Ohio Foundry Co.

National Labor Relations Board - Board Decisions

Sep 21, 1937

3 N.L.R.B. 701 (N.L.R.B. 1937)

In the Matter of OHIO FOUNDRY COMPANY and INTERNATIONAL MOLD- ERS' UNION OF NORTH AMERICA, LOCAL No. 218, and AMALGAMATED ASSOCIATION OF IRON, STEEL, & TIN WORKERS OF NORTH AMERICA, LOCAL No. 1596 Cases Nos. R-193 and R-191.Decided September 21, 1937 Metal Foundry and Castings Industry; Stamping and Enameling Industry- Investigation of Representatives : controversy concerning representation of em- ployees: rival organizations ; refusal by employer to recognize either organiza- tion as exclusive representative-Units Appropriate for Collective Bargaining: (1) production and maintenance employees in one of employer 's plants; history of collective bargaining relations with employer ; organization of employer's business ; occupational differences-( 2) production and maintenance employees in two of employer 's plants ; community of interest ; history of organization of employees ; similarity of work and skill required.; interchange of employees ; eligibility for membership in both rival organizations-Representatives: proof of choice : membership in union ; stipulation as to majority representation- Certification, of Representatives : upon proof of majority representation-Elec- tion Ordered-Certification of Representatives : after election. Mr. Harry L. Lodish and Mr. Peter Di Leone for the Board. Mr. Charles W. Sellers, of Cleveland, Ohio, for the Company. Mr. Herbert W. Clements, of Cleveland, Ohio, for International Molders' Union of North America, Local No. 218. Mr. Samuel Handelman and Mr. Harry Handelman, of Cleveland, Ohio, for Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1596. Mr. M. H. Wolf, for Industrial Workers of the World, Metal & Machinery Workers' Industrial Union, No. 440. Mr. Henry W. Lehmann, of counsel to the Board. DECISION CERTIFICATION OF REPRESENTATIVES AND DIRECTION OF ELECTION STATEMENT OF TIRE CASE On June 3 and 4, 1937, respectively, International Molders' Union of North America, Local No. 218, herein called the Molders, 701 702 NATIONAL LABOR RELATIONS BOARD and the Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1596, herein called the Amalgamated, each filed a petition with the Regional Director for the Eighth Region (Cleveland, Ohio) alleging that a question affecting commerce had arisen concerning the representation of employees of the Ohio Foun- dry Company, Cleveland, Ohio, herein called the Company. The petition of the Molders alleged that the production and maintenance employees in Plant No. 1 of the Company constitute a unit appro- priate for purposes of collective bargaining, and the petition of the Amalgamated alleged that the production and maintenance employees in Plants Nos. 1, 2 and 4, being all the plants of the Company in Cleveland, Ohio, constitute a unit appropriate for purposes of col- lective bargaining. Both petitions requested the National Labor Relations Board, herein called the Board, to investigate and to cer- tify representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 17, 1937, the Board, acting pursuant to Article III, Section 10 (c) (2) of National Labor Relations Board Rules and Regulations-Series 1, as amended, directed that the cases be consolidated for the purposes of a hearing, and, acting pursuant to Article III, Section 3 of said Rules and Regulations, ordered investigations to be conducted and an appropriate hearing to be provided for upon due notice. On June 22, 1937, the Regional Director issued a notice of hearing to be held at Cleveland, Ohio, on July 1, 1937, copies of which were duly served upon the Company, upon the Molders, upon the Amal- gamated, and upon the Industrial Workers of the World, Metal & Machinery Workers' Industrial Union, No. 440, herein called the In- dustrial Union, a labor organization named in the petition of the Amalgamated as claiming to represent some employees in the bar- gaining unit described in such petition. Thereafter, the Regional Director, by telegram, notified the parties of the postponement of the hearing to July 6, 1937. Pursuant to notice, a hearing was held on July 6 and 7, 1937, at Cleveland, Ohio, before Charles E. Persons, duly designated by the Board as^ Trial Examiner. The Company, the Amalgamated, and the Industrial Union were all represented by counsel, and the Molders by one of its organizers. All participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Objections to the introduction of evidence were made during the course of the hearing by counsel for the parties. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. DECISIONS AND ORDERS 703 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Ohio Foundry Company is an Ohio corporation, incorporated March 6, 1893, having its principal office and its three plants located in Cleveland, Ohio. Plant No. 1 is located on a separate parcel of land and engaged solely in the foundry business. Plants Nos. 2 and 4 are located upon another parcel of land. Plant No. 2 is also engaged in the foundry business; Plant No. 4, although located upon the same parcel of land as Plant No. 2, is not engaged in the foundry business but does only porcelain enameling work. The central office for the three plants is located in Plant No. 2 and all pay rolls are there made up under the supervision of a single paymaster. In general, the Company sends its heavier castings to Plant No. 1 which has equipment to handle this heavier or floor work. Plant No. 2 ordi- narily does the lighter molding known as squeezer or bench work and the finishing of the smaller castings. The products of the foundries include castings for washing machines, fractional horse power motors, and regular machinery. Plant No. 1 employed 105 men at the time of the hearing. In Plant No. 4, the number of em- ployees varies from 100 to 225. No testimony was offered to indicate the number of employees in Plant No. 2. The Company's purchases for the year 1936 amounted to $411,- 570.83. The total amount of its sales for the same year was $1,070,- 832.39. It is the third largest producer of castings in the vicinity of Cleveland. About ten per cent of the raw materials used by the Company are obtained outside Ohio. Thus, foundry sand is bought in Albany, New York; core sand is shipped from Michigan City, Indiana; blast sand is shipped from Ottowa, Illinois; lumber comes from Minne- apolis, Minnesota. Moreover, much of the raw material bought by the Company within Ohio entered Ohio as the result of shipment in interstate commerce. Iron ore, one of the principal raw materials used in the manufacture of foundry and machine shop products, is not produced in Ohio. Nor is manganese ore, an important material re- quired in the manufacture of foundry products, produced in Ohio.' Both these materials must be shipped into Ohio from other States. Forty per cent of the Company's products, consisting chiefly of cast- ings and enameled products, are shipped outside Ohio from the plant, and a substantial amount of the 60 per cent sold within Ohio is sub- sequently shipped to destinations outside of Ohio. Bd. Exh. No. 2, Table 4. 704 NATIONAL LABOR RELATIONS BOARD II. TILE ORGANIZATIONS INVOLVED International Molders' Union of North America, Local No. 218, is a labor organization , affiliated with the American Federation of Labor, admitting to its membership all foundry workers employed by the Company , exclusive of timekeepers and supervisory employees. The same local has jurisdiction over all other foundries in Cleveland, Ohio. The Amalgamated Association of Iron, Steel , and Tin Workers of North America, Local No. 1596, also is a labor organization claiming to represent a majority of the Company 's production and mainte- nance employees in all three plants . It is a local union , member of an international union affiliated with the Committee for Industrial Organization. Metal & Machinery Workers' Industrial Union , No. 440, is an in- dustrial union affiliated with the Industrial Workers of the World. It admits to its membership all employees of the Company in the enameling plant, exclusive of watchmen , the foreman , and the super- intendent. It does not lay claim to any membership in the two foundries. III. THE APPROPRIATE UNITS A. The enameling plant As indicated above, the Amalgamated, in its petition, alleged that the production and maintenance employees in all three plants of the Company at Cleveland, Ohio, constitute a single unit appropriate for purposes of collective bargaining. Compelling considerations incline us to the view, however, that the production and the mainte- nance employees in Plant No . 4, the enameling plant, should not be included in the same unit with the production workers of Plants Nos. 1 and 2, but that such employees in the enameling plant constitute a separate and distinct- unit for purposes of collective bargaining. In February 1934, the Industrial Union began to organize the enameling division. At that time about 150 men were employed in the plant and all of these became members of the Industrial Union. In March of the same year a strike took place in the plant, and as a result the men obtained an oral agreement with the Company which established seniority rights and defined other employment conditions. At the same time shop committees were established which since then have dealt with the Company on matters affecting employees in the enameling plant. It was stated at the hearing that the Molders, who were organized in Plant No. 2 at this time, did not go out on strike when requested by the striking enameling workers. Shortly there- after when the Molders were conducting a strike in Plant No. 2, the employees in the enameling plant did not participate . Nor did the employees of the enameling plant participate in a strike which took DECISIONS AND ORDERS 705 place in June 1937, among employees of the Company in the two foundries. The spread of this strike from Plant No. 2 to Plant No. 1, at the behest of the Amalgamated, is in interesting contrast to the insulation of the employees in the enameling plant who did not join in the strikes conducted by unions in the foundries. The Amalga- mated has made some effort to organize employees in the enameling plant but it does not appear in the record of the hearings that it has ever had any members therein. The work in the enameling plant requires different skill from that required by the work in the two foundries. Moreover, this plant of the Company is essentially a separate business enterprise. It does not manufacture casting or, other