United States Pipe & Foundry Co.

National Labor Relations Board - Board Decisions

Dec 31, 1941

37 N.L.R.B. 1150 (N.L.R.B. 1941)

In the Matter of UNITED STATES PIPE & FOUNDRY COMPANY and
FEDERAL UNION #19403, AMERICAN FEDERATION OF LABOR
Case No. R-3223.-Decided December 31, 1941
Jurisdiction : cast-iron pipe manufacturing and sales industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition ; conflicting claims of rival representatives ;
name of competing organization which submitted no proof of membership
- among employees in the appropriate unit, omitted from the ballot; election
necessary.
Unit Appropriate for Collective Bargaining : all office employees and time-keepers
at one of the plants of a cast-iron pipe manufacturing concern, excluding
supervisory employees, the draftsman, safety engineer, and purse ; em-
ployees in the production and maintenance departments who spend the
majority of their time in clerical work included, notwithstanding the con-
tention of another labor organization that they had already been certified
to it, where clerical employees were excluded from -the unit of production
and maintenance employees found appropriate in the prior election.
Cabaniss c Johnson, by Mr. Jelks H. Cab anise, of Birmingham,
Ala., for the Company.
Mr. Robert R. Moore, of Birmingham, Ala., for the Federal.
Mr. Wm. E. Mitch and Mr. Yeliverton Cowherd, of Birmingham;
Ala., for the S. W. O. C.
Mr. Ralph S. Clifford, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 18, 1941, Federal Union #19403, affiliated with the
American Federation of Labor, herein called the Federal, filed with
the Regional Director for the Tenth Region (Atlanta,, Georgia) a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of United States Pipe &
Foundry Company,' Bessemer, Alabama, herein called the Company,
1 The formal papers in this proceeding designated the Company as, "U. S . Cast Iron Pipe
and Foundry Company." At the hearing, a motion by the Federal , to amend the title
37 N. L. R. B., No. 195.
1150
UNITED' S/rATE!S PIPE'-&• FOUNDRY COMPANY __ 1151
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 October 18; 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 con-
duct it and to provide for an appropriate' hearing upon due notice.
On October 24, 1941, the Regional Director issued a notice of
hearing, and on'October 28, 1941, an amended notice of hearing, and
copies of both were duly served upon the Company, the Federal, and
Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, herein called the S. W. 0. C., a labor
organization claiming to represent employees directly' affected by the
investigation. Pursuant to notice, a hearing was held on October 30,
1941, at Birmingham, Alabama, before James W.'Dorsey, the Trial
Examiner duly designated by the Chief Trial Examminer.' The-Com-
pany, the Federal, and the S. W. O. C. were represented by counsel
or other representatives and participated in the hearing. -Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made-various
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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
United States Pipe & Foundry Company, a New Jersey corpora-
tion, is engaged in the manufacture and sale of cast iron pipe, special
foundry castings, and special machinery at its plant in Bessemer,
Alabama. Approximately 10 percent of the raw materials used in
its operations is purchased in States other than the State of Alabama
and approximately 90 percent of the products manufactured-by the
Company, having an annual value in excess of $1;000,000, is sold and
distributed outside the State of Alabama. The-Company normally
of the proceedings to read "United States-Pipe & Foundry Company," was referred to the
Board by the Trial Examiner. The Trial Examiner also moved that all of the papers in
the proceeding be amended to conform with the motion made by the Federal Tpe Company
did not object to the motions and the representative of the Company stated that the motion
by the Federal correctly states the name of the Company. The motions are hereby granted.
1152 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
employs. approximately 950 production. and maintenance employees
and, approximately 40 clerical 'and supervisory employees.
The Company admits that it is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Federal Union' $k 19403, affiliated with the American Federation
of Labor, is a labor' organization admitting to membership employees
of the Company.
Steel Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a,labor organization admitting to
membership employees of the Company.
III; THE QUESTION CONCERNING REPRESENTATION '
From August 5, 1941, until October 9, 1941, the Federal held sev=
eral conferences with the Company, but the Company refused to
recognize or bargain with the Federal. The record indicates that the
Federal represents a substantial number of employees in the unit it
claims to be appropriate.2
We find that a question has arisen concerning the representation of
employees 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
The Federal,' in its petition, alleged as appropriate for bargaining
a unit of office employees and timekeepers employed at the.Bessemer
.plant of the Company. At the hearing, the Federal took the position
that the proposed unit should include clerks in the main' office, in the
.timekeeper's office, in the store room, and in the shipping room; watch-
men; the nurse; the draftsman; and the safety engineer.
' 2 The Regional Director 's report discloses that the Federal submitted 26 signed applica-
tion cards , 25 of which bear apparently genuine signatures , and that 23 of such signatures
are the names of persons whose names are on the Company ' s pay roll for the period ending
nearest October 15, 1941. The record indicates that the Company employs approximately
35 clerical and semi-clerical employees.
The S. W. O. C. submitted no evidence of representation among the employees in the
unit claimed by the Federal to be appropriate.
