Birmingham Boiler & Engineering Co.

National Labor Relations Board - Board Decisions

May 12, 1941

31 N.L.R.B. 772 (N.L.R.B. 1941)

I
In the Matter of BIRMINGHAM BOILER & ENGINEERING COMPANY -and
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRON WORKERS, SHOPMEN LOCAL 539
Case No. R-2466.-Decided May 12, 1941
Jurisdiction : boilers and fabricated steel and sheet metal products manufactur-
ing industry.
Investigation and Certification of Representatives : existence of question:- re-
fusal to accord union recognition until it is certified by the Board ; election
necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, exclusive of clerical and supervisory employees; agreement as'to.
Mr. C. C. Pinckney of Birmingham, Ala., for the Company.
Mr. Claud McDonald of Birmingham, Ala., for the Union.
Mr. Willian H. Bartley, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 26, 1941, International Association of Bridge Struc-
tural and Ornamental Iron Workers, Shoplnen Local 539, herein
called the Union, 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 the Birmingham Boiler & Engineering Company, herein called
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Re-
lations Act, 49 Stat. 449, herein called the Act. On March 27, 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 conduct it and to provide for an appropriate' hearing upon
due notice.
On April 2, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
31 N. L. R. B., No. 129.
772
BIRMINGHAM BOILER _& ENGINEERING 'co. 773
,-Pursuant to notice, a hearing was held on April 10, 1941, at Bir-
mingham, Alabama, before John C. McRee, the Trial Examiner duly
.designated by the Chief Trial Examiner. ' The Company and the
Union appeared by representatives and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine wit-
nesses 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
I I. THE BUSINESS OF THE COMPANY
The Company is an Alabama corporation engaged in the opera-
lion of a steel fabricating and sheet metal job shop at Birmingham,
Alabama, in which it manufactures hot water boilers, steam boilers,
truck bodies, smoke stacks, pipes, and various and sundry fabricated
steel and sheet metal products on order. The principal raw materials
used by the Company in the operation of its business are steel, coal,
-md various miscellaneous supplies such as bolts, rivets, and welding
rods. During the year 1940 the total value of the products used by
the Company was approximately $80,000,-of which about 10 per cent
•vas, shipped to the plant from States other than Alabama, During
]'940 the Company's finished products were valued at approximately
$150,000, of which approximately $10,000 worth was shipped and sold
to customers in States other than Alabama, the remaining $140,000
worth of finished products being shipped and sold to customers within
the State of Alabami i. The Company admits that it is engaged in
interstate commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Association of Bridge, Structural and Ornamental
Iron Workers, Shopmen Local 539, is a labor organization, admitting
o membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant exclusive recognition- to the
Union until it is certified by the Board. A statement of the Trial
Examiner introduced at the hearing shows that the Union represents
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a substantial number of employees in the unit alleged by it to be
appropriate.'
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATICN 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 Company and the Union agreed oat the hearing, and we find,
that all production and maintenance employees, exclusive of clerical
and supervisory employees, constitute a unit appropriate for the pur-
poses of collective bargaining. We find further that said unit will
insure to the employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act. -
VI. THE DETERMINATION OF REPRESENTATI\ I_S
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot=
We find that the employees of the Company eligible to vote in the
election shall be those employees in the appropriate unit who were
employed during the pay-roll period immediately proceding the date
of the Direction of Election herein, subject to. such limitations and
additions as are set forth in the Direction of Election.
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 Birmingham Boiler & Engineering Coln-
1 The Trial Examiner's statement shows that 18 application cards were signed by em-
ployees whose names appeared on the pay roll of April 9, 1941 Of these cards , one as
dated April 1940, one bore no date, and the remainder were dated during the first 3 months
of 1941. There are approximately 32 employees in the alleged appropriate unit
2 The Company contended that no election should be held because the great fluctuation in
number of employees made it impossible of determine the exclusive representative of the
employees at any given time, and also because an election would harm the Company's sales
and credit . We find these contentions to be without merit
BIRMINGHAM BOILER & ENGINEERING CO. 775
piny, Birmingham, Alabama, within the mea^iing of Section 9 (c)
and Section 2 (6) and (7) of the National Labor Relations Act.
2. All production and maintenance employees, excluding clerical
and supervisory employees, 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 part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with the Birmingham Boiler & Engineering Company, Birmingham,
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 production and maintenance
employees of Birmingham Bridge & Engineering Company, Birming-
ham, Alabama, whose names appear on the Company's pay roll for
the period immediately preceding the date of this Direction of Elec-
tion, including any employees who did not work during said 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 'clerical and 'supervisory employees and employees who
have since quit or been discharged for cause, to determine whether
or not they desire to be represented by International Association of
Bridge, Structural and Ornamental Iron Workers, Shopmen Local 539,
for the purposes of collective bargaining.