Malone Bronze Powder Works, Inc.

In the Matter of MALONE BRONZE POWDER WORKS, INC. AND MALONE ALUMINUM CORPORATION and ALUMINUM AND BRONZE POWDER WORKERS UNION No. 21211, AFFILIATED WITH THE A. F. OF L. Case No. B-1624.-Decided January 15, 1940 Bronze and Aluminum Powder Manufacturing Industry-Investigation of Representatives : controversy concerning representation of employees: rival organizations ; controversy concerning appropriate unit; contract , no bar to, where petition had been filed before execution of contract-Unit Appropriate for Collective Bargaining : all production and maintenance employees of both Companies excluding executives , supervisory employees, and watchmen ; central- ization of management ; interchange of employees ; similarity of wages, hours, working conditions , and manufacturing operations ; extent of organization- Election Ordered Mr. Peter Crotty, for the Board. Ribyat, Walsh & Meyers , by Mr. John J. Walsh, of Utica, N. Y., for the A. F. of L. Mr. Frederick B. Bryant, of Malone, N. Y., for the Independent. Moore & Herron, by Mr. George J. Moore, of Malone, N. Y., and Buckley c Buckley, by Mr. David Buckley, of New York City, for the Companies. Mr. Ray Johnson, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 6, 1939, Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L., herein called the A. F. of L., filed with the Regional Director for the Third Region (Buffalo, New York) a petition and on September 11, 1939, an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, Malone, New York, herein respectively called the Bronze plant and the Aluminum plant, and collectively called the Companies, and request- ing an investigation and certification of representatives pursuant to 19 N. L. R. B., No. 52. 449 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 23, 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 Rela- tions Board Rules, and Regulations-Series 2, ordered an investiga- tion and authorized the Regional Director to conduct it and. to provide for an appropriate hearing upon due notice. On October 27, 1939, the Regional Director issued a notice -of hearing, copies of which were duly served upon the Companies, upon the A. F. of L., and upon the Malone Independent Union, herein called the Independent, a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to notice a hearing was held on November 16, 1939, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The.Board, the Companies, the A. F. of L., and the Independent were repre- sented by counsel and participated in the hearing. At the opening of the hearing the Independent moved to intervene; the motion was granted by the Trial Examiner. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the beginning of the hearing the Companies filed an answer to the petition and moved to strike.from the petition the allegation that the Companies had, refused to bargain with the A. F. of L. The Trial Examiner -re- served his ruling on this motion. The _ motion. is hereby . denied-. 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 all the rulings of the Triad Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 21, 29, and December 1, 1939, respectively, the A. F. of L., the Independent, and the Com- panies filed briefs which have been considered by the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES Malone Bronze Powder Works, Inc., and Malone Aluminum Cor- poration are both wholly owned subsidiaries of the Metallic Products Corporation, a holding company incorporated in the State of Mary- land. T. B. Wainwright is both treasurer of the Bronze plant and President of the Aluminum plant. The Companies employ a common personnel director and ultimate responsibility for the labor relations policies of the Companies is vested in David A. Buckley, Jr., president of the Metallic Products Corporation. ,MALONE BRONZE POWDER WORKS , INCORPORATED 451 Malone Bronze Powder Works, Inc., a New York corporation, with its principal office and place of business at Malone, New York, is engaged in the business of manufacturing bronze powder . During the year ending June 30, 1939 , the Bronze plant used raw materials valued at approximately $50,000, approximately 50 per cent of which were shipped to its plant at Malone, New York, from points outside the State of New York. During the same period, it sold products valued at approximately $100,000, approximately 30 per cent of which were shipped to points outside the State of New York. Malone Aluminum Corporation, a New York corporation , with its principal office and place of business at Malone, New York, is engaged in the manufacture of aluminum powder. During the year ending June 30, 1939 , the Aluminum plant used raw materials valued at approximately $50,000, most of which were shipped to its plant at Malone, New York , from points outside the State of New York. Dur- ing the same period , the Aluminum plant sold products amounting to ^ approximately $100,000 in value, most of which were shipped to points outside the State of New York. II. THE ORGANIZATIONS INVOLVED Aluminum and Bronze Powder Workers Union No. 21211, is a labor