McWane Cast Iron Pipe Co.

In the Matter Of MCWANE CAST IRON PIPE COMPANY and STEEL WORKERS ORGANIZING COMMITTEE Case No. B-1653.-Decided January 15, 1940 Cast Iron Pipe Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees: employer refuses to enter into an exclusive bargaining contract with petitioning industrial union ; rival organizations ; controversy concerning appropriate unit-Units Appropriate for Collective Bargaining : craft or industrial : factors evenly balanced ; election to determine ; separate unit of pattern makers excluding foremen, if election shows these employees desire it ; unit composed of all other production and main- tenance employees excluding foreman-Elections Ordered Mr. Clarence D. Musser and Mr. Alexander E. Wilson, Jr., for the Board. Mr. Yelverton Cowherd and Mr. Noel R. Beddow, of Birmingham, Ala., for the S. W. O. C. Mr. J. A. Lipscomb, of Bessemer, Ala., for the Association. Mr. Jelkes H. Cabaniss, of Birmingham, Ala., for the Company. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On September 21, 1939, Steel Workers Organizing Committee, herein called the S. W. O. C., filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of McWane Cast Iron Pipe Company, Birmingham, Ala- bama, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat., 449, herein called the Act. On November 25, 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. 19 N. L. R. B., No. 53. 458 McIVANE CAST IRON PIPE COMPANY 459 On November 27, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the S. W. O. C. Pursuant to notice, a hearing was held on December - 6, 1939, at Birmingham, Alabama, before E. G. Smith, the Trial Ex- aminer duly designated by the Board. At the hearing, Pattern Makers' Association of Birmingham, affiliated with Pattern Makers League of North America, herein called the Association, filed a peti- tion to intervene which was granted by the Trial Examiner. The ruling is hereby affirmed. The Board, the Company, the S. W. O. C., and the Association 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 upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made a number of rulings on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On December 18, 1939, the Association filed a brief which we have considered. Pursuant to notice, a hearing was held before the Board in Washington,,D. C., on December 21, 1939, for the purpose of oral argument. The Association was represented by counsel and partici- pated in the argument before the Board. The Company and the S. W. O. C. did not appear. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY McWane Cast Iron Pipe Company, an Alabama corporation, is engaged at its plant in Birmingham, Alabama, in the manufacture and sale of cast-iron pipe and fittings. The raw materials, consisting principally of pig iron, cast iron, scrap, and coke, purchased annually by the Company are valued at approximately $100,000, of which approximately 90 per cent are purchased in the State of Alabama. It produces annually more than 25,000 tons of manufactured products, valued at approximately $1,000,000, of which 90 per cent are shipped from its plant to destinations outside the State of Alabama. It em- ploys approximately 475 production and maintenance employees; 2 pattern makers and a pattern-maker foreman; and about 75 super- visory and clerical employees.' ' These facts were taken from a stipulation. All parties agreed that the Company was. engaged in interstate commerce, within the meaning of Section 2 (6) of the Act. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership all employees of the Company except clerical and super- visory employees. Pattern Makers Association of Birmingham is a labor organization affiliated with Pattern Makers League of North America, and through it with the American Federation of Labor, admitting to membership all pattern makers and apprentices employed by the Company. M. THE QUESTION CONCERNING REPRESENTATION Shortly before the hearing, the S. W. O. C. requested the Company to enter into a written bargaining contract, providing for the recogni- tion of the S. W. O. C. as the exclusive representative of all the Company's employees. The Company declined to accept this contract. At the hearing the S. W. O. C. and the Association presented con- flicting claims concerning the appropriate bargaining unit. We find that a question has arisen concerning the representation of employees of the Company. IV. TILE 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 UNITS The S. W. O. C. contends that all ppoduction and maintenance employees, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining. The Association opposes the inclusion of the two pattern makers em- ployed by the Company in the large unit and requests the estab- lishment of a separate unit for pattern makers excluding foremen. For the past several years the Company has met with employee representatives of the S. W. O. C.2 to discuss working conditions. 2 The record does not reveal the unit that the S. W. O. (' purported to represent at those meetings. McWANR CAST IRON PIPE COMPANY 461 As a result of these meetings certain working rules were agreed upon and embodied in a written statement signed by the Company. The first statement dated March 19, 1935, was subsequently revised in 1936 and 1937. Although the extent and results of such meetings are not indicated in the record , the Company has also met with its pat- tern makers concerning wages, hours, and working conditions. How- ever, no representative of the pattern makers employed by the Cornpiiny .has,ever , requested the Company to bargain collectively. The Company made.no contention as to the appropriate unit. It asserted that it has met "with all groups of employees or their rep- resentatives that have presented themselves ," but has not accorded exclusive recognition to any. Pattern makers are a well-defined and highly skilled craft. The two pattern makers employed by the Company work under the pat- tern-maker foreman in a building separated from the rest of the plant and produce all the patterns used in the plant. , A question arose at the hearing as to the classification of Thompson , who does some work in the pattern shop. The Company classifies . Thompson as a carpenter and there is no evidence that he is a skilled pattern maker. We find that he is not a pattern maker. Since it appears from the evidence that the pattern makers could function either as a separate unit or as a part of a single industrial unit, we hold that the determining factor is the desires of the employees themselves.3 Therefore , an election will be held among the pattern makers ex- cluding foremen, employed by the Company to determine whether they desire to be represented by the S. W. 0. C. or by the Association for the purposes of collective bargaining , or by neither . If a ma- jority of such employees choose the Association, we shall hold that they constitute a separate appropriate unit; if a majority of such employees choose the S. W. 0. C., we shall hold that they constitute a part of the single industrial unit requested by the S. W. 0. C. We find that all production and maintenance employees of the Company, excluding supervisory and clerical employees , may prop- erly constitute a unit appropriate for the purposes of collective bargaining which would insure to the employees of the Company the full benefit of the right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. As indicated above, pattern makers may or may not be included in such unit, depending on the result of an election which we shall order. We shall, therefore, make no final determination of the ap- 8 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3, et al., 3 N. L. R. B. 294, and subsequent cases. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD propriate unit pending the election to be conducted among the pattern makers. VI. THE DETERMINATION OF REPRESENTATIVES The S. W. O. C. claims to represent approximately 375 employees, within the unit it contends to be appropriate. In support of this claim, the S. W. O. C. introduced in evidence its membership ledger and a block of promissory notes alleged to have been executed by its members for their initiation fees. This evidence was withdrawn by agreement of all parties after it was examined by the Trial Examiner who reported that there were 362 of such notes. The record does not reveal the dates or authenticity of these notes or whether all members of the S. W. O. C. are now employed, by the company. The Association claims to represent the two pattern makers and introduced in evidence an affidavit signed by them, dated December 5, 1939, wherein they designate the Association as their representa- tive. However, the S. W. O. C. claims to represent more than one pattern maker. We find the question concerning representation which has arisen can best be resolved by separate elections by secret ballot among the pattern makers and among the other production and maintenance employees, of the Company. We shall direct that such elections be held. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW A question affecting commerce has arisen concerning the represen- tation of employees of MeWane Cast Iron Pipe Company, Birming- ham, Alabama, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. DIRECTION OF ELECTIONS By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 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 the purposes of collective bar- gaining with McWane Cast Iron Pipe Company, Birmingham, Ala- bama, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction MoWANE CAST IRON PIPE COMPANY 463 of Elections, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for National Labor Relations Board and subject to Article III, Section 9, ,of said Rules and Regulations, among : (1) All the pattern makers employed by said Company during the pay-roll period last preceding the date of this Direction of Elections, including any who did not work during such pay-roll period because they were ill or on vacation, and any who were then or have since been temporarily laid off, but excluding foremen and employees who have since quit or been discharged for cause, to .determine whether they desire to be represented by Pattern Makers Association of Birmingham, affiliated with the American Federation of Labor, or by Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining, or by neither; (2) All production and maintenance employees who were em- ployed by the said Company during the pay-roll period last pre- ceding the date of this Direction of Elections, including any who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been tem- porarily laid off, but excluding all pattern makers and all super- visory and clerical employees and any employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Steel Workers Organizing Committee, :affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining. MR , EDWIN S. SMITH, dissenting : For the reasons given in my dissenting opinion in Matter of Allis- -Chalmers Manufacturing Company,4 I would not permit the pattern makers to set themselves apart in a bargaining unit separate from the industrial unit. 4Matter of Allis-Chalmers Manufacturing Company and International Union, United Automobile Workers of America, Local 248, 4 N. L . R. B. 159.