Virginia Bridge Co.

In the Matter Of VIRGINIA BRIDGE COMPANY and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS, SHOPMEN'S LOCAL 530 Case No. R-2251.-Decided January 08, 1941 Jurisdiction : steel fabricating industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord recognition to union ; contract with , rival union providing for representation for members only, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : all employees, excluding watchmen, clerical employees, superintendents, assistant superintendents, general fore- men, foremen, and sub-foremen who spend at least 50 per cent-of their time in actual supervisory duties. Mr. B. L. Rawlins, Jr., of Pittsburgh, Pa., for the Company. Mr. Stanley Rovinds, of Knoxville, Tenn., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 30, 1940, International Association of Bridge, Struc- tural & Ornamental Iron Workers, Shopmen's iLocal 530, herein called the Union, filed with the Regional Director for the Tenth.Re- gion (Atlanta, Georgia) a ,,petition alleging that a question affecting commerce had arisen concerning the representation of employees of Virginia Bridge Company, Memphis, Tennessee, 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 December 3, 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 Regulations-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. 29 N. L. R. B, No. 43. 241 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 9, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the Union and Steel Workers Organizing Committee, herein called the S. W. O. C. On December 18 and 20, 1940, respectively, the Regional Director issued an amended notice of hearing and a second amended notice of hearing. Pursuant to notice, a hearing was held on January 10, 1941, at Memphis, Tennessee, before Alexander E. Wilson, Jr., the Trial Examiner duly designated by the Board. The Com- pany was represented by counsel, the Union by its representative'; both participated in the hearing. The S. W. O. C. did not appeaii at the hearing. Full opportunity to b_ e 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 Virginia Bridge Company is a Delaware Corporation operating plants at Roanoke, Virginia, Birmingham, Alabama, and Memphis, Tennessee. We are here concerned solely with its plant at Memphis, Tennessee, where it is engaged in the fabrication of bridge and building steel. During 1940, the Company purchased -about 15,000 tons of raw materials all of which were shipped to it from points outside the State of Tennessee. During the same period the Company sold ap- proximately 15,000 tons of finished products, more than 50 per cent of which were shipped by it to points outside the State of Tennessee. The Company employs approximately 250 employees at the Memphis plant. H. THE ORGANIZATION INVOLVED International Association of Bridge, Structural & Ornamental Workers, Shopmen's Local 530, is a labor organization affiliated with the American Federation of Labor. It admits to -membership all employees at the Memphis plant of the Company, excluding watch- men, clerical employeees, superintendents, assistant superintendents, and general foremen. III. THE QUESTION CONCERNING REPRESENTATION On October 26, 1940, the Union, claiming to represent a majority of the,employeees at the Memphis plant, asked the Company for VIRGINIA BRIDGE CO: 243 exclusive recognition. The Company refused this request- stating that it doubted the Union's claim to a majority. On May 5, 1937, the Company and the S. W. O. C. entered into a contract recognizing the S. W. O. C. as exclusive representative of its members in the employ of the Company. On April 1, 1938, the Com- pany and the S. W. O. C. entered into a supplemental agreement ex- tending the 1937 agreement and providing that at any time subsequent to March 31, 1938, either party to the contract,by 10 days' notice to the other could ask for a conference for the purpose of changing the 1937 agreement and in the event of failure to agree within 20 days from such notice, the 1937 agreement would terminate. No such notice has been given: Since the contract is not an exclusive bar- gaining contract, we find that it is not a bar to a determination of representatives at this time.' A statement of the Trial Examiner during the hearing shows that the Union represents a substantial number of employees in the alleged appropriate unit.2 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 employees at the Memphis plant of the Company, excluding watchmen, clerical employees, superintendents, assistant superintendents, and general foremen, constitute a unit appropriate for the purposes of collective bargaining. The only con- troversy with respect to-the unit concerns foremen and sub-foremen. The Union urges the inclusion of all such employees, and the Company- desires their exclusion. The Company has nine employees classified by it as foremen. They all issue orders to other employees and have the sole right to lay off, hire, and discharge employees. These employees spend over 90 per i See Matter of Northrop Corporation and United Automobile Workers Local No. 229, 3 N L. R B 228. 2 The Trial Examiner's statement shows that 134 employees whose names appear on a pay roll of the Company have signed cards designating the Union as their representative. There are approximately 237 employees in the alleged appropiiate unit. 413602-42-vol 29--17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cent of their time in supervisory 'work. In view of their supervisory duties, we find that they should be excluded from the units The -Company has five employees classified by it as sub-foremen. Two of these sub-foremen, Pensinger and Dorman, spend approxi- mately ^ 90 per cent of their time in actual production work. Under these circumstances we find that Pensinger and Dorman should be included in the unit. The other three sub-foremen spend approxi- mately 80 per cent of their time in actual supervisory functions and replace the foremen in their departments when the latter are absent. In view of the supervisory duties of these three sub-foremen, we find that they should be excluded from the unit.4 We find that all employees at the Memphis plant of The Company, excluding watchmen, clerical employees, superintendents, assistant superintendents, general foremen,, foremen, and sub-foremen who spend at least 50 per cent of their time in actual supervisory duties, constitute a unit appropriate for the purposes of collective bargain- ing, and that said unit will insure to the 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 REPEiESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The Union stated that in,the event the Board directs an election, it desires that the' first pay roll of the Company in December 1940 be used to deter- mine eligibility to vote. The Company stated that it desires that a pay roll immediately preceding the date of our Direction of Election be used for this purpose. A representative of the Company testified that it has increased its personnel by approximately 20 employees since December 1, 1940, due to the National Defense program and that it expected to add an additional 10 to 12 employees by the,end of January 1941. We. find that the employees of the Company eligible to vote in the election shall be those employees in the appro- priate unit who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Election herein, including employees who did not work during said 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. S See Matter of Birmingham Tank Company , Division of The Ingalls Iron Works Com- pany, Inc. and International Association of Bridge, Structural and Ornamental Iron Work- ers, Shopmen's Local # 539, 25 N V. R. B. 1306 4 See footnote 3, supra VIRGINIA BRIDGE CO. 245 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- isentation of employees of Virginia Bridge Company , Memphis, Ten- nessee, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees at the Memphis plant of the Company, excluding watchmen, clerical employees , superintendents, assistant superintend- ents, general foremen, and sub-foremen who spend at least 50 per cent of their time in actual supervisory duties, constitute a unit appro- priate 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, 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 Virginia Bridge Company, Memphis, Tennessee, 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 Tenth Region, acting in this matter as agent of the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company who were employed during the pay-roll period immediately preceding the date of this 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 watchmen, clerical employees, superintendents , assistant superintendents , general"fore- men, foremen , sub-foremen who spend at least 50 per cent of their time in actual supervisory duties, 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 & Ornamental Iron `Yorkers, Shopmen's Local 530, affiliated with the American Federation of Labor, for the purposes of collective bargaining. CHAIRMAN HARRY A . MILLIS took no part in the consideration of the above Decision and Direction of Election. .v