Pidgeon-Thomas Iron Co.

National Labor Relations Board - Board Decisions

Dec 19, 1942

46 N.L.R.B. 174 (N.L.R.B. 1942)

T;'
In the Matter Of PIDGEON-THoMAS IRON Co. and INTERNATIONAL ASSO-
CIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRON' WORKERS,
'LOCAL UNION 530, AFFILIATED WITH AMERICAN FEDERATION OF LABOR
Case No. R-4371:=Decided December 19,1942
Jurisdiction : hardware, distributing'and steel products fabricating industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord' recognition to rival representatives until petition disposed of;
'contract not asserted"as a bar, no bar; election necessary.
Uriit'' Appropriate for` Collective Bargaining : all employees,-including those in
wholesale, warehouse,, shop warehouse, and the shop,, the, maintenance man,
cranemen, shop blacksmith; night' watchman,, truck drivers, and office porter,
but excluding shipping clerks in both warehouses, foremen and subforemen,
and supervisory, office, clerical, and sales employees. ,
Mr. C. Paul Barker, for the Board.
Mr. H. D: Bird and Mr. Phil Pidgeon, both of Memphis, Tenn., for
the Compapy.
Mr. Stanley P. Rounds, of St. Louis, Mo., and Mr. H. F. Tucker, of
Memphis, Tenn., for the AFL.
Mr. W. H. Crawford, of Atlanta, Ga., and Mr. Will Watts, of Mem-
phis, Tenn., for the CIO.
Miss Mary E. Perkins, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a. petition duly filed by International Association of Bridge,
Structural & Ornamental Iron Workers, Local Union 530, affiliated,
with American Federation of Labor, herein called the AFL, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Pidgeon-Thomas Iron Co., Memphis, Ten-
nessee, herein called the Company, the National Labor Relations
Board, herein called the Board, provided for an appropriate hearing
upon due notice before J. Michael Early, Trial Examiner. Said
hearing was held in Memphis, Tennessee, on October, 8, 1942. The
46 N. L. R. B., No. 25.
174
PIDG'EON-THOMAS"IRON CO. 175
Company, the AFL, and United Steelworkers of America, affiliated
with the Congress of Industrial Organizations, herein ;called the CIO;
appeared and participated, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings are free
from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board_ makes the following:
FINDING OF FACT
1. THE BUSINESS OF THE COMPANY
Pidgeon-Thomas Iron Co. 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 sup
plies, 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
valued at approximately $800,000, about,95 percent of which -came
from States other than the- State of Tennessee. - Daring the, same
period-the Company's sales through its warehouse amounted -to ap-
proximately $1,250,000, approximately 50 percent, 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 ydlue
of the fabricated steel and ornamental iron produced in the Company's
shop during 1940 was $250,000, about 50 percent of which was sold and
shipped to customers in States other than the State of Tennessee.
The nature of the Company's business has not changed substantially
since.1940, except that the Company has recently increased its opera-
tions in' order to undertake the fabrication and assembly of, invasion
barges under a contract with the Navy. The Company has employed
about 400 persons since it has been engaged upon the Navy contract.
The Company admits that it is engaged in commerce, within the_ mean-
ing of the Act. -
II. THE ORGANIZATIONS INVOLVED
International Association of Bridge, Structural & Ornamental Iron
Workers,, Local Union 530, is a labor organization-affiliated with the
American Federation of Labor, admitting to membership employees
of the Company.
I
176 DECISIONS OF, NATIONAL LABOR' RELATIONS BOARD
United Steelworkers of America is a labor organization • affiliated
with the Congress of Industrial Organizations, admitting to member-'
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In'Matter, o of Pidgeon Thomas Iron Company, herein called R-2499,
issued June 5, 1941,1 and involving the same parties, the Board directed
an election among the Company's employees. Both of the unions here'
involved'appeared upon the ballot. The CIO won the election and
was certified as bargaining agent on August 6, 1941. On September
11, 1941, the CIO and the Company entered into an exclusive bargain-
ing contract for a year, automatically renewable in absence of notice
by either party 30 days prior to September 11 of any year.
About May 1942, when the Company secured the contract for Navy
barges, the number of employees increased greatly.2 Many of the new
employees joined the AFL. Sometime in August 1942, the CIO noti-
fied the Company of its desire to change certain terms of the contract.
Before any meetings were held, however, the Company was notified
by the Board of the petition filed in the present case by the AFL, and
the Company thereupon notified the CIO that no new contract could
be negotiated until the petition had been disposed of. At present the
parties are operating under the old contract .3
A statement made by the Trial Examiner at the hearing shows that.
the AFL represents a substantial number of the Company's employees.4
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
-In R-2499 the Board found that all employees of the Company,
including those in the wholesale warehouse, the shop warehouse, and
the shop,' the maintenance man; cranemen, shop blacksmith, night
watchman, truck drivers, and the office porter, by excluding supervi-
sory, office, clerical, and sales employees, constituted a unit appropriate
for the purposes of collective bargaining. ' -
In that case the same parties here involved participated and re-
spectively took the same positions, as to unit,,that they have taken in
'32 N. L R. B. 295.
2 At the time of the earlier case the Congxiny employed about 75 employees. On Sep-
tember 1, 1942, the Company employed about 370 employees.
s The contract is not urged as a bar to a determination of representatives at this time.,
4 The Trial Examiner' stated that the AFL had submitted 427 applications for member-
ship in the AFL, all but 35 of which were dated after June 1, 1942- Three hundred and
nine of the names on the applications appear on the Company's pay roll of September 1,