'UN'IT 'ED 'STATE 'S-PIPE ' & FOUNDRY COMPANY ` 1153
The S.- W; 0. C. contends that the unit proposed by the' Federal
`s`hould be - restricted to office employees and timekeepers, and that
employees who operate throughout the plant, as a part of the pro-
duction and maintenance operation of the Company, should not be
included in the unit.3 The Company takes no position as to -the
appropriate unit.
The Federal and the S. W. 0. C. are agreed, and we find, that office
employees and timekeepers employed by the Company should be
included in the unit.
We are also of the opinion, and herewith find, that employees
working in the production and maintenance departments who spend
the majority of their time in clerical work should be included in
the unit. The principal issue in this proceeding is whether the
duties of 16 employees, hereinafter discussed, are clerical4
Bruner and Barnett: The resident manager of the Company, testi-
fied that the Company classifies Bruner and Barnett as clerical
employees in connection with the Walsh-Healy Act.S Bruner is
employed as a timekeeper for the maintenance employees and Barnett
as a timekeeper in the Special Foundry, where he checks time, posts
the time -in the ledger, and apportions labor costs. Bruner testified
that he did not attempt to vote in the previous election and that he
was told by a representative of the Company and a representative
of the Board that he was ineligible to vote. Barnett was not an
employee of the Company at the time of the previous election.
Since the record shows that the duties of Bruner and Barnett are
clerical we shall include them in the unit.
Howard Knight, and Harris.-The resident manager testified that
the Company classifies these employees as 'custodial employees and
that they serve as watchmen. ' Their duties as watchmen include
punching the time, clocks and opening and closing the plant • gates.
The S. W. O . C contends that the unit sought to be established by the Federal would
include employees now represented by the S. W. O. C. who voted in a previous election
conducted by the Board , as production and maintenance employees . However, the record
does not sustain this contention of the S. W. 0 C. The , record discloses that on January
29, 1940, the Board, in its Direction of Elections in Matter of Untited States Pipe h
Foundry Company and Steel Workers Organizing Committee, directed elections to determine
the desires of the employees in each of the following classifications : ( a) machinists, (b)
electricians , ( c)`boilermakers , ( d) iatternmakers , (e) all remaining , production and main-
tenance employees . In its supplemental Decision and Certification of Representatives, the
Board certified the International Brotherhood of Boilermakers, the Patternmakers Asso-
ciation, International Association of Machinists , Lodge No 359 , and International Brother-
hood of Electrical Workers, Local No 698, as the representatives of their respective craft
groups, and the S. W. O. C. as the representative of all remaining production and mainte-
nance employees . Supervisory and clerical employees were excluded from the units and the
Federal was not a party to the proceedings . See 19 N. L. R . B. 1016 and 21 N. L- R. B.
671.
4 The record does not disclose whether any of these employees participated in the previous
election as production or maintenance employees.
s The classifications of the employees, herein listed , as given' by the resident manager
of the Company, are based on the Company 's interpretation of the Walsh -Healy Act.
1154 DECISIONS OF NATIONAL LABOR REiLATIONS BOARD
However, they" spend approximately 60, percent of their time in the
time office performing clerical work. Their clerical duties include
pay-roll work; time posting, the making out of checks, and the prepa-
ration of home office reports, except that Harris does not make out
checks. They spend approximately five minutes of each hour in mak-
ing their rounds as watchmen.
We find that the work performed by Howard, Knight, and Harris is
predominantly clerical in nature and closely related to the duties of
other clerical employees in the time office. We shall therefore include
Howard, Knight, and Harris in the unit:
Sides.-Sides is classified as a• custodial employee. He spends'three
nights a week performing watchman-clerical duties similar to the
-duties performed by Howard, Knight, -and Harris. 'However, he
spends two nights per week working outside as a watchman, "walking
fence." • We find that, Sides spends a large percentage of his time
doing clerical work; that his duties are primarily clerical,, and that his
interests are closely related to the other clerical employees-of the Com-
pany., We shall include Sides in the unit.
Whatley.-Whatley is classified by the Company as a production
employee. He has only recently been hired. It is presently his duty
.to assist in taking the annual inventories of the stores. The resident
manager testified that•the Company intends to retain him permanently
as a regular utility clerk if he proves satisfactory. In view of the
fact that'Whatley's present duties are ,clerical and the Company in-
tends to use him as a utility clerk, we shall include him in the unit.
Draftsman.-The Company classifies the draftsman, who works as
an apprentice draftsman, as a production employee. He works in the
drafting department, and elsewhere in the plant when needed. The
evidence indicates that the draftsman is not a clerical, but a technical
employee. We shall exclude the draftsman from the unit.
Safety engineer.-The Company classifies the safety engineer as a
supervisor, although he might be called a production employee. He
is in general charge of the safety'department, but does not have the
power,to hire or discharge. The resident manager testified that the
safety engineer spends approximately 50 percent of his time actually
supervising safety work throughout the plant, and that he also has
.charge of ordering and shipping molds, and making recommendations
as to the purchases of new or additional molds.
