Electric Steel Foundry

National Labor Relations Board - Board Decisions

Oct 16, 1945

64 N.L.R.B. 262 (N.L.R.B. 1945)

In the Matter of ELECTRIC STEEL FOUNDRY and METAL TRADES,
COUNCIL OF PORTLAND AND VICINITY, AFL
Case No. 19-R-1567.-Decided October 16, 1945
Mr. Robert L. Sabin; of Portland, Oreg., for the Company.
Mr. James-Landye, of Portland, Oreg., for the AFL.
Mr. J. L. Menzie, of Portland, Oreg., for the CIO.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
f
STATEMENT OF THE CASE
Upon a petition duly filed by Metal Trades Council of Portland and
Vicinity, AFL, herein called the AFL, alleging that a question af-
fecting commerce had arisen concerning the representation of em-
ployees of Electric Steel Foundry, Portland, Oregon, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Joseph D. Holmes, Trial
Examiner. 'Said hearing was held at Portland, Oregon, on May 31,
1945. The Company, the AFL, and United Steelworkers of America,
CIO, herein called the CIO,1 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 hearing the Trial Examiner refused to admit in i evidence a
contract between the Company and the AFL, which the Company
urged as a bar to the proceeding. The Company also moved to dis- '
miss the petition on the basis of this contract. For the reasons stated
in Section III, infra, the Trial Examiner's ruling with respect to the
admission in evidence of the contract is overruled, but the Company's
motion to 'dismiss the petition is denied. Except as noted above, the
Trial Examiner's rulings made at the hearing are hereby affirmed. All
,parties were afforded an opportunity to file briefs with the Board.
'The CIO has submitted a waiver of its charges of unfair labor practices filed against
the Company in Case No . 19-C-1399, insofar as they might constitute a basis for objecting
to the instant proceeding.
64 N. L. R. B., No. 45.
'262
ELECTRIC STEEL FOUNDRY 263
Upon the entire-record in the case, the Board makes the following,-
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Electric Steel Foundry, an Oregon corporation, is engaged in the
manufacture of'steel castings, and in the retail sale of wire rope and
rolling steel stock. The Company alinually uses in its manufactur-
ing process materials obtained outside the State of Oregon valued
at about $2,500,000.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.'
H. THE ORGANIZATIONS INVOLVED
Metal Trades Council of Portland and Vicinity, ,affiliated with the
American Federation of Labor, is a labor organization admitting to-
membership employees of the Company.
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting`to mem-
bership employees of the (Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant 'recognition-to the AFL as,the
exclusive bargaining representative of certain of its employees on
the ground that it has hot'been legally established that the AFL repre-
sents a majority of such employees.
At the hearing the Company offered in evidence a contract between
it and the AFL 2 for the purpose of establishing that the contract was
a bar to thi's proceeding, and also moved to dismiss the petition on the
ground that the contract precluded a present determination of-repre-
sentatives. The Trial Examiner refused to admit the, contract in
evidence on the ground that it was incompetent and immaterial, allow-
ing it, however, to be marked as a rejected-exhibit, and reserved ruling
on the motion to dismiss for the Board. Inasmuch as a contractual
bar issue is germane to a determination of whether a question con-
cerning representation has arisen, we shall admit the contract in evi-
dence.
The contract, which was executed on September 2, 1941, provides,
inter alia, that, "The Union [the AFL] will not request that it act as
bargaining agent for any of its members unless its membership in-
cludes a majority of the Company's employees, ...." The Com-
pany contends that the'quoted clause, in,the absence of proof by the
2 International Molders and Foundry Workers Union of North America, which is not a
party to this proceeding , was also a signatory to the contract.
264 DECISIONS OF NATIONAL ' LABOR RELATIONS,BOARD
AFL that its membership`includes a majority of the, Company's em-
ployees, not only precludes it -from requesting recognition as bargain-
ing representative from the Company, but also estops it from petition-
ing the Board in an attempt to gain recognition.. We do not agree.
We construe the clause in question merely to impose a condition on
any request by the AFL for recognition as bargaining 'agent oil a
"members-only" basis. It does not restrict, either expressly or im-
pliedly, the right of the AFL to petition the Board, as here, for recog-
nition as the statutory bargaining representative for all' the 'employees
in an appropriate unit. Accordingly, since the clause is not relevant,
the contract cannot operate to preclude a present determination of
representatives. We need not pass upon the question of the legal
effect of the quoted provision were it given the broad construction
sought by the Company.
A statement of a Board Field Examiner, introduced into evidence
at the hearing, indicates that the AFL represents a substantial, num-
ber of the 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
We find, in accordance with a stipulation of the parties, that all
production and maintenance employees of the Company, excluding
'office workers, office janitors, draftsmen, engineers, pattern workers,
guards, watchmen, 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, constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
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
he'rein,' subject to the limitations and additions set forth. in the
Direction.
s The Field Examiner reported that the AFL submitted 149 authorization cards ; that
93 were dated between March and, May 1945 , and 56 were undated ; and that 'there' were
313 employees in the alleged appropriate unit
The CIO submittedr 31 authorization cards, dated May 1945, to the Trial Examiner at
the heating . Pursuant to a stipulation of all parties , the Trial Examiner subsequently
checked these cards against the Conipany ' s pay roll for the period ending May 31, 1945,
and reported that the names of all 31 persons appearing on the cards were listed on that
Tay roll.
ELECTRIC STEEL FOUNDRY 265•
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 Rela-
tions 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 represent-
atives, for the purposes of collective bargaining with Electric Steel
Foundry, Portland, Oregon, an election by secret ballot shall' be con-
ducted 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 Nineteenth 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 Regulations, among the
employees in the unit found appropriate 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
those employees who have since quit or been discharged for cause
and have not been rehired or reinstated -prior to the date of the elec-
tion, to determine whether they desire to be represented by Metal
Trades Council of Portland and Vicinity, AFL, or by United Steel-
workers of America, CIO, for the purposes of collective bargaining,
or by neither. •
a