The Central Foundry Co.

In the Matter of THE CENTRAL FOUNDRY COMPANY and STEEL WORKERS ORGANIZING COMMITTEE Case No. R-1652.-Decided February 5, 1940 Cast Iron Pipe Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations ; con- troversy as to appropriate unit; refusal of employer to grant exclusive recog- nition until representative certified by Board-Unit Appropriate for Collective Bargainting : production and maintenance employees , excluding supervisory and clerical employees, and including or excluding pattern makers depending on results of election ; plant-wide unit not inappropriate despite some history of informal bargaining on regional industry-wide basis-Elections Ordered: to de- termine appropriate unit or units and representatives of employees therein. Mr. Clarence D. Musser and Mr. Alexander E. Wilson, Jr., for the Bodrd. Mr. L. B. Liles, of Anniston, Ala., for the Company. Mr. Yelverton Cowherd and Mr. Noel R. Beddow, of Birmingham, Ala., for the S. W. O. C. -Mr. J. A. Lipscomb, of Bessemer, Ala., Mr. M. P. Cushing, of Birmingham, Ala., and Mr. George Q. Lynch, of Washington, D. C., for the P. M. A. Mr. Shelley Walden, of Cincinnati, Ohio, for the I. M. U. Mr. Ivar Peterson, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On July 1, 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 question af- fecting commerce had arisen concerning the representation of em- ployees of The Central Foundry Company, Bessemer, Alabama, here- in called the Company, and requesting an investigation and certifi- cation of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On No- vember 13, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an 20 N. L. R. B., No. 11 131 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due. notice. On November 22, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the S. W. O. C., and International Molders' Union of North America, herein called the I. M. U., a labor organization claiming to repre- sent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on December 1, 4, and 5, 1939, at Bir- mingham, Alabama, before E. G. Smith, the Trial Examiner duly designated by the Board. At the opening of the hearing Pattern Makers Association of Birmingham, Alabama, herein called the P. M. A., was, upon motion, permitted to intervene in the proceeding. The I. M. U. also filed a petition to intervene. The Board, the Com- pany, the S. W. O. C., and the P. M. A. were represented by counsel;. the I. M. U. by one of its officers. All parties participated in the hearing and were afforded. full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing the S. W. O. C. moved that the petition to intervene filed by the I. M. U. be denied. The motion is hereby overruled. The P. M.. A. and the I. M. U. separately moved that the petition for investigation and certification of repre- sentatives filed by the S. W. O. C. be dismissed. These motions are hereby denied. During the course of the hearing the Trial Ex- aminer made several rulings on motions and on objections to the ad- mission 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 21, 1939, oral argument was had before the Board in Washington, D. C. The P. M. A. was represented by counsel and the I. M. U. by one of its officers. Briefs filed by the P. M. A. and the I. M. U. 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 COMPANY The Central Foundry Company, a Maine corporation, is engaged in the manufacture and sale of cast-iron pipe and fittings at its plant in Bessemer, Alabama. The Company also operates plants at An- niston and Holt, Alabama; Vincennes, Indiana; Baltimore, Maryland; and Newark, New Jersey. The present proceeding is concerned only with the Bessemer plant. All of the raw materials used in the opera- tions at the Bessemer plant, consisting principally of pig iron, coke,, THE CENTRAL FOUNDRY COMPANY 133 and sand, are obtained in the State of Alabama. About 98 per cent of the finished products, having a total value of about' $900,000 per year; are sold by the Company in States other than Alabama. The Company employs at the Bessemer plant about 355 production and maintenance employees and about 20 clerical and supervisory em- ployees. For the purposes of this proceeding, the Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization au- thorized to act on behalf of Amalgamated Association of Iron, Steel and Tin Workers of North America. Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 2133, herein called the Amalgamated, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership production and maintenance employees at the Company's Bessemer plant, exclusive of supervisory and clerical employees. International Molders' Union of North America is a labor organiza- tion affiliated with the American Federation of Labor having juris- diction over "all workers engaged in the production of castings." Local No. 342 of the I. M. U. is a labor organization admitting to membership production and maintenance employees at the Company's Bessemer plant, excluding supervisory and clerical employees and. employees who are members of other unions affiliated with the Ameri- can Federation of Labor. Pattern Makers Association of Birmingham, Alabama, an affiliate of Pattern Makers League of North America, is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership pattern makers and pattern makers' apprentices employed at. the Company's Bessemer plant. III. THE QUESTION CONCERNING REPRESENTATION In 1934 an American Federation of Labor, federal, local union, which. appears to have embraced employees in all departments, represented. the employees at the Bessemer plant in negotiations with the man- agement. In 1936 the I. M. U., which in 1934 had changed its policy- so as to include within its jurisdiction anyone engaged in the pro- duction of castings, undertook to organize and represent the employees. In the spring of 1934 Anton Hansen, general manager of plants for the Company, met with the representative of one other company having soil-pipe foundries, in Alabama, for the purpose of unifying- piece-work rates, following protests by the I. M. U. against prevailing- rates. Thereafter, in January 1937, representatives of the I. M. U.... 283031-41-vol. 20-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conferred with an employer committee representing about 13 or 14 of the soil-pipe foundries in Alabama and Tennessee, including the Company's foundries. This conference resulted in an agreement as to basic wage rates and certain other general working conditions ef- fective as of April 1, 1937, and until the giving of 30 days' notice by either party of a desire to change. In November 1939, at a similar conference, a tentative agreement was reached providing for wage increases effective January 1, 1940. None of these conferences ripened into formal contracts recognizing the I. M. U. as a bargaining repre- sentative or binding any of the employers represented by the employer committee to put into effect the conditions agreed upon. The em- ployer committee had no authority to bind the several employers who participated in the conferences. Hansen, the Company's general manager, however, testified that whatever was agreed to in these con- ferences was put into effect in all plants of the Company in Alabama. .He further testified that although the negotiations, so far as the Com- pany was concerned, dealt specifically with its plants at Holt and Anniston, Alabama, by custom the concessions made with regard to those plants were extended to the Bessemer plant. It appears that the negotiations dealt primarily with conditions in foundries manufacturing soil pipe. The Company's Holt and Anniston plants manufacture soil pipe, whereas the Bessemer plant manufactures "universal". or pressure pipe. The Company does not consider that, it is bound by any contract to recognize the I. M. U. as the exclusive representative of the employees at the Bessemer plant. On June 17, 1939, representatives of the S. W. O. C., on behalf of the Amalgamated, claiming to represent a majority of the employees, met with representatives of the Company and requested that the Com- pany recognize the Amalgamated, through the S. W. O. C., as the ex- clusive collective bargaining representative of the employees at the Bessemer plant. The Company refuses-to grant any such recognition until some organization has been certified as such representative.by the Board. We find that a question has arisen concerning 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. THE CENTRAL FOUNDRY (COMPANY 135 V. THE APPROPRIATE UNIT The Amalgamated, through the S. W. 0. C., contends that all pro- duction and maintenance employees at the Bessemer plant, exclusive of supervisory and clerical employees, constitute a unit appropriate for the purpose of collective bargaining. The I. M. U. contends that a unit restricted to, employees at the Bessemer plant is inappropriate and that the appropriate unit should be "industry-wide," consisting of employees of the Company at the: Bessemer, Holt, and Anniston plants, and employees of 12 or 13 other foundries in Alabama and Tennessee. The P. M. A. claims that the pattern makers and pattern makers' apprentices employed at the Company's Bessemer plant constitute an appropriate unit. In support of its contention that the unit proposed by the Amal- gamated is inappropriate. and that an "industry-wide" unit is appro- priate, the I. M. U. points to its negotiations" with the employer committee representing soil-pipe plants, set forth above. While these negotiations appear to have achieved a degree of uniformity with respect to basic wage rates in a number of soil-pipe foundries in Alabama and Tennessee, that fact alone is not controlling. As stated above, the negotiations have not reached the stage of formal contracts recognizing the. I. M.. U. as, the exclusive representative of the employees of the various manufacturers'involved-. Nor des the record show that the employers represented by the employer coin- mittee have delegated to that committee the authority to enter into collective agreements binding upon them. Several companies manu- facturing soil pipe in Alabama and Tennessee have not participated in the, negotiations. Consequently, under the circumstances of this case we are unable to conclude that the unit proposed by the Amal- gamated is inappropriate for the reasons advanced by the. I. M. U. In reaching this- conclusion, we do not decide that a unit composed. of employees - of the manufacturers . represented by the employer coin- mittee would be inappropriate. We do, however, think that the employees at the Company's Bessemer plant should not be precluded from functioning as a separate collective bargaining unit until such time as the bargaining on the basis of a broader unit has been perfected.' The claim of the P. M. A. is that pattern makers and pattern makers' apprentices constitute an appropriate unit. The record shows that the P. M. A. has had members in the Coipany's plant for 'many.:years and,: although the, character and extent of the negotii tioris;.are ,not ' clear; l'it' 'appears ,that • the P. M. A. has dealt 'See Matter of F. E. Booth. & Company, etc., and Monterey Bay Area Fish Workers Union No. 23, 10 N. L. R. B. 1491. 136 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD with the Company concerning wages, hours, and working conditions of pattern makers employed in the plant. At the time of the hearing the Company employed only one pattern maker, Otto Lee Arnold, at its Bessemer plant. The representative of the P. M. A. testified that under normal conditions two pattern makers, or one and an apprentice, are .employed. The-,superintendent of the plant, C. A. Nixon, testified that not more than two pattern makers with an apprentice had ever been employed. There is a possibility, there- fore, that at the present time more than one employee may be employed in the unit claimed by the P. M. A. In view of the fore- going facts, we find that the pattern makers and pattern makers' apprentices employed at the Company's Bessemer plant may properly constitute a separate appropriate bargaining unit or be included in a general unit of production and maintenance employees, depending upon the desires of the employees involved .2 Our finding in this respect, however, is based upon the assumption that more than one employee is now employed in the unit claimed by the P. M. A. If