Bingham & Taylor Corp.

National Labor Relations Board - Board Decisions

Dec 3, 1937

4 N.L.R.B. 341 (N.L.R.B. 1937)

In the Matter of BINGHyAM & TAYLOR CORPORATION and LOCAL 2001
OF THE AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS
OF NORTH AMERICA, through the STEEL WORKERS' ORGANIZING
COMMITTEE
Case No. R-261.Decided December 3, 1937
Metal Castings Manufacturing-Investigation of Representatives : contro-
versy concerning representation of employees : rival organizations ; refusal by
employer to recognize and bargain with petitioning union until question of
representation is determined-Unit Appropriate for Collective Bargaining:
functional coherence ; eligibility for membership in both rival organizations ;
no controversy as to-Representatives : proof of choice: membership in union;
comparison of membership cards with pay roll-Certification of Representa-
tives: upon proof of majority representation.
Mr. Norman F. Edmonds, for the Board.
Botsford & "Weber, by Mr. Burt G. Weber, of Buffalo , N. Y., for
the Company.
Mr. Elmer F. Cope, of Buffalo, N. Y., for the Amalgamated.
Mr. Henry F. Sternau, of Cincinnati, 0., for the Molders.
Mr. A. Bruce Hunt, Jr., of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
On August 11, 1937, Steel Workers' Organizing Committee, herein
called the S. W. O. C., filed with the Regional Director for the
Third Region (Buffalo, New York) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Bingham & Taylor Corporation, Buffalo, New York,
herein called the Company, and requesting an investigation and cer-
tification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
August 19, 1937, 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 Regu-
lations-Series 1, as amended, ordered an investigation and author-
ized the Regional Director to conduct it and to provide for an ap-
propriate hearing upon due notice.
341
342 NATIONAL LABOR RELATIONS BOARD
On August 24, 1937, the Regional Director issued a notice of hear-
ing to be held at Buffalo, New York, on August 30, 1937, copies of
which were duly served upon the Company, the S. W. O. C., and
Local No. 84 of International Molders' Union of North America,
herein called the Molders, a labor organization claiming to repre-
sent employees in the bargaining unit alleged in the petition to be
appropriate. Pursuant to the notice and after a continuance, a hear-
ing was held in Buffalo, New York, on August 31, 1937, before Tilford
E. Dudley, the Trial Examiner duly designated by the Board. The
Board and the Company were represented by counsel, the S. W. O. C.
by the Assistant to its Regional Director, and the Molders by their
Agent, and all 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 several rulings on
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.
During the course of the hearing the petition in the instant case
was amended by striking out the words "Steel Workers Organizing
Committee" wherever they appeared therein and inserting therefor
the words "Local 2001 of the Amalgamated Association of Iron, Steel
and Tin Workers of North America, through the Steel Workers
Organizing Committee", herein called the Amalgamated.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a corporation organized under the laws of the
State of New York on July 28, 1928, and has its sole plant and office
in Buffalo, New York. The finished products manufactured by the
Company are iron roadway services, valve boxes, and miscellaneous
castings which are sold principally to water and gas utility compa-
nies. The Company advertises its products in circulars and trade
magazines which circulate outside New York.
Raw materials, consisting of scrap iron, steel, coke, and sand, are
purchased principally within the State of New York; however, the
Company sold finished products slightly in excess of 1,544 tons during
the first six months of 1937, shipping approximately 1,047 tons to
points outside the State of New York and the remainder to points
within the State. Shipments were made, generally by rail, to pur-
chasers in all the New England States, all the Middle Atlantic States,
all Midwestern States, and Kentucky, South Carolina, and West Vir-
ginia. A small proportion of the products shipped to points within
DECISIONS AND ORDERS 343
the State of New York was routed through Pennsylvania and New
Jersey.
The Company employs approximately 125 persons, including in
this figure officials, supervisors and office force.
II. THE ORGANIZATIONS INVOLVED
The Amalgamated is a labor organization affiliated with the Com-
mittee for Industrial Organization, admitting to membership all
employees of the Company, except the clerical employees, salesmen,
supervisors, and managerial and salaried employees.
