Ben Sadoff Iron & Metal Co.

National Labor Relations Board - Board Decisions

Oct 30, 1944

58 N.L.R.B. 1574 (N.L.R.B. 1944)

In the Matter of BEN SADOFF, ARTHUR SADOFF AND DAVID NEMsoHOFF,
D/B/A BEN SADOFF IRON & METAL COMPANY and UNITED STEELWORK-
ERS OF AMERICA, CIO
Case No. 13-R-2585.-Decided October 30, 1944
Mr. Arthur Sado ff, of Fond du Lac, Wis., for the Company.
Mr. W. O. Sonnemann, of Milwaukee, Wis., and Mr. R. E. Hall, of
Madison, Wis., for the Steelworkers.
Mr. Ray Bestor, of Fond du Lac, Wis., for the Teamsters.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America,
CIO, herein called the Steelworkers, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Ben Sadoff, Arthur Sadoff and David Nemschoff, doing
business as Ben Sadoff Iron & Metal Company,' Fond du Lac, Wis-
consin, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Robert T. Drake, Trial Examiner. Said hearing was held at Fond
du Lac, Wisconsin, on October 4, 1944. The Company, the Steel-
workers, and International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local No. 530, A. F. of L.,
herein called the Teamsters, 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 issues.
At the close of the hearing, the Teamsters moved to dismiss the petit
tion. The Trial Examiner referred the motion to the Board for
determination. For reasons appearing in Section III, infra, the mo-
tion is denied. 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.
I Name as amended at the hearing.
58 N. L. R. B., No. 283.
1574
BEN SADOFF IRON & METAL COMPANY 1575
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Ben Sadoff Iron & Metal Company, a partnership, having its office
and yards at Fond du Lac, Wisconsin, is engaged in the business of
buying and selling scrap metal. The Company purchases 99 percent
of its scrap metal from farmers, garages, and other sources within the
State of Wisconsin. It annually ships 90 percent of its scrap metal,
valued at $200,000, to companies engaged in defense production out-
side that State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
J
United Steelworkers of America, affiliated with the Congress _ of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Local No. 530, affiliated with the Ameri-
can Federation of Labor, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter dated July 26, 1944, the Steelworkers requested the Com-
pany to bargain with it as the representative of the Company's em-
ployees. The Company replied 2 days later that, since it was under
contract with the Teamsters, it could not negotiate with the Steel-
workers. Both the Company and the Teamsters now urge that said
contract constitutes a bar to a present determination of representatives.
On July 1, 1943, the Company and the Teamsters entered into a 1-
year written agreement which provided in Article VI, Section 2, there-
of, for automatic renewal from year to year "unless thirty days prior
to the expiration either party of the agreement shall give notice to
the other of its intention not to renew the agreement for an additional
year." On May 15, 1944, before the operative date of the automatic
renewal clause, the Teamsters wrote the Company as follows :
In accordance with Article VI, Section 2, please consider this
as official notice that we are desirous of discussing some conditions
of employment in our present agreement.
It is understood and agreed that the present agreement shall be
in full force and effect until such time as the War Labor Board
shall act on our requests.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Will , you please advise when your committee can meet with
the Union.
On May 17, 1944, the Company informed the Teamsters that, as
soon as one of the partners returned to the city , he would communicate
with it. As subsequent events proved , no negotiations for new terms
were held between the Company and the Teamsters , and no proposals
were submitted to the War Labor Board, apparently because the
Steelworkers , in the interim ,. was organizing the Company's em-
ployees. From the language of the May 15 letter and the entire record,
there is no question but that the Teamsters clearly intended to f ore-
stall the operation of the automatic renewal clause of the contract so
that, as the evidence shows, it could bargain with the Company for new
terms of employment with respect to wages, vacations , sick leave, hours
of work, and other related matters. Under the circumstances, the
purported extension of the contract until the War Labor Board acted
upon their proposals not yet formulated or 'even negotiated , was, at
most, of indefinite duration , and consequently cannot serve to bar- a
present determii tion of representatives.2
A statement of a Board Field Examiner , introduced into evidence
at the hearing, indicates that the Steelworkers represents a substantial
number of employees in the unit hereinafter found appropriate.-,
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.
IV. THE APPROPRIATE UNIT
The Steelworkers seeks a unit of all the Company 's production and
maintenance employees , including the foreman , but excluding office
and clerical employees, armed guards, executives, and supervisory per-
sonnel. Neither the Company nor the Teamsters takes a position with
respect to the composition of the unit , except that the Teamsters would
exclude the foreman as supervisory.
The foreman 4 has been in the Company 's employ for approximately
12 or 13 years and is the highest paid employee. He is classified as a
foreman, which entitles him to receive foreman's pay in accordance
with a War Labor Board directive . At present , he operates a crane
for about 75 percent of his time and devotes his remaining time to
supervising and directing most of the Company's employees. It
2 Matter of Daniel Burkhartsmeier Cooperage Co, 49 N. L R. B. 428.
'The Field Examiner reported that the Steelworkers submitted 14 membership cards
bearing the names of persons appearing on the Company 's pay roll of August 11, 1944,
which contained the names of 18 employees in the alleged appropriate unit
The Teamsters ielies upon its contract of July 1, 1943, to show its interest in this
proceeding
4 Lee Norton.
BEN SADOFF IRON & METAL COMPANY 1577
appears that, because of the difficulty in obtaining labor today, the
foreman does not make any recommendations regarding the status of
employees. However, prior to the manpower shortage which now pre-
vails at the Company's plant, he was almost entirely engaged in super-
visory functions, and possessed the power to make effective recom-
mendations regarding the status of employees. We shall exclude him.
We find that all the Company's production and maintenance em-
ployees, excluding office and clerical employees, armed guards, execu-
tives, the foreman, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.5
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
Direction.
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, and pursuant to Article III, Section 9, of National Labor
Relations 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 Ben Sadoff,
Arthur Sadoff, and David Nemschoff, doing business as Ben Sadoff
Iron & Metal Company, Fond du Lac, Wisconsin, 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 Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this Direction, including employees who
did not work during the said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
'This unit embraces substantially the same employees covered by the contract of July 1,
1943.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior
to the date of the election, to determine whether they desire to be rep-
resented by United Steelworkers of America, CIO, or by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 530, A. F. of L., for the purposes of collective
bargaining, or by neither.
MR. JOHN M. HOUSTON took no part in the consideration of the above
Decision and Direction of Election.