Chicago Malleable Castings Co.

In the Matter Of CHICAGO MALLEABLE CASTINGS COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 399 and INTERNATIONAL BROTHERHOOD .OF FIREMEN AND OILERS, LOCAL No. 7 Case No. R-1097.-Decided October 16, 1939 Iron and Alloy Castings Manufacturing Industry-Investigation of Repre- sentatives : question concerning representation : petitioning craft unions file petition after Company signed exclusive bargaining contract with industrial union ; contract by its terms in effect until notice of termination by either party-Unit Appropriate for Collective Bargaining : plant Wcra'ft units ; 'mem- bership bargaining contract followed by exclusive contract in effect at time of hearing both covering entire plant ; evidence of prior bargaining by crafts.; notice by crafts of reservation of bargaining rights prior to execution of first bargaining contract covering entire plant ; determination of unit or units held dependent upon desires of craft .employees,; ( Leisersori, concurring ) contract covering entire plant purporting to include firemen and engineers not determinative of, since members in. craft did not assent to. such inclusion; (Smith, dissenting ) lack of substantial history of collective bargaining on part of firemen and engineers ; no justification . for weakening the bargaining strength of employees as a whole by permitting craft units to split off from the indus- trial unit-Representatives : proof of choice : membership cards and testimony of employees-Certification of Representatives:- craft unions certified as col= lective bargaining representatives upon proof of majority representation. '' Mr. Hyman A. Schulson, for the Board. Pope & Ballard, by Mr. Henry F.'Seyfa'rth, and Mr. *Lee C. Shaw; of Chicago, Ill., for the Company. Mr. Anton J. Imhahn and Mr. Frank Wood, of Chicago, Ill., and Mr. Frank S. Easby-Smith, of Washington, D. C., for the Engi- neers' Local. Mr. James M. Kennedy, of Chicago, Ill., for the Firemen's Local. Mr. John J. Brownlee, of Chicago, Ill., for the S. W. O. C. Mr. Louis A. Roland, of counsel to the Board. DECISION AND CERTIFICATION 'OF REPRESENTATIVES STATEMENT OF THE CASE On January 3, 1939, International Union of Operating Engineers, Local No. 399, herein called the Engineers' Local, and International Brotherhood of Firemen and Oilers, Local No. 7, herein called the Firemen's Local, filed with the Regional Director for the Thirteenth . 16 N. L. R. B:, No. 9. 15 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region (Chicago, Illinois) a joint petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Chicago Malleable Castings Company, Chicago, 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.1he Act. On February 6, 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 Regula- tions-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 February 13, 1939, the Regional Director issued a notice of hearing, copies of which were duly served.upon the Company, upon the Engineers' Local, upon the Firemen's Local, and upon Solidarity Lodge No. 1135 of Amalgamated Association of, Iron, Steel and Tin Workers of North America, affiliated with Steel Workers Organizing Committee, herein called the S. W. O. C., a labor organization claim- ing to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on February 27, 1939, at Chicago, Illinois, before Gustaf B. Erickson, the Trial Examiner duly designated.by the Board. The Board and the Company were represented by counsel, the Engineers' Local by the third vice presi- dent of the International Union of Operating Engineers and. by a representative of the Engineers' Local, the .Firemen's Local by its business representative, and the S. W. O. C. by its representative. All parties participated in the ' hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all 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 that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant' to notice duly -serve"d' upon all the parties, oral •argumeiit was had before the Board at Washington, D. C., on April 20, 1939. The Company, the Engineers' Local, and the Firemen's Local were represented by counsel, the S. W. O. C. by its representative, and all participated in the argument. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is an Illinois corporation engaged in the manu- facture, sale, and distribution of malleable grey iron and alloy cast- CHICAGO MALLEABLE CASTINGS COMPANY 17 ings, brake beams and power brakes for railway cars, agricultural implements, and miscellaneous castings from customers' patterns. Its principal office and plant are in Chicago, Illinois. During the year 1938, the value of the raw materials and equipment purchased by the Company in the operation of its plant equalled $210,000, three- fourths of which represented materials and egt1ipmei`it shipped to the Company from sources outside Illinois. During the same period, the value of the Company's sales and shipments of castings and brake beams from the plant equalled $600,000, approximately three-fourths of which represented products sold and shipped to customers outside Illinois. Among its principal customers are all leading railroads in the United States. The Company advertises its products throughout the country and employs 12 salesmen who solicit orders throughout several States of the United States. The Company employs approximately 340 workers at its plant. II. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local No. 399, is a labor organization affiliated with the American Federation of Labor, admitting to its membership engineers, and junior and apprentice engineers in the Chicago area. International Brotherhood of Firemen and Oilers, Local No. 7, is a labor organization affiliated with,the American Federation of Labor, admitting to its membership firemen- and oilers in the Chicago area. Solidarity Lodge No. 1135 of Amalgamated Association of Iron, Steel and Tin Workers of North America is a labor organization affiliated with Steel Workers Organizing Committee, and with the Congress of Industrial Organizations, admitting to its membership all employees of the Company excluding foremen, assistant foremen, watchmen, supervisory and salaried employees. III. THE QUESTION CONCERNING REPRESENTATION Prior to 1937 the Company had never bargained collectively with any labor organization. In the early part of that year the S. W. O. C. began an organization campaign among the Company's em- ployees and on April 1, 1937, signed a contract with the Company in which the S. W. O. C. was recognized as the collective bargaining agency for those employees of the Company who were members of the S. W. O. C. On April 25, 1938, a second contract between the Company and the S. W. O. C. was signed in which the Company recognized the S. W. O. C. as the sole collective bargaining agency for all the employees of the Company, except foremen, assistant fore- 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men, watchmen , supervisory and salaried employees. By its terms the contract was to continue in effect until August 1, 1938 , and there- after until terminated on 20 days ' notice by either party. No notice of termination has been given. In November 1938, after a joint meeting of engineers and firemen employed in the Company's pow- erhouse, the four engineers joined the Engineers ' Local and two fire- men joined the Firemen 's Local. Thereafter both Locals filed their joint petition claiming that the engineers and firemen employed by the Company constitute a unit appropriate for the purposes of col- lective bargaining. On January 11, 1939, a letter was signed and sent to the Engineers ' Local by the four engineers and two firemen in which they signified their desire to be represented by both Locals for the purpose of collective bargaining ; at the hearing, these six employees reaffirmed this desire. 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 The Engineers' Local and the Firemen's Local contend that the engineers and the firemen employed by the Company constitute a separate appropriate bargaining unit. At the hearing, however, these unions indicated that they had no objection to including the engineers in one unit and the firemen in another . The S. W. O. C. contends that all the employees of the Company , except foremen, assistant foremen, watchmen, supervisory and salaried employees, constitute an appropriate bargaining unit and that . the units claimed by the Engineers' Local and the Firemen 's Local are not appropriate for purposes of collective bargaining. The four engineers and two firemen (together with a single appren- tice fireman and engine wiper) constitute the power department of the Company and are under the supervision of a chief engineer. The engineers work in an enclosed building or engine room located in the center of the plant buildings ; the firemen work in a boiler room about 100 feet away . The engineers are highly skilled , being licensed CHICAGO MALLEABLE CASTINGS COMPANY 19 by the city of Chicago, and are responsible for the safe, efficient operation of steam generating apparatus. Although practically all their work is performed inside the engine room, they occasionally do repair work elsewhere when necessary for the continued, efficient operation of the power department. The firemen are semi-skilled workers with at least 2 years' experience, charged with the operation of the boilers. The average wage rates of engineers and firemen exceed that of all other employees generally, the engineers earning more than the firemen. However, at least one class of skilled production workers earns as much as the engineers. In March 1934 the engineers and firemen, as the result of a con- ference with the plant manager and the chief engineer, were -granted increased hours of employment.' No written or oral contract was made nor was a definite period of time agreed upon. In addition, on various occasions until the signing of the first S. W. O. C. contract in 1937, the power-department employees met with the chief engineer to discuss wages, hours, or conditions of employment. Having no authority to enter into a contract on behalf of the Company, the chief engineer in turn discussed these matters with the print man- ager. On March 24, 1937, at about the time the S. W. O. C. was engaged in organizing the employees at the plant, all the engineers and firemen (including- the apprentice fireman) signed and de- livered to the Company a document in which they stated, as em- ployees 'of the power department, that "we reserve for ourselves, either individually or collectively the right' to bargain on our work- ing conditions, wages, etc." The