American Car & Foundry Co.

National Labor Relations Board - Board Decisions

Feb 19, 1945

60 N.L.R.B. 735 (N.L.R.B. 1945)

In the Matter of AMERICAN CAR & FOUNDRY COMPANY (CHICAGO,
PLANT) and BROTHERHOOD RAILWAY CARMEN OF AMERICA, AFFILIATED
WITH AMERICAN FEDERATION OF LABOR
Case No. 1-3-R-9,731.-Decided February 19,1945
Hardy, Stancli f f e and Hardy, by Mr. J. Donald Raiwlings, of New
York City, and Messrs. J. TV. Lehr and John S. Considine, of Chicago,
Ill., for the Company.
Messrs. Daniel J. Carmell and Leo Segall, of Chicago, Ill., and Mr.
George L. O'Brien, of Hazelhurst, Ill., for the A. F. L.
Messrs. Sam Marian and Phillip N. Lambert, of Chicago, Ill., for
the C.I.O.
Mr. Sidney Grossman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition 1 duly filed by Brotherhood Railway Car-
men of America, affiliated with the American Federation of Labor,
herein called the A. F. L., alleging that a question affecting commerce
had arisen concerning the representation of employees of American
Car & Foundry Company (Chicago Plant), Chicago, Illinois, herein
called the Company,2 the National Labor Relations Board provided
for an appropriate hearing upon due notice before J. G. Evans, Trial
Examiner. Said hearing was held at Chicago, Illinois, on January 16,
1945. The Company, the A. F. L., and Amalgamated Local 453,
U. A. W.-C. I. 0., herein called the C. I. 0., appeared and participated.
All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
IThe original petition was filed on October 30 ,- 1944, by the International Union , United
Automobile Workers of America , affiliated with the A F L Thereafter , a First Amended
Petition was filed on November 17, 1944, in the name of the American Federation of Labor.
Subsequent to the filing of these petitions , the International transferred its interest in the
proceeding to the Brotherhood Railway Carmen of America , A. F L. At the hearing, the
Trial Examiner amended the style of the proceeding and all formal papers to conform to
the name of the present petitioner as designated in the Second Amended Petition filed by
the Brotherhood.
At the hearing , the name of the Company was amended as designated 'above.
60 N. L . R. B , No. 123. .
735
736 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issues. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with.the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Car & Foundry Company (Chicago Plant), a New Jer-
sey corporation, with its principal offices and place of business in
New York City, is engaged in the manufacture of railroad freight '
and passenger cars in its various plants throughout the United States,
including the plant at Chicago, Illinois, with which this proceeding is
concerned. 'During the past 12 months, the Company purchased raw
materials for use at its Chicago Plant in excess of $1,000,000 in value,
of which over 50 percent was secured from sources outside the State
of Illinois. During the same period, it manufactured finished -prod-
ucts in excess of $1,000,000 in value, of which more than 50 percent
was shipped to points outside the State of Illinois.
The Company agrees, for the purposes of this proceeding, and we
find, that it is engaged in commerce within the meaning of the
National Labor Relations Act. -
II. THE ORG ANIZATIONS INVOLVED
Brotherhood Railway Carmen of America, affiliated with the
American Federation of Labor, is a labor organization admitting to
membership employees of the Company.
Amalgamated Local -453, U. A. W.-C. I. 0., affiliated with the
Congress of Industrial Organizations, is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the A. F. L. as
the exclusive bargaining representative of its production and main-
tenance employees until the A. F. L. has been certified by the Board
in an appropriate unit. -
In 1941, as a result of a consent election, Local 805 of the United
AutomobileWorkers, C. I. 0., was certified as the bargaining repre-
sentatide of the Company's production and maintenance employees,
and thereupon entered into a collective bargaining agreement with
the Company. On April 7, 1943, the C. I. O. herein, as successor
to Local 805, *executed a written contract wherein it was recognized
by the Company as the exclusive bargaining representative of the
AMERICAN CAR & FOUNDRY COMPANY 737
Company's employees in the unit above referred to. Subsequent to
the expiration of the contract on October 15, 1943, the Company and
the C. I. O. orally agreed to continue to observe the terms thereof
pending the disposition by the War Labor Board of an existing
dispute concerning proposed changes in the contract involving wages
nand other substantive conditions of employment. Recent Directives
of the War Labor Board have disposed of 'the material issues relat-
