The Ingalls Iron Works Company, Inc.

IJ In the Matter of BIRMINGHAM TANK COMPANY, DIVISION OF THE INGALLS IRON WORKS COMPANY, INC. and INTERNATIONAL Asso- CIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, SHOPMEN'S LOCAL #539 Case No. R-1938.-Decided July 31, 1940 Jurisdiction : steel fabricating industry. Investigation and Certification of Representatives : existence of question: employer refuses to accord recognition to union ; contract providing for repre- sentation for members only, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees including clerical workers in the plant and watchmen, but excluding all supervisory employees and employees engaged solely in clerical work. Mr. D. W. Strickland and Mr. J. A. Simpson, of Birmingham, Ala., for the Company. Mr. Louis A. Leveille, Jr., of Birmingham, Ala., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 22, 1940, International Association of Bridge, Struc- tural and Ornamental Iron Workers, Shopmen's Local #539, herein called the Union, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Birmingham Tank Company, Division of The Ingalls Iron Works Company, Inc., Birmingham, Alabama, 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 June 13 and 28, 1940, respec- tively, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Sec- tion 3, of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued an order and a corrected order direct- 25 N. L. R. B., No. 124. 1306 BIRMINGHAM TANK COMPANY : 1307 ing an investigation and authorizing the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice. On June 27, 1940, the Union filed an amended petition with the Regional Director. On June 28, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the.Company, the Union, and upon Steel Workers Organizing Committee.' Pursuant to the notice, P. hearing was held on July 8, 1940, at Birmingham, Alabama, before Warren Woods, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by coun- sel 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. The Trial Exam- iner granted a motion filed by the Union during the hearing to amend its petition. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rul- -ings 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 I. THE BUSINESS OF THE COMPANY The Birmingham Tank Company, a,division of The Ingalls Iron Works Company, Inc., is a Delaware corporation with its principal offices at Birmingham, Alabama. The Company operates a plant at North Birmingham, Alabama, where it is engaged in the fabrication of 'steel tanks, drums, and pipe, and general plate work. During 1939 the Company purchased raw materials valued at approximately $600,000. During .the same period the Company sold, finished prod- ucts valued at approximately $750,000, 50 per cent of which were shipped by it to points outside the State of Alabama. The Com- pany employs approximately 90 persons. It admits that it is en- gaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local #539, is a labor organization affili- ated with the American Federation of Labor. It admits to mem- I The Steel Workers Organizing Committee did not appear at the hearing. 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership all production and maintenance employees of the Company, excluding employees engaged solely in clerical work and superin- tendents. III. THE QUESTION CONCERNING REPRESENTATION On April 13, 1940, the Union wrote to the Company requesting that it bargain with the Union as the representative of a majority of the employees of the Company. The Company replied by letter that upon being given proof of the Union's claim to represent a majority, it would enter into negotiations with the Union. On June 24, 1938, the Steel Workers Organizing Committee en- tered into a contract with the Company on behalf of its members in the Company's plant. This contract was for a term of 1 year with an automatic renewal clause, but it was terminable upon 20 days' notice by either party thereto prior to the end of any year period. No such notice has been given by either party. In view of the filing of the petition herein, and in view of the fact that the con- tract recognizes the Steel Workers Organizing Committee. -as_ a representative of its members, only, the Board is not precluded by the contract from investigating or certifying representatives for the purposes of collective bargaining. 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 The Union urges that all production and maintenance employees of the Company, including supervisory employees, clerical employees working in the plant, and watchmen, but excluding employees en- gaged solely in clerical work and the superintendent and assistant superintendent, constitute a unit appropriate for the purposes of collective bargaining.2 The only controversy concerning the unit 2 In its original petition the Union urged the exclusion of the supervisory employees. BIRMINGHAM TANK COMPANY 1309 concerns clerical workers working in the plant, supervisory em- ployees, and watchmen. The Union urges the inclusion of all such employees and the Company desires their exclusion. At the hearing the dispute as to the clerical and supervisory employees narrowed down to 10-named employees. Ben A. West, J. R. Sweeney, E. L. Harwell, Harry E. Poole, J. M. Turner, J. W. Keel, A. Gilmore, and J. H. Wall are classi- fied by the Company as foremen. They all issue orders to other employees, and have the power to lay off, hire, and discharge em- ployees. E. E. Umphenauer is classified by the Company as an inspector. He checks all the finished products for quality and cor- rectness and if he finds any defects he returns the work to the employees to be repaired and reports the defects to the superin- tendent. In view of the supervisory duties of the afore-mentioned employees, we find that West, Sweeney, Harwell, Poole, Turner, Keel, Gilmore, Wall, and Umphenauer should be excluded from the unit. C. Y. Johnson is classified by the Company as a warehouseman and clerk. He checks all raw materials received by the Company and makes out material receipts and reports therefor. His duties are in the plant where he is in close contact with the production workers. We find that Johnson should be included in the unit.3 The Company has five employees classified by it as watchmen. These employees are charged with the • duty of protecting the Com- pany's property and they act as gatemen and night watchmen. The only labor organization here involved desires their inclusion. We are of the opinion that these employees should be included within the appropriate unit.4 We find that all production and maintenance employees of the Company, including clerical workers in the plant and watchmen, but excluding all supervisory employees and employees engaged solely in, clerical work, constitute a unit appropriate for the purposes of -collective bargaining and that said unit will insure to the em- ployees of the Company their full 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 the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. We shall direct that the employees of the 8 See Matter of Cleveland Equipment Works and The United Electrical, Radio, and Machine Workers of America, Local 707, 6 N. L. R B 773 *See Matte of Willys Overland Motors , Inc, and International Union, United Auto- mobile Workers of America, Local 12, 9 N L. R B. 924. 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company eligible to vote in the election shall be those in the appro- priate unit who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Election herein, includ- ing 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 those employees 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 L A question affecting commerce has arisen concerning the repre- sentation of employees of Birmingham Tank Company , Birmingham, Alabama, 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, including clerical workers in the plant and watchmen, but excluding all supervisory employees and employees engaged solely in, clerical work, 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 Relations 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 Birmingham Tank Company, Birmingham, Ala- bama, 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 Direc- tor for the Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations , among all the production and maintenance employees of the Company who were employed during the pay-roll period immediately preceding the-date of this Direction, including clerical workers in the plant, watchmen, em- ployees who did not work during such pay-roll period because they were ill or on vacation , and employees who were then or have since BIRMINGHAM TANK COMPANY _1311 been temporarily laid off, but excluding all supervisory employees, employees engaged solely in clerical work, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Association,of Bridge, Structural and Ornamental Iron Workers, Shopmen's Local $539, affiliated with the American Federation of Labor, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Direction of Election. '