American Scale Co.

In the Matter of AMERICAN SCALE COMPANY AND FRANK DAVENPORT and LOCAL #149, INTERNATIONAL MOLDERS UNION OF NORTH AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. R-1644.-Decided January 8, 1940 Hardware Manufacturing Industry-Employer Status: contract .between com- pany and individual for operation of company's foundry by individual as "in- dependent contractor," purporting to make foundry workers employees only of contractor, not controlling under Act; both company and contractor found to be employers of foundry workers under Act-Investigation of Representa- tives: question concerning representation of foundry employees: refusal of.em- ployers to meet and negotiate bargaining contract with union-Unit Appro- priate for Collective Bargaining: undisputed: all foundry employees, including molders, core makers, helpers, and the cupola tender, and excluding the foreman-Election Ordered Mr. Paul Nachtman, for the Board. Cooper, Neel & Sutherland, by Mr. Ellison A. Neel and Mr. Wallace Sutherland, of Kansas City, Mo., for the Company and Davenport. Mr. Harry S. Helgesen, of Kansas City, Mo., for the Union. Miss Edna Loeb, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 12, 1939, Local #149, International Molders Union of North America, herein called the Union, filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri) a peti- tion alleging that a question affecting commerce had arisen concerning the representation of employees of American Scale Company, Pleasant Hill, Missouri, 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 21, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Sec- tion 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations--Series 2, ordered an in- vestigation and authorized the Regional Director to conduct it and 19 N. L. R. B., No. 18. 124 AMERICAN SCALE COMPANY 125 to provide for an appropriate hearing upon due notice. On Novem- ber 17, 1939, the Union filed an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of the Company and Frank Davenport, Pleasant Hill, Missouri, herein called Davenport." On November 20, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, Daven- port, and the Union. On November 28, 1939, the Company filed a response in which it alleged that the employees directly affected by the investigation were not its employees but those of Davenport, and moved that the proceedings against the Company be discon- tinued. On the same date, Davenport filed a response in which he claimed that the Board had no jurisdiction over him and his em- ployees, and moved that the proceedings be dismissed. For the reasons set forth below these motions are hereby denied. Pursuant to the notice, a hearing was held on November 28 and 29, 1939, at Pleasant Hill and Kansas City, Missouri, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the Company, and Davenport were represented by counsel, the Union by a representative, and all 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 par- ties. The Board has reviewed the rulings made by the Trial Ex- aminer during the course of the hearing on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND OF DAVENPORT The Company is a Missouri partnership engaged in the manufac- ture of scales and other hardware specialties. Its plant is located in Pleasant Hill, Missouri. Among the raw materials used by the Com- pany in its manufacturing operations are pig iron, structural steel, scrap iron, and coke. Almost 100 per cent of the raw materials, valued in 1938 at $29,811, were secured by the Company in that year from points outside Missouri. In 1937 and 1938 approximately 95 per cent of the Company's manufactured products, valued at over $300,000, were shipped to points outside Missouri. 1 By notice dated December 15, 1939, and amendment to order directing investigation and hearing, dated December 27, 1939, the direction of investigation was amended and, as thus amended, includes in its caption the names, American Scale Company and Frank Davenport. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company's plant is comprised of a machine shop, a carpenter or woodworking shop, a steel-fabricating shop, and a foundry.. In this proceeding we are concerned only with the employees in the foundry. Davenport is an individual engaged in the operation of the Com- pany's foundry by virtue of a written agreement with the Company, executed on July 1, 1937. In the agreement Davenport, "as an inde- pendent contractor, and not as an employee or agent" of the Com- pany, agrees to manufacture in the foundry and deliver at the plant door, iron castings in the quantities and types required and ordered by the Company. The contract provides that Davenport is to employ and have full supervision and control over all labor involved. In re- turn, the Company agrees to permit Davenport the use of its foundry; to furnish him with all raw materials and other supplies necessary for the manufacture of castings, including power, light, water, heat, energy, and fuel; and to pay him for all usable castings at a speci- fied rate per hundred weight. The agreement contains a clause which guarantees the Company and Davenport, respectively, from liability for the acts of the other, and concludes with this provision : Nothing herein shall be deemed to give to Davenport any prop- erty right in the said castings, save and except to the extent of any unpaid sums owing by the Company to Davenport for labor furnished as hereinabove provided. In 1938, under the terms of the agreement, the Company delivered to Davenport raw materials and equipment amounting in value to $5,561, and Davenport delivered to the Company approximately 571 tons of castings, valued at $21,506. These castings the Company used in the manufacture of its finished products. Section 2 (2) of the