Dayton Malleable Iron Co.

In the Matter of G. H. R . FOUNDRY COMPANY, DIVISION OF THn' DAYTON MALLEABLE IRON CO' and LOCAL 806, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA Case No. R-1800.-Decided May 22,1940 Gray Iron Castings Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : rival organizations-Con- tract: entered into after informal determination by Regional Director in July 1937 that rival union represented a majority of employees ; contract having run more than 2 years not a bar to an investigation and certification of repre- sentatives-Unit Appropriate for Collective Bargaining : all production and maintenance employees, including , those associated directly with production and maintenance but excluding foremen , assistant foremen, timekeepers , clerical and technical employees, and other employees having the right to hire and dis- charge ; stipulation as to-Election Ordered: ballot : name of rival union not included on, in accordance with its desire. Mr. Oscar Grossman and Mr. Guy Farmer, for the Board. Mr. R. M. Robinson, of'Dayton, Ohio, for the Company. Mr. Ernest De Maio, of Dayton, Ohio, for the U. E. R. M. W. Mr. N. B. Smith, of Cincinnati, Ohio, for the I. M. U. Mr. Leo B. Fee, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 29, 1940, Local 806, United Electrical, Radio & Ma- chine Workers of America, herein called the U. E. R. Al. W., filed with the Regional Director for the Ninth Region (Cincinnati, Ohio), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of G. H. R. Foundry Company, Division of the Dayton Malleable Iron Co., Dayton, Ohio, 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 March 25, 1940, the National Labor Relations Board, herein called i Incorrectly designated In the petition as G. II. R. Foundry. Division of the Dayton Malleable Iron Company. At the hearing the petition was amended to indicate the correct name. 23 N. L. R. B., No. 113. 1052 G. H. R. FOUNDRY COMPANY 1053 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, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On March 28, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the U. E. R. M. W., and Local 181, International Molders' Union of North America, herein called the I. M. U., a labor organization claiming to represent employees directly affected.by the investigation. Pur- suant to notice, a hearing was held on April 15, 1940, in Dayton, Ohio, before Herbert Wenzel, the Trial Examiner duly designated by the Board. The Board was represented by counsel; the Company, the U. E. R. M. W., and the I. M. U. by their respective representa- tives; all 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. 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 preju- dicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the proceeding, the Board makes the 'following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Dayton Malleable Iron Co. is an Ohio corporation, having its principal place of business in Dayton, Ohio, where it operates two plants, one of which, known as the G. H. R. Foundry Company, herein called the Foundry, is the plant here involved. The Company is engaged at the Foundry in the manufacture of gray-iron castings. During the year 1939 the Company purchased raw materials, for use at the Foundry, of a value of approximately $750,000. Of these, approximately 49.5 per cent were purchased by_ the Company and shipped to the Foundry from points outside the State of Ohio. During the same year the Company manufactured at the Foundry products of a value of approximately $1,500,000, of which approxi- mately 10 per cent were sold by the Company and shipped to points outside the State of Ohio. H. THE ORGANIZATIONS INVOLVED Local 806, United Electrical, Radio & Machine Workers of Amer- ica, is a labor organization, affiliated with the Congress of Industrial 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Organizations,, admitting to its membership employees of the Company at the Foundry. Local 181, International Molders' Union of North America, is a labor organization, affiliated with the American Federation of Labor, admitting to its membership employees of the Company at- the Foundry. III. THE QUESTION CONCERNING REPRESENTATION On February 23, 1938, the Company and the I. M. U. entered into a contract by which the Company recognized the I. M. U. as the exclusive collective bargaining representative of "all eligible em- ployees" of the Company at the Foundry, for a, term "through January 1, 1939." 2 On February 28, 1940, the U. E. R. M. W. informed the Company that it represented a majority of the employees of the Company alt the Foundry and requested that the Company bargain with it. The Company refused to do so, claiming that the Board had, in July 1937, certified the I. M. U. as the exclusive representative of the employees at the Foundry and that the February 23, 1938, contract between the Company and the I. M. U. was still in effect. It appears that the certification referred to by the Company consisted of an' informal determination in July 1937 by the Regional Director that the I. M. U. represented a majority of the Foundry employees, as a result of which the Company recognized the I. M. U. as the exclusive collective bargaining representative of such employees. Even had the I. M. U. been certified by the Board in July 1937, however, such certification, issued almost 3 