Kansas City Structural Steel Co.

In the Matter of KANSAS CITY STRUCTURAL STEEL COMPANY and THE INTERNATIONAL' ASSOCIATION OF BRIDGE STRUCTURAL & ORNAMENTAL IRON WORKERS, SHOPMEN WORKERS, LOCAL 520, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-1589.-Decided December 13, 1939 Steel Products Manufacturing and Erecting Industry-Investigation of Rep- resentatives : controversy concerning representation of employees : employer refuses to recognize petitioning union, insisting on an election to determine- Unit Appropriate for Collective Bargaining: all production and maintenance employees, excluding office employees, salesmen, foremen with authority to hire and discharge, supervisory foremen, truck drivers, watchmen, janitors, and super- intendents ; no controversy except as to classification of one employee-Repre- sentatives : eligibility to participate in choice : to be governed by seniority list of employees who had worked during preceding 12 months-Election Ordered: labor organization found in prior proceeding to be company-dominated excluded from ballot. Mr. Henry H. Foster, Jr., for the Board. Cooper, Neel and Sutherland, by Mr. Armwell L. Cooper and Mr. Wallace Sutherland, of Kansas City, Mo., for the Company. Mr. Clif Langsdale and Mr. Gibson Langsdale, of Kansas City, Mo., for the Iron Workers. Mr. Blake A. Williamson and Mr. Lee Vaughn, Jr., of Kansas City, Kans., for the Association. Mr. N. Barr Miller, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 16, 1939, the International Association of Bridge, Struc- tural & Ornamental Iron Workers, Shopmen Workers, Local 520, affil- iated with the American Federation of Labor, herein called the iron Workers, filed a petition with the Acting Regional Director for the Seventeenth Region (Kansas City, Missouri) alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Kansas City Structural Steel Company, Kansas City, Kan- sas, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- 18 N. L. R. B., No. 45. 291 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Labor Relations Act, 49 Stat. 449, herein called the Act. On Sep- tember 26, 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 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. . On October 11, 1939, the Regional Director issued a notice of hear- ing, copies of which were served upon the Company, the Iron Work- ers, and Employees Association of Kansas City Structural Steel Com- pany, herein called the Association, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on October 26 and 27, 1939, at Kansas City, Kansas, before William P. Webb, the Trial Examiner duly designated by the Board. At the hearing the Com- pany filed its response to the petition of the Iron Workers, and the Association filed it document which it designated as an intervening petition. The Trial Examiner received this document in evidence as a response to the Iron Workers' petition. The Company, in its response, asserts (1) that both the Association and the Iron Workers claim to represent a majority of the Company's employees in an appropriate unit and that the Company of its own knowledge does not know which of these claims is correct; (2) that, although the Board in a prior proceeding had found the Association to be company dominated and had ordered it disestablished,' such finding and order should not bar the Association from proving its present claim to be the collective bargaining representative of the employees inasmuch as the Company had divested itself of all activ- ities which the Board relied upon to support its finding of Company interference and domination. For reasons hereinafter stated we find no merit in this contention. The Company further contended in its response that the Board's order in the prior complaint case is now without force and effect, since it was issued more than 6 months before the hearing in the instant proceeding' and no steps have been taken by the Board to enforce it. This contention is without merit. The response of the Association likewise asserts that it has elim- inated all factors found by the Board to have made it a company- dominated labor organization. It offered to prove at the hearing, among other things, (1) that it was not then and never had been company dominated; (2) that it had purged itself of all factors con- demned by the Board in the prior proceedings and was. an independ- ent labor organization; (3) that on September 16, 1939, a majority of the employees of the Company in an appropriate unit reaffirmed 112 N. L. R. B. 327. .The Board's order in the complaint case was issued on April 20, 1939. KANSAS iCITY ISTRUGrU,RAL STEEL COMPANY 293 their allegiance to the Association ;3 (4) that a question concerning representation has arisen because the Company has refused to bargain with the Association since the Iron Workers filed its petition; (5) that a majority of those in the employ of the Company during the previous 12 months had continuously been members in good standing of the Association; (6) that it had affidavits of a majority of the employees in the appropriate unit, signed between October 20 and 24, 1939, not only repledging allegiance to the Association but also re- pudiating their designation of any other labor organization as col- lective bargaining agent, and that some of the signers of these affida- vits were employees claimed by the Iron Workers. All of these offers of proof, as well as an offer by the Company to prove that it had purged itself of any domination of the Association, were rejected by the Trial Examiner. In view of the Company's admission at the hearing' that it had not in any way complied with the Board's Order of April 20, 1939, directing it to disestablish the Association as the collective bargaining agent of its employees, and had contin- ued to give effect to the contract with the Association in contravention of the Board's Order, the rulings of the Trial Examiner rejecting these offers of the Association and the offer of the Company are correct.5 The rulings of the Trial Examiner on these offers of proof are affirmed. Apart from the limitations resulting from the above rulings of the Trial Examiner, full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all the parties. During the course of the hearing the Trial Examiner made a num- ber of rulings on other motions and on other objections to the admis- sion of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Company and the Association have filed briefs which have been given due consideration by the Board. 3 This offer included an assertion that the Association had voted to change its name and that on September 18, 1939, it had requested the Regional Director for the Seventeenth Region to permit it to file a petition for investigation and certification under its new name. After refusal of the Regional Director to entertain the petition , the organization returned to the use of its original name. 4 Trial Examiner Webb : I gather, then , Senator, from your statement , that the Company has taken no steps whatsoever to comply with the Order of the Board in Case C-815, dated April 20, 1939? Mr. Cooper ( counsel for Company ) : That is correct. a Matter of Pittsburgh Plate Glass Company and Federation of Flat Glass Workers of America, affiliated with C. 1. 0., 15 N. L. R. B. 515. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 6 Kansas City Structural Steel Company is a Missouri corporation licensed to do business in Kansas. Its only plant and a plant office are located in Kansas City, Kansas. Its principal corporate office is in Kansas City, Missouri. The Company is engaged in the fabrication and erection of steel buildings, bridges, tanks, refineries, and similar structures. It erects approximately 50 per cent of the structures it fabricates. The Company's chief raw material is rolled steel, all of which is obtained from points outside the State of Kansas. More than 40 per cent of the Company's fabricated products are sold, transported, and distributed in and through States of the United States other than the State of Kansas.? It was stipulated that the operations of the Company occur in the course and current of com- merce among the several States and have a close, intimate, and sub- stantial relation. to trade, traffic, and commerce among the several States. H. THE ORGANIZATIONS INVOLVED International Association of Bridge, Structural & Ornamental Iron Workers, Shopmen Workers, Local 520, is a labor organization admit- ting to membership persons employed in the Company's plant. It is a local subdivision of the International Association of Bridge, Structural and Ornamental Iron Workers, which is affiliated with the American Federation of Labor. Employees Association of Kansas City Structural Steel Company is an unaffiliated labor organization admitting to membership all hourly paid employees in the Company's plant. III. THE QUESTION CONCERNING REPRESENTATION The Iron Workers first undertook to organize the employees in the Company's plant in April 1937 and has continued its effort since that time. In May 1938 the Board issued a complaint, based on charges 6The facts stated herein are derived from a stipulation entered into by all the parties. 4 Sales of the Company's products, for the past 2 years and 1) months were distributed as follows : Period Total amount Within Kan In other States s 1937_______________________________________________ $2,286 , 691.73 $727, 031.16 $1,559, 660.57 1938 2,369, 640.59 2,369, 640.59 482, 292.26 1, 887.348.33 1939 (first 9 months)__ 1, 094, 916.04 606,679.11 488, 236.94 KANSAS CITY ;STRUCTU,RAL STEEL COMPANY 295 filed by the Iron Workers, which resulted in the Board's Decision and Order of April 20, 1939, finding the Company guilty of engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act and directing it to completely disestablish the Association as the representative of any of its employees for the pur- pose of dealing with the Company concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or conditions of work. A special representative of the Iron Workers testified that thereafter, between April and September 1939, the membership in the local among employees of the Company increased from 7 to 85. Both application cards and authorizations were introduced in evidence by the Iron Workers to substantiate this testimony that it represented a substantial number of the employees. A shop committee has been maintained in the plant since May 1939, but has had no dealings with the Company. On dude 12, 1939, representatives of the Iron Workers met with officials of the Company, stated that the Iron Workers represented a majority of the employees in the plant, and requested the Company to negotiate a contract with the Iron Workers. The Company proposed an election between the Association and the Iron Workers. On August 1, 1939, the Iron Workers again asserted their claim to recognition as exclusive representative of the employees. The Company continued to insist upon an election and refused to look at a proposed contract prepared by the Iron Workers and ap- proved by its membership. The same position was maintained by the Company at all subsequent conferences. We find that a question has arisen concerning the representation of employees in the plant 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 parties stipulated that the appropriate unit should consist of all production and maintenance employees in the operating depart- Inent, employed in the Company's Kansas City plant, excluding office employees, salesmen, foremen who have the right to hire and dis- charge, foremen who perform no other work or duties than the direc- 283029-41-vol. 18-20 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the work of other employees, truck drivers, watchmen, janitors, and superintendents. So far as the record indicates there is nothing in the history of bargaining between the Company and its employees or in the organi- zation and operation of the plant which suggests that the proposed unit is not entirely appropriate. Inasmuch as the parties are in agreement we see no reason for not accepting the unit as stipulated. In applying the stipulation a question arose as to the status of one employee, Cross, who is classified as a truck driver and is a member of the Teamsters' Union. Cross, although primarily employed to serve as a truck driver, has spent more than half his time working in the operating department of the plant during the past 6 months, because he was not needed as a truck driver. An officer of the Com- pany testified that should Cross be needed both in the operating and trucking departments at the same time his work as a truck driver would take precedence. All of the parties were willing to have Cross classified as a truck driver. On the basis of the record we think such classification is correct and herewith find Cross is a truck driver for purposes of establishing the appropriate unit. We will therefore exclude him from the unit. We find that all production and maintenance employees in the operating department, employed in the Company's Kansas City plant, excluding office employees, salesmen, foremen who have