Duff-Norton Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 12, 1943

48 N.L.R.B. 1148 (N.L.R.B. 1943)

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In the Matter of DUFF-NORTON MANUFACTURING COMPANY and INTER-
NATIONAL DIE SINKERS CONFERENCE, PII TSBURGH LOCAL #50,
Case No. R-/975.-Decided April 12, 19.13
Jurisdiction : forgings manufacturing industry
Investigation and Certification of Representatives : existence of question : refusal
to accord petitioner recognition ; contract executed with knowledge of rival
claim of representation. found no bar ; election necessary.
.Unit Appropriate for Collective Bargaining : election directed among employees
in the die shop to detetinine whether they desire to constitute a separate
bargaining unit.
Thorp, Bostwick, Reed & Armstrong, by Mr. Donald Ebbertt,, of
Pittsburgh, Pa., for the Company. -
- Messrs. J. G. Heiner and Walter T. Lynch, of Cleveland,_Ohio, for
'Local 50.
• 'Messrs. Rob bin B. Wolf and Henry Dadt, of Pittsburgh, Pa., for
'the -Independent.
Mr. Robert Silagi, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Die Sinkers Conference,
Pittsburgh Local #50, herein called Local 50, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Duff-Norton Manufacturing Company, Pittsburgh, Penn-
sylvania, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
W. G. Stuart Sherman, Trial Examiner. Said hearing was held at
Pittsburgh, Pennsylvania, on March 8, 1943. The Company, Local
50, and-Duff-Norton Independent Union, herein called the Independ-
ent, appeared, participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues.
At the hearing the Company moved to dismiss the petition of Local
50. Ruling on this motion was reserved for the Board. For reasons
48 N. L R B., No. 135.
1148
DUFF -NORTON MANUFACTURING COMPANY 1149
appearing in Section III, below, the motion is hereby denied. The
Trial Examiner 's rulings made at the Bearing are free from prejudicial
error and are hereby affirmed. On March 17, 1943 , the Company filed
a brief which the Board has considered.
Upon the entire record in the case , the Board makes the following'.
FINDINGS OF FACT
I: TIIE BUSINESS OF THE COMPANY
Duff-Norton Manufacturing Company is a Pennsylvania corpora-
tion with its general office in Pittsburgh, Pennsylvania. The Com-
pany has two plants, one in Canada and the other, the' only plant in-
volved in this proceeding, in Pittsburgh. The Company is engaged in
the manufacture, sale, and distribution of forgings, lifting jacks, and
special devices. During 1942, the Company used, at its Pittsburgh
plant, over $500,000 worth of steel castings, bronze castings, malleable
iron castings, and carbon and alloy steel , of which approximately 15'
percent was purchased and transported to Pittsburgh from poll-its out-
side the Commonwealth of Pennsylvania. During the same period,
the Company produced finished products valued in excess of $500,000,
approximately 66 percent of which was sold and shipped to purchasers
outside the Commonwealth of Pennsylvania . At the present time
almost the entire production of the Company is destined for war
purposes.,
The Company admits that it is engaged in -con imeree within the
meaning of the National Labor Relations Act. • - ^'
'Ii. THE ORGANIZATIONS INVOLVED
.International Die-Sinkers Conference, Pittsburgh Local $ 50,-is,an^
unaffiliated labor organization admitting to membership employees of,
the Company. - f,
Duff-Norton Independent Union is an unaffiliated labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Ih October 1937, pursuant to' a consent 'election conducted by' tlie`
Board's agents,, the Company recognized the Independent as the ma-
jority bargaining representative of its employees . On' November •1;
1937, the Independent and the Company entered into a contract for,
"all production employees," which was to continue to November 1,
1938, and thereafter until canceled by 60 days ' written notice by either,
party. This contract continued in effect , until April 1942, when the
Independent gave oral notice to the Compilny of its desire to negotiate
1150 DECISIONS OF NATIONAL LABOR RELATIONS', BOARD
a new contract. The Company accepted such oral notice and pro-
ceeded to negotiate with the Independent with respect to a liberalized
vacation policy and some .other matters. , On October 2, 1942, the
parties came to an agreement as to terms 'and on October 5, 1942, a new
contract was signed.l
The International Die Sinkers Conference held its convention in
Pittsburgh on September 15 and 16, 1942. The die-sinker employees
of the Company attended the convention and the following week
decided, to join.this union. On September 27, eight die-room em-
ployees of the Company were initiated into Local 50. Thereafter, a
committee of Local 50' told the superintendent of the forge shop and
die room that it represented a majority of the Company's die sinkers
and requested that Local 50 be recognized as the exclusive bargaining
representative of the die-room employees. At the same time, a request
was made to arrange for a meeting between the Company's general
manager and the president of the die sinkers International Union.
