Colorado Builders' Supply Co.

In the Matter Of COLORADO BUILDERS' SUPPLY COMPANY and INTER- NATIONAL ASSOCIATION of BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, SHOPMEN'S LOCAL UNION No. 507 Case No. R-1380.-Decided December 1, 1939 Steel Fabrication Industry-Investigation of Representatives : petition for, dismissed, where no question concerning the representation of employees in a unit which could be found appropriate has arisen. Mr. Paul S. Kuelthau, for the Board. Mr. James Q. Newton, Jr., and Mr. Richard M. Davis, of Denver, Colo., for the Company. Mr. M. 0. Man fro, of Denver, Colo., for the Union. Mr. Richard A. Williams, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 10, 1939, International Association of Bridge, Struc- tural and Ornamental Iron Workers, Shopmen's Local Union No. 507, herein called the Union, filed with the Regional Director for the Twenty-second Region (Denver, Colorado) a petition alleging that a question affecting commerce had arisen concerning the represen- tation of employees of Colorado Builders' Supply Company,' Den- ver, Colorado, herein called the Company, and requesting an inves- tigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act; 49 Stat. 449, herein called the Act. On May 3, 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 May 4, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. I Incorrectly designated in the petition as "The Colorado Builders Supply Co." 18 N. L. R. B., No. 3. 29 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the notice, a hearing was held on May 11 and 12, 1939, at Denver, Colorado, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, 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 Ex- aminer and finds that no prejudicial errors were committed. The rulings are hereby affirmed. In accordance with a stipulation signed by all parties, the Board on August 2, 1939, ordered certain specified corrections to be made in the transcript of the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Colorado Builders' Supply Company, a Colorado corporation, is engaged in steel fabrication and in jobbing miscellaneous building materials. It maintains plants in Denver and Pueblo, Colorado, and employs salesmen who solicit sales throughout Colorado and five neighboring States. Five per cent of the steel and 90 per cent of the building materials used in the Company's business are obtained from sources outside Colorado. The Company's annual sales ap- proximate $750,000.00, about one-third of which represents items shipped to destinations outside Colorado. IT. THE ORGANIZATION INVOLVED International Association of Bridge, Structural, and Ornamental Iron Workers, Shopmen's Local Union No. 507, is a labor organiza- tion affiliated with the American Federation of Labor, admitting to its membership employees engaged in the fabrication of iron, steel, lead, bronze, copper, aluminum, and other metals. III. THE APPROPRIATE UNIT The Union contends that all production employees of the Com- pany at both its plants, including foremen but excluding truck drivers, auto mechanics, and warehousemen, constitute a unit appro- priate for the purposes of collective bargaining. The Company denies the appropriateness of this unit on the ground that employees of the two plants should not be combined into a single unit for the purposes of collective bargaining. COLORADO BUILDERS' SUPPLY COMPANY 31 The two plants at Denver and Pueblo, respectively, are 125 miles apart. Organization by the Union began early in 1937, in Denver, and on November 16, 1937, the Company and the Union entered into a contract for a 1-year period, covering the Denver employees. This agreement granted exclusive recognition to the Union as representa- tive of the Denver employees, and was automatically renewable from year to year unless either party gave 4 months' notice of a desire to terminate it. On May 7, 1939, this agreement was supplanted by another contract between the parties covering wages, hours, and working conditions of the Denver employees, and providing for a closed shop. Like its predecessor, this contract is automatically re- newable from year to year unless 4 months prior to the end of a given year either party gives notice of a desire to terminate it. In conjunction with the contract, the parties entered into a "Supple- mentary Agreement," the substance of which was that the May 7, 1939, contract would "automatically become applicable to the em- ployees of the Pueblo shop when, as, and if the National Labor Relations Board certifies the Union as the sole collective bargaining agency for the employees of the Pueblo shop." At the hearing, it appeared that although the Union represented on April 10, 1939, nearly all of the 29 Denver employees eligible to its membership it had received only two applications for member- ship from among the 26 Pueblo employees. At the Pueblo plant substantially all of the operations relate to the fabrication of re- enforcing steel bars. Only one-third of the Denver employees per- form this type of fabrication work, and a large part of the Denver plant is devoted to the storage and sale of miscellaneous building materials. With rare exceptions, there is no interchange of em- ployees between the two plants, although occasionally the superin- tendent and foremen of the Denver plant visit the Pueblo plant to repair or install machinery. The Company's main office, which handles all matters relating to the Company's sales and accounts, is located at the Denver plant. In considering whether,,in view of the foregoing facts, the Denver and Pueblo plants now properly may be deemed to constitute a single bargaining unit, we note that while the Union has a contract cover- ing the Denver employees, it does not appear to have any substantial membership among the Pueblo employees. There is, moreover, no collective bargaining history which could be said to support the Union's contention that the two plants constitute a single appropriate unit. While there is some interrelation between the operations of the two plants, it is scarcely of such a nature as to outweigh the foregoing considerations. In view of all the evidence adduced at the hearing, therefore, we are unable to conclude that employees of 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company's two plants should be embraced within a single bar- gaining unit at the present time. Accordingly, we find that the unit sought by the Union is not appropriate for the purposes of collective bargaining and we shall, therefore, dismiss the petition of the Union without prejudice. IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III above, we are unable to find an appropriate unit within the scope of the petition filed in this case, we find that no question has been raised concerning the representation of employees of the Company 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 of the Colorado Builders' Supply Company in a unit 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 dismisses the petition for investigation and certification filed by International Association of Bridge, Structural, and Ornamental Iron Workers, Shopmen's Local Union No. 507. MR. EDWIN S. SMITH, dissenting : I dissent from the decision that the employer-wide unit is inappro- priate in this case. Here the only union involved 'desires a unit consisting of the employees of the Company's Denver and Pueblo plants. To the extent that both plants engage in the fabrication of steel, the work of the two plants is identical. Wages, hours, and working condi- tions of all employees are similar at both plants. The Company's main office, located in Denver, handles all matters relating to sales, finance, and accounts and controls matters of general policy, includ- ing bargaining relations with the Union. The plants are not at such distance from each other that the combination of the two plants into a single bargaining unit is impracticable. On the other hand, if each plant is made a separate unit the Company is in a position to pit one plant against the other with consequent unfortunate ef- fects upon the bargaining process. While this does not actually COLORADO BUILDERS' SUPPLY COMPANY 33 appear to have taken place in this case, the possibility of such a procedure affords basis for the Union's effort to match the common management and organization of the Company, on the one hand, with unitary representation of employees of both plants, on the other. The Act directs the Board in each case to select the bargaining unit which will insure to employees "the full benefit" of their right to self-organization and to collective bargaining and which will "otherwise effectuate" the policies of the Act. One of the specified purposes of the Act is to encourage the practice and procedure of collective bargaining. By holding the employer-wide unit to be inappropriate the Board seems to me to be denying the full benefits of collective bargaining to the employees of the Company. In view of the foregoing, I would find that both plants together constitute the appropriate unit.