United States Pipe & Foundry Co.

National Labor Relations Board - Board Decisions

Jan 29, 1940

19 N.L.R.B. 1016 (N.L.R.B. 1940)

In the Matter Of UNITED STATES PIPE & FOUNDRY COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE
Case No. B-1651.-Decided January 29, 1940
Cast Iron Pipe Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : rival organizations ; contro-
versy as to appropriate unit-Unit Appropriate for Collective Bargaining : contro-
versy as to craft units or unit of production and maintenance employees , exclusive
of supervisory and clerical employees ; desires of employees to determine-
Elections Ordered: five separate elections to determine appropriate unit or units
and representatives thereof.
Mr. Clarence D. Musser and Mr. Alexander E. Wilson, Jr., for the
Board.
Mr. Jelks H. Cabaniss, of Birmingham, Ala., for the Company.
Mr. Yelverton Cowherd and Mr. Noel R. Beddow, of Birmingham,
Ala., for the S. W. O. C.
Mr. J. A. Lipscomb , of Bessemer , Ala., Mr. M. P. Cushing, of
Birmingham, Ala., and Mr. George Q. Lynch, of Washington, D. C.,
for the P. M. A.
Mr. Shelley Walden, of Cincinnati, Ohio, for the I. M. U.
Mr. J. D. Baumgardner, of Birmingham, Ala., and Mr. David
Kaplan, of Washington, D. C., for the I. A. M.
Mr. Arthur P. Smith, of Birmingham, Ala., for the Boilermakers.
Mr. J. R. May, of Birmingham, Ala., and Mr. Lawson Wimberly,
of Washington, D. C., for the I. B. E. W.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On June 22, 1939, Steel Workers Organizing Committee, herein
called the S. W. O. C., filed with the Regional Director for the Tenth
Region (Atlanta, Georgia) a petition alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of United States Pipe & Foundry Company, Bessemer, Alabama, 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 November 13,
19 N. L. R. B., No. 102.
1016
UNITED S'T'ATES' PIPE & FOUNDRY COMPANY 1017
1939 , the National Labor Relations Board, herein called the Board,
acting pursuant to Article III, Section 3, of National Labor Relations
Board Rules and Regulations-Series 2, ordered an investigation and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On November 22, 1939, the Regional Director issued a notice of
hearing, copies of. which were duly served upon the Company, the
S. W. O. C., and upon the following labor organizations claiming to
represent employees directly affected by the investigation : Inter-
national Molders ' Union of North America , herein called the I. M. U.;
International Brotherhood of Electrical Workers, Local No. 698 , herein
called the I. B. E. W .; International Association of Machinists, Lodge
No. 359, herein called the I. A. M.; International Brotherhood of
Boilermakers , Iron Ship Builders, Welders and Helpers of America,
Local No. 4, herein called the Boilermakers ; Pattern Makers Asso-
ciation of Birmingham , Alabama, herein called the P. M . A.; and
Stenographers , Typists, Bookkeepers and Assistants Union, Local No.
19403. Pursuant to the notice, a hearing was held on December 1, 4,
5, and 6, 1939, at Birmingham , Alabama, before E. G. Smith, the
Trial Examiner duly designated by the Board. The Board, the Com-
pany , the S. W. O. C., and the P. M. A. were represented by counsel;
the I . M. U., the I. B. E. W ., the I. A. M., and the Boilermakers, by
their duly authorized representatives . All parties participated in the
hearing 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 the Trial Examiner made
several rulings on 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.
On December 21, 1939, oral argument was had before the Board in
Washington , D. C. The I. A. M., the P. M. A., and the I. B. E. W.
were represented by counsel , and the I. M. U. by one of its officers.
Briefs were filed by the P. M. A. and the I. B. E. W ., 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
United States Pipe & Foundry Company, a New Jersey corporation,
is engaged in the manufacture and sale of cast-iron pipe , special
foundry castings, and special machinery at its plant in Bessemer,
Alabama. About 90 per cent of the raw materials used in the opera-
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions at the Bessemer plant, consisting chiefly of pig iron, cast iron,
scrap, and coke, are purchased in the State of Alabama. About 90
per cent of the products manufactured at the Bessemer plant, having
an annual value of about $1,000,000, are sold and distributed outside
the State of Alabama. The Company normally employs. at the
Bessemer plant about 700 production and maintenance employees and
about 40 clerical and supervisory employees. For the purposes of this
proceeding, the Company admits that it is engaged in commerce
within the meaning of the Act. .
