Linderme Tube Co.

In the Matter of LINDERME TUBE COMPANY and FEDERAL LABOR UNION No. 22122, (A. F. OF L.) Case No. B-1680.-Decided February 19, 1940 Brass and Copper Tube Manufacturing Industry-Investigation of Representa- tives: controversy concerning representation of employees : rival unions ; refusal of employer to recognize either as exclusive bargaining agency-Unit Appropri- ate for Collective Bargaining: production and maintenance employees, including set-up men, furnace operators, and box-makers eligible to membership in both unions, excluding certain supervisory employees ; agreement as to-Representa- lives: eligibility to participate in choice of: pay roll next preceding date of Direction-Election Ordered Mr. Harry L. Lodisli, for the Board. Mr. Coleman Clalterty and Mr. E. Wayne Patterson, of Cleveland, Ohio, for the A. F. of L. Mr. Maurice Sugar and Mr. Jack N. Tucker, of Detroit. Mich., for the C. I. O. Mr. James P. Miller and Mr. Roland A. Baskin, of Cleveland, Ohio, for the Company. Mr. Norman M. Neel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 5, 1939, Federal Labor Union No. 22122, (A. F. of L.), herein' called the A. F. of L., filed with the Regional Director for the' Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Linderme Tube Company, Euclid, Ohio, 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 December 8, 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 20 N. L. R. B., No. 57. 567 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 3, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, upon the A. F. of L., upon United Automobile Workers of America Local 217, C. I. 0., herein called the C. I. 0., a labor organization claiming to represent employees directly affected by the investigation, and upon the Firemen and Oilers Local Union No. 52, and upon Metal Polishers, Buffers, Platers, Spinners & Helpers International Union #3.1 Pursuant to the notice, a hearing was held on January 11, 1940, at Cleveland, Ohio, before Albert L. Lolim, the Trial Ex- aminer duly designated by the Board. The Board, the Company, the A. F. of L., and the C. I. O. were represented by counsel and participated in the hearing. Full opportunity to be heard, to exam- ine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on 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 hereby affirmed. Upon the entire record in the case, the Board makes the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 2 The Company is an Ohio corporation having its principal office and place of business in Euclid, Ohio, where, since 1927, it has been en- gaged in the manufacture, sale, and distribution of brass and copper tubing. The principal raw materials used in the process of manu- facture are brass and copper. During the year 1938, approximately 70 per cent of the raw materials used in the Company's plant:-were shipped from outside the State of Ohio, and about 65 per cent of, its finished products were shipped from the Company's plant to points. outside the State of Ohio. During the year 1938 the total amount, of raw-material purchases at said plant was approximately $300,000 and the total amount of sales was approximately $500,000. The same. approximate figures are applicable to the Company's business in 1939. At the time of the hearing there were approximately 129 men on the Company's pay roll. The Company concedes that it is engaged in interstate commerce within the meaning of the Act. 'The two last-named organizations did not appear and the Board's attorney stated at the hearing that they had advised that they were not interested in the proceeding. 2 The findings in this section are based upon a stipulation of facts between the Com- pany, the A. F. of L., the C. I. 0., and counsel for the Board. LINDERME TUBE COMPANY IT. THE ORGANIZATIONS INVOLVED 569 Federal Labor Union No. 22122 is a labor organization affiliated with the American Federation of Labor, admitting to membership production and maintenance employees of the Company. International Union, United Automobile Workers of America, Local. 217, is a labor organization affiliated with the Congress of Industrial Organizations and admits to membership production and maintenance employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The C. I. O. claimed to represent a majority of the Company's em- ployees and requested recognition as the employees' exclusive bar- gaining agent. The Company refused to grant this request.3 It was stipulated by all parties at the hearing that the Company refuses to recognize either the A. F. of L. or the C. I. O. as the exclusive -bargaining representative of its employees until one or the other of them has been certified by the Board as such representative in an appropriate unit. 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The C. I. O. and the A. F. of L. agree that the unit appropriate for the purposes of collective bargaining should include production and maintenance employees. The Company took no position on the appropriate-unit issue. The C. I. O. claims, however, that all super- visors should be excluded and the A. F. of L. requests the exclusion only of supervisors having authority to hire and discharge. The parties stipulated that the following are supervisors who should be excluded from the unit: Jack Bernick, Vernon Gibbs, Jokn Slogar, 8 The record does not disclose the date of either the request or refusal. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank Kobal, Ray Montero , Jr., Steve Martin, and Frank Pozzan. Since all parties desire their exclusion , they will be excluded from the appropriate unit. With respect to Edward Dlugas, Bernard Prinz, George Komar, Joseph Stasick, Bolek Waloszynek , Frank Boehike, and Mike Simkovitch, the parties are not in accord. The C. I. 0. desires their exclusion as supervisors ; the A. F. of L. contends that their -work is not sufficiently supervisory to warrant their exclusion ; and the Com- pany maintains a neutral position , but states that it has never con- sidered these persons to be supervisors . The last named employees are all paid on an hourly basis and are eligible to membership in both unions. The Company's factory is composed of six major departments in which the seven employees excluded from the unit by agreement and the plant superintendent act as foremen . The persons here sought to be excluded work in these departments under their supervision. Edward Dlugas and Bernard Prinz are, set-up men in the cutting department under the supervision of Frank Kobal , the foreman-. They alternate on day and night shifts and, when not setting up ma- chines, are engaged in cutting tubes. There is evidence that they take the orders and redistribute the work. When on the night shift, they are instructed by the foreman before he leaves . They inspect the work of other employees for defects in material or workihan- ship, but exercise no supervision or control over the men . They have no authority to hire or discharge and "cannot suggest hiring or firing." Frank Boelilke is employed in the forming department of which Roy Montero, Jr., is foreman. He sets up jigs for the men'and works on the jigs himself. He sometimes instructs new men but does not instruct ordinary experienced workers. He alternates on the night shift with one Poynick and checks the quality of the work but has no authority to hire or discharge or recommend hiring or discharge. George Komar, Joseph Stasick , and Bolek Waloszynek are the furnace operators on three consecutive shifts under the supervisory direction of the plant superintendent, Ray Montero, Sr. Each op- erator works with three other men who defer to his wishes on the more technical aspects of the annealing treatment, such as the degree of heat necessary for a certain metal. The operators have been trained in these matters by the Company . The plant superintendent posts his orders on a bulletin board, the operators tell the men at what time to put in metal, and help them clean the metal and load the furnace . They have no authority to hire or discharge and can- not recommend discharge. LINiDER.ME TUBE COMPANY 571 - Mike' Simkovitch is a, box-maker in the shipping department. There are two of them thus employed, one cutting, the other nailing. Their foreman is Frank Pozun who provides help, when it is needed. Simkovitch is required to drive a truck approximately 25 per cent of the time. He has no authority to give orders and makes no recom- mendations with respect to hiring or discharge. 'These persons are all paid on an hourly basis as are the other production and maintenance employees. None has the authority to hire or discharge, nor to make recommendations in that regard. Their duties involve no measure of independent supervisory author- ity and they form an integral part of the production organization. They are, moreover, eligible to membership in both unions.-' We are of the opinion that they should be included in the appropriate unit. We find that all production and maintenance employees of the Company, including set-up men, furnace operators, and box-makers, but excluding supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will in- sure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectu- ate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the A. F. of L. claimed to have had, at the. time of filing the petition, 74 members who had paid their initiation fees. The C. I. 0. claimed to represent 75 or 80 employees at.the time that .it requested recognition as the sole representative of. the Company's employees. We find that the question which has arisen concerning representation can best be resolved by the holding of an election by secret ballot. We shall direct that such an election be held. The A. F. of L. requests the use of a pay-roll date nearest to the date of the filing of the petition in this proceeding as determinative of eligibility to participate in the election. Inasmuch as considerable time has elapsed since the date of filing the petition and no reason has been given for taking a pay roll as of that date, we shall direct the use of a current pay roll. Accordingly, all persons in the ap- propriate unit who were employed by the Company during the pay- roll period next preceding 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 since been temporarily See Matter of B. F. Sturtevant Company and United Electrical and Radio, Workers 'Local Industrial Union No. 248, 8 N. L. R. B. 835; Matter of Marlin-Rockwell Corporation and Local No. 838, United Automobile Workers of America, 5.N.'L. R . B. 206. Matter of Friedman Blau Farber Company and International Ladies' Garment Workers' Union, Local No. 295, 4 N. L. R. B. 151. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. 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 Linderme Tube Company, Euclid, Ohio, 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 Company, in- cluding set-up men, furnace operators, and box-makers, but exclud- ing supervisory employees, 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- 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 a part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Linderme Tube Company, Euclid, Ohio, 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, under the direction and supervision of the Regional Director for the Eighth 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 of the Linderme Tube Company, including set-up men, furnace op- erators, and box-makers, who were employed by the Company dur- ing the pay-roll period next preceding the date of this Direction, in- cluding employees 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 temporarily laid off, but excluding all persons who have quit or have been discharged for cause since that date, and further excluding supervisors, to determine whether they desire to be represented by Federal Labor Union No. 22122, (A. F. of L.) or United Automobile Workers of America, Local 217, C. I. 0., for the purposes of collective bargaining, or by neither.