Lawson Manufacturing Co.

In the Matter of LAWSON MANUFACTURING COMPANY and DEFENDERS OF AMERICA , PITTSBURGH CHAPTER No. 2 Case No. R-1650.-Decided January 22, 1940 Water Heater Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations ; dispute as to majority status; demand for recognition unnecessary to establish existence of question concerning representation-Labor Organization : Act not concerned with alleged anti-labor purposes and objectives of organization formed by employees for purpose of collective bargaining , free from interference , restraint, and coercion of employer-Unit Appropriate for Collective Bargaining : unions agreed, and employer made no objection to unit consisting of all employees engaged in production, maintenance, and service , exclusive of clerks, foremen, and supervisory employees , and night janitor ; night janitor nevertheless in- cluded in unit : duties and interests not distinguishable from those of day janitor and laborer included in unit by agreement ; apparently covered by prior contract ; exclusion inconsistent with character of bargaining unit; dispute as to alleged supervisory employee-Representatives : proof of substantial member- ship by both labor organizations ; certification on record not requested-Election Ordered Mr. Robert H. Kleeb, for the Board. Mr. Ralph H. Frank, of Pittsburgh, Pa., for the Company. Mr. Louis Rosenfield, of Pittsburgh, Pa., for the Defenders. Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the S. W. O. C. Mr. David Findling, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 20, 1939, Defenders of America, Pittsburgh Chapter No. 2, herein called the Defenders, filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Lawson Manufacturing Company, Pitts- burgh, Pennsylvania, 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 20, 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, ordered an investigation and 19 N. L. R. B., No. 81. 756 LAWSON MANUFAC'TUR'ING COMPANY 757 authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 13, 1939, the Regional Director issued a notice of hearing, and on November 24, 1939, a notice of postponement of hear- ing, copies of each of which were duly served upon the Company, the Defenders, and Steel Workers Organizing Committee, Local No. 2117,E on behalf of Amalgamated Association of Iron, Steel, and Tin Workers of North America, affiliated with the Congress of Indus- trial Organizations, herein called the S. W. O. C., described'in the petition as a labor organization claiming to represent employees of the Company directly affected by the investigation. Pursuant to the notice of postponement, a hearing was held on December 4, 1939, at Pittsburgh, Pennsylvania, before Peter F. Ward, the Trial Examiner duly designated by the Board. At the opening of the hearing, the S. W. O. C moved to intervene in the proceedings. The Trial Exam- iner granted the motion. The Board, the Company, the Defenders, and the S. W. O. C. 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. At the conclusion of the hearing, the S. W. O. C. moved to dismiss the petition on the ground that the Defenders was not a labor organization within the meaning of the Act, and on the further ground that no question concerning repre- sentation had been shown to exist. The Trial Examiner denied the motion. For reasons appearing hereinafter, the ruling is hereby affirmed. During the course of the hearing the Trial Examiner also made rulings on other motions and 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 affirmed. Pursuant to leave granted, on December 20, 1939, the Company and the Defenders, and on December 22, 1939, the S. W. O. C. filed briefs which the Board has considered. Pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was had be- fore the Board in Washington, D. C., on December 22, 1939. The Company and the Defenders were represented by counsel and partici- pated in the argument; the S. W. O. C. did not attend or participate. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Lawson Manufacturing Company, a Pennsylvania corporation, having its plant and principal office in Pittsburgh, Pennsylvania, is 'Erroneously designated as Local No . 1167 in the petition which was amended in this respect at the hearing, without objection. 283030-41-vol. 19--49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in the manufacture and sale of gas and kerosene water. heaters, wall insert heaters, floor furnaces, and thermostat valves. The Company also maintains sales representatives and warehouse stocks in several large cities throughout the country. Only em- ployees of the Company at its plant in Pittsburgh are involved in these proceedings. At the time of the hearing, approximately 85 per- sons, of whom approximately 66 were production employees and the remainder supervisory and clerical employees, were employed at this plant. The principal raw materials used in the business of the Company, are copper tubing, gray-iron castings, iron tanks, and steel. During the first 6 months of 1939 the cost of these, raw materials, of which approximately 85 per cent in value were shipped to Pittsburgh from States other than the State of Pennsylvania, was in excess of $200,000. ;;During the same period, the total sale price of the products, manufactured by the Company, of which approximately 80 per cent in value were shipped to points outside the State of Pennsylvania, was in excess of $300,000. The Company admits that it is subject to the jurisdiction of the Board. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee, Local No. 2117,2 is a labor organization authorized to act on behalf of the Amalgamated Asso- ciation of Iron, Steel, and Tin Workers of North America, which, in turn, is a labor organization affiliated with the Congress of Industrial Organizations.3 Steel Workers Organizing Committee, Local No. 2117, admits to its membership employees of the Company.4 Defenders of America, Pittsburgh Chapter No. 2, the petitioner in the instant proceedings, is an unincorporated association which admits to membership native-born or naturalized citizens of the United States who are "wage or salaried employee(s) of the Lawson 2 See footnote 1, supra. 3 Although the record herein does not disclose the relationship between the Steel Workers Organizing Committee and the Amalgamated Association of Iron, Steel, and Tin Workers of North America, we have found in other cases that the Steel Workers Organizing Com- mittee is a committee composed of representatives of a group of unions affiliated with the Congress of Industrial Organizations, with power to act on behalf of the Amalgamated Association of Iron, Steel, and Tin Workers of North America in matters relative to or- ganizing employees in the steel and affiliated industries, and for collective bargaining purposes. See Matter of Western Pipe and Steel Company of California and Steel Workers Organizing Committee et al., 14 N. L. R. B. 473 ; Matter of Bethlehem Steel Corpora- tion, a Delaware Corporation, Bethlehem Steel Corporation, a Pennsylvania Corporation and Steel Workers Organizing Committee, 14 N. L. R. B. 539 ; Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Lodge Nos. 611, 1010, and 1101, 9 N. L. R. B. 783. 4 Its membership cards, one of which is in evidence, state that the employee requests and accepts membership in the Amalgamated Association of Iron. Steel, and Tin Workers of North America, through the Steel Workers Organizing Committee, and authorizes the Steel Workers Organizing Committee to act for him as collective bargaining agency. LAWSON MANUFACTURING COANIPANY 759 Manufacturing Company, not employed in any administrative or policy-forming capacity, nor having the right to employ or dis- charge." Chartered "to act as the sole bargaining unit" e of the employees of the Company, its powers and purposes include the arbitration of differences between its "members and employees with their employer"; the investigation of grievances, and the conduct of negotiations with the Company for their adjustment; and the ap- pointment of committees for such purposes. Clearly, it is an organi- zation in which employees participate; exists, at least in part, for the purpose of dealing with an employer concerning "grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work"; and is, therefore, within the letter of the definition of a labor organization as set forth in the Act.6 The S. W. 0. C., however, contends that other considerations establish that it is not a labor organization, and urges, accordingly, that the petition should be dismissed. Among the declared purposes and objectives of Defenders of America, Pittsburgh Chapter No. 2, as set forth in its constitution, is the prohibition of all strikes by legislation. While we have had occasion recently to point out that a provision in the governing rules of an organization outlawing the right to strike is calculated to render the organization impotent,' where, as in the instant case, there is no showing that such a limitation is not self-imposed by the em- ployees who have formed the particular organization, the existence of such a fetter upon effective action presents no issue under the Act. With such considerations the Act is not concerned," but seeks only to assure that employees may form, join, or assist labor organiza- tions of their own choosing, free from restraint, coercion, or interference by their employer. It follows from what has been said above that there is no merit in the contention made by the S. W. 0. C. that the Defenders of America, Pittsburgh Chapter No. 2, should be declared not to be a labor organization, on the ground that it is chartered by, and must conform to the purposes of, Defenders of America, Pittsburgh Chapter No. 1, which both the petitioner and the S. W. 0. C. style a "patriotic organization." No claim being made that the formation or administration of Pittsburgh Chapter No. 1 has been interfered The record leaves no doubt that by "sole bargaining unit" is meant "exclusive repre- sentative of the employees in a unit appropriate for the purposes of collective bargaining." 