American Fork & Hoe Co.

National Labor Relations Board - Board Decisions

Jun 25, 1940

24 N.L.R.B. 977 (N.L.R.B. 1940)

In the Matter of AMERICAN FORK & HOE COMPANY ( SKELTON SHOVEL
WORKS ) and SHOVEL PLANT EMPLOYEES ASSOCIATION OF DUNKIRK,
NEW YORK
Case No. R-1868.-Decided June 25, 1910
Shovel Manufacturing Industry-Investigation of Representatives : contro-
versy. concerning representation of employees : rival organizations-Unit Ap-
propriate for Collective Bargaining : production and maintenance employees
exclusive of office employees , foremen, assistant foremen, and watchmen ; agree-
ment of parties except as to watchmen , who were excluded-Representatives:
eligibility to participate in choice : employees laid off because of seasonal decline
in work of plant to be included-Election Ordered : pay roll. preceding lay-off
to be used, but any new employees hired between date of said pay roll and
date of Direction of Election to be included.
Mr. Herman. A. Bayless, of Cincinnati, Ohio, for the Company.
Mr. Lloyd Taylor, of Dunkirk, N. Y., for the Association.
Mr. Joseph P. Jllolony, of Buffalo, N. Y., for the S. W. O. C.
Miss Grace McEldowney, of counsel to the Board.
DECISION,
AND .
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 20, 1940, Shovel Plant Employees Association of Dun-
kirk, New York, herein called the Association, filed with the Re-
gional Director for the Third Region (Buffalo, New' York) in:
petition, and on April 22, 1940; an amended petition, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of American Fork & Hoe Company (Skelton Shovel
Works), Dunkirk, New York, herein called the Company, and re-
questing an investigation and certification of representatives pur-
suant to Section 9 (c) of the National Labor Relations Act, 49 Stat.
449, herein called the -Act. On May 13, 1940, 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 Rela-
tions Board Rules and Regulations-Series 2, as amended, ordered an
investigation and authorized the Regional Director to conduct it and
to provide for an appropriate hearing upon due notice.
24 N. L. R. B., No. 103. 977
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 20, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Association,
and Steel Workers Organizing Committee, herein called the S. W.
O. C., an organization claiming to represent employees directly af-
fected by the investigation. Pursuant to the notice, a hearing was
held on May 29, 1940, at Dunkirk, New York, before Peter Crotty,
the Trial Examiner duly designated by the Board. At the beginning
of the hearing, the S. W. O. C. moved to intervene. This notion
was granted. by the Trial Examiner. The Company and the S. W.
O. C. were represented by counsel and the Association by its secre-
tary, all of whom'participated in the hearing. Full opportunity 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 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,
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Fork & Hoe Company is an Ohio corporation with fac-
tories in several States. The present proceeding involves only its
plant at Dunkirk, New York, known as the Skelton Shovel Works,
where the Company is engaged in the manufacture, sale, and distribu-
tion of shovels. The work of the plant is seasonal, the peak period
being from August-or September until April or May. At normal
capacity 135 to 140 persons are employed.
The principal raw materials used by the Company are wood and
steel. Of ' the raw materials purchased between May 1, 1939, and
May 1, 1940, valued at approximately $299,782.96, over 68 per cent
were derived from sources outside, the State of New York. During
the same period the finished products were valued at approximately
$842,726.97. Of these, over 89 per cent were shipped out of the State:
H. THE• ORGANIZATIONS INVOLVED
Shovel Plant Employees Association of. Dunkirk, New York, is an
unaffiliated labor organization admitting to membership employees
of the Company at its plant at Dunkirk, New York.
Amalgamated Association of Iron, Steel and Tin Workers of North
America is a labor organization represented by Steel Workers Organ-
izing Committee of the Congress of Industrial Organizations, ad-
mitting to membership employees engaged in the. steel. industry.
AMERICAN FORK & HOE COMPANY 979
Lodge 2189 of the Amalgamated Association of Iron, Steel and Tin
Workers of North America, herein called the Amalgamated, is com-
posed. of employees of the Company at the Dunkirk plant.
III. THE QUESTION CONCERNING REPRESENTATION
On March 27, 1940, the Amalgamated requested a conference with
the Company for the purpose of negotiating a collective bargaining
contract. On the same day, the Association presented to the.Com-
pally a memorandum stating. its demands and asserting that it had
34 members. This was followed on April 9, 1940, by the presenta-
tion of a statement of the purpose and bylaws of the Association.
The Company on April 15, 1940, acknowledged. receipt of the claims
of both unions, and suggested that they petition the Board .for an
election. The Association thereupon filed its petition in the present
proceeding.
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.
N. THE APPROPRIATE UNIT
The Association and the S. W. O. C. agree that the appropriate- unit
should include-.the production and maintenance employees of the.
Company,, exclusive of office employees, foremen, and. assistant fore-
men. The unions differ, however, as to the inclusion or exclusion of
watchmen. The Company.takes' no position in the matter.
There are but two watchmen in the plant, who perform their duties
for the' most part when 'the plant is not in actual operation. The
Association regards them as maintenance employees and feels that
they should be. included in the unit. The S. W. O. C., on the other
hand, likens watchmen to policemen, and urges their exclusion. In
support of this position, it points out that. watchmen owe an allegiance
