Erie City Iron Works

In the Matter of ERIE CITY IRON WORKS and INTERNATIONAL BROTH- ERHOOD OF FIREMEN AND OILERS, LOCAL 249, A. F. OF L. Case No. R-133.-Decided March 00, 1941 Jurisdiction : engine, boiler, tank, and coal pulverizing equipment manufactur- ing industry. Investigation and Certification of Representatives : existence of question: Com- pany refused recognition to petitioning union until it received proof that the union represented a majority of the employees in the unit claimed appro- priate;, contract entered into with notice of petitioner's claim to represen- tation and after institution of proceedings, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : factors evenly balanced; power house employees sufficiently distinct to constitute a separate unit ; deter- mining factor desires of employees in craft ; election to determine. Mr. Leonard K. Deeds, of Erie, Pa., and Mr. R. E. Seitz, of Cleveland, Ohio, for the Brotherhood. Gunnison, Fish, Gifford cC Chapin, by Mr. W. Pitt Gifford, of Erie, Pa., for the Company. Marsch, Spaeder, Baur & Marsch, by Mr. J. A. Spaeder, of Erie, Pa., for the Association.. Mr. Edward Scheunemann,-of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 11, 1941, International Brotherhood of Firemen 'and Oilers, Local 249, A. F. of L., herein called the Brotherhood, filed with the Regional Director for the Sixth Region (Pittsburgh, Penn- sylvania), a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Erie City Iron Works, Erie, Pennsylvania, herein called the Company, and request- ing 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 February 7, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to 'Sec- tion 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2,_ as amended, or- dered an investigation and authorized the Regional Director to con- 30 N. L. R. B., No. 66. ' 469 - 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duct it and to provide for an appropriate hearing,upon due notice. On February 10, 1941, the Regional Director issued a notice of hearing, copies of ivhich were duly served upon the Brotherhood, the Company, and Erie City Iron Works Employees Association, herein called the Association, a labor organization claiming to repre- sent employees affected by the investigation. Pursuant to notice, a hearing was held on February 18, 1941, be- fore Robert H. Kleeb, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the Brotherhood, and the Association, represented by counsel, participated in the hearing and were -afforded full opportunity to be heard, to examine, and cross- examine witnesses, and to introduce evidence bearing on the issues. The. Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence, 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 1. THE BUSINESS OF THE COMPANY The Company, a Pennsylvania corporation with its principal office and place of business in Erie, Pennsylvania, is engaged in the manu- facture of engines, boilers, tanks, and coal pulverizing equipment. In 1940, the Company purchased raw materials valued at more than $900,000 from outside the State of Pennsylvania.' Such materials constituted approximately 75 per cent of the total raw, materials used by the Company. During the same period the Company shipped approximately 85 per cent of its finished products, amounting in value to more than $1,000,000, to States other than the State of Pennsylvania. The Company admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen and Oilers, Local 249, is a labor organization, affiliated with the American Federation of La- bor. It 'admits to membership power house employees of the Company. Erie City Iron Works Employees Association is an unaffiliated labor organization. It admits to membership employees of the Company. • , III.. THE QUESTION CONCERNING REPRESENTATION On September 14, 1940, the Brotherhood, by letter, requested the Company to recognize it as exclusive representative of the power ERIE CITY IRON \TORKS 471 house employees and to enter into negotiations for a collective bar- gaining contract covering those employees. On September 27, 1940, the Company replied that it could not recognize the Brotherhood until it had received proof that the Brotherhood represented ^ a ma- jority of the power house employees. On October 11, 1940, the Brotherhood filed the petition herein. On November 7, 1940, the Company and the Association executed a collective bargaining agree- ment in which the Company recognized the Association as exclusive representative of _all production and maintenance employees, in- cluding those employed in the power house. We shall not consider .the contract a bar to an investigation of representatives in view of the fact that it was executed after the Brotherhood had notified the Company of its majority claim and filed its petition in the present proceeding.' Both the Brotherhood and the Association have substantial mem- bership among the employees in the power house.2 We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION 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 -Brotherhood contends that the employees engaged in the operation of boilers and engines in the power house, constitute an appropriate unit; the -Association contends ' that those employees should be included in an industrial unit comprising all production and maintenance employees of the Company. The power house is , a separate department within the plant and provides heat and power for the 'operation of the machinery 'Matter of American-West African Lines, Inc , and Marine Engineers Beneficial Associa- tion, 4 N. L. R . B. 1086; Matter of Wilmington Transportation Company and Inland Boatmen's Union, etc., 4 N. L. R. B. 750. 2 The Regional Director reported the Brotherhood had submitted to him seven member- ship cards, five of which were dated in December 1940, two of which were undated, and all 'of which bore apparently genuine signatures of persons on the Company 's pay roll on January 17 , 1941. He also reported that the Association had submitted to him five appli- cation cards, three of which were dated in July 1937 , and two of which were dated in January 1941 , all of which bore the apparently genuine signatures of persons whose names were on the Company's pay roll of January 17, 1941. He reported further that three of the employees had signed cards for both the Brotherhood and the Association. 