Chicago Malleable Castings Co.

National Labor Relations Board - Board Decisions

Oct 16, 1939

16 N.L.R.B. 15 (N.L.R.B. 1939)

In the Matter Of CHICAGO MALLEABLE CASTINGS COMPANY and
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 399
and INTERNATIONAL BROTHERHOOD .OF FIREMEN AND OILERS, LOCAL
No. 7
Case No. R-1097.-Decided October 16, 1939
Iron and Alloy Castings Manufacturing Industry-Investigation of Repre-
sentatives : question concerning representation : petitioning craft unions file
petition after Company signed exclusive bargaining contract with industrial
union ; contract by its terms in effect until notice of termination by either
party-Unit Appropriate for Collective Bargaining : plant Wcra'ft units ; 'mem-
bership bargaining contract followed by exclusive contract in effect at time
of hearing both covering entire plant ; evidence of prior bargaining by crafts.;
notice by crafts of reservation of bargaining rights prior to execution of first
bargaining contract covering entire plant ; determination of unit or units held
dependent upon desires of craft . employees,; ( Leisersori, concurring ) contract
covering entire plant purporting to include firemen and engineers not
determinative of, since members in. craft did not assent to. such inclusion;
(Smith, dissenting ) lack of substantial history of collective bargaining on part
of firemen and engineers ; no justification . for weakening the bargaining strength
of employees as a whole by permitting craft units to split off from the indus-
trial unit-Representatives : proof of choice : membership cards and testimony
of employees-Certification of Representatives:- craft unions certified as col=
lective bargaining representatives upon proof of majority representation. ''
Mr. Hyman A. Schulson, for the Board.
Pope & Ballard, by Mr. Henry F.'Seyfa'rth, and Mr. *Lee C. Shaw;
of Chicago, Ill., for the Company.
Mr. Anton J. Imhahn and Mr. Frank Wood, of Chicago, Ill., and
Mr. Frank S. Easby-Smith, of Washington, D. C., for the Engi-
neers' Local.
Mr. James M. Kennedy, of Chicago, Ill., for the Firemen's Local.
Mr. John J. Brownlee, of Chicago, Ill., for the S. W. O. C.
Mr. Louis A. Roland, of counsel to the Board.
DECISION
AND
CERTIFICATION 'OF REPRESENTATIVES
STATEMENT OF THE CASE
On January 3, 1939, International Union of Operating Engineers,
Local No. 399, herein called the Engineers' Local, and International
Brotherhood of Firemen and Oilers, Local No. 7, herein called the
Firemen's Local, filed with the Regional Director for the Thirteenth
. 16 N. L. R. B:, No. 9.
15
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region (Chicago, Illinois) a joint petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Chicago Malleable Castings Company, Chicago, Illinois,
herein called the Company, and requesting an investigation and
certification of representatives, pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called.1he Act. On
February 6, 1939, 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 Regula-
tions-Series 1, as amended, ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On February 13, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served.upon the Company, upon
the Engineers' Local, upon the Firemen's Local, and upon Solidarity
Lodge No. 1135 of Amalgamated Association of, Iron, Steel and Tin
Workers of North America, affiliated with Steel Workers Organizing
Committee, herein called the S. W. O. C., a labor organization claim-
ing to represent employees directly affected by the investigation.
Pursuant to the notice, a hearing was held on February 27, 1939, at
Chicago, Illinois, before Gustaf B. Erickson, the Trial Examiner
duly designated.by the Board. The Board and the Company were
represented by counsel, the Engineers' Local by the third vice presi-
dent of the International Union of Operating Engineers and. by a
representative of the Engineers' Local, the .Firemen's Local by its
business representative, and the S. W. O. C. by its representative.
All parties 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.
Pursuant' to notice duly -serve"d' upon all the parties, oral •argumeiit
was had before the Board at Washington, D. C., on April 20, 1939.
The Company, the Engineers' Local, and the Firemen's Local were
represented by counsel, the S. W. O. C. by its representative, and all
participated in the argument.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Company is an Illinois corporation engaged in the manu-
facture, sale, and distribution of malleable grey iron and alloy cast-
CHICAGO MALLEABLE CASTINGS COMPANY 17
ings, brake beams and power brakes for railway cars, agricultural
implements, and miscellaneous castings from customers' patterns. Its
principal office and plant are in Chicago, Illinois. During the year
1938, the value of the raw materials and equipment purchased by
the Company in the operation of its plant equalled $210,000, three-
fourths of which represented materials and egt1ipmei`it shipped to the
Company from sources outside Illinois. During the same period,
the value of the Company's sales and shipments of castings and brake
beams from the plant equalled $600,000, approximately three-fourths
of which represented products sold and shipped to customers outside
Illinois. Among its principal customers are all leading railroads in
the United States. The Company advertises its products throughout
the country and employs 12 salesmen who solicit orders throughout
several States of the United States.
