Roberts & Manders Stove Co.

In the Matter of ROBERTS & MANDERS STOVE CO., HATBORO FOUNDRY Co. and INTERNATIONAL MOLDERS ' UNION OF NORTH AMERICA Case No. R-1444.-Decided October 31, 1939 Stove and Foundry Industry-Investigation of Representatives: no question concerning representation : petition for, dismissed-Unit Appropriate for Collec- tive Bargaining : unit composed of foundry employees, found not to be appro- priate : divergent views of Board members : (1) (Smith concurring) bargaining relations for considerable period of time carried on by employees of stove and foundry plants together; separate bargaining unit of foundry employees inap- propriate; (2) (Leiserson concurring) prior and existing contracts and previous election established unit consisting of employees of stove and foundry plants ; Board not authorized to change unit and establish two election units; (3) (Madden dissenting ) foundry employees in other plants frequently represented by I. M. U. though other employees of employer represented by different or no union ; foundry employees should be permitted to vote whether they desire separate unit or merge with stove-factory employees. Mr. Jack Davis, for the Board. Hepburn d Norris by Mr. W. B. Lex and Mr. Anthony G. Felix, Jr., of Philadelphia, Pa., for the Companies. 'Syme & Simons by Mr. Benj. R. Simons and Mr. Maurice Abrams, of Phildelphia, Pa., for the I. M. U. Mr. M. H. Goldstein, of Philadelphia, Pa., for the S. W. O. C. Mr. Herbert B. Galton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On June 2, 1939, International Molders' Union of North America," herein called the I. M. U., filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees in the foundry of Roberts & Mander Stove Co.2 "Although the petition was signed by International Molders' Union of North America, it is clear that Local No. 200 of the International Molders' Union of North America desires certification. 2 Incorrectly designated "Roberts & Manders Sto a Co." In the formal papers. 16 N. L. R. B., No. 78. 943 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Hatboro Foundry. Co., Hatboro, Pennsylvania, herein called the Companies, 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 June 29, 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 11, 1939, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Companies, upon the I. M. U., and upon Steel Workers Organizing Committee and Hat- boro Lodge No. 1839, Amalgamated Association of Iron, Steel and Tin Workers of North America, herein called the S. W. O. C." Pursuant to amended notice, a hearing was held on July 26, 27, and 28, 1939, at Hatboro, Pennsylvania, before James C.. Paradise; the Trial Examiner dilly designated by the Board. The Board, the Companies, the I. M. U., and the S. W. O. C. were represented by counsel and 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 parties. At the inception of the hearing, counsel for the S. W. O. C. moved to consolidate the instant case with a complaint case filed by the S. W. O. C. against the Companies.4 The Trial Examiner reserved ruling. on this mo- tion, which we hereby deny. The Trial Examiner also denied the S. W. O. C.'s motions for continuance. At the conclusion of the hearing, counsel for the S. W. O. C. moved to dismiss the petition. The Trial Examiner reserved ruling. on this motion, which we hereby grant in accordance with the Decision and Order hereinafter set forth. During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed these - rulings of the Trial Examiner and finds no prejudicial errors were committed. These rulings are hereby affirmed. Pursuant to requests therefor by the S. W. O. C. and the I. M. U. and notices to- all parties, a hearing for the purpose of oral argu- ment, was held before the'.Board-at Washington, D. C., on September 3 For the purposes of this Decision , Steel workers Organizing-' Committee and Hatboro Lodge No. 1839, Amalgamated Association of Iron; Steel and Tin worker's of•North America are considered a% the same labor organization.. 4On July.20, 1939, the S. W. O. C. filed a charge (Case No. IT-C-694) "that the Com- panies had engaged and were engaging in unfair labor practices within the meaning of'Sec- tion 8 ( 1), (2), (3), and ( 5) of the Act . On August 2, 1939 , the Regional Director refused to issue a complaint, and on October 3, 1939, the Board sustained the Regional Director in his refusal. ROBERTS & MANDERS STOVE COMPANY 945 21, 1939. The I. M. U. and the S. W. O. C. were represented by counsel and participated in the argument. The I. M. U. also filed a brief with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Roberts & Mander Stove Co., herein called the Stove Company, and Hatboro Foundry Co., herein called the Foundry Company, are cor- porations organized under the laws of the State of Pennsylvania. The Foundry Company is a wholly owned subsidiary of the Stove Company. The office and principal place of business of the Com- panies are located at Hatboro, Pennsylvania. The Stove Company is engaged in the business of manufacturing gas and electric ranges, while the Foundry Company manufactures iron castings for the Stove Company. The materials used by the Stove Company consist of sheet steel, brass fittings, enamel, wrought iron castings, and miscellaneous parts. Eighty per cent of these materials are obtained by the Stove Company in Illinois, Kentucky, Michigan, New York, Ohio, West Virginia, and Wisconsin. The Foundry Company's materials consist of pig iron, scrap iron, coke, and sand. Eighty-five per cent of these materials are purchased and transported from Alabama, New Jersey, and New York. During the Companies' last fiscal year, the Stove Company manu- factured 45,271 ranges of a value of $1,971,028.28, and the Foundry Company produced 1,488 net tons of castings of a value of $182,600.17. The Foundry Company manufactures and delivers all its finished products to its parent company, the Stove Company, which sells and ships approximately 76 per cent of its finished products to customers located outside the State of Pennsylvania. II. THE ORGANIZATIONS INVOLVED International Molders' Union of North America, Local No. 200, is a labor organization affiliated with the American Federation of Labor, admitting to membership all employees of the Foundry Company excluding supervisory and clerical employees. Hatboro Lodge No. 1839 , Amalgamated Association of Iron, Steel and Tin Workers of North America, is a, labor organization affiliated with the Steel Workers Organizing Committee and with the Congress of Industrial Organizations . As stated above, this organization is herein called the S. W. O. C. It admits to membership all employees of the Foundry and Stove Companies , excluding supervisory and clerical workers. 