Company failed to reply to this communication and shortly thereafter entered into its first contract with the S. W. O. C. As stated above, in November 1938 the Engi- neers' Local and the Firemen's Local succeeded in obtaining the membership of the four engineers and two firemen, respectively. In support of its contention that a plant-wide unit is appropriate, the S. W. O., C. emphasized the essential interdependence between the power department and the rest of the plant. All the production departments of the plant (including the pattern, core, , molding, melting, cleaning, annealing, and finishing departments), operating in continuous sequence, are dependent upon the power department for electricity, steam, compressed air, and heat. Production opera- tions could not continue if power-department employees were to cease work. We are of the opinion that the engineers and firemen could func- tion either as separate units, as claimed by the Engineers' Local and the Firemen's Local, 'or as part of the broader unit; as- claimed by 'By restoring an 8-hour day for these employees, the Company increased their weekly wage. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the S. W. 0. C. Under the circumstances we will be guided by the desires of the employees themselves.' At the hearing cards were introduced in evidence showing the membership of the four engineers in the Engineers' Local and of two of the firemen in the Firemen's Local; moreover, these six employees testified that they desired to be represented by their respective unions. The desires of the employees to be so represented were not questioned by the Company or the S. W.. 0. C. A_ seventh employee, not claimed by the petitioning Locals its, part of either. alleged bargaining, unit, is listed on the Company's pay roll as a member of the power department. This employee's desire as to representation is absent from the record. He is an apprentice fireman and engine wiper and, as such, presumably eligible to membership in the Firemen's Local. We see no reason for excluding him. from a unit composed of firemen. Although the En- gineers' Local and the Firemen's Local filed a joint petition for certification as representatives of both engineers and firemen in a single unit, they raised no objection to the establishment of a separate unit for engineers and one for firemen. Since the engineers and firemen have traditionally organized as separate crafts, we find that there should•be'two,bargaining units. Accordingly we find that the engineers and firemen (including the apprentice fireman) of the Company, respectively, excluding super- visory employees, constitute units appropriate for the purposes of collective bargaining and that said units will insure to said employees of the Company the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES As stated above, it is undisputed that the four engineers shall be represented "by-the Engineers' Local, and two firemen and the ap- prentice fireman by the Firemen's Local. We find that the Engi- neers' Local has been designated and selected by a majority of the engineers as their representative for the purposes of collective bar- gaining and that the Firemen's Local has been designated by a majority of the firemen (including the apprentice fireman) as their representative for the purposes of collective bargaining, and will so certify. Upon the basis of the findings of fact and upon the entire record in the case, the Board makes the following: 2 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. s, 3 N. L. It. B. 294, and subsequent cases. CHICAGO MALLEABLE CASTINGS COMPANY CONCLUSIONS OF LAW 21 1. A question affecting commerce has arisen concerning the rep- resentation of the engineers and firemen of the Chicago Malleable Castings Company, at its Chicago plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The engineers and the firemen (including the apprentice fire- man) of the Company, respectively,- excluding supervisory employees,. constitute units appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. International Union of Operating Engineers, Local 399, af- filiated with the A. F. of L., is the exclusive representative of all the engineers for the purposes of collective bargaining, within the mean- ing of Section 9 (a) of the National Labor Relations Act. Inter- national Brotherhood of Firemen and Oilers, Local No. 7, affiliated with the A. F. of L., is the exclusive representative of all the firemen (including the apprentice fireman) for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES 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 CERTIFIED that International Union of Operating En- gineers, Local No. 399, affiliated with the A. F. , or L., has been designated, and selected by a majority of the engineers employed at the Chicago plant of Chicago Malleable Castings Company,' Chicago; Illinois, excluding supervisory employees, as their representative for the purposes of collective bargaining, and that, pursuant to the pro- visions of Section 9 (a) of the Act, International Union of Operat- ing Engineers, Local No. 399, affiliated with the A. F. of L., is the exclusive representative of all such employees for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other conditions' of employment. AND IT IS FURTHER CERTIFIED