Act provides that the term "employer" as used in the Act ". . . includes any person acting in the interest of an employer, directly or indirectly . . ." We find that Davenport is the employer of the foundry employees, within the meaning of Sec- tion 2 (2), because of his contract with the Company, the listing of the employees on his pay roll, and their payment and supervision by him. The Company owns and otherwise controls the foundry in which the employees work. The Company governs the quality of work to be done by the employees by expressly stipulating that all defective castings are to be charged back to Davenport at the same rate at which the Company pays Davenport for their manufacture. The Com- pany's shipping clerk does Davenport's office work for him,. records the time worked. by the foundry employees, and checks Davenport's weekly pay. rolls. For these services Davenport pays the clerk $1 AMERICAN SCALE COME ANY 127 per week. The Company carries workmen's compensation insurance on the foundry employees and reports their income to the United States Bureau of Internal Revenue for income-tax purposes. The Company also reports the State unemployment compensation tax, if any, for the employees. We find that the Company is also the em- ployer of the foundry employees, within the meaning of Section 2 (2) of the Act.2 II. THE ORGANIZATION INVOLVED Local #149, International Molders Union of North America, is a labor organization affiliated with the American Federation of Labor. It admits to membership the foundry employees. III. THE QUESTION CONCERNING REPRESENTATION On July 28, 1939, the shop committee of the Union sent the Com- pany and Davenport a registered letter requesting a conference on July 31 for the purpose of negotiating a bargaining agreement. In the letter the committee asked to be notified if the designated time or place for the conference was not convenient. Neither the Company nor Davenport made any reply to, the letter or appeared for the conference. We find that a question has arisen concerning representation of employees of the Company and Davenport. IV. THE EFFECT OF TITE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company and Davenport 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 In its amended petition the Union alleges that the unit appropriate for the purposes of collective bargaining consists of all the foundry employees, including molders, core makers, helpers, and the cupola 2 See Matter of William Randolph Hearst, etc . and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530, enf'd. as mod., N. L. R. B. v. Hearst, et al., 102 F. (2d) 658 (C. C. A. 9) ; Matter of C. A. Lund Company and Novelty Workers Union, 6 N. L. R. B. 423, enf'd. in part, N. L. R. B. v. Lund, et al., 103 F. (2d) 815 (C. C. A. 8) ; Matter of Pennsylvania Greyhound Lines, Inc., etc. and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach. Employees of America, 1 N. L. R. B. 1, enf'd., N. L. R. B. v. Pennsylvania Greyhound 1 ines, -Inc., et al., 303 U. S 261, rev'g., 91 F. ( 2d) 178 (C. C. A. 3). 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tender, and excluding the foreman . Neither the Company nor Daven- port took any position with regard to such a unit. No reason appears for departing from the unit alleged in the petition. We find that all the foundry employees of the Company and Daven port, including molders, core makers, helpers, and the cupola tender, and excluding the foreman , constitute a unit appropriate for the pur- poses of collective bargaining and that said iinit will insure to such employees 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 At the hearing the Union claimed that it represented a majority of the employees in the unit which we have found to be appropriate, and introduced some evidence in support of its claim . The Company and Davenport questioned the Union's majority representation , however, and the Union stated that it was willing to have the question settled by an election . We find that the question which has arisen concerning the representation of the foundry employees of the Company and Davenport can best be resolved by an election by secret ballot. We shall direct that all employees within the appropriate unit who are employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who do not work during such pay-roll period because they may be ill, on vaca- tion, or temporarily laid off, but excluding employees who will have since quit or been discharged for cause , shall be eligible to vote in the election. 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 the Company and Davenport, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the foundry employees of the Company and Davenport, in- cluding molders, core makers, helpers, and the cupola tender, and ex- cluding the foreman, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations 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 Rela- AMERICAN SCALE COMPANY 129 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 American Scale Company aid Frank Davenport, Pleasant Hill, Missouri, 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 agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all the foundry employees of the Company and Frank Davenport, including molders, core makers, helpers, and the cupola tender, and excluding the foreman, who are employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who do not work during such pay-roll period because they may be ill, on vacation, or temporarily laid off, but excluding employees who will have since quit or been discharged for cause, to determine whether or not they desire to be represented by Local 4149, International Molders Union of North America, affiliated with the American Federation of Labor, for the purposes of collective bargaining.