Pidgeon Thomas Iron Co.

National Labor Relations Board - Board Decisions

Jun 5, 1941

32 N.L.R.B. 295 (N.L.R.B. 1941)

In the Matter Of PIDGEON THOMAS IRON COMPANY and STEEL WORKERS
ORGANIZING COMMITTEE
Case No. R-99.-Decided June 5,1941
Jurisdiction : contractor's supplies selling and steel fabricating industry..
Investigation and Certification 'of Representatives : existence of question: re-
fusal to accord recognition to either of rival unions until one of them is certified
by the Board ; election necessary.
Unit Appropriate for Collective Bargaining : all employees including those in
the wholesale warehouse, the shop warehouse, and the shop, the maintenance
man, crane men, shop blacksmith, night watchman, truck drivers, and the
office porter, but excluding supervisory, office, clerical, and sales employees.,
Mr. John Vorder Brugge, of Memphis, Tenn., for the Company.
Mr. William R. Henderson, of Memphis, Tenn., for the S. W. O. C.
Mr. Roy W. Grow and Mr. Harold Tucker, of Memphis, Tenn., for
the A. F. of L.
Mr. William H. Bartley, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 28, 1941, Steel Workers Organizing Committee, affili-
ated with the Congress of Industrial Organizations, herein called the
S. W. O. C., filed with the Acting Regional Director for the Tenth
Region (Atlanta, Georgia) a petition alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of the Pidgeon Thomas Iron Company, Memphis, Tennessee, 'herein
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On April, 10,
1941, 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 Regulations-Series
2, as amended, ordered an investigation and authorized the Acting
Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
32 N L. R B, No. 68.
295
296 DECISIONS OF NATIONAL LABOR RELATIONS hOARD
On April 14, 1941, the Acting Regional Director issued a -notice
of hearing , copies of which were duly served upon the Company, the
S. W. O. C., and International Association of Bridge , Structural &
Ornamental Iron Workers, Shopmen 's Local Iron Workers #530,
A. F. of 'L., herein called the A. F. of L., a labor organization claiming
to represent employees diiectly affected by the investigation . Pursu-
ant to notice , a hearing - was , held on April 23, 1941 , at Memphis,
Tennessee , before John C. McRee, the Trial Examiner duly desig-
nated by the Chief Trial Examiner . The Company , the S. W. O. C.,
and the A. F. of L. were represented by counsel and participated
in the 'hearing. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues was
afforded all parties. During the course of the hearing the Trial
Examiner made several rulings on motions and objections to the ad-
mission 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.
Up6h'the entire record in the case , the Board makes the folloiving :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Pidgeon Thomas Iron Company, is a Delaware corporation with a
place of business in Memphis, Tennessee, where it is engaged in the
operation of a wholesale warehouse from which it sells and distributes
mill supplies, contractors' supplies, and sundry hardware products,
and also in the operation of a shop in which it fabricates structural
steel and ornamental iron products. -
During the year 1940 the Company purchased for resale products
•valiied' at approximately $800,000, about 95 per cent of which- came
-from. States other than the State of Tennessee. During the same
period the' Company's sales through.its warehouse amounted to ap-
proximately $1;250,000, approximately 50 per cent of which was sold
,to customers outside the State of Tennessee.
During the same year the approximate value of steel shapes, plates,
.bars; and other 'products, purchased by the Company for use in its
fabricating'shop, was $150,000, all of said material being shipped -to it
from ' States' other, than the State of Tennessee., The approximate
value of the 'fabricated steel and ornamental iron produced inrthe
Company's shop during 1940 was $250,000; about 50 per cent of which
,was sold and shipped'to customers in States other than' the State of
Tennessee. The Company admits that it is- engaged; in, j interstate
commerce within the meaning of the Act.
PIDGEON THOMAS IRON COMPANY' 297
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is'a'labor, organization affili-
ated with the Congress of Industrial Organizations, admitting to mem-
bership employees of the Company.
International Association of Bridge, Structural & Ornamental Iron
Workers, Shopmen's Local Iron Workers $530, is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to
membership employees of the Company engaged in fabricating steel
and ornamental iron work.
III. THE QUESTION CONCERNING REPRESENTATION
In February 1941 the S. W. O. C. sought to bargain with the
Company. The Company, which has also been approached for the
purpose of collective bargaining by,the A. F. of L., refused on the
ground that it was unwilling to deal with either. the S. W. O. C. or
the A. F. of L. until the Board certified one of them as the, bargain-
ing representative of the Company's employees in an appropriate
unit.
It appears from a statement by the Acting Regional Director that
both organizations represent a substantial number of the Company's
employees in the unit hereinafter found to be appropriate.' ' •
We find that a question has arisen concerning the representation
of employees 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 Company's operations are divided into, three departments-
a wholesale warehouse, a shop warehouse, and the shop. The,whole-
i fihe Acting Regional Director's statement shows that 37 employees , whose names
appear on the Company' s pay roll of April 19, 1941, signed authorization cards In the
S W. 0 C, of which 32 were dated between August 1940 and February 1941, and 5 were
undated. The statement also shows that 47 employees , on the pay roll of April 19, 1941,
signed application cards in the A. F. of L., dated between June 1939 and April 1941.