We find that the duties of the safety engineer are of a character
which align him with interests of the Company, and that his duties
and interests are not similar, to those of the clerical employees. We
shall exclude the safety engineer from the unit.
Nurse.-The resident manager testified that the Company classifies
the nurse as a ,custodial maintenance employee and that approximately
five percent of her time is devoted to keeping records of accidents and
UNITED STATES PIPE ' & FOUNDRY COMPANY ,- , 1155
injuries and making reports to the general office. We shall exclude
the nurse from the unit.
Bainbridge, Bradford, Roberts, and Kinard.-These four em-
ployees- are classified by the Company as production 'employees.. They
are all• employed in the shipping department. Bainbridge spends
approximately 50 percent of his time preparing shipping schedules.
Bradford devotes from 60 to 70 percent of his time to weighing,
checking, and listing cars, and approximately 40 percent of his time
recording this information e Roberts and Kinard check and stencil
pipe, test the weights and numbers, supervise other pipe stenciling,
check shipping marks on pipe, and check pipe in the cars.
Since the Company classifies these four men' as production em=
ployees and 50 percent or more of their work is manual rather than
clerical, we conclude that their interests for purposes of collective
bargaining are more closely related to those of production and main-
tenance employees than to the clerical group. ' We shall` therefore
exclude Bainbridge, Bradford, Roberts, and Kinard from the- unit.
Green and Paschal.-The Company classifies Green and Paschal as
production employees. They are employed in the store room. The
record discloses that the store room is "where they keep the spare
parts, and material that they need," and that the store .room em-
ployees ". . . just fill those requisitions as they are brought
in . . ." Green records the receipts and disbursements of ima-
terials to and fr'om,the store room. It is Paschal's duty-to issue and
receive oil, waste, grease, bolts, and "materials of variou's kinds;" and
record materials so handled on requisitions furnished by the store-
room foreman. -
We conclude that Green and Paschal are not primarily clerical
employees, and that they are, functionally and in their interests,
closely related to the production and maintenance employees of the
Company. We shall exclude Green and Paschal from the unit. -
We find that all office employees, timekeepers, and employees work-
ing in the production and maintenance departments who spend the
majority of their time in clerical work, employed by the Company at
its Bessemer, Alabama, plant, including Bruner, Barnett, Howard,
Knight, Harris, Sides, and Whatley, but excluding .supervisory em-
ployees, the draftsmen, the safety engineer, the.nurse, Bainbridge,
Bradford, Roberts, Kinard, Green, and Paschal, 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 and to collective bargaining, and other-
wise will effectuate the policies of the Act.
a Although on cross-examination the resident manager evidenced some doubt as to the
exactness of this testimony , he insisted that Bradford 's duties are primarily production in
nature.
1156 DECI91IONS OF, NATIONAL- LABOR RELATIONS BOARD
VI.. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning, the repre-
sentation of employees of the Company can best be resolved by an
election by secret ballot and we shall so direct. Since the S. W. O. C.
submitted no proof of membership among the employees in the unit
found appropriate, we shall exclude it from the ballot. The Federal
takes the position that eligibility should be determined by the pay-
roll period ending November 1, 1941. The Company took no posi-
tion, as to an eligibility date. Inasmuch as no reason appears in the
record why a current pay roll should not be used, we shall, in accord-
ance with our usual, practice, direct that all employees of the Com-
pany in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of this Direction of Election,
subject,to the limitations and additions set forth in the Direction;
shall be eligible to vote.
Upon the basis of the above findings of fact and upon 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 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.
2. All office employees, timekeepers, and employees working in
the production and maintenance departments who spend the majority
of their time in clerical work, employed by the Company at its
Bessemer, Alabama, plant, including Bruner, Barnett, Howard,
Knight, Harris, Sides, and Whatley, but excluding supervisory em-
ployees, the draftsman, the safety engineer, the nurse, Bainbridge,
Bradford, Roberts, Kinard, Green, and Paschal, 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 Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as a part 'of the investigation authorized by the
Board to ascertain representatives for the purposes of collective-bar-
gaining with United States " Pipe & Foundry Company, -: Bessemer,
UNITED STATES PIPE & FOUNDRY COMPANY 1157
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 Di-
rector for the Tenth 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 office employees, time-
keepers, and employees working in the production and maintenance
departments who spend the majority of their time in clerical work,
employed by the Company at Bessemer, Alabama, plant, who were
employed during the pay-roll period immediately preceding the date
of this Direction, including Bruner, Barnett, Howard, Knight,
Harris, Sides, Whatley, and 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 supervisory employees, the draftsman, the
safety engineer, the ' nurse, Bainbridge, Bradford, Roberts, Kinard,
Green, Paschal, and employees who have since quit or been discharged
for cause, to determine whether or not they desire to be represented
by Federal Union #19403, affiliated with the American Federation
of Labor.
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