only one employee is eligible to participate in the separate election which we shall direct, we will not certify a separate collective bar- gaining representative for him.' Aside from the contentions of the I. M. U. and the P. M. A., dis- cussed above, none of the parties questioned the appropriateness of a unit consisting of production and maintenance employees at the Bessemer plant, excluding clerical and supervisory employees. . At the hearing the Amalgamated submitted for the inspection of the Trial Examiner 312 application and collective bargaining authorization cards. The Trial Examiner stated for the record that 248 of the cards were complete and were dated between March and November 1939. The financial secretary of Lodge No. 2133 testified that about 311 production and maintenance employees were members. The representative of the I. M. U. presented a list dated March 30, 1936, bearing 308 names. He testified that the names on the list represented the I. M. U. members at the Bessemer plant. The representative of the P. M. A. testified that Arnold, the pattern maker, was a member of the P. M: A. All parties proceeded on the assumption that elections were necessary to determine the bar- gaining representative or representatives. 2 Matter of Globe Machine and Stamping Co. and Metal Polishers Union Local. No. 8; International Association of Machinists, District No. 54, 3 N. L. R. B. 294, and subsequent cases. a Matter. of Luckenbach Steamship Company, Inc., etc. and Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 88-124 ; International Longshoremen's A.,sneiation, 2 N. L. R . B. 181, 193; Matter of Metro -Goldwyn-Mayer Studios and Motion Picture Producers Ass'n. et al. and Screen Writers' Guild, Ina., 7 N . L. R. B. 662 and 8 N. i.. B. B. 858, 864 ; Matter of Trawler Marls Stella, Inc . and American Communications Association (C. I. 0.), etc., 12 N. L. R. B. 415, 426. Cf. Matter of Joseph S. Finds ,t Co.. Inc. and United Distillery Workers Union, Local No. 8, 10 N. L. R. B. 896. . THE CENTRAL FOUNDRY 'COMPANT 137 We shall direct that one election be held among the production and maintenance employees, excluding pattern makers and pattern makers' apprentices, and clerical and supervisory employees, to determine whether they desire to be represented by the Amalgamated, by the I. M. U., or by neither. An election shall also be held among the pattern , makers and pattern makers' apprentices to determine whether they desire to be represented by the Amalgamated, by the P. M. A., or by neither. If both groups of employees choose the Amalgamated, they will constitute a single unit for purposes of collective bargaining. Although the parties indicated at the hearing that use of the November 25, 1939, pay roll to determine eligibility to vote would be acceptable, we conclude that the pay roll immediately preceding the date of the Direction of Elections herein should be used. Upon 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 repre- sentation of employees of The Central Foundry Company at its Bessemer, Alabama, plant, 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for collective bargaining with The Cen- tral Foundry Company, Bessemer, Alabama, separate elections by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Tenth 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 those employees of The Central Foundry Com- pany at its Bessemer, Alabama, plant, who fall within the two groups described below who were employed during the pay-roll period immediately 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 have 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since been temporarily laid off, but excluding supervisory and cler- ical employees and those who have since quit or who have been discharged for cause : (a) Production and maintenance employees, excluding pattern makers and pattern makers' apprentices, to determine whether. they desire to be represented by Amalgamated Association of Iron, Steel and Tin Workers of North' America, Lodge No. 2133, through Steel Workers Organizing Committee, or by International Molders' Union of North America, Local No. 342, for the purposes of collective bar- gaining, or by neither; (b) The pattern makers and pattern makers' apprentices to deter- mine whether they desire to be represented by Amalgamated Asso- ciation of Iron, Steel and Tin Workers of North America, Lodge No. 2133, through Steel Workers Organizing Committee, or by Pattern Makers Association of Birmingham, Alabama, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, concurring : In view of the fact that the P. M. A. has bargained with the Company on behalf of pattern makers prior to the advent of the S. W. O. C., I concur in the determination that the inclusion of the pattern makers in the industrial unit sought by the S. W. O. C. should depend upon their desires as expressed in a separate election.' [SAIME TITLE] AMENDMENT TO DIRECTION OF ELECTIONS February 21, 1940 On February 5, 1940, the National Labor Relations Board , herein called the Board, issued a Decision and Direction of Elections in the above-entitled proceedings, the elections to be held as early as possible but not later than thirty (30) days from the date of the Direction. The Board, having been advised by International Molders' Union of North America that it does not desire to participate in the elections , hereby amends its Direction of Elections issued on February 5, 1940, by strik- ing from paragraph (a) thereof the words "they desire to be repre- sented by Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No. 213'3, through Steel Workers Organizing Committee, or by International Molders' Union of North America, Local No. 342,,f or the purposes of collective bargaining, or by neither" and substituting therefor the words "or not they desire to be repre- sented by Amalgamated Association of Iron , Steel and Tin Workers of North America, Lodge No. 2133, through Steel Workers Organizing Committee, for the purposes of collective bargaining." 4 See my concurring opinion in Matter of United States Pipe & Foun.dr,, Company and Steel Workers Organizing Committee, 19 N. L. R. B. 1016, and cases cited therein. 20 N. L. R. B., No. 11a.