There are approximately 75 employees in the unit hereinafter found appropriate on the
April 19 pay roll. '
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sale warehouse is used for industrial and contractors' supplies, and
sundry hardware products sold by the Company at wholesale, but
not fabricated by it. The shop is, engaged in fabricating steel and
ornamental iron work, and the shop warehouse is used entirely for
raw materials for the shop and for its finished products. • There are
also sales, and office forces.
The S. W. 0. C. urges that all employees, exclusive of supervisory,
office, clerical, and sales employees, constitute a unit appropriate for
the purposes of collective bargaining. The A. F. of L. asserts that
the appropriate unit consists of all employees in the shop and in the
,;hop warehouse, including the shipping clerk, the crane men, the
maintenance man, and all superintendents and foremen, but exclud-
ing employees in the wholesale warehouse, the truck drivers,
the superintendent of outside erection, the night watch-
man, ' the ' office porter, office and clerical workers, and salesmen.
The Company asks that there be two separate units for the purposes
of collective bargaining, one consisting of the shop workers, the crane
men, and the maintenance man, and the other unit consisting of all
other employees, exclusive of supervisory, office, clerical, and sales
employees. They Company took no position as to which unit should
include the night watchman.
The principal business of the Company is the wholesale sale and
distribution of contractors' and industrial supplies, and this rep-
resents 75 to 80 per cent of its volume of business. In recent years
the Company has also engaged in-the fabrication of steel and orna-
mental iron. All work pertaining to the wholesale business is done
in one building, while all employees of the shop warehouse and the
fabricating shop work in a second building, closely adjacent to the
other, building. ' There are separate sales forces for the wholesale
business and the fabricated steel and, ornamental iron sales, and
;separate pay rolls of the employees are kept. However, the same
,management directs the affairs of both, and they are operated under
the•same company name.
The employees in the shop warehouse and in the wholesale ware-
house do the same general type of work. Both are called "porters"
and load and unload 'cars. The -wages are substantially the same.
Wholesale warehouse porters receive hourly wages of 311/2 cents to
39 cents, while the shop warehouse porters are paid ' from 34' cents
to 43 cents per hour. Both work the same number of hours per week.
The Company- recognized the common interest of the workers in
the two warehouses when it asked that they -be included in the same
appropriate unit. The helpers in the shop do-work-which is closely
allied to that of the 'warehouse porters, and receive hourly pay of
34 cents to 43 cents. These 32 unskilled helpers' represent a large
PIDGEON THOMAS IRON COMPANY 299
majority of the 46 employees in the shop, the remaining 12' men
being skilled machinists who receive somewhat higher hourly wages.
The helpers in the shop and the porters in the shop warehouse work
the same number of hours and the A. F. of L: seeks to 'include 'them
in the same unit.
In support of the unit which it alleged to be appropriate, the A. F.
of L. introduced evidence of some past collective bargaining with the
Company on behalf of the employees in the shop. During the last
2 years there have been numerous conferences between the A. F. of L.
and the Company, but no agreement was reached and no written con-
tracts were- made. During the discussions the A. F. of L. did not
claim to represent the employees in the shop warehouse, the crane
men, or the maintenance man, all of whom they now urge should be
included in the appropriate unit.
Under all the circumstances, we find that most of the employees
in the shop and shop warehouse, and in the wholesale warehouse do
substantially the same kind of work and have substantially the same
interests and that all such employees constitute ' a' single appropriate
unit.
The crane men, the maintenance man, and the shop blacksmith were
among those whom the S. W. 0. C. and the 'A. F. of L. desired in.
the appropriate unit urged by' each. The Company asked that these
men- be included in the same unit as the shop employees. The two
crane men receive 43 cents per hour and work with the employees
of the shop, the shop warehouse, and the truck drivers. The main-
tenance man is employed to keep all trucks and rolling stock iri
proper repair and to adjust machines in the shop occasionally. The
shop blacksmith receives a weekly salary of $32:50 and directs helpers
occasionally, but has no power to hire or discharge. We -find that
he is not a supervisory employee. The work of the crane men, the
maintenance man, and the shop blacksmith are so closely allied to
that of the employees in the shop and the warehouses that we find '
they should be included in the appropriate, unit.'
The Company and the S. W. 0. C. urged that the night watchman,
the truck drivers, and the office porter be included in the appropriate
unit. The A. F. of ' L. asked their exclusion. There are six truck
drivers who do all hauling for the shop and both warehouses. They
receive 34 cents to 39 cents per hour, approximately the same 'as the,
wages of the warehouse employees. 'The night watchman receives
$13 per week and is an unskilled laborer. The office porter receives
$17 per week and performs mostly janitorial' work. The night
watchman and the office. porter will have no bargaining 'representa-
tive unless they are included in the appropriate unit herein. Since
we have found an industrial unit- to be 'the 'appropriate "one under
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the circumstances , we find that these employees should be included
in the appropriate unit.
The Company employes in a supervisory capacity a shop super-
intendent , a shop warehouse superintendent , a wholesale warehouse
superintendent , a foreman of ornamental iron work, and a super-
intendent of outside erection . The Company and the S. W. 0. C.
ask the exclusion of these supervisory employees , while the A. F. 'of L.
urge the inclusion of all of them except the superintendent of outside
erection whom they ask to be excluded . All these employees are
paid on a salary basis and have the power to hire and discharge
or to recommend hiring and discharging . Under , all, the circum-
stances, we find that these supervisory employees should be excluded
from the appropriate unit.
All parties agreed ' _ that office and clerical workers should be ex-
cluded from the appropriate unit, except that the A. F. of L. asked
that the shipping clerk in the shop warehouse be included -in the
unit. The shipping clerks in both the shop warehouse and the whole-
sale warehouse do-clerical work substantially similar to that of the
clerical workers in the office. We shall exclude them from the appro-
priate unit. All parties are agreed, and we find, that the sales em-
ployees should be excluded from the appropriate unit.
We find that all employees of the Company, including those in the
wholesale, warehouse , the shop warehouse , and the shop , the main-
tenance man , crane men, shop blacksmith, night watchman, truck
drivers, and the office porter, but excluding supervisory, office, clerical,
and sales employees, 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
We find that the question concerning representation which has
arisen can best be resolved by means of an election by secret , ballot.
The S . W. 0. C. asks that the pay roll of March 3, 1941 , the pay
roll ,for the period ending nearest the date of the filing of the pe-
tition , be used to determine eligibility to vote in the election. In
support of this pay-roll date it points out that the Company has hired
a number of new "employees , and_ that while the colored - personnel
has remained at the same number, 10 or 12 additional white men have
been hired in the shop as helpers since the filing of the petition.
However, the evidence clearly shows that no colored people have been
laid off, and that the Company has enjoyed a marked increase in
business, sufficient to justify the hiring of additional employees. The
PIDGEON THOMAS IRON COMPANY 301
A. F: of L. requests a current pay-roll date. - In accordance with our
usual practice, we shall direct that the employees eligible to vote shall
be those employees in the appropriate unit'who were employed dur-
ing' the pay-roll period immediately preceding the date of the Direc-
tion herein, subject to such limitations and additions as are set forth
in the Direction of,Election.,
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 Pidgeon Thomas Iron Company, Memphis,
Tennessee, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act:,
2. All employees of the Company, including those in the wholesale
warehouse; the shop warehouse, and the shop, the maintenance' man,
crane men, shop blacksmith, night watchman, truck drivers, and the
office porter, but excluding supervisory, office, clerical, and sales em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining within the ,meaning of Section 9 (b) of the National
Labor Relations Act. .i
RECTION OF ELECTIONOPT
By 'virtue of aiid pursuaiit to the power bested in , the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and Article III, Section 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Pidgeon Thomas Iron Company, Memphis, Tennessee, an elec-
tion 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 Tenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all employees of Pidgeon Thomas Iron Company
employed at Memphis, Tennessee, whose names appear on the Com-
pany's pay roll for the period immediately preceding the date of
this Direction of Election, including those in the wholesale warehouse,
the shop warehouse, and the shop, the maintenance man, crane men,
shop blacksmith, night watchman, truck drivers, and the office porter,
and any employees who did not work during said pay-roll period
because they were ill or on vacation or in the active military service
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or training of the United States, or temporarily laid off, but excluding
supervisory, office, clerical, and sales employees, and employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by Steel Workers Organizing Committee,
affiliated with the C. I. 0., or by International Association of Bridge,
Structural & Ornamental 'Iron Workers, Shopman's Local Iron
Workers, #530, affiliated with the A. F. of L., for the purposes of
collective bargaining, or by neither.
EDWIN S. SMI7TI, dissenting in part and concurring in part :
The night watchman, office porter, and truck drivers are all engaged
in work that places them on the fringe of the functions, of employees
admittedly in the unit. Following the long established rule of the
Board in the case of such "fringe groups," I would hold that the above-
named employees should be excluded from the unit on the ground that
one of the labor organizations involved desires their exclusion.2
I concur in the determination of the majority of the Board to
exclude supervisory employees from the unit., I do so, however, on
the ground stated above, namely, that one of the labor, organizations
involved desires their exclusion.
I concur, in the remainder of the Board's Decision and Direction of
Election.
2 See my concurring opinion in Matter of Union Switch and Signal Company and United
Electrical, Radio and Machine Workers of America, Local 610, 30 N. L R. B 922, and
cases cited therein , also Third Annual Report of the National Labor Relations Board,
p. 182, note 88;; p. 185, note 4; and p. 187, note 15 ; Fourth Annual Report of the National
Labor Relations Board, pp. 93-97 , notes 87 and 90; Fifth Annual Report of the National
Labor Relations Board, pp. 70-71. -