Detroit Sheet Metal Works

National Labor Relations Board - Board Decisions

Apr 22, 1947

73 N.L.R.B. 475 (N.L.R.B. 1947)

In the Matter of DETROIT SHEET METAL WORKS, PETITIONER and SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION , LOCAL 292 (AFL)
and UNITED STEEL WORKERS OF AMERICA, LOCAL 1511 (C. I. 0.)
In the Matter of NEwcoMr, DETROIT COMPANY, ET AL., EMPLOYERS and
SI-IEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 292
(AFL), PETITIONER
Cases Nos. 7-RE-16 and 7-R-2326 through 7-R-.329, respectively.-
Decided April 22,1947
Beamnont, Smith & Harris, by Mr. Albert E. Hader, of Detroit,
Mich., for the Employers.
George S. Fitzgerald, by Mr. Paul Mllayrand, of Detroit, Mich., for
the Petitioner.
Mr. Nicholas J. Rothe, of Detroit, Mich., for the Intervenor.
Air. Jerry Wohlmiuth, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon petitions duly filed, hearing in these consolidated cases was
held at Detroit, Michigan, on August 28, 1946, before Robert J.
Wiener, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
At the hearing, the Intervenor moved to dismiss the petition of the
Detroit Sheet Metal Works on the ground that it had forfeited its
right to take part in a legal proceeding since it had not filed an annual
report with the Michigan Corporation and Securities Commission, as
required by a State corporate statute. This motion is denied.'
Upon the entire record in the case, the National Labor Relations
Board makes the following:
' There is evidence in the record that in fact such a report had been filed Moreover,
compliance or noncompliance with the statute referred to is wholly irrelevant , since this
proceeding is concerned with the selection of a bargaining representative for the employees
of the Employer and not with the legality of the Employer 's status under the corporate
laws of the State of Michigan
73 N L R B, No. 94.
475
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THJD BUSINESS OF THE EMPLOYERS
The record reveals that all the Employers involved herein are en-
gaged in the industrial sheet metal business in the State of Michigan,
where they fabricate industrial ovens, dust collecting paraphernalia,
and similar products. Each of the Employers maintains an erection
service for the purpose of installing fabricated equipment on the
premises of its customers, some of whom are located out of the State
of Michigan. Each Employer imports a substantial amount of its
raw materials from points outside the State of Michigan, and a sub-
stantial amount of the finished products thus produced is shipped
to points outside the State of Michigan.2
The Employers admit and we find that they are engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
The United Steelworkers of America, herein called the Intervenor,
is a labor organization affiliated With the Congress of Industrial Or-
ganizations, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employers refuse to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employers until the
Petitioner has been certified by the Board in an appropriate unit.
In March 1945, a single contract, individually signed by the Em-
ployers, was executed between the Intervenor and the Employers, and
made retroactive to June 1, 1944. The contract provided that it was
to remain in effect for 2 years from June 1, 1944, and "it shall continue
in effect thereafter unless either party gives notice to the contrary
as herein provided. Thirty days prior to the expiration of this con-
tract, the parties shall meet in conference at the office of the Company
2 The Employers stipulated the following facts concerning their operations in 1945 :
The Marshall Blow Pipe Company imported from other States approximately
$100,000 worth of taw material and shipped approximately 10 percent of its total
finished products outside Michigan.
The Morton C. Marshall Company imported about $ 50,000 worth of raw materials
from other States and shipped about 30 percent of its total production to customers
outside Michigan
The Detroit Sheet Metal Works imported raw materials valued at about $350,000
from other States and shipped outside Michigan approximately 25 percent of its fin-
ished products.
The David-Ludwig Company and the Newcomb Detroit Company individually im-
ported about $ 500,000 worth of raw materials from outside Michigan and shipped
about $1 , 000,000 worth of its finished products in interstate commerce.
DETROIT SHEET METAL WORKS 477
in (Detroit), unless otherwise mutually agreed, for the purpose of
negotiating the terms and conditions of a new contract." Since no
notice of termination was given by either party or any meetings held
prior to the expiration date, and Petitioner's petition was untimely in
reference to the automatic renewal date,' Intervenor contends that the
contract bars this proceeding.
We are of the opinion that under the contract terms set forth supra,
the instrument was automatically renewed on June 1, 1946, for an
indeterminate period of time. Under our interpretation, the contract
became one of indefinite duration, and therefore we find, under well-
established principles, that it is no bar to an election at this time 4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employers, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
Petitioner requests separate plant-wide units composed of all shop
and erection employees of each of the five Employers, excluding clerical
and office and supervisory employees. Intervenor contends for separate
units of shop and erection employees. The Employers generally take
no definite position as to the appropriate units.5
It appears from the record that both the shop and erection employees
perform similar sheet metal operations on industrial equipment. Their
work differs only in that the shop employees fabricate the parts of
this equipment inside the shop, whereas the erection employees install
and put into operation the equipment at the purchaser's location. The
job classifications for these employees are the same, and they are listed
as erection or shop men on, the Employers' pay rolls according to the
type of work which they perform the greatest portion of their time.
Their rates of pay are the same whether they work in the shop or on
erection projects." There is a substantial amount of interchange
between the Employers' shop and erection employees.7
As set out, supra, the Intervenor has been in contractual relations
with the five Employers involved herein since June 1, 1944. Under
the terms of this contract, it has represented the Employers' employees
in separate units of shop employees only. On the other hand, in pre-
8 while Petitioner 's informal claim of representation was sent to the Employers on
April 24 , 1946, before the automatic renewal date of the contract , it failed to follow this
with a petition within the 10 days required by the General Electric X-Ray rule (67
N L R B 997).
4 Matter of Flintkote Company, 63 N L. R B. 914 ( citing cases)
6 The Detroit Sheet Metal works requests a plant -wide unit , but introduced no evidence
as to its appropriateness.
6 However , erection workers are sometimes paid the prevailing rate in the locality in
which they are working if that rate happens to be higher than their ordinary rate of pay.
7 Interchange between the shop and erection employees is not marked at the Detroit
Sheet Metal works.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vious contracts between the Intervenor and the Employers, the bar-
gaining units comprised both shop and erection employees. Thus, the
Intervenor has represented these employees in both single and separate
units in the course of its bargaining relations with the Employers.
It is evident, therefore, that the bargaining history does not conclu-
sively establish the appropriateness of either type of unit, and that
the shop and erection employees of the Employers, respectively may
function either as separate units or as a single unit for collective bar-
gaining purposes.8 Under these circumstances, our determination
concerning the scope of the bargaining units will be governed in part,
by the desires of the employees themselves to be ascertained by means
of separate elections.
Petitioner and the Employers take the position that certain erection
employees who have been employed 90 consecutive days or more should
be eligible to vote. The Intervenor objects generally to this position.
It appears from the record that on out-of-town construction jobs, the
Employers hire casual employees when it is determined that the com-
plement of regular workers assigned to the job is insufficient. The
casuals are employed at the locale of the construction only for the
duration of the specific job, which rarely lasts more than 3 months.
Few of these employees move to the next construction project. We
have previously considered the status of similar employees s and we
are of the opinion that the temporary nature of their employment
impels the finding that they are ineligible to vote.
We shall order the conduct of elections among tl"e employees of
the respective Employers within the groups listed below:
(1) All shop employees, excluding office and clerical employees, and
all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend, such action ;
(2) All erection employees, excluding office and clerical employees,
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action.
We will make no final determination of the appropriate units
pending the results of the elections.
DIRECTION OF ELECTIONS 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Detroit Sheet Metal Works,
8 Matter of Struthers Wells Corporation , 59 N L R B 454.
Matter of Schmtieq Industries, 62 N. L R B 1474
10 Any participant in the elections herein directed may, upon its prompt request to, and
approved thereof by , the Regional Director, have its name removed from the ballot.
DETROIT SHEET METAL WORKS 479
Newcomb Detroit Company, David-Ludwig Company, Marshall Blow
Pipe Company, and Norton C. Marshall Company, all of Detroit,
Michigan, elections 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 Direc-
tor for the Seventh Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees of the respective Employers in the
separate voting groups described 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 said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
casual employees and 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 or not they desire to be
represented by Sheet Metal `Yorkers International Association, Local
292, A. F. L., or by United Steelworkers of America, Local 1511,
C. I. 0., for the purposes of collective bargaining, or by neither.
739926-47-vol. 73-32