The Company employs approximately 340 workers at its plant.
II. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local No. 399, is a
labor organization affiliated with the American Federation of Labor,
admitting to its membership engineers, and junior and apprentice
engineers in the Chicago area.
International Brotherhood of Firemen and Oilers, Local No. 7,
is a labor organization affiliated with,the American Federation of
Labor, admitting to its membership firemen- and oilers in the Chicago
area.
Solidarity Lodge No. 1135 of Amalgamated Association of Iron,
Steel and Tin Workers of North America is a labor organization
affiliated with Steel Workers Organizing Committee, and with the
Congress of Industrial Organizations, admitting to its membership
all employees of the Company excluding foremen, assistant foremen,
watchmen, supervisory and salaried employees.
III. THE QUESTION CONCERNING REPRESENTATION
Prior to 1937 the Company had never bargained collectively with
any labor organization. In the early part of that year the S. W.
O. C. began an organization campaign among the Company's em-
ployees and on April 1, 1937, signed a contract with the Company
in which the S. W. O. C. was recognized as the collective bargaining
agency for those employees of the Company who were members of
the S. W. O. C. On April 25, 1938, a second contract between the
Company and the S. W. O. C. was signed in which the Company
recognized the S. W. O. C. as the sole collective bargaining agency
for all the employees of the Company, except foremen, assistant fore-
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, watchmen , supervisory and salaried employees. By its terms
the contract was to continue in effect until August 1, 1938 , and there-
after until terminated on 20 days ' notice by either party. No notice
of termination has been given . In November 1938, after a joint
meeting of engineers and firemen employed in the Company's pow-
erhouse, the four engineers joined the Engineers ' Local and two fire-
men joined the Firemen 's Local. Thereafter both Locals filed their
joint petition claiming that the engineers and firemen employed by
the Company constitute a unit appropriate for the purposes of col-
lective bargaining. On January 11, 1939, a letter was signed and
sent to the Engineers ' Local by the four engineers and two firemen
in which they signified their desire to be represented by both Locals
for the purpose of collective bargaining ; at the hearing, these six
employees reaffirmed this desire.
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 Engineers ' Local and the Firemen's Local contend that the
engineers and the firemen employed by the Company constitute a
separate appropriate bargaining unit. At the hearing, however, these
unions indicated that they had no objection to including the engineers
in one unit and the firemen in another . The S. W. O. C. contends
that all the employees of the Company , except foremen , assistant
foremen, watchmen , supervisory and salaried employees , constitute
an appropriate bargaining unit and that . the units claimed by the
Engineers' Local and the Firemen 's Local are not appropriate for
purposes of collective bargaining.
The four engineers and two firemen ( together with a single appren-
tice fireman and engine wiper) constitute the power department of
the Company and are under the supervision of a chief engineer. The
engineers work in an enclosed building or engine room located in the
center of the plant buildings ; the firemen work in a boiler room
about 100 feet away . The engineers are highly skilled , being licensed
CHICAGO MALLEABLE CASTINGS COMPANY 19
by the city of Chicago, and are responsible for the safe, efficient
operation of steam generating apparatus. Although practically all
their work is performed inside the engine room, they occasionally do
repair work elsewhere when necessary for the continued, efficient
operation of the power department. The firemen are semi-skilled
workers with at least 2 years' experience, charged with the operation
of the boilers. The average wage rates of engineers and firemen
exceed that of all other employees generally, the engineers earning
more than the firemen. However, at least one class of skilled
production workers earns as much as the engineers.
In March 1934 the engineers and firemen, as the result of a con-
ference with the plant manager and the chief engineer, were -granted
increased hours of employment.' No written or oral contract was
made nor was a definite period of time agreed upon. In addition,
on various occasions until the signing of the first S. W. O. C. contract
in 1937, the power-department employees met with the chief engineer
to discuss wages, hours, or conditions of employment. Having no
authority to enter into a contract on behalf of the Company, the
chief engineer in turn discussed these matters with the print man-
ager. On March 24, 1937, at about the time the S. W. O. C. was
engaged in organizing the employees at the plant, all the engineers
and firemen (including- the apprentice fireman) signed and de-
livered to the Company a document in which they stated, as em-
ployees 'of the power department, that "we reserve for ourselves,
either individually or collectively the right' to bargain on our work-
ing conditions, wages, etc." The Company failed to reply to this
communication and shortly thereafter entered into its first contract
with the S. W. O. C. As stated above, in November 1938 the Engi-
neers' Local and the Firemen's Local succeeded in obtaining the
membership of the four engineers and two firemen, respectively.