organization affiliated with the American Federation of Labor. It admits to its membership all production and maintenance employees of the Companies excluding executives, supervisory employees, clerical employees, and watchmen. - Malone Independent Union is an unaffiliated labor organization, admitting to its membership all production and maintenance employees of the Companies, excluding executives, supervisory employees, clerical employees, and watchmen. III. THE QUESTION CONCERNING REPRESENTATION A brief history of union organization of the employees of the Companies is necessary in order to determine whether the petition filed by the A. F. of L. raises a question concerning representation. In the fall of 1937, the A. F. of L. obtained the membership of a majority of the employees of the Companies and requested the Com- panies to sign a closed-shop contract recognizing it as the exclusive representative of their employees. The Companies refused to sign the contract and negotiations terminated. From December 1937 to February 1938, the plants of both Companies were closed. During this period and until September 1938, the A. F. of L. was apparently inactive. On September 10, 1938, upon charges previously filed by the 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. F. of L., the Board issued its complaint against the Companies as the respondents in Matter of Malone Bronze Powder Works, Inc. and Malone Aluminum Corporation and Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L.,1 alleging, inter alia, that they had refused to bargain collectively with the A. F. of L., within the meaning of Section 8 (5) of the Act. During the same month the Independent was organized and at various times thereafter requested recognition from the Companies as the exclusive bargaining representatives of their employees. The Companies, how- ever, refused to grant such recognition until the Board should dispose of the above-entitled case. On September 6 and 11, 1939, respectively, the A. F. of L. filed its petition and amended petition herein. On September 12, 1939, the Board, with the approval of the A. F. of L. and upon a stipula- tion signed by counsel for the board and the Companies, issued its Decision and Order in the above-entitled case.2 Thereafter, by letter dated September 14, 1939, the Regional Director informed the Com- panies that the A. F. of L. had filed the above-mentioned petitions. On September 18, the Companies entered into a contract with the Independent, recognizing it as the exclusive bargaining representative of their employees. The Companies contend that the contract with the Independent was executed before they had knowledge that the petitions had been filed by the A. F. of L. and that therefore the contract, which is still in effect, precludes a finding that a question concerning representation has arisen. We find no merit in this contention. We have fre- quently held that if an employer enters into an agreement with one of two labor organizations at a time when both are. claiming the right of exclusive recognition, such agreement cannot bar our con- ducting an election, at least in the absence of clear evidence that at the time of execution of the agreement the labor organization with which it was made represented a majority of the employees.3 We cannot find that the Independent represented a majority of the Companies' employees on September 18, 1939. As described above, a proceeding in which the Companies were charged with having refused to bargain with the A. F. of L. had been pending for over a year. It was not until September 12, 1939, that the proceeding 1 15 N. L. R. B. 203. 2 Matter of Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation and Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L., 15 N. L. It. B. 203. The Order, inter alia, dismissed the allegation of the complaint that the Companies had refused to bargain collectively with the A. F. of L. 3 Matter of Southern Chemical Cotton Company and Textile Workers Organizing Com- mittee, 3 N. L. R. B. 869 ; Matter of American-West African Line, Inc. and National Marine Engineers' Beneficial Association, 4 N. L. R. B. 1.086; Matter of Colonie Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 21511, A. F. of L., 9 N. L. It. B. 658. MALONE BRONZE POWDER WORKS, INCOR'PORATED' 453 was closed. It is apparent therefore that on September 18 the Com- panies were aware of the existence of the A. F. of L. as a labor organization claiming to represent a majority of their employees. Indeed, in the letter of reply to the Regional Director's notice that the A. F. of L. had filed a petition, the Companies stated, "In our discussions with the Board closing this matter [presumably referring to the proceeding closed by stipulation] it was recognized that more than one bona fide union existed in Malone and that it was our privi- lege as employers, at our option, to petition the Board or not." The Companies thus were aware of the existence of a question concerning the representation of their employees, and chose to settle the question by recognizing the Independent as the exclusive representative of their employees.' Their choice admittedly was based upon petitions containing the names of a majority of the Companies' employees and presented by the Independent to the Companies in May 1939, and upon the repre- sentation by the Independent in September that the employees who had signed the petitions were still members and that employees hired since May had also joined the Independent. The record does not show when the signatures on the petitions were obtained. During the hearing, the Independent stipulated that a question concerning representation had arisen. Under all the circumstances we are not convinced that the Independent represented a majority of the Com- panies' employees on September 18, 1939, when the contract was executed.