Buffalo Pipe & Foundry Corp.

National Labor Relations Board - Board Decisions

Aug 20, 1940

26 N.L.R.B. 848 (N.L.R.B. 1940)

In the Matter of BUFFALO PIPE & FOUNDRY CORPORATION and THE
INDEPENDENT SANITARY IRON MOULDERS UNION '
Case No. R-1953.-Decided August ,20, 1940
Jurisdiction : pipe, fittings and service boxes manufacturing industry.
Investigation and Certification of Representatives : existence of question: refusal
to accord full recognition to union; conflicting claims of rival representatives;
contract for undue length of time not asserted as a bar; election necessary.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees of the Company, exclusive of supervisors, foremen, watchmen, clerical
employees, truck drivers, and machinists.
Rival Union's request for smaller unit untenable since it has consistently
organized and bargained for the Company's employees on the basis of a
plant-wide unit.
Mr. Cameron Baird, of Buffalo', N. Y., for the Company.
Mr. Boyce H. Butterfield, of Buffalo, N. Y., for the Independent.
Mr. Walter Hollinger, of Troy, N. Y., for the I. M. U.
Mr. John Green, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 24, 1940, The Independent Sanitary Iron Moulders
Union, herein called the Independent, filed with the Regional Direc-
tor for the Third Region (Buffalo, New York) a petition, and on
July 2, 1940, an amended petition, alleging that a question affecting
commerce had arisen concerning the representation of employees
of Buffalo Pipe & Foundry Corporation, Tonawanda, New York,
herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
July 5, 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 Relations Board Rules and Regu-
lations-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.
26 N. L. R. B., No. 88.
848
BUFFALO PIPE & FOUNDRY CORPORATION 849
On July 8, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the In-
dependent, and upon International Moulders Union of North
America, Local 261, American Federation of Labor, herein called
the I. M. U., a labor organization named in the petition and amended
petition as claiming to represent employees directly affected by the
investigation.
Pursuant to the notice, a hearing was held on July 18, 1940, at
Buffalo, New York, before Peter Crotty, the Trial Examiner duly
designated by the Board. The Company, the Independent, and
,the I. M. U. were represented and 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
I. THE BUSINESS OF THE COMPANY
Buffalo Pipe & Foundry Corporation, a New York corporation
with its plant located at Tonawanda, New York, is* engaged in the
manufacture of cast iron soil pipe, fittings, and service boxes.
During the first 6 months of 1940 the Company purchased raw
materials valued at approximately $50,000, of which approximately
5 per cent were received from points outside the State of New York.'
During the same period the Company manufactured finished prod-
ucts having a value of slightly less than $150,000, of which approxi-
mately 25 per cent were shipped outside the State of New York.
11. IHE ORGANIZATIONS INVOLVED
The Independent Sanitary Iron Moulders Union is an unaffiliated
labor organization admitting to membership employees of the Com-
pany, except "persons representing the management, such as the
Superintendent."
International Moulders Union of North America, Local 261, is
a labor organization affiliated with the American Federation of Labor.
It admits to membership employees of the Company.
III. ZHE QUESTION CONCERNING REPRESENTATION
On February 9, 1940, the Independent requested the Company to
negotiate a contract with it. The Company refused the request, re-
1 The principal raw materials used by the Company are pig iron, scrap iron, coke , limestone , sand, and tar.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred to a contract with the I. M. U., and advised the Independent
that under the circumstances the Independent would have to show
its authority to represent the employees in the appropriate unit.
The Company is presently a party to an exclusive bargaining
contract with the I. M. U., of indefinite duration and providing for
30 days' notice by either party desiring any change in the contract.
Neither the Company nor the I. M. U. claims that the contract,
which has been in existence since June 16, 1938, operates as a bar
to this proceeding. A report of the Regional Director shows that
both labor organizations represent a substantial number of the Com-
pany's employees. Under all the circumstances we are of the opinion
that the agreement between the Company and the I. M. U. presents
no bar to an investigation and determination of representatives
herein.'
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 Independent contends that all production and maintenance
employees of the Company, exclusive of supervisors, foremen, watch-
