Wickwire Spencer Steel Co.

In the Matter Of WICKWIRE SPENCER STEEL COMPANY and FEDERATED INDUSTRIAL UNION Case No. B-1598.-Decided December 16, 1939 Wire and Wire Products Manufacturing Industry-Investigation of Repre- sentatives : controversy concerning representation of employees : rival organiza- tions : contract entered into after petition filed by rival organization , no bar to; contract entered into before filing of petition by rival organization but termi- nated prior to hearing, no bar to ; contract entered into before filing of petition by rival organization , but which provides for termination at certification of another organization by the Board , no bar to; prior consent election , no bar to ; absence of request for recognition or collective bargaining prior to the filing of the petition, no bar to,-where outstanding contract with rival labor organi- zation-Unit Appropriate for Collective Bargaining : agreement as to; produc- tion and maintenance employees , including heaters and weighmasters in the open hearth, but excluding executives , foremen, assistant foremen, rollers in the rod mill, office employees , timekeepers, weighers, production clerks, police, chemists , and nursesElection Ordered Mr. Peter J. Crotty, for the Board. Mr. Henry E. Kelley, of New York City, for the Company. Mr. Edward M. Sheehan, of Buffalo, N. Y., for the Federated. Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the S. W. O. C. Mr. Ralph Winkler, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 31, 1939, Federated Industrial Union, herein called the Federated, filed with the Regional Director for the Third Region (Buffalo, New York) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Wickwire Spencer Steel Company, Tonawanda, New York, herein called the Company, 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 October 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 2, 18 N. L. R. B., No. 54. 372 WICKWIRE SPENCER STEEL COMPANY 373 ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 14, 1939, the Regional Director issued a notice of hearing, a copy of which together with a copy of the petition were duly served upon the Company, upon the Federated, and upon Steel Workers Organizing Committee, herein called the S. W. O. C., a labor organiza- tion claiming to represent and to act on behalf of a labor organization representing employees directly affected by the investigation. Pursuant to the notice a hearing was held on November 6, 1939, at Buffalo, New York, before Henry J. Kent, the Trial Examiner duly designated by the Board. At the beginning of the hearing the S. W. O. C., acting on behalf of S. W. O. C. Lodge No. 1060, a local of Amalgamated Association of Iron, Steel and Tin Workers of North America, a labor organization herein called the Amalgamated, moved to intervene in these proceedings. The Trial Examiner granted the motion. The Board, the Federated, the S. W. O. C., and the Company were represented by counsel and 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 rulings on other motions and on objections to the admission of evidence. At the conclusion of the hearing the S. W. O. C. moved to dismiss the petition. The Trial Examiner referred this motion to the Board for appropriate action. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. For reasons appearing hereinafter, the motion to dismiss the petition is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Wickwire Spencer Steel Company is a Delaware corporation having its office and principal place of business in New York City. It main- tains plants in Tonawanda, New York; and in Worcester, Clinton, and Palmer, Massachusetts. It has sales offices or warehouses in Los An- geles and San Francisco, California; Chicago, Illinois; Worcester, Massachusetts; New York and Buffalo, New York; Tulsa, Oklahoma; Portland, Oregon; Abilene and Houston, Texas; and Seattle, Wash- ington. Only employees of the Company at its plant in Tonawanda, New York, herein called the Tonawanda plant, are involved. Ap- proximately 1400 persons are there employed. For a long period of time the Company has engaged in the manu- facture, sale, and distribution of wire, wire fencing, welded structural wire reinforcement, nails, and brads. It manufactures these products 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Tonawanda plant. During the first 6 months of 1939 approxi- mately $1,649,749 worth of goods manufactured at the Tonawanda plant were sold by the Company, of which approximately 74 per cent were shipped and delivered from the plant to points outside the State of New York. During the same period, other goods having 'a value of $647,833 were shipped, for purposes of further processing, from the Tonawanda plant to the plant of the Company in Worcester. In the course of operations at the Tonawanda plant the Company uses the following raw materials : pig iron, coal, fuel oil, steel scrap, ferro silicon, ferry manganese, dolomite, limestone, fluor spar, spelter, tin, and steel billets. Approximately $956,623 worth of such materials were used at the plant during the first 6 months of 1939. Approxi- mately 38 per cent of the raw materials thus used were purchased and shipped to the plant from points outside the State of New York. The Company admits, for the purpose of this proceeding only, that operations at and in connection with the Tonawanda plant constitute commerce between the several States, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Federated Industrial Union is a labor organization, national in scope, comprising approximately 20 locals in various industries, in- cluding steel plants, steel foundries, textile mills, laundries, and bakeries. It claims a total membership of 15,000 workers. The Fed- erated has national officers, and a national executive board of 80 members composed of officers and members of executive committees of locals of the Federated. Federated Industrial Union, Wickwire Local No. 106, herein called Federated Local No. 106, is a local of Federated Industrial Union, admitting to membership production and maintenance employees of the Company at the Tonawanda plant. Steel Workers Organizing Committee is a labor organization affil- iated with the Congress of Industrial Organizations. S. W. O. C., Lodge No. 1060, is a labor organization chartered by Amalgamated Association of Iron, Steel and Tin Workers of North America, a labor organization affiliated with Steel Workers Organizing Committee. It admits to membership all persons employed in or around the Tona- wanda plant except foremen, superintendents, and general managers. III. THE QUESTION CONCERNING REPRESENTATION On March 28, 1938, pursuant to consent and agreement of the Com- pany, Federated Local No. 106, and S. W. O. C., Lodge No. 1060 acting through the S. W. O. C., an election by secret ballot was held under the supervision of the Regional Director among all employees of the Company employed at its Tonawanda plant, including heaters and weighmasters in the open hearth, but excluding executives, fore- WICKWIRE SPENCER STEEL COMPANY 375 men, assistant foremen, rollers, office employees, timekeepers, weigh- ers, production clerks, police, chemists, and nurses, to determine whether they desired to be represented by Federated Local No. 106 or S. W. O. C., Lodge No. 1060 through the S. W. O. C., for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. S. W. O. C., Lodge No. 1060, through the S. W. O. C., received a majority of the votes cast, and, pursuant to Section 9 (a) of the Act, became and was the exclusive representative of all the employees in the unit in which the election was held, for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. On August 8, 1938, the S. W. O. C., acting on behalf of S. W. O. C., Lodge No. 1060 and the Amalgamated, entered into a collective agree- ment with the Company covering wages, hours of work, and other conditions of employment of the production and maintenance em- ployees of the Company at the Tonawanda plant.- The agreement expressly provided that the Company recognize the S. W. O. C., act- ing in behalf of S. W. O. C., Lodge No. 1060 and the Amalgamated, as the exclusive collective bargaining agency for all production and maintenance employees in the plant. The agreement by its terms was to be in effect for a period of 1 year from August 8, 1938, and to renew itself annually thereafter, unless 30 days prior to the expira- tion of the initial or any renewal period either party gave the. other written notice of the termination of the contract. Section 14 of the agreement provided, in part : It is agreed, however, that if the National Labor Relations Board shall certify any other body than the "Union" [viz., the S. W. O. C. on behalf of S. W. O. C., Lodge No. 1060 and the Amalgamated] as the sole representative of the "Company's" employees for the purpose of collective bargaining, this Agree- ment shall then be null and void. On October 11, 1939, after negotiations begun on July; 5, 1939, and after the filing of the petition herein by the Federated on July 31, 1939, the Company and the S. W. O. C. on behalf of S. W. O. C., Lodge No. 1060 and the Amalgamated, executed a new collective agreement covering wages, hours of work, and other conditions of employment of the Tonawanda plant production and maintenance 'The contract refers to the "Buffalo, New York Plant" and the "Buffalo plant" of the Company. These are references to the Tonawanda plant. The production and maintenance employees covered by the agreement appear to be the same classifications of employees, although described differently, as the classifications among which the consent election was held and which are found below to constitute an appropriate collective bargaining unit. See Section V, infra. 283029-41-vol. 18-25 376 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD employees.2 The new agreement superseded the agreement of Au- gust 8, 1938, and was to continue in effect for 1 year and for succes- sive annual periods thereafter unless terminated by either party upon 30 days', written notice to the other prior to the, expiration of any period. The Company again expressly recognized the S. W. O. C., acting on behalf of S. W. O. C., Lodge No. 1060 and the Amalga- mated, as the exclusive collective bargaining agency for all employees covered by the agreement. The S. W. O. C. urges that there is no showing that prior to the filing of the petition the Federated requested the Company to rec- ognize or bargain collectively with it as the exclusive collective bargaining representative of the Tonawanda plant employees, within the collective bargaining unit hereinafter found to be appropriate, although the Federated considered itself such a representative 3 However, the agreement of August 8, 1938, was then outstanding, covering basic working conditions of these employees and providing for recognition by the Company of the S. W. O. C., on behalf of S. W. O. C.,. Lodge No. 1060 and the Amalgamated, as the exclusive collective bargaining representative of these employees.4 The agree- ment was being performed. Under these circumstances it was un- necessary for the Federated in order to obtain a determination of the question here presented, namely, whether the Federated or S. W. O. C., Lodge No. 1060 of the Amalgamated, through the S. W.. O. C., was the exclusive collective bargaining representative of the employees within the unit, first to request recognition or collec- tive bargaining of the Company. The Federated could assume that either or both the Company and the S. W. O. C. would contest its claim to representation, at least until the Board certified the Fed- erated as the exclusive collective bargaining representative.. The Federated showed, and we find, that it and Federated Local No. 106 was designated as collective bargaining representative by a sub- stantial number of employees in the unit hereinafter found to be appropriate for collective bargaining. Neither the contract of August 8, 1938, nor that of October 11, 1.939, bars a determination by the Board of the question concerning representation here presented. The 1938 contract contemplated that its provision and operation would not preclude an investigation and certification of representatives by the Board at any time, for the 2 See footnote 1, supra. 