Surface Combustion

National Labor Relations Board - Board Decisions

Apr 20, 1945

61 N.L.R.B. 654 (N.L.R.B. 1945)

In the Matter of GRACE REARDON DOUGHERTY , CHARLES A. FRUEAUFF
AND W. ALTON JONES, D/B/A SURFACE COMBUSTION and INTERNA-
TIONAL ASSOCIATION or BRIDGE , STRUCTURAL & ORNAMENTAL IRON
WORKERS , A. F. OF L.
Case No. 8-R-1640.-Decided April 20, 1945
Messrs. Louis Belkin and Thomas E. Shroyer, for the Board.
Bugbee & Johnson, by Mr. Harry S. Bugbee, of Toledo, Ohio, for
the Company.
Messrs. Isadore N. Kohler and Fred Whiteman, of Toledo, Ohio, for
the Iron Workers.
Messrs. David A. Guberman, Ralph Thompson, and Lloyd L. Spei-
dell, of Toledo, Ohio, for the UAW-CIO.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Association of Bridge,
Structural & Ornamental Iron Workers, A. F. of L., herein called the
Iron Workers, alleging that a question affecting commerce had arisen
concerning the representation of employees of Grace Reardon Dough-
erty, Charles A. Frueauff and W. Alton Jones, d/b/a Surface Combus-
tion, Toledo, Ohio, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Henry J. Kent, Trial Examiner. Said hearing was held at
Toledo, Ohio, on November 9, 1944. At the commencement, of the
hearing the Trial Examiner granted a motion of Local 12, Interna-
tional Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, C. I. 0., herein called the UAW-CIO, to inter-
vene. The Board, the Company, the Iron Workers, and the UAW-
CIO appeared at and participated in the hearing and all parties were
afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues. At the
close of the hearing, the UAW-CIO moved to dismiss the petition.
The Trial Examiner reserved ruling thereon. The motion is hereby
denied for the'reasons stated in Section III, infra. The Trial Exam-
61 N . L. R B., No. 101.
654
SURFACE COMBUSTION 655
iner's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. On January 5, 1945, the Board issued an order
reopening the record in the above-entitled proceeding. Pursuant
thereto, a further hearing was held at Toledo, Ohio, on January 19,
1945, before Earl S. Bellman, Trial Examiner. The Board, the Com-
pany, the Iron Workers, and the UAW-CIO appeared, participated,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
During the course of the further hearing the UAW-CIO moved to
dismiss the petition. The Trial Examiner reserved ruling thereon.
The motions are hereby denied. All parties were afforded opportu-
nity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Grace Reardon Dougherty, Charles A. Frueauff and W. Alton Jones,
d/b/a Surface Combustion, are engaged in the manufacture of indus-
trial furnaces and space heating equipment at Toledo and Columbus,
Ohio, and Tulsa, Oklahoma. We are here concerned with their plant
at Toledo, Ohio. During 1943 the Company purchased raw mate-
rials for use at its Toledo plant valued at about $10,000,000, approxi-
mately 95 percent of which was shipped to it from points outside the
State of Ohio. During the same period the Company manufactured
products at its Toledo plant valued at about $20,000,000, approximately
95 percent of which was shipped to points outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Bridge, Structural & Ornamental Iron
Workers is a labor organization affiliated with the American Feder-
ation of Labor, admitting to membership employees of the Company.
Local 12, International Union, United Automobile, Aircraft &
Agricultural Implement Workers of America, is a labor organization
affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about July 13, 1944, the Iron Workers requested the Com-
pany to recognize it as the exclusive collective bargaining representa-
tive of the employees involved herein. The Company refused this
request.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 6, 1943, the UAW-CIO was certified by the Board as the
exclusive collective bargaining I epresentative of the employees in-
volved herein. The UAW-CIO and the Company held about 25
collective bargaining conferences between March 10 and July 1, 1943.
On July 1 and 7,1943, the United States Conciliation Service unsuccess-
fully attempted to adjust the differences which had arisen between the
parties. On October 17,1943, the UAW-CIO and the Company agreed
on terms of a contract with the exception of the provisions dealing with
vacations, union shop, seniority, minimum wage rates, no-strike clause,
overtime, and method of payment. The next day the Company posted
on its bulletin boards a contract draft covering the points that had been
agreed upon between it and the UAW-CIO and stated that the Com-
pany would adhere to such provisions rather than wait for agreement
on the disputed matters. On October 21, 1943, the various disputed
issues between the parties were certified to the National War Labor
Board. A hearing was held before the Regional War Labor Board
in November 1943, and on April 6, 1944, that agency issued a Directive
Order.' On April 17 and 19, 1944, respectively, the Company and the
UAW-CIO requestecr interpretation and review of the Directive Order
of April 6. After a rehearing and reconsideration, the Regional War
Labor Board, on May 31, 1944, issued a new Directive Order. On
June 17, 1944, the UAW-CIO appealed to the National War Labor