foundry products. Its operation does not depend upon the production of the Company's foundries. It is engaged in the enameling of steel products. The greater part of its work is done on order for other concerns which send their manufactured products to the enameling plant where they are proc- essed. It was testified at the hearing that less than one per cent (measured in tonnage) of the products of the Company's foundries are enameled in Plant No. 4. At the hearing a stipulation was agreed to by the unions, including the Amalgamated, that the Industrial Union had a 100 per cent mem- bership among the employees in Plant No. 4 of the Company, both at the dates of the filing of the petitions and at the date of the hearing. The Company did not raise any objection to the stipulation. Not a single witness testified that any other union has any members in the enameling plant. In order to insure to the Company's employees in Plant No. 4 the full benefit of their right to self-organization and collective bargain- ing, and otherwise to effectuate the policies of this Act, we find that the production and maintenance employees in Plant No. 4 of the Company, exclusive of watchmen, the foreman, and the superintend- ent, constitute a unit appropriate for the purposes of collective bar- gaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. We further find that the Industrial Union, having been selected by a majority of the employees in such unit as their representative for the purposes of collective bargaining, is, by virtue of Section 9 (a) of the Act, the exclusive representative for the purposes of collective bargaining of all the production and maintenance employees in Plant No. 4 of the Company, exclusive of watchmen, the foreman, and the superintendent, and we will so certify. B. The two foundries In contradiction to the claim of the Amalgamated that all three plants of the Company constitute a single unit for purposes of col- 706 NATIONAL LABOR RELATIONS BOARD lective bargaining, the Molders in its petition contends that Plant No. 1 should be treated as a separate and distinct unit. As previously indicated, both foundries are in Cleveland but on separate parcels of land. Those employees in Plant No. 1, who per- form heavier and more skilled work, receive a higher wage than that received by employees in Plant No. 2. Despite these differences, the evidence shows that men were not uncommonly shifted without change in pay or in the character of their work from bne plant to the other. Further, it was testified that much of the work in Plant No. 1 is similar to that in Plant No. 2, and that, on occasion, work begun in one plant would be taken to the other for completion. These factors point to an interdependence and similarity of economic in- terest among the employees of the two foundries. The history of organization among the employees in the two plants is not entirely clear. However,-it does appear that sometime in 1932 Plant No. 1 closed down, and until February 1937, when it reopened, all the foundry work of the Company was performed in Plant No. 2. About 1934 the Molders actively organized the foundry employees of the Company and succeeded in establishing a substantial membership. Subsequently its membership in Plant No. 2 dwindled, and it was testified at the hearing that at that time the Molders probably only had some 18 or 20 members in this plant. After the reopening of Plant No. 1 in February 1937, the Molders obtained members in this plant. At the hearing, the Molders claimed 74 members from among 105 employees in Plant No. 1. A membership list submitted after the hearing contains 97 names but several names appear twice on this list, and some likewise appear on a list submitted by the Amalgamated. Early in 1937 the Amalgamated embarked upon active organization. At the hearing it claimed to represent a majority in both plants. The claim does not clearly indicate whether it signifies a majority in both plants together or in each of the two plants. In June 1937, upon the Company's refusal to bargain collectively, the Amalgamated called a strike which closed Plant No. 2. The following day, upon notifica- tion of its members in Plant No. 1, the strike extended to this plant which was also closed. The common ownership and management of both foundries, the similarity in the work and in the skill required of the employees therein with the accompanying interchange of workers between the two plants, the location of both plants in the same city, the eligibility of all the foundry workers of the Company in both the unions, and the history of organizational activity of the Company's employees, all persuade us to the view that both foundries together constitute a single appropriate unit for the purposes of collective bargaining. DECISIONS AND ORDERS 707 In order to insure to the Company's employees in Plants Nos. 1 and 2 the full benefit of their right to self-organization and collective bar- gaining, and otherwise to effectuate the policies of the Act, we find, upon all of the facts of this case, that the production and maintenance employees in Plants Nos. 1 and 2 of the Company, exclusive of time- keepers and supervisory employees, constitute a unit appropriate for the purposes of collective b=trgaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. IV. THE