American Radiator & Standard Sanitary Corp.

In the Matter of AMERICAN RADIATOR & STANDARD SANITARY CORPO- RATION and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-9859.-Decided September 4, 1941 Jurisdiction : cast-iron enameled ware manufacturing industry Investigation and Certification of Representatives : existence of question: re- fusal by Company to bargain with petitioning union because of contract with other unions ; dispute as to whether industrial unit or several craft units appropriate; election necessary. Unit Appropriate for Collective Bargaining : industrial unit of all production and maintenance workers, excluding clerical employees (except plant clerks), foremen and higher supervisory employees; watchmen and plant clerks in- cluded because heretofore admitted to one of unions which are parties to contract. Mr. W. G. Stuart Sherman, for the Board. Mr. Henry M. Reed and Mr. Arthur D. Wool f olk, of Pittsburgh, Pa., for the Company. Mr. Huglc Harley, Jr., Mr. William N. Chambers, and Mr. Robert Davis, of Pittsburgh, Pa., and Mr. Albert L. Smith, of Wilmerding, Pa., for the C. I. 0. Mr. Joseph A. Padway, by Mr. James A. Glenn, of Washington, D. C., and Mr. Bernard Kaplan, of Pittsburgh, Pa., for the A. F. of L. Mr. Armin Uhler, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 2, 1941, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., filed with the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a question affecting commerce had arisen concerning the representation of employees at the Pittsburgh plant of American Radiator & Stand- 35 N. L. R. B., No. 38. 172 AMEIRICAN RADIATOR & STANDARD SANITARY CORPORATION 173 and Sanitary Corporation, Pittsburgh, Pennsylvania, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On July 28, 1941, 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. On July 30, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the C. I. 0., and upon International Molders Union of North America, Local No. 46, International Union of Operating Engineers, Local No. 95, International Association of Machinists, Local No. 52, International Brotherhood of Electrical Workers, Local No. 5-B, and Federal Labor Union No. 21228, all affiliated with the American Federation of Labor, and herein referred to collectively as the A. F. of L., being labor organizations claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on August 5, 1941, at Pittsburgh, Pennsylvania, before Horace A. Ruckel, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the Company, the C. I. 0., and the A. F. of L. were repre- sented by counsel or official representatives 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. At the close of petitioner's evidence, and again at the close of all the evidence in the case, the A. F. of L. moved to dismiss the proceeding upon the ground that no question concerning repre- sentation exists because of a subsisting contract between the A. F. of L. and the Company. The Trial Examiner reserved rulings on these motions for the Board. The motions are hereby denied fora the reasons set forth below. 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 the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 19, 1941, the A. F. of L. filed a brief, which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY American Radiator & Standard Sanitary Corporation is a Dela- ware corporation with its principal office in New York City. The 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company operates manufacturing plants, warehouses, and sales of- fices in New Jersey, New York, Kentucky, Ohio, Indiana, Maryland, Illinois, California, Michigan, Texas, West Virginia, Colorado, and Pennsylvania. At its plant at Pittsburgh, Pennsylvania, the em- ployees of which are herein involved, it manufactures for sale various kinds of cast-iron enameled ware. During the calendar year 1940 the Company purchased large amounts of raw materials originating in various States of the United States and foreign countries 1 and valued at approximately $500,000. During the same period the,total sales of products manufactured at the Company's Pittsburgh plant amounted in value to approximately $4,000,000, the greater part of which was shipped to destinations outside the Commonwealth of Pennsylvania. The Company employs at its various plants in the vicinity of 18,000 persons; approximately 850 are employed at its Pittsburgh plant. The Company concedes that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. International Molders Union of North America, Local No. 46, International Union of Operating Engineers, Local No. 95, Inter- national Association of Machinists, Local No. 52, International Brotherhood of Electrical Workers, Local No. 5-B, and Federal Labor Union No. 21228 are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On June 30, 1941, the C. I. O. addressed a letter to the Company stating that it represented a majority of the Company's employees and requesting recognition as the bargaining agent of these em- ployees. On July 1, 1941, the Company replied that in view of its contract with several A. F. of L. unions it could not enter upon bargaining negotiations with the C. I. O. unless the Board should certify the C. I. O. as the representative of the Company's employees. Thereupon the C. I. O. filed its petition herein. 1 8,449 net tons of molding and sand, approximating in value $43,640 87, in the States of-New York and New Jersey ; 13,229 gross tons of pig iron, approximating in value $304,774 15, at Birmingham , Alabama, 4 ,361,316 board feet of lumber, appioximating'in value $121 ,329 98, in west Virginia ; 472 net tons of borax , approximating in value $20,287 87, in California ; and 59 net tons of kryolith , approximating in value $10 ,175.92, originating in Greenland and purchased from a Pennsylvania corporation. AMERICAN RADIATOR & STANDARD SANITARY CORPORATION 175 The contract, which the Company and the A. F. of L. urge as being a bar to the present proceedings, is dated December 6, 1937, is of indefinite duration, and provides for 30 days' notice by either party desiring any change in the contract. Since the contract has been in effect for more than 3 years and is terminable upon 30 days' notice, we find that it does not constitute such a bar 2 A statement of the Regional Director introduced in evidence shows that the C. I. 0. represents. a substantial number of the Com- pany's employees in the unit alleged by it to be appropriate.3 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 com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The C. I. 0. contends that the unit appropriate for collective bargaining purposes consists of all production and maintenance employees, excluding clerical employees, watchmen, and foremen and higher supervisory employees. The A. F. of L., on the other hand, contends that the contract of December 6, 1937, established a craft form of organization at the plant, which should be preserved. Ac- cordingly, the A. F. of L. urges the establishment of five separate units coextensive with the jurisdiction of the five A. F. of L. unions who are signatories to the contract. 