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization au-
thorized to act on behalf of Amalgamated Association of Iron, Steel
and Tin Workers of North America for collective bargaining purposes.
Amalgamated Association of Iron, Steel and Tin Workers of North
America, Lodge No. 2140, herein called the Amalgamated, is a labor
organization affiliated with the Congress of Industrial Organizations,
admitting to membership production and maintenance employees at
the Company's Bessemer plant, exclusive of supervisory and clerical
employees.
International Association of Machinists, Lodge No. 359, is a labor
organization affiliated with the American Federation of Labor, admit-
ting to membership white employees at the Bessemer plant engaged as
machinists, apprentice machinists, machinists' helpers, blacksmiths,
welders, and handymen.
International Brotherhood of Electrical Workers, Local No. 698, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership electricians at the Company's Bessemer
plant.
- International Brotherhood of Boilermakers, Iron Ship Builders,
Welders and Helpers of America, Local No. 4, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees at the Bessemer plant engaged as boilermakers,
boilermakers' helpers, welders, apprentice welders, and welders'
helpers.
Pattern Makers Association of Birmingham, Alabama, an affiliate
of Pattern Makers League of North America, is a labor organization
affiliated with the American Federation of Labor, admitting to mem-
bership pattern makers and pattern makers' apprentices employed
at the Company's Bessemer plant. -
International Molders' Union of North America is a labor organiza-
tion affiliated with the American Federation of Labor having juris-
diction over "all workers engaged in -the production of castings."
Local No. 342 of the I. M. U. is a labor organization admitting to mem-
UNITED S'TATE 'S PIPE & FOUNDRY COMPANY 1019
bership all employees of the Company's Bessemer plant, excluding
supervisory and clerical employees and employees eligible to member-
ship in the foregoing four organizations affiliated with the American
Federation of Labor.
III. THE QUESTION CONCERNING REPRESENTATION
On April 14, 1938, the Company entered into an agreement with the
I. A. M., the I. B. E. W., the Boilermakers, the P. M. A., and the
I. M. U., recognizing each of the foregoing organizations as the col-
lective bargaining representative of its members employed in the Bes-
semer plant. The agreement is for no definite period but provides
that "if any changes in these rules and regulations are desired by
either Company or employee, written notice shall be given and con-
ference on such change shall be held within thirty (30) days there-
after." In June 1939, representatives of the S. W. O. C., claiming to
represent a majority of the employees at the Bessemer plant, sought
recognition. The Company took the position that in view of the above-
mentioned agreement, the uncertainty as to the appropriate unit or
units, and the conflicting claims of representation, it would not recog-
nize any union as the exclusive representative of any group of em-
ployees until the matter had been decided by the Board.
We find that a question has arisen concerning representation of em-
ployees of the Company.
IV. THE EFFECT OF THE 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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT OR UNITS
The Amalgamated, through the S. W. O. C., contends that all pro-
duction and maintenance employees at the Bessemer plant, exclusive of
supervisory and clerical employees, constitute a unit appropriate for
the purposes of collective bargaining.
The I. A. M. claims that an appropriate unit consist of machinists,
apprentice machinists, and machinists' helpers. The I. A. M. would
include within its unit employees classified on the November 18, 1939,
pay roll as toolmen, crane hookers, blacksmith-shop employees, welders,
apprentice welders, and welders' helpers. Most of these employees are
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed in the machine shop, in the tools, repairs, and replacements
department, in the repairs, machinery, and equipment department,
and in the blacksmith shop. Although the I. A.. M. does not admit
colored employees to. membership, it made no claim that such em-
ployees be excluded from the unit it claimed to be appropriate. We
shall include colored employees in the unit sought by the I. A. M?
The I. B. E. W. claims that the electricians constitute an appropriate
unit. On the November 18, 1939, pay roll 12 employees are classified
as electricians.
The Boilermakers contends that an appropriate unit would consist
of employees employed as boilermakers, boilermakers' helpers, welders,
apprentice welders, and welders' helpers. One boilermaker and two
boilermakers' helpers are listed on the November 18, 1939, pay roll as
being employed in the boiler shop; two boilermakers are employed in
the repairs, machinery, and equipment department.