The Molders is a labor organization affiliated with the American
Federation of Labor. It admits to membership, pursuant to its
Charter, as amended in 1934, all molders and other workers engaged
in the production of castings within the City of Buffalo, New York,
with the exception of stove-plate molders, who have a special local.
Consequently, all employees of the Company, excluding clerical em-
ployees, salesmen, supervisors, and managerial and salaried
employees, are eligible for membership in the Molders.
III. THE QUESTION CONCERNING REPRESENTATION
On various occasions since its organization the Amalgamated has
held conferences with the Company in an effort to obtain recognition
as the bargaining representative of employees of the Company. ,Such
recognition has been denied. ,
The Company admits its refusal to recognize the Amalgamated
but states it will recognize and bargain with the union which proves
to have a majority of its production employees.
There is evidence in the record indicating that a number of the
skilled employees of the Company became members of the Molders
shortly after operations were begun at the plant in 1928. Efforts
toward collective bargaining were thereafter made by the Molders
and at one time apparently resulted in an oral agreement providing
for a closed shop and governing wages and working conditions for
the skilled employees. Evidence with respect to these negotiations
and the oral agreement is vague and uncertain. It does indicate,
however, that such negotiations were had as recently as 1934 or 1935,
but the terms, duration, or present status of the oral agreement can
not be ascertained from the record. It is certain that the Molders
has been practically inactive since 1935. Also there is no evidence
of any agreement with the Company respecting members of the
Molders subsequent to the amendment of the Charter in 1934, but it
is indicated that efforts toward reopening negotiations on behalf of
thG skilled employees are now in progress.
We find that a question concerning the representation of employees
of the Company has arisen.
67573-38-vol iv-23
344 NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, in connection with the operations of the Company set forth
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 testimony adduced at the hearing indicates that the plant is
not susceptible to division into departments. An iron foundry and
a steel foundry are the two main divisions of the plant's production,
but both of these foundries are in the same building and have the
same superintendent, to whom all of the production employees within
the plant are responsible. It was testified that employees are trans-
ferred throughout the plant as the plant's needs or their abilities may
warrant. All of the employees of the Company, exclusive of the
clerical employees, salesmen, supervisors, and managerial and salaried
employees, are eligible for membership in both of the contending
unions. At the hearing, it was stipulated by both unions that the
appropriate unit and the unit which each union claims to represent
and covers through eligibility, is "the entire plant except the super-
visory, office help, and managerial employees."
While salesmen and salaried employees are not specifically ex-
cluded in this stipulation, it is clear from the record that the parties
did not mean to include these two classes of employees within the
appropriate unit.
In order to insure to the employees of the Company the full benefit
of their right to self-organization and collective bargaining, and
otherwise to effectuate the policies of the Act, we find that all the
employees of the Company, excluding the supervisory , clerical em-
ployees, salaried and managerial employees, and salesmen , constitute
a unit appropriate for the purposes of collective bargaining in re-
spect to rates of pay, wages , hours of employment, and other condi-
tions of employment.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company's pay roll, consisting of four separate sheets, for the
week ending July 28, 1937, was introduced in evidence. It repre-
sents a week when production was at an average. The pay roll
was examined by the secretary of the Company, who testified that
he had ascertained as accurately as possible the number of employees
DECISIONS AND ORDERS 345
of the Company as shown by it, excluding salaried and managerial
employees, salesmen, supervisory and clerical employees, and that
the number was 109.
In the latter part of July 1937, the first steps were taken in the
creation and organization of the Amalgamated. On July 29, 1937,
fifty-five employees of the Company signed cards of membership in
the S. W. O. C. Since then 36 additional employees have become
members, making a total of 91 employees, each of whom signed an
original membership card designating the S. W. O. C., its agents or
representatives, as his agency for the purposes of collective bargain-
ing. The Amalgamated is such an agent or representative. It has
obtained a charter, has held meetings and elected officers, and has
selected a wage scale committee which has attempted to negotiate
with the Company on behalf of its members. These 91 cards, after
proper _ identification, were admitted in evidence and carefully
checked in conjunction with said pay roll. Our examination indi-
cates that all but one of the signers of said cards are within the
unit which we have found to be appropriate. These cards were
available for inspection and challenge by the Molders' representative
and counsel for the Company. They were not challenged.
