United States Stamping Co.

National Labor Relations Board - Board Decisions

Jan 13, 1936

1 N.L.R.B. 123 (N.L.R.B. 1936)

0
In the Matter Of UNITED STATES STAMPING COMPANY and PORCELAIN
ENAMEL WORKERS' UNION No. 18630
Case No. R-14
DIRECTION FOR ELECTION
January 13, 1936
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 of the National Labor Relations
Act, approved July 5, 1935, and pursuant to Article III, Section 8
of the National Labor Relations Board Rules. and Regulations-
Series 1, it is
DIRECTED that as part of the investigation authorized by the Board
in the above case to ascertain representatives for collective bargaining
with the United States Stamping Company, Moundsville, West Vir-
ginia, an election by secret ballot shall be conducted within a period
of one week from the date of this direction of election, under the
direction and supervision of the Regional Director for the Sixth
Region, acting in this matter as the agent of the National Labor
Relations Board and subject to Article III, Section 9 of said Rules
and Regulations, among the employees engaged in the production and
maintenance department of the United States Stamping Company
on November 5, 1935 and those employed between that date and the
date of this direction of election in the production and maintenance
department, excepting foremen, assistant foremen, supervisory and
clerical employees, and those who quit or have been discharged for
cause during such period, to determine whether or not they desire to
be represented by the Porcelain Enamel Workers' Union No. 18630.
I SAME TITLE]
Decision , February 11, 1936
Stamping and Enameling Industry-Strike-Representatives: proof of choice :
comparison of cancelled pay-roll checks with statements designating; member-
ship in union-Unit Appropriate for Collective Bargaining: community of inter-
est ; functional coherence ; employees on hourly and piece rate basis; distinc-
tiveness of occupation ; production and maintenance employees-Election Or-
dcied: question affecting commerce: prior strike caused by employer's refusal
123
124 NATIONAL LABOR RELATIONS BOARD
to recognize representatives-controversy concerning repre,3entation of em-
ployees majority status disputed by employer ; request by substantial number
in appropriate unit-Certification of Representatives.
Mr. Robert H. Kleeb for the Board.
Mr. Martin Brown, of Moundsville , W. Va., for the Company.
Mr. Joseph Rosenfarb, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 4, 1935, H. G. Flaugh, an organizer of the American
Federation of Labor and representing the Porcelain Enamel Work-
ers' Union No. 18630, hereinafter called the union, filed with the Re-
gional Director for the Sixth Region a petition for an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, approved July 5, 1935. The petition
alleges that the union represents approximately 283, employees out
of about 414 in the production and maintenance department of the
United States Stamping Company, Moundsville, West Virginia,
hereinafter called the company, that no other individuals or labor
organizations claim to represent any of the employees, and that a
question has arisen concerning the representation of the employees.
The petition further alleges that the question concerning representa-
tion is one affecting commerce within the meaning of Section 2 (7)
of the Act.
On November 12, 1935, the Board, pursuant to Article III, Section
3 of National Labor Relations Board Rules and Regulations-Series
1, authorized the Regional Director for the Sixth Region to conduct
an investigation and to provide for an appropriate hearing upon due
notice. Notice of hearing was issued and duly served, and hearings
were held on November 25th and 27th, 1935, before a Trial Exam-
iner designated by the Board.
The company, through its counsel, filed a motion to dismiss the
petition and an answer wherein, inter alia, the constitutionality of
the National Labor Relations Act was raised and the position taken
that the case was not within the jurisdiction of the National Labor
Relations Board. The company was represented at the hearing by
counsel who cross-examined the witnesses called by the Board but
who introduced no evidence in behalf of the company. The motion
to dismiss the petition is hereby denied.
From the evidence adduced at the hearing and from the entire
record now before it the National Labor Relations Board promul-
gates the following:
DECISIONS AND ORDERS
FINDINGS OF FACT
125
1. The United States Stamping Company is a corporation created
and existing under the laws of the State of West Virginia and has
its principal office, main plant and place of business in the City of
Moundsville, in the County of Marshall and State of West Virginia.
It is engaged in the manufacture, sale and distribution of enamel
cooking utensils.
2. A great variety of materials, including cartons, steel, enamel,
oxides, flint, borax, clay, feldspar, sand, acid, bailwoods, excelsior,
silicates, wire, chrome covers, wooden handles, knobs and oil board,
is used in the manufacture of the finished products of the company,
95 per cent of which is purchased from without the State of West
Virginia, f. o. b. shipping point.
At least 90 per cent of the company's finished products is normally
shipped to destinations outside of the State of West Virginia, to
points in almost all of the States of the United Sates, all sales being
made f. o. b. Moundsville, West Virginia.
