Florence Pipe Foundry & Machine Co.

In the Matter of FLORENCE PIPE FOUNDRY & MACHINE CO. and STEEL WORKERS ORGANIZING COMMITTEE, ON BEHALF OF ITSELF AND OF LODGE 2040, AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA Case No. R-1460.Decided September 13, 1939 Pipe Foundry and Machine Manufacturing Industry-Investigation of Repre- sentatives : controversy concerning representation of employees ; rival organiza- tions ; refusal of company to recognize petitioning union as bargaining agent for employees-Closed-Shop Contract: executed with rival union after petition filed; parties to the contract had notice of petitioning union's demands for recognition ; record does not establish that contracting union represented a majority ; no bar to investigation of representatives-Unit Appropriate for Collective Bargaining : all production and maintenance employees of the com- pafiy, excluding foremen, clerical employees, and employees whose duties are exclusively supervisory; agreement as to-Representatives : conflicting claims of two labor organizations ; majority of employees signed up with each of the two contesting unions-Election Ordered: eligibility to vote determined by pay roll next preceding the date of the closed -shop contract; stipulation as to. Mr. Weldon P. Monson, for the Board. Foulkrod, Sheppard, Porter, and Alexander, by Mr. F. Raymond Wadlinger, of Philadelphia, Pa., for the Company. Mr. M. H. Goldstein and Mr. Michael Harris, of Philadelphia, Pa., for the S. W. O. C. Mr. Harry Stevenson of Cincinnati, 0., for the I. M. U. Mr. Leonard Lindquist, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 19, 1939, Steel Workers Organizing Committee, herein called the S. W. O. C., on behalf of itself and of Lodge 2040, Amal- gamated Association of Iron, Steel and Tin Workers of North Amer- ica, filed with the Regional Director for the Fourth Region (Philadel- phia, Pennsylvania) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Florence Pipe Foundry & Machine Co., Florence, New Jersey, herein called the Company, and requesting an investigation and certifica- tion of representatives pursuant to Section 9 (c) of the National Labor 15 N. L. R. B., No. 31. 250 FLORENCE PIPE FOUNDRY & MACHINE CO. 251 Relations Act, 49 Stat. 449, herein called the Act. On June 21, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act 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; On July 27, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the S. W. O. C., and upon International Molders Union of North America, herein called the I. M. U., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on August 10 and 11, 1939, at Burlington, New Jersey, before Henry W. Schmidt, the Trial Examiner duly des- ignated by the Board. At the hearing, a petition to intervene filed by the I. M. U. on its own behalf and on behalf of its Local No. 12 was granted without objection. The I. M. U. moved that the proceedings be dismissed, and as a basis for its motion alleged that on January 30, 1939, the Company and. the I. M. U. had entered into a closed-shop agreement and that the same was still in full force and effect. The Trial Examiner did not rule on the motion. It is hereby denied. The Board, the Company, and the S. W. O. C. were represented by counsel, and the I. M. U. by a union official; all participated in the hearing. Full opportunity to be heard, to examine and to cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all the parties. During the course of the hearing, the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds no prejudicial- errors were committed. The rulings are hereby affirmed. Subsequent to the hearing, the attorney for the Company filed a brief which has been considered by the Board. Upon the entire record in the case, the Board makes the following : .FINDINGS OF FACT . I. THE BUSINESS OF THE COMPANY The Company, a New Jersey corporation, with its plant and office located at Florence, New Jersey, is engaged in the manufacture, sale, and distribution of cast-iron pipes and fittings, fire hydrants and valves, and hydraulic machinery. The principal raw materials used are pig iron, scrap iron, coal, coke, sand, fuel oil, brass, copper, steel castings, and forgings, approximately 80 per cent of which are ob- tained from States other than New Jersey. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year 1938 the Company employed an average of 689 persons with a total pay roll of $1,017,841.56. The total net sales of the Company's products- during the year 1938 amounted to $2,737,- 613.17, and approximately 81 per cent of the finished products were shipped outside the State of New Jersey. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affili- ated with the Congress of Industrial Organizations. Lodge 2040, Amalgamated Association of Iron, Steel and Tin Workers of North America, represented by Steel Workers Organizing Committee in this case, is a labor organization, affiliated with Steel Workers Organizing Committee and the Congress of Industrial Organizations, admitting to membership all employees engaged in the manufacturing processes of the Company other than supervisory and clerical employees. International Molders Union of. North America is a labor organiza- tion affiliated with the American Federation of Labor. Local No. 12 of International' Molders Union of North America is a labor organi- zation apparently admitting to its membership all production and maintenance employees of the Company. in. THE QUESTION CONCERNING REPRESENTATION On November 9, 1938, the Company, at the request of the I. M. U., checked the membership cards of the I. M. U. against the Company's pay roll and found that on that date the I. M. U. did not represent a majority of the employees in the appropriate unit. However, after checking again on December 30, 1938, the Company was satisfied that the I. M. U. did represent a majority, and negotiations between these two parties continued until January 30, 1939, when the Company and the I. M. U. concluded a closed-shop agreement to become, effective on that date and to remain in effect for 1 year. From November 1, 1938, until the contract with the I. M. U. was executed, the S. W. O. C. presented to the Company repeated demands for recognition and negotiation based upon claims that it represented a majority of the Company's employees. The Company refused these demands, asserting that it was not satisfied that the S. W. O. C. did represent a majority. On January 19, 1939, the S. W. O. C. filed its petition for investiga- tion and certification pursuant to Section 9 (c) of the Act. A meeting between the I. M. U. and the S. W. O. C. for purposes of arranging for a consent election was scheduled to take place on January 25, 1939, at the Regional Office for the Fourth Region. Representatives of the S. W. O. C. appeared for that meeting, but no one appeared for the I.M.U. FLORENCE PIPE FOUNDRY & MACHINE CO . 