to the Company that. is not required of production and maintenance
employees. Watchmen - are not eligible to membership in lodges
affiliated with, the S. W. O. C., under the rules and procedure adopted
at their International Convention. Although watchmen might appro-
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priately be included in a unit with production and maintenance'
employees in the absence of any objection on the part of either labor
organization involved, we shall exclude them in this case in accordance
with our usual practice when one of the unions desires their exclusion.'
We find that the production and maintenance employees of the
Company, exclusive of office employees, foremen, assistant foremen,
and watchmen, constitute a unit appropriate for the purposes of collec-
tive bargaining and that such unit will insure to employees of the
Company the full benefit of their right to self-organization and to
collective 'bar'gaining and will otherwise effectuate the policies of
the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing the Trial Examiner. presented a statement of the
Regional Director to the effect that the Association had submitted a
petition bearing 53 signatures, and the Amalgamated had submitted
96 authorization cards in support of their respective claims to rep-
resent employees of the Company. We find that the question ,con-
cerning representation can best be resolved by means of an election
by secret ballot, and we shall direct the holding of such an election.
Because of the seasonal nature of the business of the Company,' the
S. W. 0. C. desires to have the pay roll of March 2, 1940, including 45
employees laid off on March 5, used to determine eligibility to vote.2
Neither the Association nor the Company offers any objection to this
procedure, but the Company states that it may result in the inclusion
of voters who will never be reemployed by the Company. Although
the practice of the Company is to recall former employees as the work,
increases, the completion of additional storage facilities now under
construction will enable it to 'build up larger stocks and allegedly to
maintain a more even pay roll in the future.
Since neither the Association nor the Company objects to partici-
pation in the •election by-the employees laid off on March 5, and since
the evidence shows that they will be reemployed as the work of the
Company permits, we are of the-opinion that they have retained their
employee status, and we shall therefore permit them to vote in. the
election of representatives.' To this end we shall direct that the
pay roll immediately preceding the lay-off, in this instance the pay
I Matter of Elliott Bay Mill Company and Plywood & Veneer , Workers Union Local
x$26, C. I. 0. Affiliate , and Plywood & Veneer Workers Union, Local 2618 , Chartered by
the United Brotherhood of Carpenters &. Joiners of America , Affiliated with the American
Federation of Labor, 21 N. L. R. B. 564, and cases therein cited.
2 A list of production employees of the Company as of May 25, 1940 , which was intro-
duced in evidence , contained the names of 98 persons , including two watchmen. The
plant manager testified that on March 2 there were 159 such employees. '
sMatter of - American Cyanamid Co. and United Phosphate Workers' Union No. 22036,
A. F.. L., 19 N. L. R. B . ,1026 , and cases therein cited.
AMERICAN FORK & . HOE COMPANY 981.
roll of March 2, 1940, be used to determine eligibility to 'vote. Since
there is some possibility , however, that a few, new employees may
have been hired, we shall also direct that any such new employees
hired between March ' 2, 1940 , and the date of the Direction of Election,
be permitted 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. Shovel Plant Employees Association of Dunkirk, New York,
and Amalgamated Association of Iron, Steel and Tin Workers of
North America, Lodge No. 2189, represented by Steel Workers Organ-
izing Committee, C. I. 0., are labor organizations within the meaning
of Section 2 (5) of the National Labor Relations'Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees of American Fork & Hoe Company (Skelton
Shovel Works), Dunkirk, New York, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations Act.
3. All production and maintenance employees of the Company,
exclusive of office employees,. foremen, assistant foremen, and watch-
men, constitute a unit appropriate for the purposes of collective bar-
gaining 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, 49 Stat. 449, 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 collective bargaining with American
Fork & Hoe Company (Skelton Shovel Works) of Dunkirk, 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 Direction of
Election, under the direction and supervision of the Regional Director
for the Third Region, acting in this matter as the agent for the
National Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among all production and maintenance
employees who were on the Company's pay roll of March 2, 1940, and
employees who have been hired between March 2 and the date of this
Direction of Election, including employees who did not work during
the period' covered by the March 2 pay roll because they were ill 'or
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982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on vacation,-and, employees who have since then been laid off and who
have not obtained regular and substantially equivalent employment
elsewhere, but excluding office employees, foremen, assistant foremen,
and watchmen, and employees who have since March 2, 1940, quit
or been discharged for cause, to determine whether they desire to be
represented for the purposes of collective bargaining by Shovel Plant
Employees Association, by Amalgamated Association of Iron, Steel.
and Tin `Yorkers of North America, Lodge No. 2189, or by neither.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Direction of Election.