the right to hire and discharge, foremen who perform no other work or duties than the direction of the work of other employees, truck drivers, watchmen, janitors, and superintendents, constitute a unit appropriate for the 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 The Company's pay roll for the operating department covering the last pay-roll period prior to the hearing-October 1 to 15, 1939- was introduced in evidence. It contains the names of persons in the appropriate unit who were employed in the plant during the 2 weeks ending October 15, 1939. In addition to the pay roll the Company's seniority list for the operating department as of October 16, 1939, was produced in evidence.8 The seniority list contains the names of all who had been regularly employed in the operating department at 8 The seniority list was prepared by the Company from its records and authenticated at the hearing by an official of the Company . The Iron workers offered no objection to its admission and relied upon it, when putting in evidence its proof of membership and authori- zations among the Company's employees. KANSAS CITY STRUCTURAL STEEL COMPANZY 297 any time during the preceding 12 months, except any who had been recalled to work and had refused to return. When the Company has occasion to employ additional men, those on the seniority list who have been laid off are given preference. Under these circumstances we find that all on the seniority list of the Company for October 16, 1939, are employees of the Company eligible to participate in the de- termination of representatives if they fall within the appropriate unit. So far as the record indicates there are only four employees listed on the operating pay roll for the 2-week period ending Octo- ber 15, 1939, and on the seniority list of October 16, 1939, who are not within the appropriate unit. These are the Company's three truck drivers and a master mechanic.0 Excluding these 4, we find that there remain on the seniority list 146 employees in the appro- priate unit eligible to participate in the selection of representatives. The names of 7 persons had been removed from the list by the Company, although they had been employed within the preceding 12 months, because they had been recalled after lay-offs and had refused to return to work. The Iron Workers claimed these seven were em- ployees for purposes of determining representatives. We cannot accept this contention as to those who refused to return inasmuch as we believe under ordinary circumstances, a refusal to accept reem- ployment is equivalent to quitting the employ of the Company. However, one of the seven, David W. Jordan, testified that he had been granted a leave of absence by the Company at the time he was to have returned. An officer of the Company stated that in his opinion a person who obtained a leave of absence continued to be an employee. We find that Jordan and any others who were granted such leaves during the 12-month period covered by the seniority list should be included in the Company's seniority list for purposes of determining those persons eligible to participate in the selection of representatives. The Iron Workers local contended that it was entitled to cer- tification and introduced applications for membership and authoriza- tion cards indicating that some 85 different persons desired the Iron Workers to represent them. However, some 16 of these persons are not found on the Company's seniority list for the operating depart- ment. Thus considerable doubt is cast on the majority claim of the Iron Workers. For the reasons pointed out in Matter of Cudahy Packing Company and United Packinghouse Workers Organizing Committee,1° we find that the question concerning representation which has arisen can best be resolved by an election by secret ballot, 'Frank H. Sauer, master mechanic ; Clark M. McGlynn, Joseph R. Boyce, Walter P. Cross, truck drivers. 'O 13 N. L. R. B. 526. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and we shall so direct. We shall deny the Association a place on the ballot, inasmuch as it is a company-dominated labor organization. In the election which we shall order, all employees on the seniority list of the operating department for October 16, 1939, except the 4 above excluded, and any who had been in the employ of the Com- pany within 12 months of that date but were not on the Company's seniority list of October 16, 1939, because they had received leaves of absence during the 12-month period, shall be eligible to vote. 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 Kansas City Structural Steel Company, Kansas City, Kansas, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees in the operating de- partment, employed in the Company's Kansas City plant, excluding office employees, salesmen, foremen who have the right to hire and discharge, foremen who perform no other work or duties than the direction of the work of other employees, truck drivers, watchmen, janitors, and superintendents, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 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 Re- lations Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for collective bargaining with Kansas City Structural Steel Company, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Seventeenth Region, acting in this matter as the agent of the National Labor Relations Board, and subject to Article III, Section 9, of the Rules and Regu- lations, among all production and maintenance employees in the operating department, employed in the Company's Kansas City plant, excluding office employees, salesmen, foremen who have the right to hire and discharge, foremen who perform no other work or KANS'A'S CITY STRUCTURAL STEEL COMPANY 299 duties than the direction of the work of other employees, truck drivers, watchmen, janitors, and superintendents, who were on the seniority list of the Company on October 16, 1939, or who had been in the employ of the Company within 12 months of that date but were not on the Company's seniority list of October 16, 1939, because they had been granted leaves of absence during that 12-month period or who have been hired by the Company between October 16, 1939, and the date of this Direction, excluding any who have since Octo- ber 16, 1939, quit or been discharged for cause, to determine whether or not they desire to be represented by the International Association of Bridge, Structural & Ornamental Iron Workers, Shopmen Work- ers, Local 520, affiliated with the American Federation of Labor, for the purposes of collective bargaining.