Max Zeigler & Bros., Inc.

In the Matter of MAX ZEIGLER & BROS., III c. and STEEL WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE C. I. O. Case No. B-3425.-Decided January 206,1942 Jurisdiction : junk and waste material purchasing and selling industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition until certified by the Board ; election neces- sary. Unit Appropriate for Collective Bargaining : all employees of the Company at its Muncie, Indiana, yards and plants, excluding supervisory employees, fore- men, and clerical employees; watchmen excluded, notwithstanding desire of Company for their inclusion, where they engage in very little manual labor, devote practically all of their time to plant- and property-protection duties, and are not eligible to membership in the petitioning union. Mr. George S. Jewett, of Muncie, Ind., for the Company. Mr. J. Wilbur Reid, of Muncie, Ind., for the S. W. O. C. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 10, 1941, Steel Workers Organizing Committee, affil- iated with the C. I. 0., herein called the S. W. O. C., filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Max Zeigler & Bros., Inc., Muncie, Indiana, herein called the Company, and requesting an in- vestigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 17, 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. 38 N. L. R. B., No 113. 540 MAX ZEIGLER & BROS., INC. 541 On December 23, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the S. W. O. C. Pursuant to notice, a hearing was held on December 29, 1941, at Muncie, Indiana, before Robert D. Malarney, the Trial Examiner duly designated by the Chief Trial Examiner. The Com- pany and the S. W. O. C. 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 rulings on motions and on 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 FAor 1. THE BUSINESS OF THE COMPANY The Company, an Indiana corporation, is engaged in the purchase and sale of junk and waste materials, principally metals. Its home office is located at Muncie, Indiana. Raw materials are purchased, and sales are made, throughout Indiana, Illinois, Kentucky, Ohio, and other adjoining States. Purchases outside Indiana represent not less than ten percent of total purchases ; for the last twelve months preceding the hearing such purchases amounted in value to about $10,000. Over one-third of the sales are made in other States, such sales amounting to $150,000 to $175,000 during the same period. The Company admits that it is engaged in interstate commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to enter into any bargaining contracts until an election has been held and a representative has been certified by the Board. A statement by the Regional Director, introduced in evidence, indicates that the Union represents a substantial number of employees in the unit which it contends is appropriate.' ' The Regional Director's statement shows that 22 union membership cards were sub- mitted. Of these, 13 were dated between April 1 and June 1, 1941, and 9 between Sep- tember 1 and October 1, 1941. All the signatures appear to be genuine . Sixteen of the names appeared on the October 10, 1941, pay roll. There are approximately 30 employees in the unit desired by the S. W. O. C. 542 DECISION'S OF NATIONAL LABOR RE,LATIOINTS BOARD 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 S. W. 0. C. desires a unit composed of all employees at the yards and plants in Muncie, Indiana, excluding supervisory em- ployees, foremen, clerical employees, and watchmen. The only dis- pute between the parties concerns the 1 part-time and 3 full-time watchmen, whom the Company wishes to include in the unit. The watchmen devote practically all their time to plant- and property- protection duties; only about 5 percent of their work consists of manual labor around the yards. Watchmen are not eligible to mem- bership in the S. W. 0. C. In view of these facts, we shall exclude them. We find that all employees of the Company, at its Muncie, Indiana, yards and plants, excluding supervisory employees, foremen, clerical employees, and watchmen, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self- organization and to collective bargaining and otherwise will effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot, and we shall so direct. Those eligible to vote shall be the employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of our Direction of Election, subject to the limitations and additions set forth herein. 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 Max Zeigler & Bros., Inc., Muncie, Indiana, MAX ZEIGLER & BROS., INC. 543 within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees of the Company, at its Muncie, Indiana, yards and plants, excluding supervisory employees, foremen, clerical em- ployees, and watchmen, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 ordered by the Board to ascertain representatives for the purposes of collective bargain- ing with Max Zeigler & Bros., Inc., Muncie, Indiana, 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 Elev- enth 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 employees of the Company, at its Muncie, Indiana, yards and plants, who were employed during the pay-roll period next 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 supervisory employees, foremen, clerical employees, and watchmen, and em- ployees who have since quit or been discharged for cause, to deter- mine whether or not they desire to be represented by Steel Workers Organizing Committee, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining.