Portland Forge and Foundry Co.

National Labor Relations Board - Board Decisions

Apr 1, 1942

40 N.L.R.B. 21 (N.L.R.B. 1942)

In the Matter Of PORTLAND FORGE AND FOUNDRY CO. and STEEL
WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE C. I. O.
Case No. R-307-Decided April 1, 194
Jurisdiction : forgings manufacturing industry.
Investigation and Certification of Representatives : existence of question: where
results of consent election are inconclusive ; contract entered into after filing
of amended petition by rival union following the setting aside of a prior
consent election by Regional Director and pending Board's investigation, no
bar to; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
'ployees, excluding all foremen, clerical employees, truck drivers, and "dock
workers". .
Mr. Arthur R. Donovan, for the Board.
Mr. Earl Keisker, of Richmond, Ind., for the Company.
Mr. James Robb, of Indianapolis, Ind., for the S. W. O. C.
Mr. A. J. Eberhardy, of Chicago, Ill., and Mr. Paul R. Hutchings;
,of Washington, D. C:, for the Blacksmiths.
Mr. Hugh Gormley, of Indianapolis; Ind., for the A. F. L.
Miss Mary E. Perkins, of counsel to the Board.,
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 11, 1941, Steel Workers Organizing Committee, affiliated
with the C. I. 0., herein, called the. S. W. O. C., filed with the Regional
Director for the Eleventh Region (Indianapolis, Indiana) a peti-
tion, and on September 15, 1941, an amended petition, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees -of Portland Forge and Foundry Co., Portland,
Indiana, 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 September 24, 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 Regional Director to conduct it and to provide for
40 N. L. R. B, No. 3. 21
22 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD
an appropriate hearing upon due notice. On September 26, 1941,
the Regional Director issued a notice of hearing, copies of which
were duly served upon the Company, and the S. W. O. C., and upon
,she American" Federation of Labor, herein called- the A. F. L., and
International Brotherhood of Blacksmiths, Drop-Forgers, and Help-
ers, herein called the Blacksmiths "labor organizations claiming to
represent employees directly affected by the investigation.
Pursuant to notice, a, hearing was,held on October 6 and 7, 1941,
at Portland, Indiana, before Webster Powell, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the Com-
pany, the S. W. O. C., the A. F. L., and the Blacksmiths were repre-
sented by counsel, and all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
During 'the hearing, the A. F. L. moved to dismiss the petition on
the ground that a contract entered, into. by the Company and Local
620 of the Blacksmiths on September 23, 1941, constitutes a bar to a
determination of representatives; this motion the Trial Examiner
referred to the Board. For the reasons set forth below,' it is hereby
denied. In the course of the hearing, the Trial Examiner made rul-
ings on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
At the request of the labor organizations involved, and pursuant
to notice duly served upon all parties, a hearing for the purposes of
oral argument was had before the Board in Washington, D. C., on
October 28, 1941. The A. F. L. and the Blacksmiths were repre-
sented, by counsel and participated in- the hearing. On October 23
and 24, 1941, the S. W. O. C. and the Blacksmiths, respectively, filed
briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Portland Forge and Foundry Co. is a corporation organized under
the laws-of the State of Indiana, having its principal office and place
of business in the city of Portland, Indiana.
The Company is engaged at its Portland, Indiana, plant in the
manufacture of hammer and upset steel forgings. The principal
raw material used by the Company is steel, of 'which the Company
purchases from $30,000 to $50,000 worth per month. Approximately
' See Section III, below.
' PORTLAND FORGE AND FOUNDRY CO. 23
60 percent of this steel is shipped to the Company's Portland, In-,
diana, plant from points outside the State of Indiana. During an
average month the Company manufactures at its Portland plant fin-
ished products worth approximately $75,000, about 30 percent of
which is shipped from the plant to points outside the State of
Indiana. The Company employs approximately 200 production
employees.
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization af-
filiated with the Congress of Industrial Organizations, and Inter-
national Brotherhood of Blacksmiths, Drop-Forgers and Helpers is
a labor organization affiliated with the American Federation of
Labor; 2 both maintain local organizations at t1. Company's Portland
plant, which admit to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The S. W. O. C. started organization of the Company's plant in
February 1941, and an S. W. O. C. local was chartered in March
1941. On July 9, 1941, the S. W. O. C. notified the Company by
letter that it represented a majority of the Company's production
and maintenance employees and requested that a date be set for bar-
gaining conferences. No reply was received to this letter. 'On July
11, 1941, the S. W. O. C. filed with the Regional Director its first
petition in this proceeding.
The A. F. L. started organizing activities in the plant in July
1941 and a local of the Blacksmiths was chartered on July 17. On
August 11, 1941, pursuant to an Agreement for Consent Election,
entered into on August 5 between the,Company, the S. W. O. C., and
the A. F. L., an election was conducted by the Regional Director to
determine whether the employees desired to be represented by the
S. W. O. C., by the 4. F. L., or by neither. One hundred and sixty-
seven valid ballots were cast, of which 85 were cast for the A. F. L.,
79 for the S. W. O. C., and 3 for neither. Five votes were chal-
lenged. On August 28 the Regional Director issued his rulings on
objections to the conduct of the election which had been filed by the
S. W. O. C., sustaining the objections and setting aside the results
of the election.3 On `September 15,1941, the S. W. O. C. filed with
the Regional Director its amended petition in this proceeding.
2 The A F L, as is set forth below , organized the Company ' s employees on behalf of
the Blacksmiths , appeared on the'ballot in it consent election in August 1041, and has other-
wise acted on behalf of the Blacksmiths throughout this proceeding
3The Agreement for Consent Election provided that the Regional Director was to be
"sole and final arbiter" on objections to the election and that the parties would abide by all
his rulings . At the hearing , the Trial Examiner denied offers of proof by the Black-
smiths and the A. F. L as to the alleged incoirectness of the Regional Director 's decision.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 23, 1941, certain employees of the Company affili-
ated with the Blacksmiths went on strike. The Company closed its
plant and, on the same day, entered into a contract with the Black-
smiths' local, providing for recognition of the local as exclusive bar-
gaining representative of all the employees. The strike then ceased
and the Company's employees returned to work. The A. F. L. seeks
dismissal of the petition on the ground that the September 23 con-
tract constitutes a bar to a determination of representatives. Since
the consent election did not resolve the question concerning representa-
tion, the Board's investigation was still pending when the contract
was signed ; 4 the contract cannot, therefore, operate as a bar to a
further investigation and determination of representatives by the
Board.
The results of the consent election indicate that there is doubt as
to whether the S. W.-O. C. or the Blacksmiths represents a majority
of the employees in the unit hereinafter found to be appropriate for
the purposes of collective bargaining.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF TIIE 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The unit agreed upon in the consent election consisted of all pro-
duction and maintenance workers, excluding all foremen, clerical
employees, truck drivers, and "dock workers." The parties are still
in general agreement as to the appropriateness of this unit, except
that the A. F. L. and the Company now desire to include the "dock
workers," while the S. W. O. C. wishes to exclude them.
The "dock workers" constitute -a group of about 25 men employed
for the greater part of their time by a general contractor, one Antles,
to unload incoming raw materials, move materials around the plant,
and load outgoing products.' During periods when work in the
I It should be noted, moreover , that the S . W. 0. C. had filed an amended petition subse-
quent to the setting aside of the consent election and prior to the execution, of the contract.
Antics is paid by the ton for the work performed and no contention is made that the
men, when they are employed by him, are employees of the Company.
PORTLAND FORGE AND FOUNDRY CO. 25
plant is rushed, however, or when regular employees are absent, the
Company hires such of these men as it needs to fill in at unskilled
jobs. At such times the men are placed on the Company's pay roll
and are supervised by the Company. Hall, the Company's general
manager, testified that about 7 of the group, who are chosen most
often because of their experience, work a few hours with the Com-
pany nearly every week, and gave the number of hours worked by
that 7 over a 7-week period in 1941. His testimony shows that the
"dock workers," both individually and as a group, are employed
by the Company for short and irregular periods only e Moreover,
it does not appear that any substantial change in the circumstances
under which these men are hired, or in the number of hours worked
by them, has taken place since the consent election in August. In
view of these facts, no reason appears for departing from. the unit
agreed upon by the parties in the August consent election. We shall
exclude them from the unit.
Controversy has also arisen about Charles Slack, an employee
who voted as a production worker in the -consent election, but whose
inclusion in the unit is now opposed by the S. W. 0. C. on-the ground
that he is a confidential employee. Slack started work in May 1941
upon his graduation from high school, and works part of his time
in the shop as a member of the steel gang, checking the steel piles
and labeling them according to heats. He has no authority to hire
or discharge and is paid by the hour. Hall uses him, however, to
do his personal errands when Slack is not busy otherwise;' and Hall
testified that Slack does "some of that work" for McKinley, the
general superintendent. The record does not show what proportion
of his time Slack srends in the shop or as messenger. Hall testi-
fied that he himself does not use Slack as his messenger any more
often than he :ices other employees in the plant. It does not appear
that Slack's duties were any different at the time of the hearing from
what they were at the time of the consent election. We shall include
him in the unit as a production employee.
We find that all production and maintenance employees of the
Company, excluding all foremen, clerical employees, truck drivers,
and "dock workers," 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
8 Figures were given by the Company for the weeks of August 9 to September 20,'inclusive.
They show that, excluding one of the weeks during which none of the 7 worked for the
Company, the 7 named men , taken as a group, contributed from 22 ' to 54 man -hours a week
in work for the Company over this period ; from 2 to 5 of them working in the same week
Individually, they worked from 2 to 5 weeks out of the 7, and individual totals of hours
%orked •for the Company during the whole period ranged from 21 to 57 Hall testified that
others in the group of 25 worked during this period, but that they never worked "steady
enough to be considered regular men "
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to collective bargaining and otherwise will 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 an election by secret ballot. Neither
the Blacksmiths nor the.A. F. L. expressed any preference as to
which organization should appear on the ballot in the/ event the
Board directed an election. Since the A. F. L. appeared on the
ballot in the consent election, we shall direct that the employees be
given an opportunity to choose whether they desire to be represented
by the S. W. O. C., by the A. F. L., or by neither. Should any of
the parties desire that the ballot p'rovide for a different choice, re-
quest therefor should be, made of the Board Within five, (5) days
from the date of this Direction'of Election.
The S. W. O. C. urges that the pay roll of July 12, 1941, which was
used-to determine eligibility 'in the consent election, be used as a basis
for determining eligibility to vote in any new election. The A. F. L.
opposes the use of any but a current pay roll. The number of persons
employed by the Company has been gradually increasing since July,
although it does not appear specifically how many new men have been
hired. In view of the length of time which has elapsed since the
consent election, we shall direct that those eligible to vote in the elec-
tion shall be those persons in the appropriate unit who were employed
by the Company during the pay-roll period immediately preceding the
date of our Direction of Election, subject to the limitations and addi-
tions set forth in the Direction.
Upon the basis of the foregoing findings of fact and 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 Portland Forge and Foundry Co., Portland,
Indiana, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company,
excluding all foremen, clerical employees, truck drivers, and "dock
workers," constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the National Labor
Relations 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 Relations
PORTLAND FORGE AND FOUNDRY CO. 27
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Portland Forge and Foundry. Co., Portland, Indiana, 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
Eleventh Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 9, of said Rules
and Regulations, among all production and maintenance employees
of the Company who were employed during the pay-roll period im-
mediately preceding the date of this Direction of Election, including
any such employees who did not work during such pay-roll period
because they were ill or on vacation, or in the active military service
or training of the United States, or temporarily laid off, but excluding
all foremen, clerical employees, truck drivers, and "dock workers,"
and employees who have since quit of been discharged for cause, to
determine whether they desire to be represented by Steel Workers
Organizing Committee, affiliated with the 1C. I. 0., or by the American
Federation of Labor, for the purposes of collective bargaining, or by
neither.