In support of its contention that a plant-wide unit is appropriate,
the S. W. O., C. emphasized the essential interdependence between
the power department and the rest of the plant. All the production
departments of the plant (including the pattern, core, , molding,
melting, cleaning, annealing, and finishing departments), operating
in continuous sequence, are dependent upon the power department
for electricity, steam, compressed air, and heat. Production opera-
tions could not continue if power-department employees were to
cease work.
We are of the opinion that the engineers and firemen could func-
tion either as separate units, as claimed by the Engineers' Local and
the Firemen's Local, 'or as part of the broader unit; as- claimed by
'By restoring an 8-hour day for these employees, the Company increased their weekly
wage.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the S. W. 0. C. Under the circumstances we will be guided by the
desires of the employees themselves.' At the hearing cards were
introduced in evidence showing the membership of the four engineers
in the Engineers' Local and of two of the firemen in the Firemen's
Local; moreover, these six employees testified that they desired to be
represented by their respective unions. The desires of the employees
to be so represented were not questioned by the Company or the
S. W.. 0. C. A_ seventh employee, not claimed by the petitioning
Locals its, part of either. alleged bargaining, unit, is listed on the
Company's pay roll as a member of the power department. This
employee's desire as to representation is absent from the record. He
is an apprentice fireman and engine wiper and, as such, presumably
eligible to membership in the Firemen's Local. We see no reason for
excluding him. from a unit composed of firemen. Although the En-
gineers' Local and the Firemen's Local filed a joint petition for
certification as representatives of both engineers and firemen in a
single unit, they raised no objection to the establishment of a
separate unit for engineers and one for firemen. Since the engineers
and firemen have traditionally organized as separate crafts, we find
that there should•be'two,bargaining units.
Accordingly we find that the engineers and firemen (including the
apprentice fireman) of the Company, respectively, excluding super-
visory employees, constitute units appropriate for the purposes of
collective bargaining and that said units will insure to said employees
of the Company the full benefit of their right to self-organization
and collective bargaining and otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
As stated above, it is undisputed that the four engineers shall be
represented "by-the Engineers' Local, and two firemen and the ap-
prentice fireman by the Firemen's Local. We find that the Engi-
neers' Local has been designated and selected by a majority of the
engineers as their representative for the purposes of collective bar-
gaining and that the Firemen's Local has been designated by a
majority of the firemen (including the apprentice fireman) as their
representative for the purposes of collective bargaining, and will so
certify.
Upon the basis of the findings of fact and upon the entire record
in the case, the Board makes the following:
2 Matter of The G lobe Machine and Stamping Co . and Metal Polishers Union, Local
No. s, 3 N. L. It. B. 294, and subsequent cases.
CHICAGO MALLEABLE CASTINGS COMPANY
CONCLUSIONS OF LAW
21
1. A question affecting commerce has arisen concerning the rep-
resentation of the engineers and firemen of the Chicago Malleable
Castings Company, at its Chicago plant, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
2. The engineers and the firemen (including the apprentice fire-
man) of the Company, respectively,- excluding supervisory employees,.
constitute units appropriate for the purposes of collective bargaining,
within the meaning of Section 9 (b) of the National Labor
Relations Act.
3. International Union of Operating Engineers, Local 399, af-
filiated with the A. F. of L., is the exclusive representative of all the
engineers for the purposes of collective bargaining, within the mean-
ing of Section 9 (a) of the National Labor Relations Act. Inter-
national Brotherhood of Firemen and Oilers, Local No. 7, affiliated
with the A. F. of L., is the exclusive representative of all the firemen
(including the apprentice fireman) for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the National
Labor Relations Act.
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 Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2,
IT IS HEREBY CERTIFIED that International Union of Operating En-
gineers, Local No. 399, affiliated with the A. F. , or L., has been
designated, and selected by a majority of the engineers employed at
the Chicago plant of Chicago Malleable Castings Company,' Chicago;
Illinois, excluding supervisory employees, as their representative for
the purposes of collective bargaining, and that, pursuant to the pro-
visions of Section 9 (a) of the Act, International Union of Operat-
ing Engineers, Local No. 399, affiliated with the A. F. of L., is the
exclusive representative of all such employees for the purposes of
collective bargaining, with respect to rates of pay, wages, hours of
employment, and other conditions' of employment.
