The Canton Enameling & Stamping Co.

National Labor Relations Board - Board Decisions

Mar 23, 1936

1 N.L.R.B. 402 (N.L.R.B. 1936)

In the Matter of THE CANTON ENAMELING & STAMPING COMPANY.,
A CORPORATION and CANTON LODGE No. 812, INTERNATIONAL Asso-
CIATION OF MACHINISTS
Case No. C-47.-Decided March 23, 1936
Stampvng and Enameling Industry-Unit Appropriate for Collective Bargain-
ing: craft ; eligibility for membership in only organization making bona fide
effort at collective bargaining ; history of collective bargaining relations ; occu-
pational differences ; organization of business-Representatives: proof of choice :
membership in union ; petition designating -Collective Bargaining : refusal to
negotiate with representatives.
Mr. Harry L. Lodish for the Board.
Black, McCaskey, Ruff & Souers, by Mr. H. E. Black and Mr.
Walter S. Ruff, of Canton, Ohio, for respondent.
Mr. Melvin C. Smith, of counsel to the Board.
DECISION
STATEMENT OF CASE
Upon charges duly filed by Canton Lodge No. 812, International
Association of Machinists, hereinafter called Lodge No. 812, Ralph
A. Lind, Regional Director for the Eighth Region, agent of the Na-
tional Labor Relations Board designated by Article IV, Section 1
of National Labor Relations Board Rules and Regulations-Series.
1, issued its complaint, dated December 11, 1935, against the Canton
Enameling & Stamping Company, Canton, Ohio, hereinafter called
respondent. The complaint and notice of hearing thereon were duly
served upon respondent and Lodge No. 812 on December 12, 1935,
in accordance with Article V, Section 1 of said Rules and Regula-
tion-Series 1, the hearing being set for December 19, 1935, in
Canton, Ohio. On December 18, 1935, respondent filed with the
Regional Director a motion for continuance of the hearing. The
motion was granted and the date of the hearing was set for January
6, 1936.
The complaint alleges that respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section 8, sub-
divisions (1) and (5), and Section 2, subdivisions (6y and (7)
402
DECISIONS AND ORDERS 403
of the National Labor Relations Act, approved July 5, 1935, herein-
after called the Act.' Respondent filed an answer to the complaint
admitting the allegations concerning its incorporation and place
of business, and admitting the interstate sources of quantities of its
raw materials and the interstate sale and transportation of certain
of its products, but denying that such constitutes a continuous flow
of commerce among the several states. Respondent's answer further
denies the allegation in the complaint that the machinists employed
at respondent's plant constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act, and the allegations with respect to the unfair labor practices.
Pursuant to notice thereof, A. Howard Myers, Trial Examiner
duly designated by order of the Board, conducted a hearing on Jan-
uary 6, 1936, at Canton, Ohio. Respondent, appearing by counsel,
participated in the hearing. Full opportunity to be heard, to cross-
examine witnesses and to produce evidence was afforded to all
parties.
At the beginning of the hearing counsel for respondent moved that
the proceeding be dismissed on the ground that the National Labor
Relations Act is unconstitutional and at the conclusion thereof re-
newed the motion on the same ground and on the further ground that
the evidence did not support the allegations made in the complaint.
The motion was noted but no ruling was made thereon by the Trial
Examiner. The Board now denies the motion to dismiss.
Upon the record, including the transcript of the hearing and all the
evidence, oral and documentary, offered and received at the hearing,
the Trial Examiner, on January 17, 1936, filed an intermediate report,
finding and concluding that the machinists employed by respondent
constitute an appropriate unit for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act and that respond-
ent had committed unfair labor practices affecting commerce in viola-
tion of the Act as alleged in the complaint. Respondent filed ex-,
ceptions to the intermediate report and also a brief in support of the
exceptions, contending that the Trial Examiner's findings are not
sustained by the evidence, and that the Act is unconstitutional.
Upon the entire record, as thus made, including the evidence ad-
duced at the hearing, the intermediate report and exceptions thereto,
the Board makes the following :
'One of the allegations in the complaint was that upon the request of Commissioner
Faulkner , United States Department of Labor, respondent met with a committee rep-
resenting Lodge No 812 on October 1, 1935, and refused to enter into any agreement
with Lodge No 812, and otherwise failed or refused to bargain collectively with Lodge
No. 812. This allegation was amended at the hearing , changing the date from October
1, 1935 to October 9, 1935.