3Matter of Rosedale Knitting Company and Rosedale Employees Association, 23 N L R B 527 , and cases cited there 3 The evidence submitted by the C. I. O. In regard to its membership claim consists of 530 application-for-membership cards, 444 of which bear genuine signatures of persons on the Company 's pay roll There are approximately 800 employees In the alleged appropriate unit The contract relied upon by the A F. of L , a copy of which was inti oduced in evidence, sets forth that the Company accepted certain cards turned over to it as proof that the A. F of L. represented over 51 per cent of the Company's employees No other evidence concerning membership was submitted by the A F. of L *According to the A. F of L's contention , the following scheme of representation Is desired: ( 1) International Union of Operating Engineers , Local No. 95, to represent all engineers ; ( 2) International Association of Machinists , Local No 52 , to represent all machinists ; ( 3) International Molders Union of North America, Local No 46, to represent all machine molders, hand molders, foundry-uuork employees , cleaning-house employees (grinders and sand blasters ), and welders; (4) International Brotherhood of Electrical Workers, Local No 5-B, to represent crane men and electricians ; and (5 ) Federal Labor 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contract of December 6, 1937, is signed by a number of indi- vidual A. F. of L. unions, each of which admits to membership and purports to represent a limited group of employees of the Company. The contract refers to the several signatory unions collectively as "acting as the collective bargaining unit for the employees, herein- after called the union." The contract contains uniform provisions throughout for all the employees at the Pittsburgh plant covering such matters as overtime, seniority, temporary lay-offs and dismissal, leave of absence, and arbitration of grievances. The contract also provides for a uniform wage increase of 5 cents per hour for all hourly and piece-rate employees. The contract states that it was predicated upon proof submitted to the Company by the A. F. of L. that the A. F. of L. represented over 51 per cent of the Company's employees. Certain types of grievances at the plant have been handled in the past by separate grievance committees of the particular unions to which the employees immediately concerned belonged. Neverthe- less, wage increases obtained since the execution of the contract have been substantially plant-wide. Interchange of employees among the several departments is practiced to a considerable extent. ThEre are instances in which the wages of members of one craft, computed on a piece-work basis, depend upon the output of members of an- other craft. Under all the circumstances, we are of the opinion that the history of collective bargaining with the Company has not developed upon a craft basis. Concerning the exclusion of watchmen and clerical employees re- quested by the C. I. 0., it appears that watchmen and certain plant clerks were included among the employees in whose behalf the A. F. of L contracted with the Company. Watchmen and plant clerks have heretofore been admitted to membership in Federal Labor Union 21228 and we are of the opinion that they should not now be deprived of the benefits of collective bargaining. Accordingly, we find that all production and maintenance workers, excluding clerical employees (except plant clerks),5 and foremen and higher supervisory employees, constitute a unit appropriate for Union No 21228 to represent all other non-supervisory employees , includmg.slushroom workers, enameling-room workers, mill-room workers , packers, sawmill workers, crating- department workers , yardmen, truckers , elevator operators, shippers, watchmen , janitresses, inspectors , and certain plant clerks . While the contract was also signed by Pattern Makers League of North America and International Brotherhood of Firemen and Oilers, Local Union No 75, the record shows that the operations in which firemen and oilers and pattern makers were required were discontinued by the company and that it no longer employs any workers (except possibly one pattern maker ) who would be admitted to membership in these two unions . The Pattern Makers and Firemen and Oilers unions are therefore no longer involved 5 The record indicates that there are three plant clerks , two in the front office and one in the enameling department. AMERICAN RADIATOR- & STANDARD SANITARY CORPORATION 177 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 will 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, and we shall accordingly direct, an election by secret ballot. We will direct that the various A. F. of L. unions appear on the ballot jointly as, the "A. F. of L. Unions (Inter- national Molders Union of North America, Local No. 46, International Union of Operating Engineers, Local No. 95, International Association of Machinists, Local No: 52, International Brotherhood of Electrical Workers, Local No. 5-B, and Federal Labor Union No. 21228)." At the hearing the C. I. O. requested that eligibility to vote be determined on the basis of the pay roll as of the date of the hearing. The A. F. of L. desires a current pay-roll date, while the Company has expressed no preference in this respect. We find no reason for departing from our usual practice. Accordingly, we shall direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion, subject to such limitations and additions as are set forth in the Direction. 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 at the Pittsburgh plant of American Radiator & Standard Sanitary Corporation, Pittsburgh, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance workers at the Company's Pitts- burgh plant, excluding clerical employees (except plant clerks), and foremen and higher supervisory employees, constitute a unit appropri- ate 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 Re- lations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board Rules and Regulations-Sei ies 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 American Radiator & Standard Sanitary Corporation, Pitts- burgh, 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, under the direction and supervision of the Regional Director for the Sixth 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 workers employed in the Company's plant at Pittsburgh, Pennsyl- vania, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding clerical employees (except plant clerks), and foremen and higher supervisory employees, and all em- ployees who have since quit or been discharged for cause, to determine whether they desire to be represented by United Electrical, Radio & Machine Workers of America, affiliated with the Congress of In. dustrial Organizations, or by the A. F. of L. Unions (International Molders Union of North America, Local No. 46, International Union of'Operating Engineers, Local No. 95, International Association of Machinists, Local No. 52, International Brotherhood of Electrical Workers, Local No. 5-B, and Federal Labor Union No. 21228), for tlhe purposes of collective bargaining, or by neither.