1942, which shows a total of 367 persons employed on that date
r
PIDGEON -THOMAS IRON Oo.' - 177
the present case. The record, shows that the nature of the Company's
business has not changed substantially since 19,41, except for the in-
creased number of employees in the shop and the consequent expansion
of shop facilities necessitated by the work on the Navy barges. No
contention was made by any of the parties that the latter factor re-
quires a reconsideration of the appropriateness of the unit previously
defined by the Board.
The AFL sought unsuccessfully in the. earlier case to exclude em-
ployees in the wholesale warehouse, 'the night watchman, and the,
office porter; and to include shipping clerks in the shop warehouse. It
makes the same contentions here, without, however, introducing new.
evidence to support its contentions. For the reasons stated in R-2499
we shall include employees in the wholesale warehouse, the night watch-
man and the office porter, excluding, however, the shipping clerks in
both warehouses.
In R-2499 the Board did not deal specifically with foremen em-
ployed by the Company.,' In the present case the AFL seeks to in-
clude them." The. Company's only foremen are those employed,'in
the shop to supervise various'operations'pefo'rn-led there. - The -shop'
foremen have authority to recommend hiring and firing. They are
paid hourly although at higher rates than the rest of the employees in
the shop. All appear to have supervisory duties and the responsibility
for seeing that the work is done properly. Most of the foremen ac-
tually do manual work with the exception of the welding foremen.'
The contract entered into between the Company and the CIO in 1941
specifically excluded foremen. Because their duties appear to be
largely supervisory and because they have been excluded in the course
of previous collective bargaining under the CIO 'contract we shall
exclude them.
The AFL also desires to include subforeinen. Pidgeon, the presi-
dent of the Company, testified there might be as many as 15 or 20
subforemen under the 2 welding, shift foremen who have the power
to recommend'hire and discharge and who "probably" are in charge of
and- actually working with gangs of 10 to 15 men. Other than the
foregoing evidence as to welding subforeinen, there is no evidence con-
5 The Board 's agent in charge of the election conducted by the Board' ruled that foremen
were not eligible to vote.
6 The parties are agreed that the shop superintendent and the superintendents of the
shop warehouse and the wholesale warehouse should be excluded as supervisory The
Company would also exclude the superintendent of outside erection Neither of the
unions contended that the latter should be included . All were excluded as supervisory
employees in R-2499 We shall exclude them as supervisory employees.
'Under the Navy contract the Company has employed more welders than any other
class of workers and as a consequence the welding foreman on the day shift has had
about 125 men under him ; and the welding foreman on the night shift has had from 75
to 100 men under him This is in contrast to the foremen of the shearing gang, which
consists of only 6 to 8 men ; of the assembling gang , consisting of 8 to 10 men ; and of a
rivetin g gang consisting of from 4 to 8 men
504086-43-vol. 46-12
178 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
cerning the powers and duties of other subforemen,` if.any.. Since the
duties of the welding subforemen would appear to be. analogous to
those performed by the foremen of the smaller gangs such as .the shear-
ing, assembling, and riveting gangs; and since they, too, appear not
to have been covered by the CIO contract, we shall exclude them.
. We find that all'employees of the Company, including those in the
wholesale warehouse, the shop warehouse, and, the shop, the. main-
tenance man, cranemen, shop blacksmith, night watchman, truck
drivers, and the office porter, but excluding shipping clerks in-both
warehouses, foremen and subforemen, and 'supervisory, office, clerical
and sales employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act:
V. THE DETERMINATION OF REPRESENTATIVES
The question concerning representation which has arisen can best
be. resolved by an election by secret ballot.
On October 7,1942, the day before the hearing, the Company, having
completed its Navy contract, laid off all but a skeleton crew of men.
The Company and ,the AFL urge that in the event of an election
eligibility should be determined as of a pay-roll date just prior to the
lay-off'; while the CIO urges that a pay roll after the lay-off be used.
The Company's president testified that while he did not Iat 'the tmie
of "the hearing have any new. Navy contracts, he was negotiating for
one-and in the event that he should secure it will 'rehire the men laid
off. Since it appears likely that the Company will s ecure such a ,con-
tract, we shall treat the employees laid off on October 7 as temporarily
laid off and shall direct that eligibility be determined as of a pay roll
prior to that date, subject to the limitations and additions set forth in
the Direction of Election.
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 to Article III, Section 9, of National Labor.Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Pidgeon-Thomas
Iron Co., Memphis, Tennessee, 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 supervision of the
Regional Director for the Fifteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules and Regulations, among the employees
PIDG'E,ON-THOMAS IRON CO. 179
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding October 7, 1942,
including any such employees who did not work during such 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 any-who have
since quit or been discharged for cause , to determine whether they
desire to be represented by International Association 'of Bridge; Struc-
tural & Ornamental Iron Workers, Local - Union 530, affiliated with
the American Federation of Labor, or 'by 4 United Steelworkers of
America, affiliated with the Congress- of Industrial Organizations, for
the purposes of collective bargaining , or by neither.-