QUESTION CONCERNING REPRESENTATION The Molders claims the right to represent the employees of the Company in Plant No. 1. The Amalgamated claims the right to represent the employees of the Company in all three plants including Plant No. 1. The Industrial Union at the hearing advanced its right to represent the employees of the Company in Plant No. 4, the enamel- ing plant. In view of these conflicting claims of the unions, the Company has refused to recognize any of the petitioners as sole bargaining agent for those employees with respect to whom sole bargaining rights are claimed. The record indicates that the Com- pany's refusal to recognize and bargain collectively with the Amal- gamated caused a strike in June 1937, among its employees in Plants Nos. 1 and 2. The Company has stated its willingness to bargain collectively with such agency or agencies of its employees as may be certified by the Board to represent its employees for purposes of collective bargaining. We find that a question has arisen concerning the representation of the production and maintenance employees of the Company in all three of its plants. V. THE EFFECT OF THE QUESTION OF REPRESENTATION ON COMMERCE We find that the question of representation which has thus arisen in connection with the operations of the Company described in Sec- tion 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. CONCLUSIONS OF LAW On the basis of the above findings of fact, the Board makes the following conclusions of law : 1. A question affecting commerce has arisen concerning the repre- sentation of the employees of all three plants of the Ohio Foundry Company, Cleveland, Ohio, within the meaning of Section 9 (c), and Section 2, subdivisions (6) and (7) of the National Labor Relations Act. 708 NATIONAL LABOR RELATIONS BOARD 2. The following constitute two separate and distinct units appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act : (1) the production and maintenance employees in Plants Nos. 1 and 2 of the Company, exclusive of timekeepers and supervisory employees; (2) the production and maintenance employees in Plant No. 4 of the Company, exclusive of watchmen, the foreman, and the super- i ntendent. 3. Industrial Workers of the World, Metal and Machinery Workers' Industrial Union, No. 440, having been selected for the purposes of collective bargaining by the majority of the employees in Plant No. 4, is, by virtue of Section 9 (a) of the National Labor Relations Act, the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment. CERTIFICATION AND 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 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby CERTIFIED that, Industrial Workers of the World, Metal & Ma- chinery Workers' Industrial Union, No. 440, has been designated and selected by a majority of the production and maintenance em- ployees, employed by Ohio Foundry Company in its enameling plant, Plant No. 4, at Cleveland, Ohio, excluding watchmen, the foreman, and the superintendent, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, Industrial Workers of the World, Metal & Ma- chinery Workers' Industrial Union, No. 440, is the exclusive repre- sentative of all such production and maintenance employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for collective bargaining with the Ohio Foundry Company, an election by secret ballot shall be conducted within 15 days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, act- ing in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9 of said Rules and Regulations, DECISIONS AND ORDERS 709 among all production and mmaintenance employees in Plants Nos. 1 and 2 of the Ohio Foundry Company on its pay roll during the work week of June 3, 1937 , except timekeepers and supervisory employees, and those who since have quit or have been discharged for cause, to determine whether they desire to be represented by International Molders' Union of North America, Local No. 218, by Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1596, or neither, for the purposes of collective bargaining. MR. EDWIN S . SMITH took no part in the consideration of the above Decision , Certification of Representatives , and Direction of Election. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES October 23, 1937 On June 3 and 4, respectively, International Molders' Union of North America, Local No. 218, herein called the Molders, and the Amalgamated Association of Iron, Steel, & Tin Workers of North America, Local No. 1596, herein called the Amalgamated, each filed a petition with the Regional Director for the Eighth Region (Cleve- land, Ohio) alleging that a question affecting commerce had arisen concerning the representation of employees of the Ohio Foundry Company, Cleveland, Ohio, herein called the Company. The peti- tion of the Molders alleged that the production and maintenance employees in Plant No. 1 of the Company constitute a unit ap- propriate for purposes of collective bargaining, and the petition of the Amalgamated alleged that the production and maintenance employees in Plants Nos. 1, 2, and 4, being all plants of the Com- pany in Cleveland, Ohio, constitute a unit appropriate for the pur- poses of collective bargaining. Both petitions requested the Na- tional Labor