404 NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. RESPONDEN T AND ITS BUSINESS
1. Respondent is and has been since 1905 a corporation organized
under and existing by virtue of the laws of the State of Ohio, having
its principal office and place of business in the City of Canton, County
of Stark, State of Ohio. It is now and has been continuously for
a long period of time engaged at its plant in the production, sale
and distribution of kitchen enamelware.
2. Much of the raw materials used by respondent in the produc-
tion of its kitchen enamelware is obtained from within the State of
Ohio. During the period January 1, 1935 to December 1, 1935, steel,
tin plate, twine and wire, wrapping paper, wax paper, carpet paper,
corrugated rolls, cartons, straw, coal, gas, acid, wood knobs and
grips, and department supplies were obtained from within the State
of Ohio. However, a substantial part of the raw materials, includ-
ing excelsior, wood boxes, metal cleaner, iron sulphate, and chemi-
cals were purchased without the State of Ohio during the same
period. The total purchases from all sources during this period
amounted to more than $500,000.
3. The finished products manufactured by respondent, consisting
entirely of enameled kitchen utensils, are shipped to every state in the
,United States. Approximately 92 per cent of the finished products
are sold without the State of Ohio. The total sales during the period
from January 1, 1935 to December 1, 1935 amounted to more than
$1,000,000.
4. Respondent employs two men in its sales department on a salary
basis. One of these men is located in Ohio, presumably at the Can-
ton plant, and 'the other is located in Chicago, Illinois. Represen-
tatives, employed on a commission basis, are also located in New
York, N. Y., Chicago, Illinois, Portland, Oregon, San Francisco,
California, Dallas, Texas, and in South Carolina.
5. The aforesaid operations of respondent constitute a continu-
ous flow of trade, traffic and commerce among the several States.
II. ORGANIZATION AND ACTIVITY OF UNIONS REPRESENTED IN
RESPONDENT'S PLANT
A. Canton Lodge No. 812, International Association of Machinists
6. Canton Lodge No. 812, International Association of Machinists,
is a labor organization affiliated with the American Federation of
Labor. Employees engaged in machine and assembly work, and
tool and die work are eligible to membership therein. Lodge No.
812 was organized more than fourteen years ago and is included in
DECISIONS AND ORDERS 405
District 68, International Association of Machinists . Its member-
ship is not limited to employees of respondent.
B. Stamping and Enameling Workers Union No. 18506
7. Stamping and Enameling Workers Union No. 18506, herein-
after referred to as Union- No. 18506, is a labor organization. affili-
ated with the American Federation of Labor. It was organized in
August, 1933, for the purpose of representing the production em-
ployees in respondent's plant. Respondent employs approximately
550 employees. The record does not indicate what proportion
thereof are production workers ; however, Union No. 18506 claims a
membership of approximately ninety-eight percent of respondent's
employees engaged in production work. Union No. 18506 does not
admit machinists to membership and has never claimed that it has
jurisdiction over the machinists employed by respondent or that it is
entitled to represent them for the purposes of collective bargaining.
C. The strike of October, 1933
8. Labor difficulties at respondent's plant in 1933 culminated in
a strike of its production employees, called by Union No. 18506 in
October, 1933. The strike continued for three to four weeks, and
respondent's plant ceased to operate during this period. The ma-
chinists, employed in the foundry, had no part in calling the strike
or negotiating for a strike settlement, and took no active part in
the conduct of the strike.. However, they did not report for work
during the period of the strike. This action on the part of the
machinists was described by members of Lodge No. 812 as "purely
sympathetic."
At the conclusion of the strike an agreement, dated October 27,
1933, was entered into between respondent and Union No. 18506.2
Lodge No. 8'12 was not a party to the agreement, and no mention
was made of it in the agreement. The record clearly indicates that
Union No. 18506 did not purport to, represent the machinists during
the course of negotiations in reaching the agreement. Henry E.
Martin, organizer for the American Federation of Labor, who helped
organize Union No. 18506, testified that "the machinists' organiza-
tion out there is a separate organization from the Federal Local
(Union No. 18506), and the Chairman of the shop committee of the
Federal Local does not interfere in machinists' affairs or the ma-
chinists do not interfere in the Federal Local affairs."
2 The agreement , Board's Exhibit number 5. provided that (1) respondent "agrees to
meet bona fide committee of the Second Part ( Local Union No. 18506 ) for the purpose
of discussing and mutually agreeing in regard to working conditions in Plant . . .
and rates of pay affecting employees ", ( 2) any disagreement between the parties would be
referred to the Conciliation Service, U S Department of Labor, and that , ( 3) respondent
re-employ its old employees , without discrimination , as rapidly as possible.
406 NATIONAL LABOR RELATIONS BOARD
III. THE BARGAINING UNIT
9. Respondent has questioned the appropriateness of the machin-
ists as a unit for the purposes of collective bargaining. It is clearly
established by the record that the foundry, wherein the machinists
work, is a separate department, located in a different building and
distinct from the other departments comprising respondent's plant.
The machinists are engaged in work of a highly skilled nature and
receive wages substantially greater than the average wages received
by employees of the production departments. The machinists also
comprise the only skilled department in respondent's plant paid on
the basis of hourly wages.
It is obvious that the various problems which confront the em-
ployees of respondent from day to day in respect to rates of pay,
wages, hours of employment, and other conditions of employment
may be totally different in the case of the machinists than in the
case of the production employees. Thus in determining whether a
particular unit is appropriate for the purposes of collective bargain-
ing the relative size of such unit is not controlling; and the fact
that only thirteen employees of respondent are employed as machinists
in the foundry does not require that the machinists be merged in a
larger bargaining unit.
The machinists are not eligible to membership in Union 'r, o.
18506; and Union No. 18506 does not purport to represent them in
matters of collective bargaining, as is clearly evidenced by the agree-
ment reached between respondent and Union No. 18506 at the con-
clusion of the strike in October, 1933, and the circumstances incident
thereto. Consequently should the machinists not be found to be a
unit appropriate for the purposes of collective bargaining Lodge
No. 812 would be denied the privilege of representing the machinists
for such purpose, and the machinists would be denied the right
of representation for the purposes of collective bargaining with
respondent.
We therefore find that the machinists constitute a unit appropriate
for the purposes of collective bargaining.
10. There are thirteen employees of respondent, machinists em-
ployed in the foundry, eligible for membership in Lodge No. 812, and
twelve are members thereof. Board's Exhibit number 10 is an un-
dated petition admitted to have been signed in December, 1935, by
twelve machinists, employed by respondent.3 Edward M. John,
Chairman of the duly elected Shop Committee representing Lodge
No. 812, testified that all twelve members of Lodge No. 812 became
'Board's Exhibit number 10 states as follows : "We, the undersigned members of
Lodge #812 , I. A. of M., comprising approximately 93% of the machinists employed at
the Canton Stamping and Enameling Company, wish to be represented by the Inter-
national Association of Machinists."
DECISIONS AND ORDERS 407
members thereof previous to August 12, 1935. Board's Exhibit
number 8, copy of a letter dated September 3, 1935, written by
Walter C. Summers, Business Agent for District 68, International
Association of Machinists, and addressed to Harvey Brown, an
official of the International Association of Machinists, Machinists
Building, Washington, D. C., states that, "The machine shop in this
plant employs fourteen men of which thirteen are members in good
standing in Local #812."
As hereafter appears, the respondent's refusal to bargain took
place on August 23 and October 9; 1935. We find that on such dates
Local No. 812 was the duly designated representative of a majority
of the employees in the appropriate unit.
IV. THE UNFAIR LABOR PRACTICES
11. On August 12, 1935, Edward M. John, Chairman of the Shop
Committee representing Lodge No. 812, presented a proposed agree-
ment,4 previously drawn up by members of Lodge No. 812, to Super-
intendent Staley and requested that it be given consideration by the
management. Staley conferred with E. F. Hoerger, vice-president
and treasurer of respondent; however, no action was taken at that
time for the reason that H. T. Bebb, president of respondent, was
out of town.
12. On or about August 14, 1935, several members of the Shop
Committee representing Lodge No. 812 went to Superintendent
Staley's office, informed him that Lodge No. 812 represented 92 per
cent of the machinists, and asked him to request the management to
meet with the Shop Committee. Staley replied that he would take
the matter up with the management. The management subsequently
gave consideration to the proposed agreement, decided that it would
not enter into such an agreement, and Staley informed Edward M.
John on August 23, 1935, that nothing could be done about it.
13. The Shop Committee was unsuccessful in its efforts to arrange
a conference with the management of respondent, and Lodge No. 812
sought the assistance of the Conciliation Service, United States De-
partment of Labor. On October 9, 1935, Commissioner Faulkner,
United States Department of Labor, arranged a meeting between
Bebb and Hoerger, representing respondent, and the Shop Commit-
tee representing Lodge No. 812. Harry Peterson, Grand Lodge
representative of the International Association of Machinists, and
4 This proposed agreement , Board's Exhibit number 7, stated that, "The intention of
this agreement is to maintain harmonious relationship and closer cooperation between
the Canton Stamping and Enameling Company and the International Association of
Machinists ," and contained provisions in respect to rates of pay, wages , hours of employ-
ment, and other conditions of employment , not substantially different from the rates of
pay, wages , hours of employment , and other conditions of employment then in effect.