years ago, would not now constitute a bar to an investigation and certification of representatives .3 The Regional Director's informal determination in July 1937 does not constitute such a bar. At the hearing the I. M. U. took the position that the contract of February 23, 1938, is still in effect, that it will continue so until abrogated by either party to the contract, and that, therefore, the I. M. U. is "opposed to an election taking place at this time." Al- though the contract is ambiguous as to its expiration date, the parties ,to the contract have continued to treat it as still in effect. As a con- tract which has been in effect for more than 2 years it does not consti- tute a bar to an investigation and certification of representatives! t 2 The termination provision of the contract provides further that "Should either party desire a revision, thirty (30) days notice before January 1st, shall be given " 3 See Matter of New York f Cuba Mail Steamship Company and National Organization Masters, Mates and Pilots of America, 9 N. L. R. B. 51. 4 See' Matter of Metro-Goldwyn-Mayer Studios, and Motion Picture Producers Assn., et at. and Screen Writers' Guild, Inc., 7 N L R. B 662 ; Matter of Columbia Broadcasting System, Inc. and American Communications Association (Formerly American Radio Teleg. raphists' Association), 8 N. L. R. B. 508. G. H. R. FOUNDRY, COMPANY 1055 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. V. THE APPROPRIATE UNIT At the hearing all parties stipulated that the appropriate unit consists of all production and maintenance employees of the Com- pany at the.Foundry, including "those associated directly with pro- duction and maintenance," but excluding foremen, assistant foremen; timekeepers, clerical and technical employees, and other employees having the right to hire and discharge. We see no reason for depart-' ing from the unit agreed upon. We find that all production and maintenance employees of th6 Company at the Foundry, including those associated directly with production and maintenance, but excluding foremen, assistant fore- men, timekeepers, clerical and technical employees, and other em- ployees having the right to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining and that said unit 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. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning representa- tion-can best be resolved by an election by secret ballot. At the hearing the I. M. U. stated that in the event an election was directed it did not desire to participate therein. In accordance with the desire of the I. M. U., we will not include its name on the ballot. At the hearing the U. F. R. M. W. request ed that employees eligible to vote in the election should be those who were employed during the pay-roll period ending April 6, 1940. Neither the Company nor the I. M. U. objected thereto. It appears that the Company's business is seasonal and that it operates under peak conditions from about December until about April of each year. At the time of the hearing 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company anticipated its usual seasonal decrease in production "very shortly." , It further appears that employees laid off at the time of a decrease in production are always given preference when rehiring occurs and that the laying off and rehiring of employees is in accordance with seniority. We shall therefore direct that those eligible to vote in the election shall be the employees in the appro- priate unit who were employed during the pay-roll period ending April 6, 1910, including employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding those who have since quit or been discharged for cause. 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 G. H. R. Foundry Company, Division of the Dayton Malleable Iron Co., Dayton, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All production and maintenance employees of the Company at the Foundry, including those associated directly with production and maintenance, but excluding foremen, assistant foremen, time- keepers, clerical and technical employees, and other employees having the right to hire and discharge, constitute a unit appropriate for the purposes of collective 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 Rela- tions Act 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 G. H. R. Foundry Company, Division of the Dayton Malleable Iron Co., Dayton, Ohio, an election by secret ballot shall be con- ducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and super- vision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of G. H. R. G. H. R. FOUNDRY COMPANY 1057 Foundry Company, Division of the Dayton Malleable Iron Co., Dayton, Ohio, who were employed by it during the pay-roll period ending April 6, 1940, including those employees directly associated with production and maintenance, and employees who did not work during such pay-roll period because they were ill, on vacation, or temporarily laid off, but excluding foremen, assistant foremen, time- keepers, clerical and technical employees, other employees having the right to hire and discharge, and those who have since quit or -been discharged for cause, to determine whether or not they desire to.`be, represented by, Local 806,,. TJnited,,Electrical; Radio! & Machine Workers of America, for the purposes of collective bargaining.