Buffalo Pipe & Foundry Corp.

In the Matter of BUFFALO PIPE & FOUNDRY CORPORATION and THE INDEPENDENT SANITARY IRON MOULDERS UNION ' Case No. R-1953.-Decided August ,20, 1940 Jurisdiction : pipe, fittings and service boxes manufacturing industry. Investigation and Certification of Representatives : existence of question: refusal to accord full recognition to union; conflicting claims of rival representatives; contract for undue length of time not asserted as a bar; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees of the Company, exclusive of supervisors, foremen, watchmen, clerical employees, truck drivers, and machinists. Rival Union's request for smaller unit untenable since it has consistently organized and bargained for the Company's employees on the basis of a plant-wide unit. Mr. Cameron Baird, of Buffalo', N. Y., for the Company. Mr. Boyce H. Butterfield, of Buffalo, N. Y., for the Independent. Mr. Walter Hollinger, of Troy, N. Y., for the I. M. U. Mr. John Green, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 24, 1940, The Independent Sanitary Iron Moulders Union, herein called the Independent, filed with the Regional Direc- tor for the Third Region (Buffalo, New York) a petition, and on July 2, 1940, an amended petition, alleging that a question affecting commerce had arisen concerning the representation of employees of Buffalo Pipe & Foundry Corporation, Tonawanda, New York, 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 July 5, 1940, 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 Regu- lations-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. 26 N. L. R. B., No. 88. 848 BUFFALO PIPE & FOUNDRY CORPORATION 849 On July 8, 1940, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the In- dependent, and upon International Moulders Union of North America, Local 261, American Federation of Labor, herein called the I. M. U., a labor organization named in the petition and amended petition as claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held on July 18, 1940, at Buffalo, New York, before Peter Crotty, the Trial Examiner duly designated by the Board. The Company, the Independent, and ,the I. M. U. were represented 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. 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 I. THE BUSINESS OF THE COMPANY Buffalo Pipe & Foundry Corporation, a New York corporation with its plant located at Tonawanda, New York, is* engaged in the manufacture of cast iron soil pipe, fittings, and service boxes. During the first 6 months of 1940 the Company purchased raw materials valued at approximately $50,000, of which approximately 5 per cent were received from points outside the State of New York.' During the same period the Company manufactured finished prod- ucts having a value of slightly less than $150,000, of which approxi- mately 25 per cent were shipped outside the State of New York. 11. IHE ORGANIZATIONS INVOLVED The Independent Sanitary Iron Moulders Union is an unaffiliated labor organization admitting to membership employees of the Com- pany, except "persons representing the management, such as the Superintendent." International Moulders Union of North America, Local 261, is a labor organization affiliated with the American Federation of Labor. It admits to membership employees of the Company. III. ZHE QUESTION CONCERNING REPRESENTATION On February 9, 1940, the Independent requested the Company to negotiate a contract with it. The Company refused the request, re- 1 The principal raw materials used by the Company are pig iron, scrap iron, coke , limestone, sand, and tar. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferred to a contract with the I. M. U., and advised the Independent that under the circumstances the Independent would have to show its authority to represent the employees in the appropriate unit. The Company is presently a party to an exclusive bargaining contract with the I. M. U., of indefinite duration and providing for 30 days' notice by either party desiring any change in the contract. Neither the Company nor the I. M. U. claims that the contract, which has been in existence since June 16, 1938, operates as a bar to this proceeding. A report of the Regional Director shows that both labor organizations represent a substantial number of the Com- pany's employees. Under all the circumstances we are of the opinion that the agreement between the Company and the I. M. U. presents no bar to an investigation and determination of representatives herein.' 