The shipments to and from the company are by freight, express,
trucks and boats of independent companies. The following freight
figures covering shipments to and by the company over the Baltimore
& Ohio Railroad, representing likewise the approximate average for
express shipments, were picked at random by the agent for that
Railroad :
SHIPMENTS TO COMPANY
1935 From States outside West Virginia
Within State
of West
Virginia
August ------------------------------------- 9 carloads ------------------------------- None
September--------------- ----------------- 7 carloads --------------------------------- 1 carload.
October------------------------------------ 7 carloads --------------------------------- None
SHIPMENTS FROM COMPANY
To States outside West Virginia
Within State
of West
Virginia
Aug 12------------------------------------- 26 shipments------------------------------ 1 shipment.
Aug 13 ------------------------------------ 49 shipments ----------------------------- 1 shipment
Sept 24------------------------------------ 43 shipments ----------------------------- I shipment
Sept 25--- -------------------------------- 30 shipments ------------------------------ None
Oct 8--------------------------------------- 28 shipments ------------------------------ 1 shipment.
Oct 9 --------------------------------------- 16shipments ------------------------------ None.
3. In 1933, Local No. 18630 of the Porcelain Enamel Workers'
Union, a labor organization affiliated with the American Federa-
tion of Labor, was organized among the employees of the United
States Stamping Company. The Financial Secretary of the union
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126 NATIONAL LABOR RELATIONS BOARD
testified that the paid-up membership of the union was 229 at the
time of the hearing.
During June of 1935 difficulties arose between the management
and the committee of the union over the negotiation of a new col-
lective agreement concerning wages, hours and conditions of work.
The management refused to deal with the committee on the ground
that the union did not represent a majority of the employees of
the company.
4. On August 17, 1935, the union held a meeting which was
open to all of the employees of the production and maintenance de-
partment of the company. At this meeting cards of identical tenor
were circulated among those present addressed to the National Labor
Relations Board, marked "(Strictly Confidential) For Government
Use Only", designating the Porcelain Enamel Workers' Union No.
18630 as the agency for collective bargaining with the company, "for
the purpose of negotiating an agreement on wages, hours and work-
ing conditions and for the purpose of other mutual aid and protec-
tion." 282 such cards were signed at the meeting and subsequently,
and were then turned over to Ernest Dunbar, an Examiner of the
National Labor Relations Board. Dunbar advised Mr. F. S. Earn-
shaw, Secretary and Treasurer of the company, that the cards repre-
sented a majority of the production and maintenance employees, but
Mr. Earnshaw still refused to meet the committee of the union for
the reason that the union did not represent a majority of the em-
ployees and for the further reason that he would, under no circum-
stances, deal with the representatives of a union, especially one affil-
iated with the American Federation of Labor, but would meet them
as representatives of the employees of the company.
5. Dunbar, with the consent of Earnshaw, compared the signa-
tures on the cards with the signatures on cancelled checks of em-
ployees supplied by the company. He found the signatures on 242 of
the cards to be the same or identical with those on the cancelled
checks, 19 signatures on the cards to be doubtful, and 21 to be
impossible of location among the checks.
This would give the union a clear majority of the 411 produc-
tion and maintenance employees whom the company employed dur-
ing this period. However, the evidence presented by the cards is
entirely ex parte in character. Although the Board may of course
act on ex parte evidence and make findings of fact based thereon, we
feel that under all the circumstances of this case an election should
be held.
6. Failing to obtain recognition of the union for bargaining pur-
poses after repeated unsuccessful attempts to settle the matter ami-
cably, the employees of the company went out on strike on or about
November 6, 1935, causing a complete shutdown of the company's
0
DECISIONS AND ORDERS 127
plant. The value of shipments from the company, which for the
period of two weeks prior to the date of the strike amounted to
$50,000, over 90 per cent of which was interstate, dropped to $7,000
for the three days succeeding the strike, and then the shipments ceased
altogether except for desultory parcel post or express shipments. The
shipment of raw materials to the company, 95 per cent of which was
also interstate, must have been correspondingly affected, although
no evidence on the point appears in the record.
7. As reported to the West Virginia Compensation Board, the
United States Stamping Company had a total of 460 employees as
of October 31, 1935, exclusive of officials of the company. Of this
number there were 27 employed on the office force, 15 were fore-
men and assistant foremen, and 7 have since been laid off, leaving
a total of 411 employed in production and maintenance.
The office force includes typists, clerks and the sales manager. In
general, it is clear that they constitute a group with functions sharply
distinguished from that of the employees engaged in actual pro-
cessing operations, are paid on a salary basis as against piece-rate
and hour-rate bases governing the production and maintenance
group, are paid on the 15th and 30th of each month while the pro-
duction and maintenance employees are paid on the 7th and 23rd
of each month, and are regarded by the latter and by themselves as a
distinct department. At the hearing they made no claim to be recog-
nized as an independent bargaining unit or to be included in a total
employer unit.