6 Section 2 (5). 7 Matter of American Scale Company and International Molders Union of North A merica, Local 149, 1.4 N. L. R. .13. 971 . Indeed, in that case we found such a provision to be a. badge of company domination otherwise shown to' exist. 8 Similarly , we are not concerned with the fact that, among other declared purposes of the Defenders of America , Pittsburgh Chapter No . 2, are "repeal of the exemptions for labor unions in the Sherman Anti-Trust and the Clayton Acts " and "legislative regulations [sic] of all labor unions." 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with, dominated, or given financial or ot]ier support by an -employer, whether it is itself a labor organization and the extent of its control over Defenders of America, Pittsburgh Chapter No. 2, are obviously of no consequence. III. THE QUESTION CONCERNING REPRESENTATION On December 6, 1938, the S. W. O. C. and the Company entered into a written agreement covering rates of pay, hours of work, and conditions of employment, of employees of the Company. The con- tract, which expired by its terms on June 30, 1939, also provided that the Company recognize the S. W. O. C. as the "sole collective bar- gaining agency for all employees of the Company" with the exception of "foremen or supervisors in charge of any class of labor, or watch- men, and all salaried employees." 9 On May 29, 1939, the Defenders, claiming to represent a majority of the Company's employees, requested the Company to recognize it as their exclusive representative. On June 13, 1939, the S. W. O. C. demanded that the Company negotiate a new contract to take effect upon the expiration of the contract dated December 6, 1938. On June 16, 1939, the Company advised the S. W. O. C. and the Defenders that it would not recognize the Defenders until its claim of majority representation was established "in some formal and reasonable (sic) incontrovertible manner"; and that it would not negotiate a new agreement with the S. W. O. C. until the Defenders had had an opportunity to establish its claim. As has been stated above, on June 20, 1939, the Defenders filed its petition herein. Thereafter, the S. W. O. C. and the Company entered into agreements renewing for periods of one month, the contract dated December 6, 1938. On Sep- tember 30, 1939, the last of such renewals expired. As we have previously stated, at the hearing the S. W. 0. C. moved to dismiss the petition on the ground that no question concerning rep- resentation had been shown to exist. The contention of the S. W. O. C. in this regard is based upon .the premise that the request of the Defenders on May 29, 1939, for recognition by the Company, -was made upon the suggestion of representatives of the Board, "in -order to create a controversy for the record." The motion is obviously without merit, since it is well settled that a demand for recognition is not necessary to establish the existence of a question concerning representation.'0 e While other provisions of the contract indicate that it covered only employees of the .Company who were members of the Union, we find it unnecessary in this case to resolve this apparent inconsistency. 10 See Matter of Ohio Steel Foundry Company and International Molders Union of North America, 6 N. L. R. B. 127; Matter of Johns-Manville Products Corporation and Interna- tional Union of Mine, Mill d Smelting Workers, 7 N. L. R. B. 1055 ; Matter of Granite Finishing Works of Proximity Mfg. Company and Teatile Workers Organizing Committee, LAZVsON MANUFACTURING 0'011PAN1Y 761 We find that a question has arisen concerning the representation of employees 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 At the hearing, the Defenders and the S. W. 0. C. stipulated and agreed that all employees of the Company "engaged in production, maintenance, and service, exclusive of clerks, foremen, and super- visory employees, and night janitors" constitute a unit appropriate for the purposes of collective bargaining. The Company made no, objection to this unit. The pay roll of the Company for the week ending November 15, 1939, which is in evidence, contains one employee who is classified as a "night janitor" and one employee who is classified as a "day jani- tor and laborer." The unit upon which the parties have agreed would thus exclude the night janitor and include the day janitor and laborer. The record does not disclose what the duties of the day janitor and laborer are, or what proportion of his time is devoted to his duties as janitor, and what proportion to his duties as laborer. The night janitor, who works from 4: 30 p. in. to 12: 30 a. m., which is after the other employees have completed their duties for the day,- sweeps and cleans the plant. It does not appear that the duties and interests of the night janitor are distinguishable from those of the day janitor and laborer. Moreover, the night janitor appears to have been covered by the contract dated December 6, 1938, between the S. W. 0. C. and the Company; no reason for his exclusion from the unit has been offered by any of the parties; and the objection of the S. W. 0. C. and the Defenders to his inclusion seems to be inconsistent with the character of the bargaining unit sought by them. We shall include the night janitor in the unit.12 7 N. L. R. B. 364; Matter of National Weaving Company and Textile Workers Organizing Committee, 7 N. L. R. B. 916; Matter of Wickwire Spencer Steel Company and Federated: Industrial Union, 18 N. L. R. B. 372. "The Company does not usually operate a night shift. '' Cf. Matter of Westchester Apartments, Inc. and United Building Service EmDlovees. Local 675, 17 N. L. R. B. 433. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The S. W. 0. C. claims, and the Company and the Defenders deny, that Eric Buckholz, who is listed on the Company's pay roll as a die maker, is a supervisory employee and should be excluded from the unit.13 Buckholz was described by the superintendent of the Com- pany as the head die maker. He receives a higher rate of pay than the other die makers in the Company's employ, and his duties include, in addition to manual work similar to that of the other men, laying out their work and instructing them in their duties. It also appears that the die and tool-making department of the Company is not under the direction of a foreman. We believe that the interests and duties of Buckholz are sufficiently distinguishable from those of the other employees to bring him within the class of employees whom we normally exclude from a bargaining unit upon objection by one of two rival labor organizations. 14 We find that all production, maintenance, and service employees of the Company, including the night janitor, but excluding clerks, foremen, and supervisory employees," constitute a unit appropriate for the purposes of collective bargaining and 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. TIIE DETERMINATION OF REPRESENTATIVES At the hearing, the S. W. 0. C. and the Defenders introduced evi- dence that they each represent a substantial number of employees in the unit which we have found to be appropriate for the purposes of collective bargaining; neither requested certification on the record as made; and both agreed that if the Board directed an election, the names of both organizations should appear on the ballot. We find that the question concerning representation of employees of the Company can best be resolved by holding an election by secret ballot to determine the choice of bargaining representative. Those employees in the appropriate unit who were employed by the Com- pany during the pay-roll period next preceding the date of the Direc- tion of Election herein will be eligible to vote, subject to the limita- tions and additions 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 : 13 The record does not disclose whether Buckholz was regarded as one of the "foremen or supervisors in charge of any class of labor" under the contract dated December 6, 1938, and hence excluded from the unit defined in that contract. 14 See Matter of Kingsley Lumber Company and Lumber and Sawmill Workers, Local No. 2879, United Brotherhood of Carpenters and Joiners of America , Affiliated with the American Federation of Labor, et at., 13 N. L . R. B. 174. is As we have previously indicated , Buckholz is to be excluded as a supervisory employee. L.kWSON DIANI FACTORING COMPANY CONCLUSIONS OF LAW 763 1. A question affecting commerce has arisen concerning the repre- sentation of employees of the Lawson Manufacturing Company, with- in the meaning of Section 9 (c) and Section 2 (6) and (7) of the .National Labor Relations Act. 2. The production, maintenance, and service employees of the Com- pany, including the night janitor, but excluding clerks, foremen, and supervisory employees," constitute a unit appropriate for the pur- poses 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 Re- lations 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 the Lawson Manufacturing Company, Pittsburgh, Pennsylvania, 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 Sixth Region, acting in this matter as agent for the Na- tional Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production, maintenance, and service employees, including the night janitor, of said Company, who were employed by the Company during the pay-roll period next pre- ceding the date of this Direction of Election, and further including employees who did not work during said pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding clerks, foremen, and super- visory employees'16 and employees who have quit or have been dis- charged for cause since said date, to determine whether they wish to be represented by Defenders of America, Pittsburgh Chapter No. 2, or by Steel Workers Organizing Committee, Local No. 2117, on be- half of Amalgamated Association of Iron, Steel, and Tin Workers of North America, affiliated with the Congress of Industrial Organi- zations, for the purposes of collective bargaining, or by neither. 16 See footnote 15, supra.