A. B. C. Welding & Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 20, 1946

68 N.L.R.B. 778 (N.L.R.B. 1946)

In the Matter of ANBACO CORPORATION , D/B/A A. B. C. WELDING &
MANUFACTURING COMPANY and INDEPENDENT UNION OF THE A. B. C.
WELDING & MANUFACTURING COMPANY
Case No. 3-R-1185.-Decided June 20, 1946
Mr. Cauncey M. Bacon, of Niagara Falls, N. Y., for the Company
Messrs . Bernard Levy and Robert Vaughn, of Niagara Falls, N Y,
for the Independent.
Mr. Neil J. Cunningham , of Buffalo, N. Y., for the Boilermakers
Union.
Mr. Bernard Dunau, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a first amended petition duly filed by Independent Union of
the A. B. C. Welding & Manufacturing Company, herein called the
Independent, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Anbaco Corporation, d/b/a
A. B C. Welding & Manufacturing Company, Niagara Falls, New
York, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Cyril W.
O'Gorman, Trial Examiner. The hearing was held at Buffalo, New
York, on May 1, 1946. The Company, the Independent, and the National
Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of
America, Local No. 7, AFL, herein called the Boilermakers Union,
appeared and participated. At the hearing a motion by the Boilermakers
Union to intervene was granted. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues . The Trial Examiner 's rulings
made at the hearing are free from prejudicial errors and are hereby
affirmed. All parties were afforded opportunity to file briefs with the
Board.
68 N. L. R. B, No. 104.
778
ANBACO CORPORATION 779
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Anbaco Corporation, d/b/a A. B. C. Welding & Manufacturing
Company is a New York corporation operating what is generally known
as a job contracting welding shop at its plant in Niagara Falls, New
York. From blueprints provided by its customers, it fabricates storage
bins, heat exchangers, material handling equipment, and various other
units. The Company is also a licensee authorized to fabricate chemical
processing equipment and control equipment. During the year preceding
the hearing, the Company purchased raw and processed materials, con-
sisting mainly of steel and ferrous alloys, valued in excess of $20,000,
over 75 percent of which, in their raw state, originated outside the State
of New York. During the same period of time, the Company shipped
about 71/2 percent of its finished products from its plant to points out-
side the State.
The Company admits, for the purposes of this proceeding only, and
we find, that it is engaged in commerce within the meaning of the
National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Independent Union of the A. B. C. Welding & Manufacturing
Company is a labor organization, admitting to membership employees
of the Company.
The National Brotherhood of Boilermakers, Iron Shipbuilders and
Helpers of America, Local * 7, is a labor organization affiliated with
the American Federation of Labor, admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On March 19, 1946, at a conference of the parties, the Boilermakers
Union objected to a consent election, to which the Company and the
Independent were agreeable, to determine the exclusive bargaining rep-
resentative of the Company's employees.
The Boilermakers Union contends that a collective agreement between
the Company and the International Association of Bridge, Structural
and Ornamental Iron Workers, Local # 9, is a bar to the present
proceeding. For reasons set forth in Section IV, this contention is
untenable.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
The work of the Company is divided into two categories, that which
is performed wholly within the plant, and that which is performed out-
side the plant on the customer's premises. The outside work consists
in the installation of units and the rearrangement of units in the cus-
tomer's plant. Pursuant to a collective agreement with the International
Association of Bridge, Structural and Ornamental Iron Workers, Local
No. 9, hereinafter referred to as the International, the Company exclu-
sively employs members of the International in the performance of its
outside work. When International members are not available the Com-
pany is authorized to use its plant employees provided such employees
obtain International work permits. The Independent contends that all
production and maintenance employees employed within the plant,
whether or not they are also engaged in outside work, constitute an
appropriate unit. The Boilermakers Union agrees that such a unit is
appropriate, but contends alternatively that the existing collective agree-
ment with the International is a bar to the present proceeding. The
Company assumes no position, choosing to rely on the Board's discretion
to determine the appropriate unit.
In the summer of 1943, a dispute arose between the Labor Council
of Niagara Falls, a joint council of building trade unions of Niagara
Falls, and the Company concerning the status of the Company's em-
ployees engaged in work outside its plant. The source of the dispute
was the concurrent presence on the job of the Company's employees and
members of constituent unions of the Labor Council. In settlement of
the disagreement the Labor Council orally notified the Company that it
could continue to perform outside work if it would enter a collective
agreement with the International. In July 1943, a written, integrated
contract was entered into by the Company and the International. The
contract in terms was between the International and the Builder's Asso-
ciation of Niagara Falls, New York, and vicinity. The Company was
not a member of the latter organization, but was a signatory to the
contract. In the administration of the agreement, concurred in by the
International and the Company, the Company employed exclusively
members of the International for its outside work, except when, due to
shortage of labor, the International was unable to supply the required
men. In that event, the Company used its plant employees for its outside
work who for the limited purpose of the particular job were granted
International work permits, and thereupon their conditions of employ-
ANBACO CORPORATION 781
ment were wholly governed by the collective agreement. The plant em-
ployees engaged in outside work with members of the International
sometimes instructed the latter concerning the details of the job, but
such supervision did not involve any authority to hire, discharge, disci-
pline, or effectively recommend such action. At no time did the
International or the Company regard their collective agreement as gov-
erning the activities of the Company's employees working within the
plant. The contract is automatically renewable annually, and continued
in full force and effect on the date of the hearing.
The contract between the International and the Company does not
cover the activities of the employees within the plant, and is, accordingly,
not a bar to the present proceeding. It is evident that the sole remaining
question is the propriety of including within the unit such of the com-
pany's plant employees who are also engaged in work away from the
plant. The occasional utilization of the Company's plant employees in
outside work does not diminish their concern with the conditions of
employment within the plant. Nor is the variability of their situs of
employment such a divergent factor as to make their presence in the
same unit with employees employed wholly within the plant incompatible.
The history of collective bargaining between the International and the
Company demonstrates the feasibility of dividing the subject matter of
collective bargaining into that which concerns conditions of employ-
nrient within the plant and that which concerns conditions of employment
away from the plant. A unit composed of all production and maintenance
employees, including those engaged in outside work, is appropriate for
the purpose of collective bargaining concerning the conditions of employ-
ment within the plant.'
We find that all production and maintenance employees of the Com-
pany, but excluding office and clerical employees and all supervisory
employees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, constitute 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 shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
irnmeaiately preceding the Direction of Election herein, subject to the
limitations and additions set forth in the Direction.
' See Matter of Wadham's Division of Socony.Vacuum Oil Company , 54 N. L. R. B. 1164;
Matter of Carlisle & Jacquelin, 55 N. L. R B. 678; Matter of Consolidated Steel Corporation,
Ltd., 57 N . L. R. B. 921 ; Matter of Underwood Machinery Company, 59 N L. R. B. 42.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Anbaco Corporation,
d/b/a A. B. C. Welding & Manufacturing Company, Niagara Falls,
New York, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this Direc-
tion, under the direction and supervision of the Regional Director for
the Third Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among 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 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 those employees who have since quit or been
discharged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by Boilermakers, Iron Shipbuilders and Helpers of America,
Local #7, affiliated with the American Federation of Labor, or by Inde-
pendent Union of the A. B. C. Welding & Manufacturing Company,
for the purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.