Relations Board, herein called the Board, to investigate and to certify representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On June 17, 1937, the Board, acting pursuant to Article III, Section 10 (c) (2) of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, directed that the cases be consolidated for the purposes of a hearing, and, acting pursuant to Article III. Section 3 of said Rules and Regulations, ordered investigations to be conducted and an appropriate hearing to be provided for upon due notice. On June 22, 1937, the Regional Director issued a notice of hearing to be held at Cleveland, Ohio, on July 1, 1937, copies of which were duly served upon the Company, upon the Molders, upon the Amalgam- 49446-38-vol itr--46 710 NATIONAL LABOR RELATIONS BOARD ated, and upon the Industrial Workers of the World, Metal & Machinery Workers' Industrial Union, No. 440, herein called the Industrial Union, a labor organization named in the petition of the Amalgamated as claiming to represent some employees in the bargain- ing unit described in such petition. Thereafter, the Regional Di- rector, by telegram, notified the parties of the postponement of the hearing to July 6, 1937. Pursuant to the notice of hearing and the notice of postponement, a hearing was held on July 6 and 7, 1937, at Cleveland, Ohio, before Charles E. Persons, the Trial Examiner duly designated by the Board. The Company, the Amalgamated, and the Industrial Union were all represented by counsel, and the Molders by one of its organizers. All participated in the hearing. On September 21, 1937, the Board issued a decision in which it found that a question affecting commerce had arisen concerning the representation of the production and maintenance employees of the Company in all three of its plants and that the following constitute two separate and distinct units appropriate for the purposes of col- lective bargaining in respect to rates of pay, wages, hours of employ- ment, and other conditions of employment : (1) the production and maintenance employees in Plants Nos. 1 and 2 of the Company, exclusive of timekeepers and supervisory employees ; (2) the production and maintenance employees in Plant No. 4 of the Company, exclusive of watchmen, the foreman and the superin- tendent. In its decision the Board directed that an election be held among the employees in Plants Nos. 1 and 2 of the Company on its pay roll during the work week of June 3, 1937, except timekeepers and super- visory employees, and those who since have quit or have been dis- charged for cause, to determine whether they desired to be repre- sented by the Molders, by the Amalgamated, or by neither, and it certified the Industrial Union as the exclusive representative of the employees in Plant No. 4 of the Company, for the purposes of col- lective bargaining. Pursuant to the Board's decision, an election by secret ballot was conducted on October 1, 1937, by the Regional Director for the Eighth Region among the employees in Plants Nos. 1 and 2 of the Company constituting the first of the bargaining units, above set forth, found appropriate by the Board. On October 5, 1937, the Regional Director duly served upon the parties to the proceeding his Intermediate Report on the ballot. No exceptions to the Inter- mediate Report have been filed by any of the parties. DECISIONS AND ORDERS 711 As to the results of the secret ballot, the Regional Director re- ported : Total number of employees eligible to vote_______________________ 361 Total number of ballots counted_________________________________ 251 Total number of votes for International Molders' Union of North America, Local No. 218_________________________________ 33 Total number of votes for Amalgamated Association of Iron, Steel, & Tin Workers of North America, Local No. 1596_______________ 194 Total number of votes for neither organization___________________ 21 Total number of blank ballots__________________________________ 0 Total number of void ballots____________________________________ 3 Total number of challenged votes________________________________ 0 Amalgamated Association of Iron, Steel, & Tin Workers of North America, Local No. 1596, having been selected by a majority of the production and maintenance employees in Plants Nos. 1 and 2 of the Ohio Foundry Company, except timekeepers and super- visory employees, as their representative for the purposes of col- lective bargaining, is, by virtue of Section 9 (a) of the Act, the exclusive representative for the purposes of collective bargaining of all such employees, and we will so certify it. 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 8 of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Amalgamated Association of Iron, Steel, & Tin Workers of North America, Local No. 1596, has been designated and selected by a majority of the production and mainte- nance employees, employed by Ohio Foundry Company, in its Plants Nos. 1 and 2 at Cleveland, Ohio, exclusive of timekeepers and supervisory employees, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, Amalgamated Association of Iron, Steel, & Tin Workers of North America, Local No. 1596, is the exclusive representative of all such production and maintenance employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.