AND IT IS FURTHER CERTIFIED that International Brotherhood of
Firemen and Oilers, Local No. 7, affiliated with the A. F. of L., has
been designated and selected by a majority of the firemen (including
the apprentice fireman) employed at the Chicago plant of Chicago
Malleable Castings Company, Chicago, Illinois, excluding super-
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visory employees, as their representative for the purposes of collec-
tive bargaining, and that, pursuant to the provisions of Section 9 (a)
of the Act, International Brotherhood` of Firemen and Oilers, Local
No. 7, affiliated with the A: F. of L., is the exclusive representative
of all such employees for the purposes of collective bargaining, with
respect to rates of pay, wages, hours of employment, and other con=
ditions of employment.
MR. WILLIAM M. LEISERSON, concurring :
Although there is an agreement in effect which purports to include
the engineers and' firemen within a plant unit represented by the
S. W. O. C., these employees did not assent to such inclusion. They
had_ previously informed the Company in writing that they desired
separate representation, and none of them had designated the
S. W. O. C. as their representative when this organization presumed
to make an agreement in their behalf.
MR. EDWIN S. SMITH, dissenting :
For reasons stated in my dissent in Matter of Allis-Chalmers Man-
ufacturling Company,8 I believe that separate units composed of
engineers and firemen are not appropriate for collective bargaining
in this case and that the petition should be dismissed. The record
discloses no substantial history of collective bargaining on the part
of the craft groups prior to the organization of the plant by the
S. W. O. C. and the obtaining of an exclusive bargaining contract
by the S. W. O. C. It is true that in 1934 an adjustment in the hours
of engineers and. firemen was made as a result of a conference between
company officials and the engineers and. firemen; and that subse-
quently the power-department employees discussed wages, hours, and
working conditions with the chief engineer. But the engineers and
firemen were never formally organized and no formal collective
agreement was either sought or obtained by them. It is apparent
that the activity of the engineers and firemen was limited to mere
informal presentation of grievances and discussion. It is true also
that in 1937, before the signing of the first S. W. O. C. contract-a
contract for members only-the engineers and firemen served notice
that they reserved the right to bargain "for ourselves, either indi-
vidually or collectively." But no such claim was. made when the
exclusive bargaining contract of 1938 was executed. And it was not
until 7 months after the execution of the 1938 contract that the Engi-
neers' Local and the Firemen's Local first appeared upon the scene.
Under these circumstances I see no reason for permitting the engi-'
431atter of. Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L. R. B. 159, 175.
CHICAGO MALLEABLE CASTINGS COMPANY 23
neers and firemen to weaken the bargaining strength of the employees
as a whole by splitting off into separate units.
Furthermore, I fail to see any distinction between this case and
Matter of American Can Company 4 in which the majority of the
Board declined to establish separate craft units where an industrial
union had previously obtained an exclusive bargaining contract cov-
ering an industrial unit. I cannot see how the attempted reservation
of bargaining rights by the engineers and firemen in March 1937 can
be effective to curtail the rights of the industrial union based upon
an exclusive bargaining contract negotiated in April 1938.
I have great difficulty in finding any basis for reconciling the doc-
trine of the concurring opinion in this case with the dissenting opinion
in Matter of Clyde Mallory Lines .5 In the Clyde Mallory case an
A. F. of L. union and a C. I. 0. union, having conflicting jurisdictions,
approached the company at approximately the same time and each
requested the company to negotiate a collective agreement covering
the unit which it deemed appropriate. The company chose to ignore
the claims of the C. I. 0. union and to negotiate an agreement with
the A. F. of L. union covering the unit which that union asserted to
be appropriate. It was urged in the dissenting opinion that the con-
tract thus negotiated was conclusive of the bargaining unit, and that
the Board had no authority under the Act to find a different unit
from that established by the previous contract. In the present case
similar conflicting claims were made in 1937 by the S. W. 0. C.. •ancl
by the engineers and firemen. The Company chose to enter into: an
agreement with the S. W. 0. C. and ignore the engineers and.firerne#I.
If the Board was compelled. to adhere to the unit fixed by the contract
in the Clyde Mallory case I do not see why it is not equally compelled
to adhere to the unit fixed by the contract in this case.
4 Matter of American Can Company and Engineers Local No. 30, et al., 13 N. L. R. B.
1252. To the same effect is Matter of Milton Bradley Co. and International Printing
Pressmen and Assistants Union of North America (A. F. L.), 15 N. L. R. B. 938.
5 Matter of Clyde Mallory Lines and Industrial Union of Marine & Shipbuilding Workers
of America, Local No. 22, 15 N. L..R. B. 1008.
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