253 At the time of the execution of the closed-shop agreement, each of the `contending labor organizations, on the basis of its signed membership cards, had been designated as bargaining representative by a majority of employees within the unit hereinafter found to be appropriate. For the following reasons the closed-shop agreement executed be- tween the Company and the I. M. U. on January 30, 1939, constitutes no bar to the present proceedings : (1) The contract was entered into after the S. W. 0. C. had filed a petition for investigation and cer- tification under Section 9 (c) of the Act; I (2) prior to the execution of the contract, the Company and the I. M. U. had notice that the S. W. 0. C. claimed to have been designated by a majority of the Company's employees as their sole bargaining agent; and (3) at the time the con- tract was entered into a substantial majority of employees in the appro- priate unit had signed membership cards in each of the two contesting unions, and hence, the record does not establish that the I. M. U. was the chosen majority representative at that date.2 We find that a question has arisen concerning representation of em- ployees 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 At the hearing the parties stipulated that the unit appropriate for bargaining purposes should include all production and maintenance employees of the Company, excluding foremen, clerical employees, and employees whose duties are exclusively supervisory. We see no reason for departing from this agreed unit. 1 See Matter of Hirsch Shirt Corporation and _ United Garment Workers of America (Affiliated with the A. F. of L.), 12 N. L. R. B. 553; Matter of American-West African Line, Inc. and National Marine Engineers ' Beneficial Association, 4 N. L. R. B. 1086. 2 See Matter of Rils Manufacturing Corp. and United Electrical, Radio & Machine Work- ers of America (C. I. O.); Matter of Rils Novelty Manufacturing Co., Columbia & Greene Avenaaes, Newark, N. J. and American Federation of Labor, 11 N. L. R. B. 696; Matter of Colonie Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 41514, A. F. of L., 9 N. L. R. B. 658. 8 At the hearing the parties ( including the I. M. U.) stipulated that a question affecting commerce had arisen concerning the representation of employees of the .Company. 254 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD We accordingly find that the production and maintenance employees of the Company, excluding foremen, clerical employees, and employees whose duties are exclusively supervisory, constitute a unit appropriate for purposes of collective 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 AS we have stated, a substantial majority of the employees in the appropriate unit have signed membership cards in each of the two contesting unions, some of the employees having signed cards for both unions. On the basis of such cards each of the two unions claims the right to act as exclusive bargaining agent for the Company's em- ployees. Under the circumstances, an election by secret ballot is neces- sary to resolve the question concerning representation which has arisen. We shall, accordingly, direct that such an election be held. At the hearing the two contesting unions stipulated that if an elec- tion were directed, only those present employees in the appropriate unit who were on the Company's pay roll for the week ending January 27,1939, should be eligible to vote. Apparently, the week ending Jan- uary 27, 1939, represents a normal production period when approxi- mately 556 workers in the appropriate unit were employed, and it does not appear that there has been any substantial turnover of the Com- pany's employees since that period. 'For the determination of the ques- tion of eligibility, we shall adopt the pay-roll period fixed in the stipu- lation between the two unions which, in effect, limits voting rights to those persons who were in the Company's employ before the closed- shop contract between the Company and the I. M. U. was executed. Upon 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 Florence Pipe Foundry & Machine Co., Florence, New Jersey, 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, excluding foremen, clerical employees, and employees whose duties are exclusively supervisory, constitute a unit appropriate for the purposes of collective'bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act.. FLORENCE PIPE FOUNDRY & MACHINE CO. 255 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 2, it is hereby . DIRECTED that, as a part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bar- gaining with Florence Pipe Foundry & Machine, Co., Florence, New Jersey, an election by secret ballot shall be conducted within fif- teen (15) days from the date of this Direction of Election under the direction and supervision of the Regional Director for the Fourth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the production and maintenance employees of the Florence Pipe Foundry & Machine Co., Florence, New Jersey, who were employed by the Company during the week ending Janu-' ary 27, 1939, 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 fore- men, clerical employees, and employees whose duties are exclusively supervisory, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Lodge 2040, Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Steel Workers Organizing Com- mittee and the Congress of Industrial Organizations, or by Local No. 12 of the International Molders Union of North America, affiliated with the American Federation of Labor, or by neither, for the pur- poses of collective bargaining.