946 DECISIONSI OF NATIONAL' LABOR RELATIONS BOARD III. THE APPROPRIATE UNIT The Foundry Company normally employs about 90 workers; the Stove Company, approximately 635. The I. M. U. contends that all employees of the Foundry Company except supervisory and clerical employees constitute an appropriate bargaining unit. The S. W. O. C. claims that all employees of both Companies employed in production, maintenance, experimental, and stockroom departments, except fore- men, exclusively supervisory employees, office employees, efficiency ex- perts or production planners, and employees of the home economics division, constitute a single appropriate unit. The Companies made no contention as to the unit. For the reasons set forth in the separate opinions below, we find that the unit sought to be established by the I. M. U., consisting of the Foundry employees alone, is not an appropriate unit for purposes of collective bargaining. IV. THE QUESTION CONCERNING REPRESENTATION Since the bargaining unit sought to be established by the I. M. U. is inappropriate for the purposes of collective bargaining, we find that no question has been raised concerning the representation of employees in an appropriate bargaining unit. 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 No question concerning the representation of employees at the Roberts & Mander Stove Co. and the Hatboro Foundry Co. in a unit which is appropriate for the purposes of collective bargaining has arisen within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tion for investigation and certification filed by International Molders' Union of North America be, and it hereby is, dismissed. Separate concurring opinion of MR. EDWIN S. SMITH : The Companies are two separate corporations, but have a single management. The offices of the Companies are together. The Com- panies' plants are located in separate buildings which are adjacent to each other and are surrounded by a common fence. There is one general superintendent over both plants and one purchasing agent for both. A few laborers from i he stove plant go to the foundry for a ROBERTS & MANDERS STOVE COMPANY 947 short period daily to help the bench molders shift weights. Some of the maintenance men, janitors, and watchmen who appear on the Stove Company's pay roll work also in the foundry. Although the pattern makers work in the foundry, they also are listed on the pay roll of the Stove Company. Except for these employees, clerical employees, and the common management employees, however, there is no interchange of employees between the two plants or common use of employees by them. Prior to 1937, there was no labor organization among the employees in either the stove or the foundry plants. In the spring of 1937 the R. & M. Employees Collective Bargaining Association was formed by certain employees and admitted to membership all employees of the Companies. In May 1937 this organization was taken over by United Stove Workers of Hatboro, herein called the United, an un- affiliated labor organization. Thereafter, on May 25, 1937, the United entered into a contract with the Companies by which it was recognized as the exclusive collective bargaining agent of the employees of both Companies. The bargaining negotiations which took place under this contract between the United and the Companies applied to the employees of both Companies. The S. W. O. C. local was granted its charter on May 27, 1937. On June 16, 1937, the S. W. O. C. entered into an agreement with the Companies for the holding of a consent election by the Board's Regional Office among the employees in the unit for which the S. W. O. C. now contends. Of the 732 employees eligible to vote in the election thus held, 702 cast valid ballots, of which 386 were in favor of the S. W. O. C. Thereafter, the United went out of existence. . .Following the consent election, because of the Companies' alleged refusal to enter into contractual relations with it, the S. W. O. C. called a sit-down strike which lasted for about 7 weeks. Foundry as well as Stove Company employees participated in this strike. On August 14, 1937, the S. W. O. C. and the Companies entered into a contract by which the Companies recognized the S. W. O. C. as the exclusive collective bargaining representative of their employees for a period expiring on June 23, 1938. The contract also contained a clause which granted a wage increase to employees of both Companies. On January 23, 1938, the I. M. U. held its first organizational meeting of Foundry Company employees and continued to organize them thereafter. ' On February 4, 1938, the S. W. O. C. called a sec- ond sit-down strike demanding a closed shop and a renewal of the former contract, some of the provisions of which, by its terms, were to expire on February 28, 1938. Employees of both Companies also participated in this strike. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 11, 1938, the I. M. U. wrote a letter to the Companies requesting recognition as exclusive representative for the Foundry Company employees at -the expiration of the S. W. O. C. contract. However, on March 10, 1938, the S. W. O. C. and the respondent entered into a new contract, substantially the same as the 1937 con- tract between them, which was to continue in effect until March 1, 1939, and thereafter, subject to termination after said date by either party's giving 60 days' written notice. On. March 16, 1938, the I. M. U. sent another letter to the Companies demanding recognition as exclusive bargaining agent for the Foundry Company employees. The Companies' attorneys answered that the Companies were unable to recognize the I. M. U. because they were under contractual rela- tions with the S. W. O. C. Thereafter, the negotiations between the S. W. O. C. and the Companies relating to the renewal or change of the 1938 contract involved employees of both plants. It thus appears that prior to the entrance of the I. M. U. on the scene the Companies entered into two contracts, one with the United and one with the S. W. O. C., both covering employees of the Foundry Company as well as those of the Stove Company. It is clear that, over a considerable period of time, employees of both Companies have together bargained collectively with the Companies. The negoti- ations that have taken place and the contracts that have been entered into between the Companies and the labor organizations representing their employees have been participated in and have inured to the benefit of the'employees -of both ,Companies. Collective. bargaining on such a basis has been carried on by the employees under the aegis both of an unaffiliated labor organization and the S. W. O. C. It was not until January 1938 that the I. M. U. sought to organize the foundry employees in a separate unit. Under these circumstances, and in the light of considerations which I have set forth in my dissenting opinion in the Allis-Chalmers case-' and elsewhere, I am of the opinion that the separate bargaining unit sought to be,estab- lished by the I. M. U. is not appropriate for the purposes of collective bargaining. Separate concurring opinion of Mr. WILLIAM M. LEISERSON : Collective bargaining between the employees involved in this case and their employer dates from 1937. Since that time both an unaffili- ated labor organization and a C. I. O. organization have represented the employees for collective bargaining purposes. On May 25, 1937, the United Stove Workers of Hatboro, an unaffiliated labor organiza- tion, entered into a contract with the Companies by which this union 5 Matter of Allis -Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local $48, 4 N. L . R. B. 159, 175. ROBERTS & :HANDERS STOVE COMPANY 949' was recognized as the exclusive collective bargaining agent of a unit consisting of all the employees of both companies. Subsequently an election was ' held pursuant to a consent agreement in which all the employees covered by the contract were voted as one bargaining unit. The election resulted in a majority for the Steel Workers Organizing Committee, affiliated with the C. I. O.. Thereafter, in August 1937, the Companies entered into an agreement with the S. W. O. C. recog- nizing it as the exclusive representative of all the employees in the same unit. This contract was renewed and is still in effect. I am of the opinion that a bargaining unit thus established and maintained by contracts with both an unaffiliated and a C. I. O. organization may not be changed by the Board. In the election which resulted in the selection of the present representative the vote was taken on the basis of the contractual unit. If another election is held the voting should be on the same basis. I do not think that the Board is authorized to change the unit and create two election districts where one has been established and maintained by a suc- cession of contracts and a previous election. CHAIRMAN MADDEN, dissenting : The past history of collective bargaining in plants, as evidenced by. collective bargaining agreements, is a factor entitled to great weight in the determination of the appropriate bargaining unit. However, there are other important factors which must enter into a consideration of the composition of an appropriate bargaining unit. These factors include, for instance, the history of collective bargain- ing throughout the industry as a whole as well as the structure of various labor organizations which admit to membership the em- ployees in question. Employees in foundries are frequently represented by the Inter- national Molders' Union, though other employees of the same em- ployer in other parts of its operations are represented by some other union, or by no union.e I am of the opinion that the employees of the Foundry Company should be given the opportunity to determine by secret ballot whether they wish to bargain collectively through the I. M. U. as a separate unit, or whether they wish to merge with 6 See Matter of Ohio Foundry Company and International Molders' Union of North America, Local No. 218, and Amalgamated Association of Iron, Steel , d Tin Workers of North America, Local No. 1596, 3 N. L. R. B. 701; Matter of Combustion Engineering Com- pany, Inc. and Steel Workers Organizing Committee, for and in behalf of Amalgamated Association of Iron, Steel and Tin Workers of North America , 5 N. L. R. B. 344 ; Matter of National Sewing Machine Company and International Association of Machinists , Interna- tional Molders Union, and Metal Polishers International Union, 5 N. L. R. B. 372 ; Matter of Cutler-Hammer, Incorporated and Local No. 278, International Union, U. A. W. A., affiliated with the C. I. 0., 7 N. L. R. B. 471. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees of the Stove Company. My further reasons for. this conclusion are similar to those expressed in my dissenting opinions in Matter of American Can Company 7 and Matter of Milton Bradley Company.8 13 N. L. R. B. 1252. 815 N. L. R. B. 938.