ing to such dispute.-3 The Company and the C. I. O. contend that the
contract of April 1943, as extended, and the delay encountered in
negotiating a new agreement as a result of the pendency of the pro-
ceeding before the War Labor Board,4 constitute a bar to this pro-
ceeding. We find no merit in these contentions. The oral agreement
entered into subsequent to the expiration of the contract is an exten-
sion for an indefinite period and therefore would not serve as a bar to
the instant proceeding.5 Moreover, mere pendency of proceedings
before the War Labor Board does not bar an election where the exclu-
sive bargaining representative has enjoyed ample opportunity since
securing certification or recognition to demonstrate its effectiveness
as a bargaining agent or has had an opportunity to obtain'substantial
benefits for the employees.e As indicated above, the C. I. O. has acted
as bargaining representative since 1941, during which time it has
secured substantial benefits for the Company's employees. Accord-
ingly, we find that neither the contract of August 7, 1943, as extended,
nor the pendency of the proceeding before the War Labor Board bars
a present determination of representatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that =the A. F. L. represents a substantial number of
employees in the unit hereinafter found appropriate.7
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
S The War Labor Board ' s first Directive , dated August 23, 1944, granted certain vacation
provisions , winch were incorporated into a supplemental written agreement subsequent to
the denial on December 19, 1944 , of the Company 's appeal from the Directive . The C. I. O.
attached to its brief a copy of the War Labor Board ' s Directive , dated January 17, 1945,
relating to the remaining issues in dispute. The copy of the Directive , thus submitted,
is hereby made part of the record.
d Matter of Allis - Chalmers Manufacturing Company, 50 N. L. R. B. 306.
5 Matter of Eicor, Inc., 46 N. L . R B 1035 , Matter of The Trailer Company of America,
51 N L . It B 1106 , Matter of American Chain & Cable Company , Inc, 59 N L R . B. 644.
6 Matter of Fort Dodge Creamery Company, 53 N L It. B . 928, Matter of Great Lakes
Carbon Corporation , 57 N. L . R B 115; Matter of American Chain & Cable Company,
Inc, supra , Matter of Struthers Wells Corporation, 59 N L R B 454
' The Field Examiner reported that the A. F. L submitted 357 application cards, of
which 220 - were checked on the Company's pay roll of November 12, 1944, and that 121
cards bore dates between April 1944 and December 1944, and 99 were undated. There are
716 employees in the alleged appropriate unit
The C I. 0 relies upon its contract as-evidence of its interest We hereby deny the
C I. O.'s motion to dismiss the petition of the A . F. L. for insufficiency of representation.
628563-45-vol 60-48
- 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
We find, in substantial accord with the agreement of the parties,
that all production and maintenance employees of the Company, at
its Chicago, Illinois, plant, including lead laborers and leadmen, and
men's locker room attendants on the -factory pay roll, but excluding o
office and clerical employees, shop office employees, laboratory assist-
ant, chemists, employees in the engineering, time-study, and personnel
departments, and all other employees on the administrative pay roll,
assistant foremen, gang leaders, and all or any other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise ,effect changes in the status of employees, or effectively rec-
ommend such action, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the Direc-
tion. The parties agreed, and we find, that' casual laborers are ineli-
gible to participate in the election.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested inthe National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with American Car &
Foundry Company (Chicago Plant), Chicago, Illinois, 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 Thirteenth Region,
acting in this matter as agent for the National Labor Relations Board,
and subject to Article III, Sections 10 and 11, of said Rules and Regu-
lations, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during the said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
AMERICAN CAR & FOUNDRY COMPANY 739
polls, but excluding casual laborers and any employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether they
desire to be represented by Brotherhood Railway Carmen of America,
affiliated with the American Federation of Labor, or by Amalgamated
Local 453 , U. A. W.-C. I. 0., affiliated with the Congress of Industrial
Organizations , for the purposes of collective bargaining , or by neither.