that International Brotherhood of Firemen and Oilers, Local No. 7, affiliated with the A. F. of L., has been designated and selected by a majority of the firemen (including the apprentice fireman) employed at the Chicago plant of Chicago Malleable Castings Company, Chicago, Illinois, excluding super- 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visory employees, as their representative for the purposes of collec- tive bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, International Brotherhood` of Firemen and Oilers, Local No. 7, affiliated with the A: F. of L., is the exclusive representative of all such employees for the purposes of collective bargaining, with respect to rates of pay, wages, hours of employment, and other con= ditions of employment. MR. WILLIAM M. LEISERSON, concurring : Although there is an agreement in effect which purports to include the engineers and' firemen within a plant unit represented by the S. W. O. C., these employees did not assent to such inclusion. They had_ previously informed the Company in writing that they desired separate representation, and none of them had designated the S. W. O. C. as their representative when this organization presumed to make an agreement in their behalf. MR. EDWIN S. SMITH, dissenting : For reasons stated in my dissent in Matter of Allis-Chalmers Man- ufacturling Company,8 I believe that separate units composed of engineers and firemen are not appropriate for collective bargaining in this case and that the petition should be dismissed. The record discloses no substantial history of collective bargaining on the part of the craft groups prior to the organization of the plant by the S. W. O. C. and the obtaining of an exclusive bargaining contract by the S. W. O. C. It is true that in 1934 an adjustment in the hours of engineers and. firemen was made as a result of a conference between company officials and the engineers and. firemen; and that subse- quently the power-department employees discussed wages, hours, and working conditions with the chief engineer. But the engineers and firemen were never formally organized and no formal collective agreement was either sought or obtained by them. It is apparent that the activity of the engineers and firemen was limited to mere informal presentation of grievances and discussion. It is true also that in 1937, before the signing of the first S. W. O. C. contract-a contract for members only-the engineers and firemen served notice that they reserved the right to bargain "for ourselves, either indi- vidually or collectively." But no such claim was. made when the exclusive bargaining contract of 1938 was executed. And it was not until 7 months after the execution of the 1938 contract that the Engi- neers' Local and the Firemen's Local first appeared upon the scene. Under these circumstances I see no reason for permitting the engi-' 431atter of. Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175. CHICAGO MALLEABLE CASTINGS COMPANY 23 neers and firemen to weaken the bargaining strength of the employees as a whole by splitting off into separate units. Furthermore, I fail to see any distinction between this case and Matter of American Can Company 4 in which the majority of the Board declined to establish separate craft units where an industrial union had previously obtained an exclusive bargaining contract cov- ering an industrial unit. I cannot see how the attempted reservation of bargaining rights by the engineers and firemen in March 1937 can be effective to curtail the rights of the industrial union based upon an exclusive bargaining contract negotiated in April 1938. I have great difficulty in finding any basis for reconciling the doc- trine of the concurring opinion in this case with the dissenting opinion in Matter of Clyde Mallory Lines .5 In the Clyde Mallory case an A. F. of L. union and a C. I. 0. union, having conflicting jurisdictions, approached the company at approximately the same time and each requested the company to negotiate a collective agreement covering the unit which it deemed appropriate. The company chose to ignore the claims of the C. I. 0. union and to negotiate an agreement with the A. F. of L. union covering the unit which that union asserted to be appropriate. It was urged in the dissenting opinion that the con- tract thus negotiated was conclusive of the bargaining unit, and that the Board had no authority under the Act to find a different unit from that established by the previous contract. In the present case similar conflicting claims were made in 1937 by the S. W. 0. C.. •ancl by the engineers and firemen. The Company chose to enter into: an agreement with the S. W. 0. C. and ignore the engineers and.firerne#I. If the Board was compelled. to adhere to the unit fixed by the contract in the Clyde Mallory case I do not see why it is not equally compelled to adhere to the unit fixed by the contract in this case. 4 Matter of American Can Company and Engineers Local No. 30, et al., 13 N. L. R. B. 1252. To the same effect is Matter of Milton Bradley Co. and International Printing Pressmen and Assistants Union of North America (A. F. L.), 15 N. L. R. B. 938. 5 Matter of Clyde Mallory Lines and Industrial Union of Marine & Shipbuilding Workers of America, Local No. 22, 15 N. L..R. B. 1008. 247383-40-vol. 16--3