Board from the order of the Regional War Labor Board. On July
14, 1944, the Regional War Labor Board issued a Modified Directive
Order following referral to it of the appeal filed by the UAW-CIO.
The Directive of May 31, 1944, disposed of all issues between the
parties with the exception of vacations and no-strike clause. The
Modified Directive of July 14, 1944, settled the disputes with respect
to'those two issues. On July 20, 1944, the Company requested -inter-
pretation of the Modified Directive.2 This request was denied on
August 10, 1944.
On November 10, 1944, the UAW-CIO and the Company signed an
agreement retroactive to August 18, 1943; it provided that it should
remain in full force and effect until August 18, 1944, and thereafter
subject to 30 days' notice of a desire to terminate by either party
thereto. On January 18, 1945, the Regional War Labor Board in
connection with the new case certified on August 5, 1944, recommended
partial wage adjustments retroactive to June 19, 1944.
' Case No RWLB5-B-470, NWLB11i- 4564-D
2In the meantime on May 25 i94-4. the UAW-CIO had requested assistance from the
United States Conciliation Service On August 5. 1944, this dispute, dealing solely with
the subject of wages, an issue apparently disposed of in the May 31 Directive Order,
was certified to the National War Labor Board and was treated b^ it as a new case and
assigned a new case number On October 11, 23, and 30, 1944, hearings on this new case
were held before the Regional War Labor Board
SURFACE COMBUSTION 657
The UAW-CIO, relying on the Matter of Allis-Chalmers Manufac-
turing Company' case, contends that the petition should be dismissed
because it has not been afforded a reasonable opportunity to obtain bene-
fits for the employees and thereby to demonstrate its effectiveness as
the exclusive representative pursuant to the Board's certification of
March 6, 1943. For the reasons stated below, we are of the opinion
that the .principles relied upon by the UAW-CIO are not applicable
here. '
The record indicates that the Directive Order of May 31, 1944, as
modified on July 14, 1944, completely adjudicated all issues in the
original case which were in dispute between UAW-CIO and the Com-
pany. Although the term of the contract entered into on November
10, 1944, had then already expired, all provisions thereof were retro-
active, and the parties thereto continued to operate under it after
November 1944. We are of the opinion, therefore, that the UAW-
CIO has had sufficient opportunity to demonstrate its effectiveness as
collective bargaining representative; accordingly, we find that its con-
tention that the petition should be dismissed is without merit 4 It is
clear that the contract between the UAW-CIO and the Company does
not constitute a bar to a present determination of representatives in-
asmuch as it is, by its terms, terminable upon 30 days' notice of either
party thereto.
A statement of a Field Examiner of the Board, introduced into
evidence at the hearing, indicates that the Iron Workers represents a
substantial number of employees in the unit hereinafter found to be
appropriate.-
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial agreement with a stipulation of the parties,
that all employees at the Toledo, Ohio, plant of the Company, includ-
ing hourly paid factory clerical employees, Watchmen, group leaders
or hourly paid assistant foremen,' and bricklayers' helpers, but exclud-
ing janitresses, bricklayers, employees in the office, engineering, and
3 50 N L R B 306.
a Cf Matter of Thompson Products, Inc, 60 N L R B 885
5 The Field Eaminer reported that the Iron Workers presented 60 authorization cards
bearing the names of persons who appeared on the Company's pay roll for the period
ending August 8, 1944 There are approximately 174 employees in the appropriate unit
The UAW-CIO did not submit any evidence of representation , but relies upon its contract as
evidence of its interest in the instant proceeding
O The record indicates that the group leaders or hourly paid assistant foremen do not
have any authority to recommend effectively the hire, discharge , discipline , or promotion of
any employee.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
field service departments, time-study men, superintendents, assistant
superintendents, foremen, and any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, 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
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
The UAW-CIO requests that it appear on a ballot as "Local 12,
UAW-CIO." The request is hereby granted.
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 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Grace Reardon
Dougherty, Charles A. Frueauff and W. Alton Jones, d/b/a Surface
Combustion, Toledo, Ohio, an election by secret ballot-shall be con-
ducted 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 Eighth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately 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
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election, to deter-
mine whether they desire to be represented by International Associa-
tion of Bridge, Structural & Ornamental Iron Workers, A. F. of L.,
or by Local 12, UAW-CIO, for the purposes of collective bargaining,
or by neither.