Kansas City Structural Steel Co.

National Labor Relations Board - Board Decisions

Dec 13, 1939

18 N.L.R.B. 291 (N.L.R.B. 1939)

In the Matter of KANSAS CITY STRUCTURAL STEEL COMPANY and THE
INTERNATIONAL' ASSOCIATION OF BRIDGE STRUCTURAL & ORNAMENTAL
IRON WORKERS, SHOPMEN WORKERS, LOCAL 520, AFFILIATED WITH THE
AMERICAN FEDERATION OF LABOR
Case No. R-1589.-Decided December 13, 1939
Steel Products Manufacturing and Erecting Industry-Investigation of Rep-
resentatives : controversy concerning representation of employees : employer
refuses to recognize petitioning union, insisting on an election to determine-
Unit Appropriate for Collective Bargaining: all production and maintenance
employees, excluding office employees, salesmen, foremen with authority to hire
and discharge, supervisory foremen, truck drivers, watchmen, janitors, and super-
intendents ; no controversy except as to classification of one employee-Repre-
sentatives : eligibility to participate in choice : to be governed by seniority list of
employees who had worked during preceding 12 months-Election Ordered: labor
organization found in prior proceeding to be company-dominated excluded from
ballot.
Mr. Henry H. Foster, Jr., for the Board.
Cooper, Neel and Sutherland, by Mr. Armwell L. Cooper and Mr.
Wallace Sutherland, of Kansas City, Mo., for the Company.
Mr. Clif Langsdale and Mr. Gibson Langsdale, of Kansas City,
Mo., for the Iron Workers.
Mr. Blake A. Williamson and Mr. Lee Vaughn, Jr., of Kansas City,
Kans., for the Association.
Mr. N. Barr Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 16, 1939, the International Association of Bridge, Struc-
tural & Ornamental Iron Workers, Shopmen Workers, Local 520, affil-
iated with the American Federation of Labor, herein called the iron
Workers, filed a petition with the Acting Regional Director for the
Seventeenth Region (Kansas City, Missouri) alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Kansas City Structural Steel Company, Kansas City, Kan-
sas, herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
18 N. L. R. B., No. 45.
291
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On Sep-
tember 26, 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 2, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice. .
On October 11, 1939, the Regional Director issued a notice of hear-
ing, copies of which were served upon the Company, the Iron Work-
ers, and Employees Association of Kansas City Structural Steel Com-
pany, herein called the Association, a labor organization claiming to
represent employees directly affected by the investigation.
Pursuant to the notice, a hearing was held on October 26 and 27,
1939, at Kansas City, Kansas, before William P. Webb, the Trial
Examiner duly designated by the Board. At the hearing the Com-
pany filed its response to the petition of the Iron Workers, and the
Association filed it document which it designated as an intervening
petition. The Trial Examiner received this document in evidence as
a response to the Iron Workers' petition.
The Company, in its response, asserts (1) that both the Association
and the Iron Workers claim to represent a majority of the Company's
employees in an appropriate unit and that the Company of its own
knowledge does not know which of these claims is correct; (2) that,
although the Board in a prior proceeding had found the Association
to be company dominated and had ordered it disestablished,' such
finding and order should not bar the Association from proving its
present claim to be the collective bargaining representative of the
employees inasmuch as the Company had divested itself of all activ-
ities which the Board relied upon to support its finding of Company
interference and domination. For reasons hereinafter stated we find
no merit in this contention. The Company further contended in its
response that the Board's order in the prior complaint case is now
without force and effect, since it was issued more than 6 months before
the hearing in the instant proceeding' and no steps have been taken
by the Board to enforce it. This contention is without merit.
The response of the Association likewise asserts that it has elim-
inated all factors found by the Board to have made it a company-
dominated labor organization. It offered to prove at the hearing,
among other things, (1) that it was not then and never had been
company dominated; (2) that it had purged itself of all factors con-
demned by the Board in the prior proceedings and was. an independ-
ent labor organization; (3) that on September 16, 1939, a majority of
the employees of the Company in an appropriate unit reaffirmed
112 N. L. R. B. 327.
.The Board's order in the complaint case was issued on April 20, 1939.