3 In April 1939 the Federated filed with the Regional Director a petition requesting an investigation and certification of representatives of employees at the Tonawanda plant. The Regional Office thereafter invited the Company, the S. W. O. C., and the Federated to confer about the matter , but was unsuccessful in arranging a conference . This petition was withdrawn by the Federated in May, without prejudice to another such petition again being filed by it. 4 See footnote 1, supra. WICK WIRE SPENCER STEEL COMPANY 377 agreement was made terminable upon a certification of represent- atives.5 In any event, the 1938 contract in fact has terminated. With respect to the 1939 contract, it was made after the petition was filed. The results of the consent election held in 1938, constitute no bar to an investigation and certification of representatives at the present time. That election was more than 11/2 years prior to the filing of the petition.e We find that it question has arisen concerning the representation of employees of the Company at its Tonawanda plant. 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'com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT At the hearing the Federated, the S. W. 0. C., the Company, and counsel for the Board, stipulated and agreed that all production and maintenance employees of the Company at its Tonawanda plant, in- cluding heaters and weighmasters in the open hearth, but excluding executives, foremen, assistant foremen, rollers in the rod mill ,7 office employees, timekeepers, weighers, production clerks, police, chemists, and nurses, constitute a unit appropriate for the purposes of collec- tive bargaining. This unit is substantially the same unit in which the consent election of March 28, 1938, was held,8 and which was covered by the above-mentioned agreements .9 58ee Matter of Westchester Apartments, Inc. and United Building Service Employees, Local 675, 17 N. L. R. B. 433. 6 Matter of Westinghouse Electric . & Manufacturing Company and United Electrical, Radio & Machine Workers of America, Local 724, affiliated with the Congress of Industrial Organizations, 14 N. L. R. B. 263; See Matter of Minneapolis-Moline Power Implement Company and International Association of Machinists , Local #1037, By District Lodge 77 (A. F. of L.), 14 N. L. R. B. 920. 4 The rollers in the rod mills are "salary foremen ," whereas the other rollers are not. All rollers were excluded from the unit agreed upon for the consent election . Counsel for the S. W. 0. C. stated at the hearing that in drawing up the October 1939 contract the Company and the S. W. O. C. bargained for these other employees . In view of the agreement as to unit, the other rollers may be included. 8 The unit in which the consent election was held consisted of "all employees ," exclusive of certain classifications , whereas the stipulated unit refers to "production and main- tenance employees," exclusive of certain classifications . In view of the classifications excluded from both units, it is apparent that "all employees " and "production and mainte- nance employees" have substantially the same meaning. 9 See footnote 1, supra. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . We see no reason for not finding the afore-mentioned unit to be appropriate. Accordingly, we find that all production and mainte- nance employees of the Company at its Tonawanda plant, including heaters and weighmasters in the open hearth, but excluding executives, foremen, assistant foremen, rollers in the rod mill, office employees, timekeepers, weighers, production clerks, police, chemists, and nurses, 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 Federated and Federated Local No. 106 have been designated as collective bargaining representative by a substantial. number of employees in the appropriate unit. S. W. 0. C., Lodge No. 1060, through the S. W. 0. C., claims to represent a majority of the em- ployees in the appropriate unit, and at the hearing introduced docu- mentary and other evidence in support of this claim. In view of the nature and quantity of the proof offered regarding representation, we believe, and find, that the question which has arisen concerning the representation of employees at the plant can best be resolved by holding an election by secret ballot to determine the choice of bar- gaining representative. Those employees in the appropriate unit who were employed by the Company during the pay-roll period next preceding the date of the Direction of Election will be eligible to vote, subject to such limitations and additions as are set forth in the Direction. 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 Wickwire Spencer Steel Company, Tona- wanda, New York, employed at the Tonawanda plant of said Com- pany, 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 at its Tonawanda plant, including heaters and weighmasters in the open hearth, but excluding executives, foremen, assistant foremen, rollers in the rod mill, office employees, timekeepers, weighers, production clerks, police, chemists, and nurses, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. WICKWIRE SPENCER STEEL COMPANY DIRECTION OF ELECTION 379 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Wickwire Spencer Steel Company, Tonawanda, New York, 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 Direc- tor for the Third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and mainte- nance employees, including heaters and weighmasters in the open hearth, of said Company employed at its plant in Tonawanda, New York, who were employed by the Company during the pay-roll period next preceding the date of this Direction of Election, including em- ployees who did not work during said pay-roll period because they were ill or on vacation, and employees who were then and have since been temporarily laid off, but excluding all persons who have quit or have been discharged for cause since that date, and further exclud- ing executives, foremen, assistant foremen, rollers in the rod mill, office employees, timekeepers, weighers, production clerks, police, chemists, and nurses, to determine whether they desire to be represented by Federated Industrial Union, Wickwire Local No. 106,10 of Federated Industrial Union, or by S. W. O. C., Lodge No. 1060 of Amalgamated Association of Iron, Steel and Tin Workers of North America, for the purposes of collective bargaining, or by neither. 10 At the hearing Federated Industrial Union indicated that it believed the local of that organization should be placed on the ballot.