-' We conclude that the validity of the contract of Septem- ber 18, 1939, between the Companies and the Independent cannot be determined prior to the election which we shall order herein and cannot constitute a bar to the instant proceeding. We find that a question has arisen concerning the representation of employees of the Companies. IV. TIIE 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 Companies 4 The Companies claim that the Regional Director's letter of September 14 was not actually received in New York City by Buckley, the president of the Metallic Products Corporation, to whom it was addressed , until September 18, and after the contract with the Independent had been signed in Malone , New York. This claim , however, is not material ; the petition was in fact filed before the contract was signed . In any event, the Companies had knowledge that a question concerning representation had arisen 'even though it may not have known that a formal petition had been filed . It is therefore apparent that the Companies were not in the position of an employer acting in good faith in recognizing a labor organization having no rival with a claim for similar recognition. 5Cf. Matter of American -chest African Line, Inc. and National Marine Engineers' Bene- ficial Association, 4 N. L. R. B. 1086. 283030-41-vol. 13-30 454 DECISIONS OF • NATIONAL LABOR RELATIONS BOARD 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 A. F. of L. contends that the appropriate unit consists of all production and maintenance employees of both Companies, excluding executives, supervisory employees, clerical employees, and watchmen. The Independent contends that all production and maintenance em- ployees of each of the Companies, excluding executives, supervisory employees, clerical employees, and watchmen constitute separate appropriate units. In contending for separate units, the Independent stresses the individual identities of the two Companies. The Bronze plant and the Aluminum plant are located approximately 11/4 miles apart.and are separate corporations maintaining separate pay rolls and sepa- rate supervision over production. On the other hand both are wholly owned subsidiaries of the Metallic Products Corporation in which final authority to establish labor policies for both the Companies is vested. The Companies have a common sales office in New York City. They use the same warehouse and railroad siding. The general office work for both Companies is handled at the same office. As described above one personnel director serves both Companies. In addition, wages, hours, working conditions, and manufacturing processes in the two plants are substantially similar and there is some interchange of employees between the two plants. Although maintaining their identities as distinct corporate enterprises it is apparent from the foregoing that in fact the Companies are operated to some extent as a unified enterprise. In support of its position the Independent claims that it has bar- gained with each Company separately. It maintains that it repre- sents a majority of the employees in the Aluminum plant, concedes that the A. F. of L. probably has a majority of members in the Bronze plant, and urges, apparently to show that a pattern of bar- gaining for the employees in both plants as a single unit has not been established, that the contract of September 18, 1939, was a con- tract for members only and did not purport to grant exclusive recog- nition to the Independent as the representative of the employees in both plants as a single unit. The foregoing claims of the Independent find no support in the record. As early as 1937 the A. F. of L. organized the employees in both plants and sought to bargain with the, Companies for a single appropriate unit. Although the Independent had its origin in 1938 MALONE BRONZE POWDER WORKS, INCORPORATED' 455 in the Aluminum plant, it does not deny that its membership was extended to the employees in the Bronze plant. Finally the contract of September 18, 1939, unmistakably recognizes the Independent as the exclusive bargaining representative of the employees of both Companies in a single unit." The contract, which is signed by Wainwright in his dual capacity as treasurer of the Bronze plant and president of the Aluminum plant, is a single document recognizing the Independent "as the Representative Bargaining