American Steel Scraper Co.

In the Matter of AMERICAN STEEL SCRAPER COMPANY and LOCAL 1408 INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. OF L. Case No. R-1708.-Decided March 7, 1940 Wheelbarrows and Steel Scrapers Manufacturing Industry-Investigation of Representatives : controversy concerning representation of employees : employer refuses to recognize petitioning union prior to determination by the Board of appropriate unit ; stipulation as to-Unit Appropriate for Collective Bargaining: agreement as to : all employees exclusive of supervisory and clerical ; salaried employee directing helpers and having responsibility for performance of work in department excluded as supervisor-Representatives : eligibility to participate in choice : agreement as to: employees currently employed and employees tem- porarily laid off ; employee temporarily laid off, having secured other employ- ment of a different nature and at a lower hourly rate, expressing preference for employment with company, eligible to participate-Election Ordered Mr. Harry L. Lodish, for the Board. Mr. Urban H. Doorley, of Sidney, Ohio, for the Company. Mr. William R. McCourt, of Cleveland, Ohio, for the Union. Miss Mary Metlay, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On January 8, 1940, Local 14081 International Association of Ma- chinists, herein called the Union, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of American Steel Scraper Company, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 25, 1940, the National Labor Relations Board, herein called the Board, acting pur- suant 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 authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On January 1 Incorrectly designated in the notice of hearing as Local .No. 1471. The designation of the union was corrected by amendment at the hearing. 21 N. L. R. B., No. 26. 218 AMERICAN STEEL SCRAPER COMPANY 219 26, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on January 30, 1940, at Sidney, Ohio, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union 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. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Steel Scraper Company of Sidney, Ohio, is engaged in the manufacture of wheelbarrows and small steel scrapers. The raw materials used by the Company in its operations are principally steel and small rubber tires. The Company expends annually about $75,000 for the purchase of such materials, approximately 50 per cent of which are secured from points outside of the State of Ohio. Approximately 90 per cent of its products are shipped to points outside of the State of Ohio. The Company employs during its normal period of produc- tion about 25 employees, approximately 20 of whom are production and maintenance employees. It concedes that its business is conducted in interstate commerce. II. THE ORGANIZATION INVOLVED Local 1408, International Association of Machinists, is a labor or- ganization affiliated with the American Federation of Labor, admit- ting to its membership all production and maintenance employees of the Company, excluding clerical and supervisory employees. III. THE QUESTION CONCERNING REPRESENTATION At the hearing it was stipulated by the parties to the proceeding that the Company refuses to recognize the Union as the exclusive bar- gaining agent of the Company's employees prior to a determination by the Board of the 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 220 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 Company and the Union stipulated at'the hearing that all em- ployees of the Company except supervisory and clerical employees constitute an appropriate bargaining unit. We see no reason' to alter the unit agreed upon. The Company and the Union disagree as to the status of one of the employees, Charle's Gerstner. The Union contends that Gerstner is a. supervisory employee and therefore should not be included in the appropriate unit. The Company contends that he is 'a production employee and therefore should be so included. Gerstner, employed by the Company for 42 years, directs three regu- lar helpers and three or four additional helpers, as the volume of the work demands , in the painting, assembling, and loading departments of the Company. While he is unquestionably engaged in tasks similar to those performed by his helpers, nevertheless he exercises substantial supervision over his helpers and is responsible for the work of the department. Gerstner and the supervisor of the entire plant are the only employees who are paid on a salary basis. We are convinced that Gerstner exercises some measure of supervision over the helpers in his department. We shall exclude him from the bargaining unit. We find that all the employees of the Company , excluding super- visory and clerical ' employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to em- ployees of the Company the full benefit of their right to self-organiza- tion and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Union did not place in the record any specific evidence of mem- bership or authorization to represent employees of the Company, al- though there was testimony that a majority of the employees of the Company are members of the Union . We find that the question con- cerning representation can best be resolved by means of an election by secret ballot. The parties agreed at the hearing that the pay roll for January 27, 1940, should be used as the basis for determining eligibility to partici- pate in the election. There refrains for consideration the eligibility of an employee, Vernon Shelby , to vote. The Union contends that Shelby is tempo- AMERICAN STEEL SCRAPER COMPANY - 221 rarily laid off, that he is in the same class as a number of other laid- off employees whose eligibility to participate in the election is not questioned by the Company, and that therefore he is eligible to par- ticipate in the election that we shall order. The Company contends that he has accepted other employment to such an extent as to render him ineligible. The record reveals that Shelby was employed by the Company as a woodworker for 11 years prior to December 19, 1939. OnaDecember 19, 1939, the entire plant was shut down because of over- production and all of the Company's employees including Shelby were laid off. The plant was reopened on the following day and two or three employees were recalled. At the date of the hearing the Com- pany had not yet resumed its full operations and was employing only approximately 12 or 13 of the production employees who had been laid off on December 19, 1939. A representative of the Company stated that it was the Company's intention to recall all of the employees who had been laid off on December 19, 1939, as soon as the Company re- sumed its full operations. The Company maintains on its pay roll all of its employees who had been working just prior to December 19, 1939, except Shelby. Shelby obtained employment with the Copeland Refrigerator Com- pany about 4' weeks subsequent to his lay-off. The Copeland Refrig- erator Company pays him 71/2¢ per hour less than the wage rate paid him by the Company. The nature of the work he does for Copeland Refrigerator Company is different from the nature of the work he performed for the Company. Although Shelby testified that he con- sidered the Copeland Refrigerator Company as his employer he also stated that he would prefer to work for the Company. The Company stated that it withdrew Shelby's name from the pay roll when it ascer- tained the fact that he was employed by the Copeland Refrigerator Company. However, the Company also stated 'that Shelby was a good workman and could be shifted around to fit into the work of the plant. Since there is insufficient evidence in the record to show that Shelby was either discharged,by the Company or had quit his employ- ment with the Company and there is likelihood that he will be recalled, we find that he is eligible to vote in the election that we shall order. We find that all employees within the appropriate unit who were on the Company's pay roll for the period ending January 27, 1940, including Vernon Shelby and other employees who did not work dur- ing such pay-roll period because they were ill or on vacation, and em- ployees who were then and have since been temporarily laid off, but excluding those employees 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 : 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of American Steel Scraper Company, Sidney, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of the Company, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collec- tive bargaining, within the meaning of Section 9 (b) of the 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 Relations 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with American Steel Scraper Company, Sidney, 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 of Election, 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 employees of the Company who were employed by the Company during the pay-roll period ending January 27, 1940, including those 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, including Vernon Shelby, but exclud- ing supervisory and clerical employees, and those who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Association of Machinists, Local No. 1408, affiliated with the American Federation of Labor, for the purposes of collective bargaining.