97571-36-vol t- 27
408 NATIONAL LABOR RELATIONS BOARD
Walter C. Summers, representative of District 68, International As-
sociation of Machinists, were also present.
At this meeting the agreement proposed by Lodge No. 812 was
discussed, and Bebb, President of the respondent company, refused
to enter into any agreement with Lodge No. 812. Bebb testified
that:
"the conditions were such in our office that there was nothing
that they were asking for in that agreement other than what
they were already enjoying. . . . Then after we got through Mr.
Faulkner then wanted to know if I would not go into another
room and write my own agreement as to what I would agree to
do with the employees. I stated that these men had all long
terms of service with the company and if they didn't know
after being, after, working with the company eight and nine
years what my policies were in the company, I didn't know
what I should do. any. different that they would understand."
Bebb further refused to make counter proposals to Lodge No. 812,
and stated that the respondent already had one agreement' with its
employees (Union No. 18506) and"that he could not seethe necessity:
of having two agreements.
14. Bebb testified that in his opinion he did not refuse to bargain
collectively with the machinists, but merely refused to grant the
terms which they asked for. However, the facts do not sustain this
contention. The October 9 meeting was arranged only through the
efforts of Commissioner Faulkner, and it is apparent that respondent
flatly refused to enter into any agreement whatsoever with Lodge
No. 812 at that meeting. The mere fact that respondent did meet
with representatives of Lodge No. 812 cannot in itself be construed
as collective bargaining.
15. Respondent's conduct as set 'forth in paragraphs 11, 12 and 13
above constitutes a refusal to bargain with the representative of its
employees on August 23 and October 9, 1935.
16. Respondent, by refusing to bargain collectively with the repre-
sentative of its employees, has interfered with, restrained and co-
erced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the National Labor Relations Act.
17. On the basis of experience in respondent's plant and in other
plants, respondent's conduct as set forth in findings 11 to 14 above,
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
DECISIONS AND ORDERS 409
THE RESPONDENT'S EXCEPTIONS
Respondent's exceptions to. the Trial Examiner's intermediate
report are based= mainly on the contentions that his findings of fact,
conclusions and recommendations are. not sustained by and, are con-
trary to the evidence. The findings of fact set forth above are in sub-
stantial accord with those of the Trial- Examiner, whose intermediate
report we find to be supported by the evidence.
CONCLUSIONS -OF, LAW -
Upon' the basis of the foregoing ' findings of fact, and upon • the
entire record in the proceeding, the Board finds and concludes as a
matter of law that :
1. Canton Lodge No. 812, International Association of Machinists,
is a labor organization, within the meaning of Section 2, subdivision
(5) of the National Labor Relations Act.
2. The machinists employed at respondent's plant constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
3. By virtue of Section 9 (a) of the National Labor Relations Act,
Canton Lodge No. 812, International Association of Machinists, hav-
ing been designated by a majority of the employees in an appropriate
unit, is the exclusive representative of all the employees in such unit
for the purposes of collective bargaining.
4. The respondent, by refusing to bargain collectively with the
representative of its employees, has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8, subdivision
(5) of the National Labor Relations Act.
5. The respondent, by refusing to bargain collectively with the
representative of its employees, has interfered with, restrained and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the National Labor Relations Act, and has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8, subdivision (1) of said Act.
6. The unfair labor practices in which the respondent has engaged
and is engaging constitute unfair labor practices affecting commerce,
within the meaning of Section 2, subdivisions (6) and (7) of the
National Labor Relations Act.
ORDER
On the basis of the findings of fact and the conclusions of law, and
pursuant to Section 10, subdivision ( c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
410 NATIONAL LABOR RELATIONS BOARD
the respondent, Canton Stamping and Enameling Company, and its
officers and agents, shall:
(1) Cease and desist from any refusal to bargain collectively with
Canton Lodge No. 812, International Association of Machinists, the
exclusive representative designated therefor by the machinists em-
ployed at its plant, in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
(2) Take the following affirmative action which the Board finds
will effectuate the policies of the Act : Upon request, bargain col-
lectively with Canton Lodge No. 812, International Association of
Machinists, the exclusive representative designated therefor by the
machinists employed at its plant in respect to rates of pay, wages,
hours of employment, and other conditions of employment.