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 Independent contends that all production and maintenance employees of the Company, exclusive of supervisors, foremen, watch- men, clerical employees, truck drivers, and machinists, constitute a unit appropriate for the purposes of collective bargaining. The I. M. U. opposes this contention to the extent that it requests the establishment of a separate unit for moulders and moulders' helpers. The Company made no contention as to the appropriate unit, al- though it considered the unit claimed by the Independent as being the same as that embodied in its contract with the I. M. U. The I. M. U. commenced its organizing activity among the Com- pany's employees in 1937 upon a plant-wide basis. On June 16, 1938, as noted above, the I. M. U. and the Company entered into a collective agreement providing, inter alia, for the recognition of the I. M. U. as the bargaining agency "for all employees engaged in the production 1 See Matter of G H R Foundry Company, Division of the Dayton Malleable Iron Co and Local 806, United Electrical Radio Machine Workers of America, 23 N L. R B 1052, Matter of the Riverside and Fort Lee Ferry Company and United Marine Division , Local 333, 1 L A , A. F of L , 23 N. L R B. 493, Matter of Ingram- Richardson Mfg Company of Indiana , Inc. and Federal Labor Union 22174, affiliated with the A F. of L., 23 N. L. R. B. 85. BUFFALO PIPE & FOUNDRY CORPORATION 851 of castings." The contract is still in full force and effect. The I. M. U. contends, however, that since December 1939 it has dealt with the Company only in respect to the moulders. At that time the I. M. U. commenced negotiations with the Company which resulted in an increase in the piece-work rate for moulders. There is no showing, however, that during these negotiations the I. M. U. sought to relinquish or in fact relinquished its claim under the con- tract to represent all the employees covered therein. In further support of its claim for a restricted unit, the I. M. U. pointed out that its membership for the last six to eight months has been limited to moulders and moulders' helpers. The record discloses, however, that employees classified as "laborers" were suspended from the I. M. U. solely because of non-payment of union dues. It is thus apparent that the I. M. U. has consistently organized and bargained for the Company's' employees on the basis of a plant-wide unit. Under these circumstances its present claim for a unit consisting exclusively of moulders and moulders' helpers is untenable. The Independent and the I. M. U. are in dispute as to the status of Robert Smith, whom the Independent would include in the appro- priate unit and the I. M. U. would exclude. Smith is variously characterized in the record as a foreman, assistant foreman, and pattern chaser. His duties consist in the allocation of patterns among the moulders. If a moulder refuses to work on the patterns given to him by Smith, the latter may recommend his discharge. We shall follow our usual practice and exclude Smith as a supervisory employee from the appropriate unit.' We find that all production and maintenance employees of the Company, exclusive of supervisors, foremen, watchmen, clerical em- ployees, truck drivers, and machinists, constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES Under the circumstances set forth in Section III above, we find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot. In accordance with our usual practice we shall direct that all employees within the appropriate unit who were employed by the Company during the pay-roll period immediately preceding the date of the Direction of Election, including employees who did not i See Matter of L. Cinq-Mars, doing business under the name of Pacific Gas Heating Company and Bay Cities Metal Trades Council , A. F. of L , 23 N. L. R B. 1167, Matter of Allied Laboratories, Inc. (Pittman- Moore Division) and Indianapolis Specialty Union #465, affiliated with the International Printing Pressmen and Assistants' Union, affiliated with the A F. of L., 23 N. L. R. B. 184. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work during such pay-roll period because they were ill or on vaca= tion, 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 , shall be eligible to participate in the election., 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 Buffalo Pipe & Foundry Corporation, Tonawanda , New York, 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, exclusive of supervisors , foremen, watchmen , clerical employees, truck drivers, and machinists , constitute a unit appropriate for the pur- poses 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, 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 purpose of collective bargaining with Buffalo Pipe & Foundry Corporation, Tonawanda, New York, 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 of the Third 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 the Company who were employed during the pay-roll period next preceding the date of the Direction of Election, 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 laid off, but excluding supervisors, fore- men, watchmen , clerical employees; truck drivers , and machinists, and those employees who have since quit or been discharged for cause, to determine whether they desire to -be represented by The Inde-' pendent Sanitary Iron Moulders Union, or by International Moulders Union of North America, Local 261, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither.