Heat Transfer Products, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1945

63 N.L.R.B. 1124 (N.L.R.B. 1945)

In the Matter Of HEAT TRANSFER PRODUCTS, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS , A. F. of L.
Case No.4-R-1712.-Decided September 24, 1945
Mr. Joseph R. Matthews, of Carbondale, Pa., for the Company.
Mr. Stanley M. Lentz, of Philadelphia, Pa., and Mr. Willard O.
Harrison, of Peckville, Pa., for the I. A. M.
Mr. Joseph L. Downes, of Scranton , Pa., for the Ironworkers.
Mr. Philip Licari, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Association of Ma-
,chinists, A. F. of L., herein called the I. A. M., alleging that a question
affecting commerce had arisen concerning the representation k em-
ployees of Heat Transfer Products, Inc., Simpson, Pennsylvania,
herein called the Company, the National Labor Relations Board pro-
vided for ' an appropriate hearing upon due notice before Herman
Lazarus, Trial Examiner. Said hearing was held at Scranton, Penn-
sylvania, on June 28, 1945. The Company, the I. A. M., and Inter-
national Association of Bridge, Structural and Ornamental Iron-
workers, Local Union 684, A. F. of L., herein called the Ironworkers,
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error, and are hereby
.affirmed. All parties were afforded an opportunity to file briefs 'with
the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Heat Transfer Products, Inc., a New York corporation with its
principal office in Carbondale, Pennsylvania, is engaged at Simpson,
63 N. L. It. B., No. 173.
1124
HEAT TRAYS; ER PRODUCTS, INC. 1125
Pennsylvania, in the manufacture, sale, and distribution of heat ex-
changers and condensers. During the first 6 months of 1944, the Com-
pany purchased raw materials valued at $350,000, of which approxi-
mately 30 percent was shipped from points outside the Commonwealth
of Pennsylvania. During the same period the Company produced
goods valued at approximately $500,000, all of which was shipped to
points outside the Commonwealth of Pennsylvania.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, affiliated with the Ameri-
can Federation of Labor, is a labor organization admitting to member-
ship employees of the Company.
International Association of Bridge, Structural and Ornamental
Ironworkers, Local Union 684, affiliated with the American Federation
of Labor, is a labor organization admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 19, 1945, and again on March 21, 1945, the I. A. M. re-
quested recognition from the Company as the sole collective bargaining
representative of certain of its employees. The Company refused to
accord such recognition to the I. A. M.
On March 21, 1944, the Company and the Ironworkers entered into
It collective bargaining agreement which provided, in part, as follows :
Sec. 20. This agreement, may be amended at any time by an
agreement in writing, executed by the parties thereto without
affecting any portion of this agreement except such portion as
shall be specifically changed by such amendment.
Sec. 21. This agreement, with any amendments thereof made
as provided for in Section 20, shall remain in effect for a period
of one year from its effective date; and, unless notice in writing
of a desire for change therein or to terminate the same be given
by either party to the other at least four months prior to the
expiration of such year, it shall continue in effect for an additional
year thereafter. In the same manner, the agreement, with any
amendments thereof made in accordance with Section 20, shall
remain in effect from year to year thereafter, subject, however, to
the right of each party to terminate it at the expiration of any
such year by giving notice in writing to the other party at least
four months prior to the expiration of such year.
On November 18, 1944, the Ironworkers sent a letter to the Company
which stated :
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Please be advised that Local Union 684 has instructed me to
notify you they desire some changes to be made in the present
agreement entered into March 21, 1944 and which will expire
March 21, 1945.
According to Section 21 of our agreement it states that four (4)
months notice must be given in writing by either party for such
changes.
This gives you the necessary four months notice. We would like
to arrange for negotiations any time between November 21, 1944
and March 21, 1945.
That day, after the letter was forwarded to the Company, a copy
of it was shown to the Ironworkers' organizer, who declared it to be
unsatisfactory. On the same day another letter was sent to the
'Company, stating:
The I. A. of B. S. and C. I. W., Local, Union No. 684 are
desirous under Section 20 of the agreement dated the 21st day
of March 1944, between your company and the Local Union to
amend the agreement in relation to Sections 14, 16 and 18. In
requesting negotiations covering these sections, the request
is made solely under Section 20 of the agreement relating to
amendments and shall in no manner whatsoever affect the other
sections of the agreement which are now in full force and effect
until March 21, 1946. We reaffirm the clauses of the said agree-
ment numbered Sec. 1, Sec. 2, Sec. 3, Sec. 4, Sec. 5, Sec. 6, Sec. 7,
Sec. 8, Sec. 9, Sec. 10, Sec: 11, Sec. 12, Sec. 13, Sec. 15, Sec. 17,
Sec. 19, Sec. 20 and Sec. 21:
The record shows that on February 23, March 6, March 15, and
March 21, 1945, pursuant to the Ironworkers' notice, the Company
and the Ironworkers engaged in negotiations to modify the 1944
contract. It appears from the evidence that, during these negotia-
tions, every section of the contract was discussed and agreement was,
reached on the revision of most of them, without regard to the limita-
tion contained in the second letter of November 18, 1944.
The Ironworkers urges than it merely gave the Company notice
of its desire to amend certain provisions of the 1944 contract pursuant
to Section 20 thereof, that this contract was automatically renewed,
and that a present determination of representatives is precluded since
the I. A. M.'s claim to representation was made after the operative
date of the renewal clause. We do not agree. Adverting to Section
21 of the contract, and in accordance with its provisions, the Iron-
workers in its first letter gave notice to the Company of its desire for
"changes" more than 4 months prior to the expiration date of the
contract. Although the Ironworkers sent another letter to the Com-
pany purporting to give notice pursuant to Section 20 of the contract,.
0
HEAT TRANSFER PRODUCTS, INC. 1127
we note that this letter was also seasonable under the terms of Sec-
tion 21. Moreover , despite the limitation set forth in the second
letter, at the several meetings between the parties every section of
the contract was discussed and, with respect to most of them, the
parties reached agreement for substantial revision . We are convinced-
that the parties actually proceeded under Section 21 of the contract,
for their conduct reveals that they intended to terminate the 1944
contract and enter into a new agreement , and that they thereby fore-
stalled the operation of the automatic renewal clause. We therefore
find that the 1944 contract is no bar to a current determination of
representatives.
A statement of a Field Examiner for the Board , introduced into
evidence at the hearing , indicates that the I. A. M. represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate
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 substantial accordance with the agreement of the parties,
that all production and maintenance employees, and storekeepers and
helpers of the Company's Simpson, Pennsylvania, plant, excluding
clerical employees, draftsmen, timekeepers, watchmen and guards, 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.2
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
employees in the appropriate unit who-were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
'The Field Examiner reported that the I. A. Al. submitted 100 authorization cards, of
which 66 were dated between February and March 1945, and 34 were undated . He further
reported that there were 160 employees in the unit alleged to be appropriate.
The Ironworkers relies on its 1944 contract with the Company as evidence of its interest
in this proceeding.
' Apparently the Company employs some foremen who fall within the meaning of the
Board's customary definition of supervisory employees and other foremen who do not. The
former are excluded from the unit and the latter are included.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Relations
Act, and pursuant toArticle III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Heat Transfer
Products, Inc., Simpson, 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 super-
vision of the Regional Director for the Fourth 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 the said pay-roll period because they were ill or on vaca-
tion 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 any 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 they desire to be represented by Inter-
national Association of Machinists, affiliated with the American
Federation of Labor, or by International Association of Bridge, Struc-
tural and Ornamental Ironworkers, Local Union 684, affiliated with
the,American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.