The superintendent relayed this message to the general manager, and
later that day informed the committee that before a meeting could
be arranged, the Company's counsel would have to be consulted, but
since the attorney was out of town, a meeting date could not be set.
Sometime later a conference was arranged for October 12, 1942. This
conference was held but no agreement was reached; therefore a second
conference was arranged for October 15, at which the, Company's
counsel participated. The second meeting resulted in a rejection by
the Company of Local 50's requests. -
Local 50's witnesses testified that the initial request for recognition
and a conference with the general manager of the Company was made
on or about September 29, 1942, almost immediately after the die sink-
ers 'had signed membership cards and were initiated into Local 50.2
The Company's superintendent could not recall the exact day on which
he was approached by Local 50's committee but maintained that it was
not more than 3 or 4 days prior to the conference of October 12: The,
general manager testified that he received the request to confer 3 or 4
days prior to the meeting on October 12 and at a time when the con-
tract with the Independent had already been signed. From all the evi-
dence we are convinced that the Company did have knowledge of Local
50's claims at the time the contract with the Independent was executed .'
' The 1942 contract 'wits for a term of 1 year ending October 5, 1943, and provided that
the contract "shall continue in effect from year to year thereafter , unless either party
shall have given 60 days' .written notice to the other of its intention and desire that the
same terminate on the October 5th succeeding such written notice."
2 See footnote 4, infra. -
3 A witness for Local 50 testified that a telephone call was made by Adrian Kilbride, a
member of Local 50 's 'committee which made arrangements for the conference with the
general manager, to J G. Meiner, president of the International Die Sinkers Confer ence on
the day following the committee's talk with the superintendent, for the purposes of appris-
ing Meiner of what had transpired . This call was said to have been made from a pay'
DUFF-NORTON MANUFACTURING COMPANY
Accordingly, 'we find that the contract of October 5, 1942, does not pre-
clude a-present determination of representatives.
A statement of the Regional Director introduced into evidence at the
hearing indicates that Local 50 and the Independent each represents a
substantial number of employees in the unit alleged to be 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. TIIE APPROPRIATE UNIT
Local 50 seeks a'unit composed of all employees, exclusive of super-
visors, working on dies or parts of dies used to complete forgings.
The record shows that the Company has 11 such employees- including
die sinkers, trimmer die makers, die repairmen, turning die impression'
sinker, planer hands, edger hands, and a die sinker apprentice, all of
whom are highly skilled and are eligible for membership in Local 50.5
Pie sinkers undergo a 7-year apprenticeship and become truly proficient
and expert craftsmen only after 9 to 10 years. They are able to per-
form work in other departments of the' plant, but the converse is not
true.
The Company and the Independent contend that a,plant-wide unit
is the appropriate one. Evidence was introduced to show that the die
sinkers work solely on dies and that they comprise a 'department
separate and apart from the forge shop and other production divisions
station in Pittsburgh to Mr Meiner ' s home in Cleveland The Company made a statement
which the Trial Examiner treated as an "offer of proof," to the effect that if given the oppor-
tunity, it would introduce evidence after the hearing to show that no such long distance
call was made on September 80, 1942.
Since we place no reliance upon the hearsay testimony of Local 50's witness as to the
alleged telephone call, and any evidence, contradictory thereof, even if obtainable would be
remote, inconclusive, and would not tend to prove or disprove any of the issues in this case,
we reject the so-called offer of proof.
The Regional Director reported that Local 50-submitted 9 copies of application-for-
membership cards dated as follows September 26, 1942-4, September 27, 1942-4, Octo-
ber 15, 1942-1; 7 of the 9 names on the cards corresponded to names of employees on the
Company ' s pay roll of December 1, 1942, which contained the names of 10 employees listed
in the appropriate unit
The Die Smkeis also submitted 9 authorization cards dated November 16 and 17, 1942_
All the cards bore apparently genuine original signatures and contained the names of em-
ployees listed on the Company's pay roll of December l,' 1942. Seven of the names on these
cards were duplicated by the cards previously submitted
The Independent submitted 8 application-for-membership cards, 5 of which were undated
and weie entitled DuffNoiton Manufacturing Company Employees Association The re-
maining 3.cards were applications for membership in the Independent and were dated as
follows. May 18, 1940-1, February 26, 1942-1, October 28, 1942-1. All cards bore
apparently genuine original signatures and contained the names of persons listed on the
Company's pay roll'of December 1, 1942
Local 50 introduced an exhibit into the record explaining the recession from its former
position of admitting only die sinker journeymen and apprentices to membership into the
national organization This exhibit explained that the die sinkers had agreed to cooperate
in national defense and the war effort by diluting their craft and tmaming workers who
could not in normal tines and circumstances be admitted to member ship
1152 DECISIONS OF NATIONAL LABOR RELATIONS "BOARD
in the plant. On the other hand, evidence was introduced to show the
integrated character of the Company's operations and the appropriate-
ness of an industrial unit. Furthermore, the Company and the
Independent argue that the history of bargaining for over 5 years is
convincing proof of the propriety of the industrial unit.
The record shows that according to the 1937 contract the Inde-
pendent professed to bargain collectively for all employees of the Com-
pany including die sinkers c It was admitted by the Company's super-
intendent, however, that as a general rule, all grievances and, -matters
relating to pay raises were brought to his attention by the individual
employees acting .on their own behalf. Local 50's witnesses testified
that the method of adjusting grievances as outlined in the contract was
ignored, at least by the die sinkers, and only once during the life of the
contract had a die sinker resorted to intercession by an officer of the
Independent. Although one of the officers of the Independent who par-
I iclpated in the negotiations with the Company was a die sniker, the
record indicates that he did not represent or act on behalf of the die
sinkers as a group, nor did the die sinkers regard him as their
4
representative.'
Under all the circumstances we are of the opinion that the employees
in the Company's die shop may properly constitute a separate bargain-
ing unit, or may equally achieve the full benefit of their_right-A0 self-
organization and- collective bargaining as part of a plant-wide unit.
In accordance with our usual practice in such cases we hold that the
determining factor is the desires of the employees themselves. We
shall' direct that the question concerning representation which has
arisen ,,liall be resolved by an election by secret ballot among the em-
ployees in the Company's die room, excluding supervisory employees,
to determine whether those eligible to vote desire to be represented
for the purposes of collective bargaining by Local 50 or by the Inde-
pendent, or by neither. Upon the result of this election will depend
in part the appropriate unit. In the event that Local 50 receives a
majority of the votes cast in the election,, said employees will consti-
tute a separate appropriate unit and we shall certify Local 50 as their
exclusive bargaining representative. If a majority of these employees
cast their votes for the Independent, or for neither union, we shall
The contract contained the following language : "It is understood and agreed that this
agreement pertains to all of the production employees employed by the Corporation, but
nothing herein shall prevent any individual employee from acting for himself rather than
by the Union Committee herein referred to "
Bee Mattei of International Harvester Tractor Works and Chicago Die Sinkers Local
No 100 of the International Die Sinkers Conference, 36 N L R. B. 520; also Matter of
Endicott Foiping ct Manufacturing Co. and National Die Sinkers Conference, 29 N. L. R. B.
°i8- Cf Matter of Phoenix Manufacturing Company and International Die Sinkers Con-
ference, 44 N L R B 1388: also Matter of Itei.ere Copper and Blass, Incorporated and
Clncapo Die Sinkers, Local No 100, affiliated icit/i the late) national Die Suibers Conteence,
30 N. L. R B 964
DUFF-NORTON MANUFACTURING COMPANY 1153
conclude therefrom that said employees do not desire to constitute a
separate unit. In such event , we shall dismiss the petition of Local 50.
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 Company's die room wlio were employed during the
.,pay.,ro11 period immediately preceding the date of the Direction of
Election herein, subject-to the limitations and additions set forth in the
Direction. Since it appears that there is no issue concerning the rep-
resent ation of employees of the Company not employed in the die room,
we shall not direct an election among such employees.
DIRECTION OF ELECTION
By virthe of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, ainl-pnrsuant to Article III, Section 9, of National Labor Rela-
tioiis Board Rules and Regulations-Series 2, as ameiicled, it is hereby
DIRECTED that, as part of the investigation to ascertain. representa-
tives for the purposes of collective bargaining with Duff-Norton Man-
,.u-facturnlg Company, Pittsburgh, Pennsylvania, 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 Sixth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,
among all employees who were employed by the^Company in its die
room, excluding supervisory employees, 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
o^ on vacations or temporarily laid off, and including employees inI in
the armed forces of the United States who present themselves in person
at the polls, ,but excluding those employees who, have since quit, or
beenmdischarged for cause, to determine whether they desire to be rep-
resentecl by International Die Sinkers Conference, Pittsburgh Local
$k50. or by. Duff-Norton Independent Union, for the purposes of col-
lective bargaining , or by neither.