the four ballots, there will be a single collective bargaining unit. Wherever a ballot results in a majority for one of the unions other than the Amalgamated, employees within the classifications covered by such ballot will constitute a separate and distinct unit for the purposes of collective bargaining. At the hearing the parties accepted the Company's January 31, 1939, pay-roll list for consideration by the Board. Due to the lapse of time since the hearing we feel that eligibility of employees to vote should be based on a more current pay roll. Accordingly, for this purpose we will use the Company's last regular pay roll imme- diately preceding this Direction of Elections, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : . CONCLusION OF LAW A question affecting commerce. has arisen concerning the repre- sentation of employees of Western Pipe and Steel Company of Cali- fornia, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with Western Pipe and Steel Company of California at its Vernon, California, plant, separate elections by. secret ballot shall be con- ducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Twenty-first 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 those employees of the Western Pipe and Steel Company of California, Vernon, California, plant, who fall within the groups indicated below who were on the Company's last regular pay roll immediately preceding this Direction of Elec- tions, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding those em- ployees who have since quit or been discharged for cause : (a) All casing makers, tackers, trimmer operators, dip-kettle operators, welders, flange helpers, sledgemen, press operators, layers- out, auto operators, fitters, burners, chippers, tackers, rivet heaters, crane chasers, planer operators, flux mixers, drill-press operators other than in the machine shop, roll operators, shear operators, angle- roll operators, riveters, punch operators, buckers, bolted tank build- ers, culvert makers, culvert riveters, bull operators," galvanized tank builders, galvanized tank makers, test-rack operators, and their helpers, excluding supervisors having power to hire or discharge, to determine whether they desire to be represented for purposes of collective bargaining by International Brotherhood of Boilermakers, Iron Ship Builders, Welders and Helpers of America, or by Amal- gamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2058, through Steel Workers Organizing Com- mittee, or by neither ; (b) All machinists, apprentice machinists, machinists' helpers, drill- press operators in the machine shop, garage mechanics, garage helpers, oilers, toolroom men, mechanics, and working foremen in the machine shop not having authority to hire or discharge, to determine whether they desire to be represented for purposes of collective bargaining by International Association of Machinists Lodge 311, or by Amalga- mated Association of Iron, Steel and Tin Workers of North America, . WESTERN PIPE AND STEEL COMPANY Or CALIFORNIA 483 Lodge No. 2058, through Steel Workers Organizing Committee, or by neither ; (c) All electricians, working electrical foremen not having authority to hire or discharge, cranemen, and compressor men, to determine whether they desire to be represented for purposes of collective bar- gaining by International Brotherhood of Electrical Workers, No. 83, .or by Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2058, through Steel Workers Organizing Committee, or by neither ; (d) All remaining production and maintenance employees exclusive of supervisory, confidential, and clerical employees, to determine whether or not they desire to be represented for purposes of collective bargaining by Amalgamated Association of Iron, Steel and Tin Work- ers of North America, Lodge No. 2058, through Steel Workers Organizing Committee. MR. WILLIAM M. LEISERSON, CODCUrring : I concur in the result reached in this case. MR. EDWIN S. SMITH, dissenting : My reasons for the present dissent are in substance those which were stated by me in Hatter of Combustion Engineering Company, Ine.3 and in Matter of Allis-Chalmers Manufacturing Comparny.4 The character of the Company's operations points to the propriety of a determination that those employees claimed by the Amalgamated, the industrial union, constitute the appropriate bargaining unit. There is no history of collective bargaining upon a craft basis, -and such self-organization as there is has been substantially on a plant- wide basis. The Boilermakers, which assumed leadership in the organizing efforts of the three American Federation of Labor unions, conducted meetings open to all employees of the Company as a part of its membership campaign. It requests a unit covering skilled and unskilled employees engaged in every major department of the plant except the machine shop. The combined jurisdictional claims of the Boilermakers, the I. A. M., and I. B. E. W. cover 230 of the approximately 250 employees within the industrial unit alleged to be appropriate by the Amalgamated. The 20 employees which the American Federation of Labor unions would exclude have identical problems and interests with the other production and maintenance workers. Considered apart, they in no way constitute an appropriate unit. Should the three A. F. of L. splatter of Combustion Engineering Company, Inc. and Steel Workers Organizing Committee, etc., 5 N. L. R. B. 344. *Matter of Allis-Chalmers Manufacturing Company and International Union, United A utomobile 117orkers of America, Local 248, 4 N. L. R. B. 1.59. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unions win their various elections this group will be- left either as an incongruous separate bargaining unit or entirely unrepresented. . The course before the Board in this instance seems to .me to be perfectly obvious. It should declare the appropriate bargaining unit to be all of the production and maintenance employees, exclusive of those in a supervisory or clerical capacity. Within this unit it should permit a vote between the Amalgamated on the one hand and the Boilermakers, the I. A. M., and the I. B. E. W. as a joint bargaining agency on the other.