KANSAS iCITY ISTRUGrU,RAL STEEL COMPANY 293
their allegiance to the Association ;3 (4) that a question concerning
representation has arisen because the Company has refused to bargain
with the Association since the Iron Workers filed its petition; (5)
that a majority of those in the employ of the Company during the
previous 12 months had continuously been members in good standing
of the Association; (6) that it had affidavits of a majority of the
employees in the appropriate unit, signed between October 20 and 24,
1939, not only repledging allegiance to the Association but also re-
pudiating their designation of any other labor organization as col-
lective bargaining agent, and that some of the signers of these affida-
vits were employees claimed by the Iron Workers. All of these offers
of proof, as well as an offer by the Company to prove that it had
purged itself of any domination of the Association, were rejected by
the Trial Examiner. In view of the Company's admission at the
hearing' that it had not in any way complied with the Board's
Order of April 20, 1939, directing it to disestablish the Association
as the collective bargaining agent of its employees, and had contin-
ued to give effect to the contract with the Association in contravention
of the Board's Order, the rulings of the Trial Examiner rejecting
these offers of the Association and the offer of the Company are
correct.5 The rulings of the Trial Examiner on these offers of proof
are affirmed.
Apart from the limitations resulting from the above rulings of
the Trial Examiner, full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all the parties.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on other motions and on other objections to the admis-
sion of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. The Company and the Association
have filed briefs which have been given due consideration by the
Board.
3 This offer included an assertion that the Association had voted to change its name and
that on September 18, 1939, it had requested the Regional Director for the Seventeenth
Region to permit it to file a petition for investigation and certification under its new name.
After refusal of the Regional Director to entertain the petition , the organization returned
to the use of its original name.
4 Trial Examiner Webb : I gather, then , Senator, from your statement , that the Company
has taken no steps whatsoever to comply with the Order of the Board in Case C-815, dated
April 20, 1939?
Mr. Cooper ( counsel for Company ) : That is correct.
a Matter of Pittsburgh Plate Glass Company and Federation of Flat Glass Workers of
America, affiliated with C . 1. 0., 15 N. L. R. B. 515.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY 6
Kansas City Structural Steel Company is a Missouri corporation
licensed to do business in Kansas. Its only plant and a plant office are
located in Kansas City, Kansas. Its principal corporate office is in
Kansas City, Missouri. The Company is engaged in the fabrication
and erection of steel buildings, bridges, tanks, refineries, and similar
structures. It erects approximately 50 per cent of the structures it
fabricates. The Company's chief raw material is rolled steel, all of
which is obtained from points outside the State of Kansas.
More than 40 per cent of the Company's fabricated products are
sold, transported, and distributed in and through States of the United
States other than the State of Kansas.? It was stipulated that the
operations of the Company occur in the course and current of com-
merce among the several States and have a close, intimate, and sub-
stantial relation. to trade, traffic, and commerce among the several
States.
H. THE ORGANIZATIONS INVOLVED
International Association of Bridge, Structural & Ornamental Iron
Workers, Shopmen Workers, Local 520, is a labor organization admit-
ting to membership persons employed in the Company's plant. It
is a local subdivision of the International Association of Bridge,
Structural and Ornamental Iron Workers, which is affiliated with the
American Federation of Labor.
Employees Association of Kansas City Structural Steel Company
is an unaffiliated labor organization admitting to membership all
hourly paid employees in the Company's plant.
III. THE QUESTION CONCERNING REPRESENTATION
The Iron Workers first undertook to organize the employees in the
Company's plant in April 1937 and has continued its effort since that
time. In May 1938 the Board issued a complaint, based on charges
6The facts stated herein are derived from a stipulation entered into by all the parties.
4 Sales of the Company's products, for the past 2 years and 1) months were distributed
as follows :
Period Total amount Within Kan In other Statess
1937_______________________________________________ $2,286 , 691.73 $727 , 031.16 $1,559 , 660.57
1938 2,369 , 640.59 482, 292.26 1 , 887.348.33
1939 (first 9 months)__ 1, 094, 916.04 606,679.11 488 , 236.94
KANSAS CITY ;STRUCTU,RAL STEEL COMPANY 295
filed by the Iron Workers, which resulted in the Board's Decision
and Order of April 20, 1939, finding the Company guilty of engaging
in unfair labor practices within the meaning of Section 8 (1), (2),
and (3) of the Act and directing it to completely disestablish the
Association as the representative of any of its employees for the pur-
pose of dealing with the Company concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions of
work. A special representative of the Iron Workers testified that
thereafter, between April and September 1939, the membership in the
local among employees of the Company increased from 7 to 85. Both
application cards and authorizations were introduced in evidence by
the Iron Workers to substantiate this testimony that it represented
a substantial number of the employees. A shop committee has been
maintained in the plant since May 1939, but has had no dealings with
the Company. On dude 12, 1939, representatives of the Iron Workers
met with officials of the Company, stated that the Iron Workers
represented a majority of the employees in the plant, and requested
the Company to negotiate a contract with the Iron Workers. The
Company proposed an election between the Association and the Iron
Workers. On August 1, 1939, the Iron Workers again asserted their
claim to recognition as exclusive representative of the employees.
The Company continued to insist upon an election and refused to
look at a proposed contract prepared by the Iron Workers and ap-
proved by its membership. The same position was maintained by the
Company at all subsequent conferences.
We find that a question has arisen concerning the representation of
employees in the plant 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 parties stipulated that the appropriate unit should consist of
all production and maintenance employees in the operating depart-
Inent, employed in the Company's Kansas City plant, excluding office
employees, salesmen, foremen who have the right to hire and dis-
charge, foremen who perform no other work or duties than the direc-
283029-41-vol. 18-20
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the work of other employees, truck drivers, watchmen, janitors,
and superintendents.
So far as the record indicates there is nothing in the history of
bargaining between the Company and its employees or in the organi-
zation and operation of the plant which suggests that the proposed
unit is not entirely appropriate. Inasmuch as the parties are in
agreement we see no reason for not accepting the unit as stipulated.
In applying the stipulation a question arose as to the status of one
employee, Cross, who is classified as a truck driver and is a member
of the Teamsters' Union. Cross, although primarily employed to
serve as a truck driver, has spent more than half his time working
in the operating department of the plant during the past 6 months,
because he was not needed as a truck driver. An officer of the Com-
pany testified that should Cross be needed both in the operating and
trucking departments at the same time his work as a truck driver
would take precedence. All of the parties were willing to have Cross
classified as a truck driver. On the basis of the record we think such
classification is correct and herewith find Cross is a truck driver for
purposes of establishing the appropriate unit. We will therefore
exclude him from the unit.
We find that all production and maintenance employees in the
operating department, employed in the Company's Kansas City plant,
excluding office employees, salesmen, foremen who have the right to
hire and discharge, foremen who perform no other work or duties
than the direction of the work of other employees, truck drivers,
watchmen, janitors, and superintendents, constitute a unit appropriate
for the purposes of collective bargaining and that said unit will
insure to employees of the Company the full benefit of their right to
self-organization and to collective bargaining and otherwise effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company's pay roll for the operating department covering
the last pay-roll period prior to the hearing-October 1 to 15, 1939-
was introduced in evidence. It contains the names of persons in the
appropriate unit who were employed in the plant during the 2 weeks
ending October 15, 1939. In addition to the pay roll the Company's
seniority list for the operating department as of October 16, 1939,
was produced in evidence.8 The seniority list contains the names of
all who had been regularly employed in the operating department at
8 The seniority list was prepared by the Company from its records and authenticated at
the hearing by an official of the Company . The Iron workers offered no objection to its
admission and relied upon it, when putting in evidence its proof of membership and authori-
zations among the Company's employees.
KANSAS CITY STRUCTURAL STEEL COMPANZY 297
any time during the preceding 12 months, except any who had been
recalled to work and had refused to return. When the Company
has occasion to employ additional men, those on the seniority list who
have been laid off are given preference. Under these circumstances
we find that all on the seniority list of the Company for October 16,
1939, are employees of the Company eligible to participate in the de-
termination of representatives if they fall within the appropriate
unit. So far as the record indicates there are only four employees
listed on the operating pay roll for the 2-week period ending Octo-
ber 15, 1939, and on the seniority list of October 16, 1939, who are
not within the appropriate unit. These are the Company's three
truck drivers and a master mechanic.0 Excluding these 4, we find
that there remain on the seniority list 146 employees in the appro-
priate unit eligible to participate in the selection of representatives.
The names of 7 persons had been removed from the list by the
Company, although they had been employed within the preceding 12
months, because they had been recalled after lay-offs and had refused
to return to work. The Iron Workers claimed these seven were em-
ployees for purposes of determining representatives. We cannot
accept this contention as to those who refused to return inasmuch as
we believe under ordinary circumstances, a refusal to accept reem-
ployment is equivalent to quitting the employ of the Company.
However, one of the seven, David W. Jordan, testified that he had
been granted a leave of absence by the Company at the time he
was to have returned. An officer of the Company stated that in his
opinion a person who obtained a leave of absence continued to be
an employee. We find that Jordan and any others who were granted
such leaves during the 12-month period covered by the seniority list
should be included in the Company's seniority list for purposes of
determining those persons eligible to participate in the selection of
representatives.
The Iron Workers local contended that it was entitled to cer-
tification and introduced applications for membership and authoriza-
tion cards indicating that some 85 different persons desired the Iron
Workers to represent them. However, some 16 of these persons are
not found on the Company's seniority list for the operating depart-
ment. Thus considerable doubt is cast on the majority claim of the
Iron Workers. For the reasons pointed out in Matter of Cudahy
Packing Company and United Packinghouse Workers Organizing
Committee,1° we find that the question concerning representation
which has arisen can best be resolved by an election by secret ballot,
'Frank H. Sauer, master mechanic ; Clark M. McGlynn, Joseph R. Boyce, Walter P.
Cross, truck drivers.
'O 13 N. L. R. B. 526.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and we shall so direct. We shall deny the Association a place on the
ballot, inasmuch as it is a company-dominated labor organization.
In the election which we shall order, all employees on the seniority
list of the operating department for October 16, 1939, except the 4
above excluded, and any who had been in the employ of the Com-
pany within 12 months of that date but were not on the Company's
seniority list of October 16, 1939, because they had received leaves of
absence during the 12-month period, shall be eligible to vote.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Kansas City Structural Steel Company,
Kansas City, Kansas, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. All production and maintenance employees in the operating de-
partment, employed in the Company's Kansas City plant, excluding
office employees, salesmen, foremen who have the right to hire and
discharge, foremen who perform no other work or duties than the
direction of the work of other employees, truck drivers, watchmen,
janitors, and superintendents, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
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 Re-
lations Act, 49 Stat. 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
2, it is hereby
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain representatives for collective bargaining with
Kansas City Structural Steel Company, 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 of Election, under the direction
and supervision of the Regional Director for the Seventeenth Region,
acting in this matter as the agent of the National Labor Relations
Board, and subject to Article III, Section 9, of the Rules and Regu-
lations, among all production and maintenance employees in the
operating department, employed in the Company's Kansas City
plant, excluding office employees, salesmen, foremen who have the
right to hire and discharge, foremen who perform no other work or
KANS'A'S CITY STRUCTURAL STEEL COMPANY 299
duties than the direction of the work of other employees, truck
drivers, watchmen, janitors, and superintendents, who were on the
seniority list of the Company on October 16, 1939, or who had been
in the employ of the Company within 12 months of that date but
were not on the Company's seniority list of October 16, 1939, because
they had been granted leaves of absence during that 12-month period
or who have been hired by the Company between October 16, 1939,
and the date of this Direction, excluding any who have since Octo-
ber 16, 1939, quit or been discharged for cause, to determine whether
or not they desire to be represented by the International Association
of Bridge, Structural & Ornamental Iron Workers, Shopmen Work-
ers, Local 520, affiliated with the American Federation of Labor,
for the purposes of collective bargaining.