The foremen, and assistant foremen are paid respectively on a
salary and an hourly basis and ought also to be excluded as having
supervisory authority and duties that relate them more directly to
the management than to the workers.
The one unit clearly defined as to function and interest in estab-
lishing a mechanism for collective bargaining is the production and
maintenance unit engaged in the actual processing of enamelware
and incident activities, and not the total number of employees of the
company as contended for by counsel for the company. The produc-
tion and maintenance department was described in the testimony as
consisting of welding, press, enameling, dipping, spraying, beading,
baking, packing, shipping, pickling, maintenance, day laborers and
night watchmen.
CONCLUDING FINDINGS OF FACT AND CONCLUSIONS OF ,LAW
1. The United States Stamping Company is a corporation created
and existing under the laws of the State of West Virginia and has
its principal office, main plant and place of business in the City of
Moundsville, County of Marshall and State of West Virginia. It is
engaged in the manufacture and sale of enamel cooking utensils. As
128 NATIONAL LABOR RELATIONS BOARD
of October 31, 1935 it employed 411 persons engaged in the produc-
tion and maintenance department.
2. A great variety of materials is used in the manufacturing of
the finished products of the company, 95 per cent of which is pur-
chased from without the State of West Virginia, f. o. b. shipping
point. At least 90 per cent of the company's finished products is
normally shipped to destinations outside of the State of West Vir-
ginia to points in almost all of the states of the United States, all
sales being made f. o. b. Moundsville, West Virginia.
3. The Porcelain Enamel Workers' Union No. 18630 is a labor
organization organized in 1933 and affiliated with the American Fed-
eration of Labor, whose membership is composed of employees of
the company engaged in the production and maintenance depart-
ment. The Financial Secretary of the union testified at the hearing
that the paid-up membership of the union was then 229. The evi-
dence tends to indicate that 242 employees in the production and
maintenance department have designated the union as their repre-
sentative for the purposes of collective bargaining.
4. The employees engaged in the production and maintenance de-
partment of the company constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of
the Act.
5. Repeated attempts have been made by the union to negotiate
with the management of the company as the authorized representa-
tive of the production and maintenance employees for the purpose
of collective bargaining. The company refused to deal with the
union as the representative of the employees of the company engaged
in the production and maintenance department for the purpose of
collective bargaining, for an alleged reason, inter alia, that the union
did not represent a majority of the production and maintenance
employees of the company.
6. This controversy finally led on November 6, 1935 to a strike of
the employees of the company, precipitating a complete shutdown of
the production plant of the company and a cessation of production,
with a consequent interruption of commerce and the free flow of
commerce.
7. A question concerning representation has arisen among the pro-
duction and maintenance employees of the company, within the
meaning of Section 9 (c) of the Act.
8. The question concerning representation which has arisen has
led and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
9. It is the conclusion of the National Labor Relations Board that
a question affecting commerce has arisen concerning the representa-
DECISIONS AND ORDERS 129
tion of the production and maintenance employees of the United
States Stamping Company, within the meaning of Section 9 (c) of
the Act, and that an election by secret ballot should be conducted
to ascertain who shall represent such employees.
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
February 11, 1936
A petition for certification of representatives having been duly
filed, an investigation and hearing having been duly authorized and
conducted, and an election by secret ballot having been conducted on
January 20, 1935 among the production and maintenance employees
of the United States Stamping Company, located at Moundsville,
West Virginia, pursuant to the National Labor Relations Board's
Direction for Election dated January 13, 1935, and an intermediate
report finding that Porcelain Enamel Workers' Union No. 18630 had
been selected by a majority of such employees having been prepared
by the Regional Director for the Sixth Region and served upon the
parties, and no substantial and material issue with respect to the
conduct of the ballot having been raised by the objections filed with
this Board by the Company, pursuant to Article III, Section 9 of
National Labor Relations Board Rules and Regulations-Series 1,
THEREFORE, 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, approved July 5, 1935, and pursuant to Article
III, Section 8 of National Labor Relations Board Rules and Regu-
lations-Series 1,
IT IS HEREBY CERTIFIED that Porcelain Enamel Workers' Union No.
18630 has been selected by a majority of the production and main-
tenance employees of the United States Stamping Company as their
representative for the purposes of collective bargaining and that
pursuant to the provisions of Section 9" (a) of said Act, Porcelain
Enamel Workers' Union No. 18630 is the exclusive representative
of all the production and maintenance employees of the United
States Stamping Company for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.
MR. SMITH took no part in the consideration of the above Certi-
fication of Representatives.