Agency pursuant to law." The contract, inter alia, -provides for the appointment by the Independent of a "Shop Committee" to meet "with a representative of the Companies to discuss working conditions, safety practices, general efficiency and other matters of mutual interests to the parties." We conclude that both the unions involved herein have extended their organization to employees of the two Companies and that both unions have sought to bargain with the Companies for their employees in a single unit. We believe that the interest of the employees in both plants can best be served by the establishment of a single bargaining unit. The A. F. of L. would exclude Francis Labarge, a mechanic, from the appropriate unit on the ground that he exercises supervisory func- tions. The record shows that the only supervisory functions he ever exercised was during a 2 weeks' period when his foreman was absent. During this period,. Labarge placed slips in the barrels of aluminum powder to designate their respective grades and closed the shop at night. Labarge never performed these duties after the foreman returned. We shall include him in the appropriate unit. We find that all production and maintenance employees of the Companies, excluding executives, supervisory employees, clerical em- ployees, and watchmen constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Companies the full benefit of their right to.self-organization and to collective bargaining and otherwise effectuate the policies of the Act. 171. THE DETERMINATION OF REPRESENTATIVES Both the Independent and the A. F. of L. introduced evidence that they represent a substantial number of the Companies' employees and stipulated that an election is necessary to settle the question concerning representation which had arisen. We shall accordingly direct that an election by secret ballot be held to settle the question concerning representation. 0In a letter dated November 10, 1938, from the Independent to the Aluminum plant, the former requested negotiations as the sole bargaining agent for the employees of this Company. It is apparent, however , that the Independent abondoned this request for a request covering the employees of both the Companies. 456 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD The A. F. of L. requests that the pay-roll date of December 1937 be used to determine eligibility. It contends that 18, or 20 employees who were laid off when the Companies shut down in December 1937, and who have never been reinstated, should be permitted to vote in any election which the Board may order. There is no charge or evidence that these employees were refused reinstatement because of their union activity when the plants reopened in February 1938. Since- over- 2 years have elapsed since they lasts-worked for the Com- panies, we do not believe that they may still be considered em- ployees of the Companies. They shall therefore be ineligible to vote. At the hearing the Independent requested that the pay-roll date of October 30, 1939, should be used to determine eligibility to par- ticipate in the election and in its brief that the pay-roll date of September 11, 1939, be used. No reason appears in the record, how- ever, why a current pay roll should not be used to determine eligi- bility to participate in the election. We shall direct that those persons eligible to vote shall be the employees in the appropriate unit who were employed by the Com- panies 'during the pay-roll 'period next preceding the date of this Direction, including employees who did not work during such pay- roll period because they were ill or on vacation and employees who were then' or had since been temporarily laid- off, but excluding those who have since quit or been discharged for cause. 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 rep- resentation of employees of Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, Malone, New York, within. the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Companies, excluding executives, supervisory employees, clerical employees, and watchmen, constitute a unit appropriate for the purposes of col- lective 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- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby MIA'LONE BRONZE PO'WDER WORKS, INCO'R'PORATED 457 DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Malone Bronze Powder Works, Inc., and Malone Aluminum Corporation, Malone, 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 Director for the Third Region, acting in this matter as agent for the National Labor Rela- tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees who were employed by the Companies during the pay-roll period next preceding the date of this Direction, including employees who did not work during such pay-roll period because they were in or on vacation, and employees who were then or have since been tem- porarily laid off, but excluding executives, supervisory employees, clerical employees, watchmen, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L., by Malone Independent Union, or by neither, for the purposes of collective bargaining.