472 DECISIONS OF NATIONAL LABOR ,RELATIONS BOARD throughout the rest of the plant. There are nine employees engaged in operating boilers and engines in the power house. They are all required by law to be licensed as firemen or as engineers. The Association was organized in May 1937, and admitted to 'membership all production and maintenance employees. In July 1937, it,formulated and sent to the respondent a written statement of working conditions for the entire plant, which it requested the respondent to institute, including a 15¢ per hour wage increase, an 8-hour day, and payment of time and one-half for overtime. In August 1937, the Company replied by a signed letter, which approved with some exceptions, the conditions demanded by the- Association. The Company's letter concluded: "This arrangement to be subject to cancellation by either party. on thirty (30) days' notice in writing to the other party." In 1938, representatives of the Brotherhood conferred with the respondent concerning and obtained, the rein- statement of a power house employee. They also requested the Company to negotiate a contract with the Brotherhood for the power house employees, but no negotiations were held at that time. On November 7, 1940, as heretofore noted, the Association and the Com- pany, executed a collective bargaining contract in which the Associa- tion was recognized as exclusive bargaining agent for all production and maintenance employees, including those in the power, house. On the entire record, we believe that the power house employees may properly be considered either as a separate unit or as part of the industrial unit for which the Association contends. Where the considerations are evenly balanced, as here, we shall apply the prin- ciple that the desires of the power house employees constitute the determining factor.8 The record does not reveal conclusively whether the power house employees desire to be separated in a power house unit or to be a part of the larger unit. We shall, therefore, direct that an election be held among the power house employees to determine whether they desire to be represented by the Brotherhood, by the Association, or by neither. In the event the Brotherhood wins the election we shall find the power house to be an appropriate unit and shall certify the Brotherhood as the exclusive bargaining representative for the power house employees; in the event the Brotherhood does not win, we' shall dismiss its petition. The Association contends that Frank Kawinski, Harry Burger, and Carl Burns, who are employed in the power house at the present time, do not come within a unit composed of power house employees because they are not permanently employed there. The Brotherhood 8 See Matter of The Globe Machine and Stamping Co. and Metal Polishers' Union, Local No. 3, et as., 3 N. L. R. B. 294, and subsequent cases. ERIE CITY IRON WORKS 473 and the Company contend that they should be included in a unit of power house employees . Kawinski and Burger have been employed in the power house during the winter months, and during the remainder of the year are employed on maintenance . They are carried on the pay roll throughout the year as permanent power house employees and receive the wages paid to regular power house firemen and engineers during the entire year . They are licensed as firemen and engineers. Frank G. Brinig, general manager for the Company, stated that Kawinski and Burger would be employed in the power house during the entire year if business conditions war- ranted it, and that there was a possibility, due to increased produc- tion, that they would be permanently employed in the power-house in the future . We find that they should be included within the unit composed of power house employees. Burns, a regular power house employee , was assigned in November 1940, to the position of traveling engineer installing boilers for customers of the Company and in- structing the customers in the operations of the. boilers . He is still carried on the power house pay roll and, when he is not traveling, is employed as a power house engineer. He spends approximately 50 per cent of his time in the power house and the other 50 per cent as a traveling engineer . We find that he should be included within the unit composed of power house employees. VI. THE DETERMINATION OF REPRESENTATIVES - We find that the question concerning representation which has arisen can best be resolved by the election referred to in Section V, among the employees who were employed by the Company during the pay-roll period immediately preceding our Direction of - Election herein, with the inclusions and exclusions set forth in the Direction. Upon the basis of the foregoing findings of fact, and upon' the entire record in the case , the Board makes the following : CONCLUSION OF LAw A question affecting commerce has arisen concerning the represen- tation of employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) 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, 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 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Erie City Iron Works, Erie, Pennsylvania, 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 Sixth 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 the power-house employees of Erie City Iron, Works, who were employed during the payroll period immediately preceding the date of this Direction, including Kawinski, Burger, and Burns, employees who did not work during such period because they were ill, on vacation, temporarily laid off, or absent because called for military service, but excluding employees who have since quit or been discharged for cause, to determine whether they desire to be represented by International Brotherhood of Firemen and Oilers, Local 249, A. F. of L., or by Erie City Iron Works Employees Association, for the purposes of collective bargaining, or by neither. MR. EDWIN S. SMITH, dissenting : In view of the history of collective bargaining between the Com- pany and the Association prior to the filing of the Brotherhood peti- tion, and for the reasons stated in my separate opinions in Matter of Allis-Chalmers Manufacturing Company and International Union,, etc.,4 and subsequent cases,' I would not permit the employees in the power house to set themselves apart in a bargaining unit separate from the plant unit. 4 4 N. L. R. B. 159. -5 Se, e. g., Matter of American Can Company and Engineers Local No so, etc., 13 N. L. R. B. 1252; Matter of Milton Bradley Company and International Printing Pressmen and Assistants Union of North America, 15 N L. R. B. 938.