United States Pipe and Foundry Co.

National Labor Relations Board - Board Decisions

May 8, 1943

49 N.L.R.B. 625 (N.L.R.B. 1943)

In the Matter Of UNITED STATES PIPE AND FOUNDRY COMPANY and
DISTRICT 50, UNITED MINEWORKERS OF AMERICA
'Case No. R-5187.Decided May 8,1943
Mr. Jelks H. Cabaniss, of Birmingham, Ala., for the Company.'
Mr. William E. Mitch and Mr. N. B. Maxwell, of Birmingham, Ala.,
for District 50.
Mr. N. D. Smith, of Cincinnati, Ohio, for the Molders.
Mr. R. E. Farr, of Birmingham, Ala., for the U. S. A.
Mr. Louis Cohin, of counsel to the Board'.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District 50, United Mine Workers of
America, herein called District 50, alleging that a question affecting
commerce had arisen concerning the representation of employees of
United States Pipe and Foundry Company, Birmingham, Alabama,
herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before George
S. Slyer, ' Trial Examiner. Said hearing was held 'at, Birmingham
Alabama, on April 16, 1943. The Company, District 50, Interna-
tional Molders & Foundry Workers Union of North America, herein
called the Molders, and United Steelworkers of America, herein
called the U. S. A., 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 hearing counsel for District 50 moved to exclude the U. S. A. from
the balloting. The Trial Examiner reserved ruling. The motion
is hereby denied for the reasons stated in Section V, infra. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. . ' "
49 N. L"B, B., No. 90 ' -
625
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in,the case, the Board makes the following :
FINDINGS OF FACT
I. THE -BUSINESS - OF .THE ' COMPANY
United States Pipe and Foundry Company is a New Jersey corpora-
tion operating three plants in. the State of, Alabama. We are here
concerned with its plant at North Birmingham, Alabama, where it
is engaged ,in the manufacture of cast-iron pipe and Army ordnance.
Approximately, '10 percent of all raw materials used at the North
Birmingham plant is shipped to it from points outside the State- of
Alabama. During 1942 the Company produced over 50,000 tons, of
cast-iron pipe, over 80 percent of which was shipped to points outside
the State, of Alabama. The Company, .admits that it is engaged in
commerce within the meaning of -the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organiza;
tion admitting to membership employees of the Company.
International Molders & Foundry Workers Union of North America
is a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
'United Steelworkers of America is a labor' organization affiliated
-with the Congress of Industrial Organizations; admitting to membei--
ship employees of the Company:' -
'
III. THE QUESTION CONGERNING-REPRESENTATION
Some time prior to February 22, 1943, District 50 requested the
Company •to recognize it as exclusive representative of the employees
of the North Birmingham plant. The Company refused this request
on•the ground that it was operating under a contract with the Molders.
On May 26, ,1941,,,the Company and the Molders entered into ran
exclusive contract to run until May 26, 1942; The contract further
provides that it shall be automatically renewed from year to year
thereafter, unless notice of a desire to terminates is given by either
party ;thereto at -least 30 days prior to any - annual. expiration , date.
.Inasmuch as District, 50 made its claim upon the Company prior to
'April 26, 1943, we find that the contract does not constitute a bar,to
a. determination of representatives at this time. ,
A statement of a Field Examiner of the Board, introduced into,
evidence at the hearing, indicates that District 50 represents a sub-
UNITED STATES PIPE AND FOUNDRY COMPANY 627
stantial 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 meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
District 50 urges that all production and maintenance employees
at the North Birmingham plant of the Company, including guards,
but excluding clerks, supervisory employees, and assistant foremen,
constitute an appropriate unit. The only controversy with respect'to
the unit concerns assistant foremen.
The Company employs 25 persons classified by it as assistant fore-
rrien. District 50 urges that they be excluded from the unit; and the
Molders, the U. S. A., and the Company' that they be included., The
assistant foreman regularly perform production work and have no
authority to recommend hire or discharge. They are paid on an
hourly rate, in contrast to the regular foremen who are paid on a
salary basis. It appears that the assistant foremen are covered by
the ,contract between the Molders and the Company, and that they
have benefited by pay raises granted to production employees. Since
they have no authority to hire or discharge or to recommend such
action, we shall include assistant foremen in the unit.
The Company has approximately 25 persons on its pay roll classified
as guards. , The guards are uniformed, armed, and sworn in as Aux-
iliary United States Military Police. In accordance with our usual
practice, we shall exclude armed guards from the unit.
We find that all production and maintenance employees at the North
Birmingham plant of the Company, including assistant foremen, but
excluding clerks, supervisory employees, and armed guards, consti-
tute 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 find that the question concerning representation which has
arisen can best be resolved by means of an election by secret ballot.
District 50 urges that a pay roll as of February 22, 1943, the date of
'The Field Examiner reported that District 50 presented 248 membership application
cards heating apparently genuine signatures of pet sons whose names appear on the Conr
pang's pay loll of Februamy 22, 1943 There are approximately 699 persons in the
appropriate unit The Dlolders did not piesentany esidence of membership, but relies upon
-its contract as evidence of its mepmeseutation The U S A presented 30 membership
application cards to the Tual Examiner, beaiing apparently genuine signatures of pet sons
whose names appear, on the Conrpan5'5 pas moll of Febiuaiy 22, 1913.
531047-43-vol. 49-41
•628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its petition herein,'be used to determine eligibility to vote. The Com-
pany urges that a current pay roll be used for that purpose. The,
Molders and the U.S. A. took no position with respect to the eligibility
date. Inasmuch as no, persuasive reasons appear as to why we should
depart from our usual practice, we shall direct that the employees
eligible to vote in the election shall be those within the appropriate
unit who were employed during the-pay-roll period immediately pre-
ceding the date of the Direction of Election hefein, subject to the
limitations and additions set forth in the Direction.
District 50 contends that the U. S. A. should not be accorded a place
on the ballot because of its small showing of representation among
the employees of the Company. However, inasmuch' as an election
is to be conducted, and- inasmuch as the U. S. A. has made some show-
ing of membership, we shall accord it a place on the ballot.
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 United States
Pipe and Foundry Company, Birmingham, Alabama, 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 Tenth 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 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 any such 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, to determine whether they desire to be represented by
District 50, United Mine Workers of America, or by International
Molders & Foundry Workers Union of North America, affiliated with
the American Federation of Labor, or by United Steelworkers of
America, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining, or by none of said organizations.