The P. M. A. claims that the pattern makers and pattern makers'
apprentices constitute an appropriate unit. The November 18, 1939,
pay roll listed nine employees in the pattern shop within the above
classifications.
The I. M. U. claims that all employees of the Company, excluding
supervisory and clerical employees and those employees claimed by
the other four American Federation of Labor unions, constitute an
appropriate unit.
The claims of the five American Federation of Labor unions as to
the appropriate units do not conflict except in the case of the welders,
apprentice welders, and welders' helpers, who are claimed by both the
I. A. M. and the Boilermakers. The record reveals, however, that the
conflict as to these employees is the result of inadvertence rather than
active dispute. The representative of the I. A. M. testified that welders
were eligible to membership in either the I. A. M. or the Boilermakers
and that for some time it had been customary for welders to affiliate
with the I. A. M. Three welders and one apprentice welder are em-
ployed in the boiler shop ; one welder and three apprentice welders are
employed in the repairs, machinery, and equipment department; the
number of welders' helpers in either department does not appear, since
the pay roll does not contain such classification. Although the record
is not clear as to the difference in functions, if any, between welders
in these two departments, it appears that the welders in the boiler
shop are more closely identified with the boilermakers, whereas the
welders in the repairs, machinery, and equipment department are more
Matter o f American Tobacco Company, Incorporated, Richmond Smoking Branch and
Committee for Industrial Organization, Local No. 472, 9 N. L. R. B. 579; Matter of
Floyd A. Fridell, individually and trading as Carolina Marble & Granite 'Works and
Granite Cutters ' International Association of America , Charlotte Branch, 11 N. L. R. B.
249; Matter of Interstate Granite Corporation and Granite Cutters' International Asso-
ciation of America, Charlotte Branch, 11 N. L. R. B. 1046.
UNITED STATES PIPE & FOUNDRY COMPANY 1021
closely identified with the machinists.. We conclude, therefore, that
the welders, apprentice welders, and welders' helpers in the boiler shop
should be included in the unit claimed by the Boilermakers and that
such employees in the repairs, machinery, and equipment department
should be included in the unit claimed by the I. A. M.
Prior to 1934 the P. M. A., the I. A. M., and the I. M. U. had
represented the pattern makers, machinists, and molders, respectively,
employed by the Company, and these three organizations had nego-
tiated with the Company on behalf of such employees, with regard to
grievances, wages, hours, and other working conditions. No contracts
resulted from these negotiations. In 1934 the Company negotiated
with an American Federation of Labor federal local union, which em-
braced employees other than those within the jurisdiction of the three
organizations above mentioned. As a result of the 1934 negotiations,
the Company promulgated certain working rules and regulations ap-
plicable to all employees. In 1935 the federal local union was abl.
sorbed by the I. M. U., which in 1934 had extended its jurisdiction
to include all workers employed in the production of castings. The
1934 rules and regulations were, in substance, renewed by the Com-
pany in 1935 and 1936, after negotiations with a committee of em-
ployees and representatives of the P. M. A., the I. A. M., and the
I. M. U. None of the foregoing negotiations resulted in a contract
nor was any union formally recognized as the representative of any
employees.
Following negotiations with representatives of the five American
Federation of Labor unions, the Company entered into the agreement
of April 14, 1938, referred to above, recognizing each union as the
collective bargaining representative of its members employed at the
Bessemer plant. The agreement, which is for no definite period but
is subject to change upon 30 days' notice, provides for the 8-hour
day and 40-hour week, seniority, overtime, holidays, and grievance
procedure. It contains no terms as to wages, but provides that the
Company "will meet with the Shop Committee or representatives
as the employees may from time to time determine in regard to wages,
hours, and working conditions whenever necessary."
The S. W. 0. C. began organizing the Company's employees in
December 1938. Lodge No. 2140 of the Amalgamated was chartered
in June 1939. During a strike at the plant in June 1939, called by:
the I. M. U. in order to induce the colored I.' M. U. members to
reinstate 2 with the I. M. U., the representatives of the S. W. 0. C.,
claiming to represent the delinquent I. M. U. members, sought to
effect a settlement of the dispute.
9 The I. M. U. constitution provides that a "suspended member upon payment of all
his indebtedness to the Financial Secretary stands reinstated."
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Bessemer plant consists of several departments, which are
closely interrelated in the production process and through which most
of the products flow in the course of production. A tie-up in any
department would substantially hamper or curtail the operation of
the entire plant.
In view of the facts set forth above, it appears that the Company's
production and maintenance employees can be considered either as a
single unit appropriate for the purposes of collective bargaining as
claimed by the Amalgamated, or as five separate units as contended
by the American Federation of Labor unions. In accordance with our
usual practice in this type of case, we hold that the determining factor
is the desire of the employees themselves.8
As stated in Section VI below, however, the record is inconclusive
as to the desire of the employees. We shall, therefore, direct that
five separate elections by secret ballot be held. Upon the results of
such elections will depend the determination of the appropriate unit
or units.
VI. THE DETERMINATION OF REPRESENTATIVES
The I. A. M. introduced in evidence a petition, dated November
29, 1939, bearing 73 signatures, reciting that the signers were members
of the I. A. M. and employees of the Company.
The I. B. E. W. presented evidence, by the testimony of its financial
secretary and a statement signed by the 12 electricians employed at
the Bessemer plant, that it had been designated and selected by such
employees as their representative.
The Boilermakers presented evidence that nine of the employees
in the unit it claims to be appropriate were members of that organi-
zation.
The P. M. A. introduced in evidence a statement signed by eight
employees within the unit claimed by the P. M. A. authorizing the
P. M. A. to act as their collective bargaining representative.
The financial secretary of the I. M. U. testified that a large portion
of the 638 members of Local No. 342 were employed at the Company's
Bessemer plant. He further testified, however, that about 250 em-
ployees who had been reinstated by the I. M. U. as a result of the
June 1939 strike had since that time become delinquent in the payment
of dues.
At the hearing the Amalagamated submitted for the inspection of
the Trial Examiner about 424 membership application cards. The
financial secretary of Amalgamated Lodge No. 2140 testified that 478
employees of the Company had signed such cards. , Although the
s Matter of The Globe Machine and Stamping Co. and Metal Polishers Union Local
No. 3; International Association of .Machinists , District No. 54, 3 N. L. R. B. 294, and
subsequent cases.
U.\ ITED: _,S_TATE'S PIPE &_ FOUNDRY COMPANY 1023
financial secretary testified that no pattern makers, boilermakers,
machinists, electrical workers, or molders were members of the Amal-
gamated, Noel Beddow, the. executive director of District 3 of the
S. W. 0. C., testified that, with the exception of pattern makers,
many employees within such classifications had expressed a desire to be
represented by the Amalgamated but had refrained from joining
because of fear of threats and reprisals.
Under these circumstances, we conclude that elections are necessary
to resolve the question of bargaining representative or representatives
as well as the question of the appropriate unit, or units. Balloting
shall be conducted as follows :
1. Among the employees within the classifications claimed by the
I. A. M. to constitute an appropriate unit, but excluding welders,
apprentice welders, and welders' helpers in the boiler shop, to deter-
mine whether they desire to be represented by the I. A. M., by the
Amalgamated, or by neither.
2. Among the electricians to determine whether they desire to be
represented by the I. B. E. W., by the Amalgamated, or by neither.
3. Among employees within the classifications claimed by the Boiler-
makers to constitute an appropriate unit, but excluding welders, ap-
prentice welders, and welders' helpers in the repairs, machinery, and
equipment department, to determine whether they desire to be repre-
sented by the Boilermakers, by the Amalgamated, or by neither.
. 4. Among the pattern makers and pattern makers' apprentices to
determine whether they desire to be represented by the P. M. A., by
the Amalgamated, or by neither.
5. Among all remaining production and maintenance employees,
exclusive of supervisory and clerical employees, to determine whether
they desire to be represented by the I. M. U., by the Amalgamated,
or by neither.
In the event that a majority of the employees voting in one of these
groups choose the Amalgamated, all employees within that group will
be combined with employees within any other groups which similarly
choose the Amalgamated, to constitute a single unit for purposes of
collective bargaining. Thus, if the Amalgamated is accorded a ma-
jority on each of the five ballots, there will be a single appropriate
unit. Wherever a ballot results in a majority for one of the unions
other than the Amalgamated, employees within the classifications
covered by that ballot will constitute a separate unit for the purposes
of collective bargaining.
For the purpose of determining eligibility to vote, we shall direct
the use of the Company's last regular pay roll immediately preceding
this Direction of Elections, including employees who did not work
during such pay-roll period because they were ill or on vacation, but
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding those employees who have since quit or who have been
discharged for cause.
Upon the basis of the above findings of fact and upon the .entire
record in the case, the Board makes the-following:
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of United States Pipe & Foundry Company,
Bessemer, Alabama, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
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, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, it
is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with United
States Pipe & Foundry Company, Bessemer , Alabama, separate elec-
tions 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 Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among those employees of the United. States Pipe &
Foundry Company, Bessemer, Alabama, plant, who fall within the
.five groups described below Who were on the Company's last regular
pay roll immediately preceding the date of this Direction, including
employees who did not work during such pay-roll period because
they were ill or on vacation, and employees who were then or have
since been temporarily laid off, but excluding supervisory and cleri-
cal employees and those who have since quit or who have been
discharged for cause :
(,a). All machinists, apprentice machinists, toolmen, crane hookers,
blacksmith- shop employees, machinists' helpers, and the welders, ap-
prentice welders, and welders' helpers in the repairs, machinery, and
equipment department, to determine whether they desire to be repre-
sented by International Association of Machinists; Lodge No. 359, or
by Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge No. 2140, through Steel Workers Organizing
Committee, for the purposes of collective bargaining, or by neither;
(b) All electricians to determine whether they desire to be repre-
sented by International Brotherhood of Electrical Workers, Local
UNITED STATES PIPE & FOUNDRY COMPANY 1025
No. 698, or by Amalgamated Association of Iron, Steel and Tin Work-
ers of.North America, Lodge No. 2140, through Steel Workers Organ-
izing Committee, for the purposes. of collective bargaining, or by
neither ;
(c) All boilermakers and boilermakers' helpers, and the welders,
apprentice welders, and welders' helpers in the boiler shop, to deter-
mine whether they desire to be represented by International Brother-
hood of Boilermakers, Iron Ship Builders, Welders and Helpers of
America, Local No. 4, or by Amalgamated Association of Iron, Steel
and Tin Workers of North America, Lodge No. 2140, through Steel
Workers Organizing Committee, for the purposes of collective bar-
gaining, or by neither;
(d) All pattern makers and pattern makers' apprentices, to deter-
mine whether they desire to be represented by Pattern Makers. Asso-
ciation of Birmingham, Alabama, or by Amalgamated Association of
Iron, Steel and Tin Workers of North America, Lodge No. 2140,
through Steel Workers Organizing Committee, for the purposes of
collective bargaining, or by neither;
(e) All remaining production and maintenance employees to de-
termine whether they desire to be represented by International Mold-
ers' Union of North America, Local No. 342, or by Amalgamated
Association of Iron, Steel and Tin Workers of North America, Lodge
No. 2140, through Steel Workers Organizing Committee, for the pur-
poses of collective bargaining, or by neither.
MR. EDWIN S. SMITH, concurring :
Although the 1938 contract between the Company and the five.
American Federation of Labor unions was jointly negotiated and pro-
vided for general conditions applicable to all employees, I concur in
the decision. The record shows that-the P. M. A., the I. A. M., and
the I. M. U. had negotiated separately with the Company prior to
1938. The contract entered into in 1938, more than a year before the
S. W. O. C. sought to represent any employees, while jointly nego-
tiated,4 was so framed as to recognize the separate identity of the five
crafts and contemplated the presentation of grievances by the respec-
tive unions for their members. For these reasons, I concur in the de-
termination that the craft groups should be given an opportunity to
vote either to retain their separate bargaining status or to merge into
one industrial unit.b
Representatives of each of the five unions participated in the negotiations and the
contract was signed separately by them on behalf of their respective union.
"See my concurring opinions in Matter of American Hardware Corporation and United
Electrical and Radio Workers of America, 4 N . L. R. B. 412; Matter of Vultee Aircraft
Division, Aviation Manufacturing Corporation and United Automobile Workers of Amer-
ica, Local 361, 9 N. L . It. B. 32; Matter of The William Powell Company and Pattern
Makers Association of Cincinnati, 12 N. L. It. B. 115.