As heretofore related, the Molders had organized and bargained
for the skilled employees in the Company plant. However, no
membership cards were introduced by the Molders to show the
number of present members who are employed by the Company.
The evidence introduced by the Molders with respect to the number
of such members is vague and uncertain. One witness testified that
at one time there may have been 40 such active members, but due
to the failure of some to pay dues the number of such active members
apparently has materially decreased. Upon a failure to pay dues an
active member is suspended from the benefits of the Molders and
becomes an inactive member, subject to being reinstated upon making
application for reinstatement. It is indicated also that a number of
the original members of the Molders are no longer employed by the
Company.
It appears that the number of the Molders' members, both active
and inactive, who are employed by the Company could be ascertained
only by reference to the books of the financial secretary. The hear-
ing in the instant case was originally set for August 30, 1937, at
which time the financial secretary was present and a motion for
continuance of the hearing until the following day was made without
objection and granted. On August 31, 1937, at the conclusion of
the -testimony a motion for a continuance was made on behalf of
the Molders until such time as the financial secretary, who did not
attend the hearing, could be present with his books and testify to the
346 NATIONAL LABOR RELATIONS BOARD
number of active and inactive members of the Molders employed by
the Company. The representative of the Molders at the time of mak-
ing said motion for continuance stated that the financial secretary
would testify that there were 14 active members and 22 inactive
members of the Molders employed at the Company's plant. The
motion was properly denied.
It is clear that the correct number of employees in the appropriate
unit is 109. The Amalgamated has a corrected total of 90 member-
ship cards authorizing it to act on behalf of the signers as their
representative for purposes of collective bargaining.
The maximum claim of the Molders, made by its representatives
is to 36 members, active and inactive. No evidence was introduced
by the Molders to prove that all these inactive members are now em-
ployed by the Company and that they now prefer to be represented
nby the Molders. On the other hand, one of these, Joseph Slowinski,
testified that he had ceased to pay dues and now prefers to be rep-
resented by the Amalgamated. The maximum number which the
Molders claim might desire to be represented by them, therefore, is
35. Accordingly, the minimum number of members of the Amalga-
mated, not also possible members of the Molders, is 54. To this num-
ber must be added Slowinski. Thus, if every doubt is resolved in
favor of the Molders, the Amalgamated, nevertheless, has a majority
of the unit of 109.
Accordingly, we find that the Amalgamated has been designated and
selected by a majority of the employees in the appropriate unit as
their representative for the purposes of collective bargaining. The
Amalgamated is, therefore, by virtue of Section 9 (a) of the Act, the
exclusive representative of all the employees in such unit for the pur-
poses of collective bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment, and we will sd
certify.
CONCLUSIONS OF LAW
On 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 Bingham & Taylor Corporation, Buffalo,
New York, within the meaning of Section 9 (c) and Section 2 (6)
and (7) of the National Labor Relations Act.
2. All of the employees of Bingham & Taylor Corporation, ex-
cluding the office force, salesmen, supervisors, and managerial and
salaried employees, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the
National Labor Relations Act.
DECISIONS AND ORDERS 347
CERTIFICATION OF REPRESENTATIVES
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 Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended,
IT IS HEREBY CERTIFIED that Local 2001 of the Amalgamated Asso-
ciation of Iron, Steel, and Tin Workers of North America, through
the Steel Workers' Organizing Committee, has been designated and
selected by a majority of all the employees of Bingham & Taylor
Corporation, Buffalo, New York, excluding the clerical employees,
salesmen , supervisors, and managerial and salaried employees, as
their representative for the purposes of collective bargaining, and
that, pursuant to Section 9 (a) of the Act, Local 2001 of the Amal-
gamated Association of Iron, Steel, and Tin Workers of North Amer-
ica, through the Steel Workers' Organizing Committee, is the ex-
clusive representative of all such employees for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment.