National Lead Co.

National Labor Relations Board - Board Decisions

Sep 14, 1945

63 N.L.R.B. 903 (N.L.R.B. 1945)

In the Matter of NATIONAL LEAD COMPANY, TITANIUM DIVISION and
EMPLOYEES' INDEPENDENT UNION, INC., OF THE NATIONAL LEAD
COMPANY, TITANIUM DIVISION, SAYREVILLE, NEW JERSEY
In the Matter of NATIONAL LEAD COMPANY, TITANIUM DIVISION and
LEAD BURNERS' LOCAL UNION No. 596 OF NEW JERSEY & VICINITY,
UNITED ASSOCIATION, A. F. OF L.
Cases Nos.4-R-1722 and 4-R-17&, respectively. Decided Septem-
ber 14, 1945
Messrs. L. R. Strole and Eugene V. Francy, of South Amboy,
N. J., for the Company.
Mr. George L. Burton, of South River, N. J., for the Independent.
Mr. John Al. Catterson, of Park Ridge, N. J., and Mr. James A.
Carney, of South Amboy, N. J., for the A. F. L.
Messrs. David Mandel and David Brown, of Perth Amboy, N. J.,
and Mr. Willard Y. Morris, of Washington, D. C., for the C. I. O.
Mrs. Catherine TV. Goldman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by Employees' Independent Union, Inc.,
of the National Lead Company, Titanium Division, Sayreville, New
Jersey, herein called the Independent, and by Lead Burners' Local
Union No. 596 of New Jersey & Vicinity, United Association, affiliated
with the American Federation. of Labor, herein called the A. F. L.,
alleging that a, question affecting commerce had arisen concerning the
representation of employees of National Lead Company, Titanium
Division, Sayreville, New Jersey, herein called the Company, the
National Labor Relations Board provided for an appropriate con-
solidated hearing upon due notice before Herman Lazarus, Trial
Examiner. The hearing was held at Perth Amboy, New Jersey, on
June 7, 1945. At the hearing the Trial Examiner granted a motion
to intervene made by International Union of Mine, Mill, and Smelter
Workers, Local 594, affiliated with the Congress of Industrial Or-
63 N. L. R. B, No. 141.
903
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizations, herein called the C. I. O. The Company, the Independ-
ent, the A. F. L., and the C. I. O. 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. The C. I. O. moved to dismiss the petitions on the grounds
that the Independent had not made a substantial showing and the'
A. F. L. had not made a proper demand for recognition. The Trial
Examiner reserved rulings on the motions for the Board. For reasons
hereinafter stated, the -motions are hereby denied. The Trial Ex-
aminer's rulings 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
National Lead Company, Titanium Division, a New Jersey cor-
poration with its principal place of business at Sayreville, New Jer-
sey, is engaged in the manufacture of titanium pigments and oleum.
The Company annually purchases in excess of $1,000,000 worth of raw
materials, including ilmenite, pyrites, and sulphur, over 90 percent
of which is shipped to the Company's plant at Sayreville, New Jersey,
from points outside the State of New Jersey. The Company annually
sells over $1,000,000 worth of its products, over 90 percent of which
is shipped to points outside the State of New Jersey.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Employees' Independent Union, Inc., of the National Lead Com-
pany, Titanium Division, Sayreville, New Jersey, is an unaffiliated
labor organization admitting to membership employees of the Com-
pany.
Lead Burners' Local Union No. 596 - of New Jersey & Vicinity,
United Association, affiliated with the American Federation of Labor,
is a labor organization admitting to membership employees of the
Company.
International Union of Mine, Mill, and Smelter Workers, Local
594, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
During December 1944 and January 1945, the Independent orally
advised the Company that it represented a majority of the Company's
NATIONAL LEAD COMPANY 905
employees. The Company refused to recognize the Independent,
stating that the C. I. O. was the representative of its employees' In
a letter to, the Company, dated February 7, 1945, the A. F. L. re-
quested the Company to meet and discuss the matter of wages for lead
burners employed by the Company. Replying on February 13, 1945,
the Company declined to meet with the A. F. L., informing that or-
ganization, as it had the Independent, that the C. I. O. was the repre-
sentative of its employees.2 -
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Independent, the A. F. L., and the C. I. O. each
represents a substantial number of employees in the unit it alleges
to be appropriate.3
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.
i In a consent election, conducted by the Board on February 29, 1944, the C. I. O. was
selected as the representative of the Company's hourly paid production and maintenance
employees. On April 3, 1944, the Company and the C. I. 0 executed an exclusive bargain-
ing contract, effective until June 30, 1945, and automatically renewable from year to year
thereafter in the absence of written notice prior to June 30 of any year. The contract is
not asserted as a bar to this proceeding.
? The C. I. O. contends that the A. F. L has not made a proper demand for recogni-
tion. We find the demand of the A. F L. adequate to raise a question concerning repre-
sentation See Matter of Lennox Furnace Company, 50 N. L R. B 80, Matter of Houston
Blow Pipe and Sheet Metal Works, 53 N L R B. 184.
8 The Field Examiner reported that the Independent submitted 260 authorization cards,
dated as follows. 163 in June 1944, 53 in July 1944, 1 in August 1944, 2 in October 1944,
23 in February 1945, and 18 in March 1945. There are 500 employees in the unit alleged
to be appropriate by the Independent.
The C. I O. contends that the authorization cards submitted by the Independent are
stale, since the majority of them were signed in June 1944. We note, however, that all
the cards are dated subsequent to the consent election at which the C. I. O. was selected
as representative of the Company's employees, and subsequent to the execution by the
Company and the C I O. of a bargaining contract, which provided for maintenance of
membership after a 15-day escape period. We believe the authorization cards are suffi-
ciently current to show a substantial representation by the Independent among the Com-
pany's employees.
The C I. O. also introduced into evidence approximately 158 slips, which it urged as
further indication of the Independent's lack of representation. These slips, dated May 8,
9, or 10, 1945, and bearing apparently genuine signatures, read as follows : "I have at one
time signed an employee's card for the Employees' Union of the National Lead Company,
Titanium Division, of Sayreville, New Jersey, Inc I am not now a member of that union."
The slips were circulated by the C. I. O. among employees in the plant without inquiry
as to their union affiliation. No comparison was made between the signatures on the slips
and those on the authorization cards submitted by the Independent. We consider these
slips to be of dubious probative value. Moreover, we are of the opinion that any doubt
which they may cast upon the Independent's representative status may best be resolved by
means of an election by secret ballot. I
The A. F L submitted 10 original membership application cards, dated as follows • 7 in
1939, 1 in 1941, 1 in 1942, and 1 in 1944. In addition, it presented evidence that the
signers of these 10 cards are currently paid-up members of the A. F. L. There are 10 em-
ployees in the unit alleged to be appropriate by the A F. L.
The C. I. O. relies upon its certification and contract as evidence of its interest in the
proceeding.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT; TI-IE DETERMINATION OF REPRESENTATIVES
The Independent requests a plant-wide unit comprising all hourly
paid production and maintenance employees. The A. F. L. proposes
a craft unit confined to lead burners, their apprentices, and subfore-
man. The Company and the C. I. O. agree with the unit contentions
of the Independent. The Company, the Independent, and the C. I. O.
dispute the appropriateness of the craft unit on the ground that the
prior establishment of a plant-wide unit by determination in three
consent elections and by collective bargaining on such a basis over a
5-year period, precludes the separate representation of lead burners.
Collective bargaining in the plant has been upon a plant-wide basis
since 1939. On December 7 of that year, a consent election was con-
ducted between the Chemical and Oil Workers Union, affiliated with
the American Federation of Labor, and the Independent, resulting in
the selection of the Independent as the exclusive bargaining represen-
tative of the Company's employees. A second consent election, in
which the Independent was chosen over the contesting C. I. 0., -was
held on April 16, 1942. A third consent election was conducted on
February 29, 1944, and as a result, the C. I. O. superseded the Inde-
pendent as bargaining agent of the Company's employees. The agreed
unit at each of these elections was plant-wide, and the record indicates
that a few lead burners participated in the elections. It does not ap-
pear, however, that the A. F. L. was notified of the conduct of the
elections although it had substantial representation among lead burn-
ers. Contracts executed by the Company with the Independent in
1940, 1941, 1942, and 1943, and with the C. I. O. in 1944, covered units
composed of all hourly paid production and maintenance employees.
Lead burners have been included within the coverage of these contracts
and have participated in general wage increases and other benefits
resulting from bargaining by the industrial unions. At no time since
the commencement of bargaining upon a plant-wide basis, however,,
have the lead burners relinquished their membership in the A. F. L.
Throughout the 5-year period all lead burners employed at the Com-
pany's plant have maintained membership in the A. F. L. Only one
or two lead burners joined the Independent, and none has joined the
C. I. O. Lead burners have not served as members of the grievance
committees or negotiating committees of either the Independent' or
the C. I. O. Although the C'. I. O. has discussed with management
problems concerning lead burners in a few instances when other em-
ployees were also involved, the Company's records do not show that the
lead burners have ever made use of the grievance procedure established
by the contracts of the industrial unions. In fact, on several occasions
It appears that one lead burner was active in the organization of the Independent in
1939, and on one occasion served as a member of the negotiating committee.
iNA11ViNAL LLiiL Uoiv1rArr I tiVi
the lead burners discussed the matter of wages directly with the me-
chanical superintendent, although they did not carry the discussion to
higher representatives of management. Moreover, the Company,
without formal agreement, has as a matter of practice hired lead burn-
ers through the A. F. L., and since 1939, has not employed a non-mem-
ber of the A. F. L. as a lead burner:' On one occasion when the C. I. O.
desired the employment of an apprentice lead burner, the master me-
chanic consulted the lead burners, who discussed the matter at an
A. F. L. meeting, before agreeing to the request.
We are not convinced from the above facts that the lead burners have
acquiesced in the bargaining upon a plant-wide basis to a degree suffi-
cient to foreclose their segregation as a craft unit. Neither are we of
the opinion that their participation in the consent elections, of which
the A. F. L. apparently had no notice, should preclude their separate
representation if they so desire. It is clear that there was no real col-
laboration between the lead burners and the industrial bargaining
agents. Indeed, at all times since 1939 the lead burners have main-
tained their separate identity and consistently adhered to their craft
union.
Lead burners perform the highly skilled operation of fabricating,
installing, maintaining, and repairing lead appliances and equipment.
Their union, which came into existence prior to 1915, is modeled along
traditional craft lines. Membership is limited to those who pass a
satisfactory examination with an Examining Board and receive a vote
of a majority of the members present. The working rules of the or-
ganization establish an apprentice system, which requires that a man
first serve 2 years as a helper, and then 4 years as an apprentice before
becoming a journeyman lead burner. Apprentices were formerly re-
stricted to relatives of journeymen,5 and their number is regulated by
the local unions. Any member of the A. F. L. found guilty of teach-
ing or giving tools to a person not sanctioned by a local union as an
apprentice is subject to fine or suspension.
The skilled nature of the work of lead burners, the character of
the organization of their union, and their adherence to the A. F. L.
since 1939, indicates that the lead burners may effectively function as
a separate craft unit. The history of collective bargaining upon a
plant-wide basis, on the other hand, indicates that lead burners may
properly be included in the existing comprehensive unit. Accord-
ingly, before making a final determination of the appropriate unit or
units, we shall first ascertain the desires of the employees.7
5 It was the Company's practice to inform the lead burners through a foreman when men
in that classifications were needed. The lead burners then reported the information at the
A F L union hall
6 This requirement is no longer observed
7 See Matter of General Electric Company (Lynn River Works and Everett Plant), 58
N. L. R B. 57
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the propriety of including the sub-
foreman of the lead burners in the craft voting group as requested by
the A. F. L. The Company, the Independent, and the C. I. O. took
no position with respect to the subforeman, but the Company stated
that he has not been included in prior bargaining contracts . The sub-
foreman, an hourly paid employee, assigns work projects to the lead
burners and sees that their work program is carried out satisfactorily.
Only a minor portion of his time is spent in actual lead burning work.
He has authority to make recommendations concerning hire, discharge,
and change in status , to his immediate superior , a foreman who has
authority to hire and discharge . His recommendations are given
weight. We are of the opinion that the subforeman is a supervisory
employee, and we shall exclude him from the craft voting group.
We shall direct that the question concerning representation which
has arisen be resolved by separate elections by secret ballot among
the employees in the voting groups described below, who were em-
ployed during the pay-roll period immediately preceding the,date of
the Direction of Elections herein, subject to the limitations and
additions set forth in the Direction.
Group 1. All lead burners and apprentices , excluding the subfore-
man, and all supervisory employees with authority to hire, promote,
discharge , discipline , or otherwise effect changes in the status of em-
ployees , or effectively recommend such action , to determine whether
they desire to be represented by the A. F. L., the Independent, or
the C. I. O. for the purposes of collective bargaining , or by none.
Group 2. All other hourly paid production and maintenance em-
ployees, excluding laboratory technicians , stenographers , clerks, fore-
men, and all supervisory employees with authority to hire, promote,
discharge , discipline , or otherwise effect changes in the status of em-
ployees, or effectively recommend such action , to determine whether
they desire to be represented by the Independent or the C. I. 0., for
the purposes of collective bargaining , or by neither.
Upon the results of these elections will depend in part our deter-
mination of the appropriate unit or units . If a majority of the em-
ployees in Group 1 select the A. F. L. as their representative , they will
constitute a separate unit. If a majority of the employees in both
voting groups select either the Independent or the C. I. O. as their
representative , the groups will together constitute a single unit.
DIRECTION OF ELECTIONS
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 to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
NATIONAL LEAD COMPANY 909
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with National Lead
Company, Titanium Division, Sayreville, New Jersey, separate elec-
tions 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 Fourth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among the following groups of employees of
the Company, who were employed during the pay-roll period imme-
diately 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 dis-
charged for cause, and have not been rehired or reinstated prior to the
date of the elections :
1. All employees described in Group 1, of Section IV, above, to
determine whether they desire to be represented by Lead Burners'
Local Union No. 596, of New Jersey & Vicinity, United Association,
affiliated with the American Federation of Labor, or by Employees'
Independent Union, Inc., of the National Lead Company, Titanium
Division, Sayreville, New Jersey, or by International Union of Mine,
Mi11, and Smelter Workers, Local 594, affiliated with the Congress
of Industrial Organizations, for the purposes of collective bargaining,
or by none.
2. All employees described in Group 2, of Section IV, above, to
determine whether they desire to be represented by Employees' Inde-
pendent Union, Inc., of the National Lead Company, Titanium Divi-
sion, Sayreville, New Jersey, or by International Union of Mine, Mill,
and Smelter Workers, Local 594, affiliated with the Congress of In-
dustrial Organizations, for the purposes of collective bargaining, or by
neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.