men, clerical employees, truck drivers, and machinists, constitute a
unit appropriate for the purposes of collective bargaining. The
I. M. U. opposes this contention to the extent that it requests the
establishment of a separate unit for moulders and moulders' helpers.
The Company made no contention as to the appropriate unit, al-
though it considered the unit claimed by the Independent as being
the same as that embodied in its contract with the I. M. U.
The I. M. U. commenced its organizing activity among the Com-
pany's employees in 1937 upon a plant-wide basis. On June 16, 1938,
as noted above, the I. M. U. and the Company entered into a collective
agreement providing, inter alia, for the recognition of the I. M. U. as
the bargaining agency "for all employees engaged in the production
1 See Matter of G H R Foundry Company, Division of the Dayton Malleable Iron Co and Local 806 , United
Electrical Radio Machine Workers of America, 23 N L. R B 1052, Matter of the Riverside and Fort Lee Ferry
Company and United Marine Division , Local 333 , 1 L A , A. F of L , 23 N. L R B. 493, Matter of Ingram-
Richardson Mfg Company of Indiana , Inc. and Federal Labor Union 22174, affiliated with the A F. of L.,
23 N. L. R. B. 85.
BUFFALO PIPE & FOUNDRY CORPORATION 851
of castings." The contract is still in full force and effect. The
I. M. U. contends, however, that since December 1939 it has dealt
with the Company only in respect to the moulders. At that time
the I. M. U. commenced negotiations with the Company which
resulted in an increase in the piece-work rate for moulders. There
is no showing, however, that during these negotiations the I. M. U.
sought to relinquish or in fact relinquished its claim under the con-
tract to represent all the employees covered therein. In further
support of its claim for a restricted unit, the I. M. U. pointed out
that its membership for the last six to eight months has been limited
to moulders and moulders' helpers. The record discloses, however,
that employees classified as "laborers" were suspended from the
I. M. U. solely because of non-payment of union dues. It is thus
apparent that the I. M. U. has consistently organized and bargained
for the Company's' employees on the basis of a plant-wide unit.
Under these circumstances its present claim for a unit consisting
exclusively of moulders and moulders' helpers is untenable.
The Independent and the I. M. U. are in dispute as to the status
of Robert Smith, whom the Independent would include in the appro-
priate unit and the I. M. U. would exclude. Smith is variously
characterized in the record as a foreman, assistant foreman, and
pattern chaser. His duties consist in the allocation of patterns among
the moulders. If a moulder refuses to work on the patterns given to
him by Smith, the latter may recommend his discharge. We shall
follow our usual practice and exclude Smith as a supervisory employee
from the appropriate unit.'
We find that all production and maintenance employees of the
Company, exclusive of supervisors, foremen, watchmen, clerical em-
ployees, truck drivers, and machinists, constitute a unit appropriate
for the purposes of collective bargaining, and that such unit will
insure to employees of the Company the full benefit of their right
to self-organization and to collective bargaining and otherwise effec-
tuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Under the circumstances set forth in Section III above, we find
that the question concerning representation which has arisen can
best be resolved by the holding of an election by secret ballot.
In accordance with our usual practice we shall direct that all
employees within the appropriate unit who were employed by the
Company during the pay-roll period immediately preceding the
date of the Direction of Election, including employees who did not
i See Matter of L. Cinq-Mars , doing business under the name of Pacific Gas Heating Company and Bay
Cities Metal Trades Council , A. F. of L , 23 N. L. R B. 1167, Matter of Allied Laboratories, Inc. (Pittman-
Moore Division) and Indianapolis Specialty Union #465, affiliated with the International Printing Pressmen
and Assistants ' Union, affiliated with the A F. of L., 23 N. L. R. B. 184.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work during such pay-roll period because they were ill or on vaca=
tion, and employees who were then or have since been temporarily
laid off, but excluding those employees who have since quit or been
discharged for cause , shall be eligible to participate in the 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 Buffalo Pipe & Foundry Corporation,
Tonawanda , New York, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company,
exclusive of supervisors , foremen, watchmen , clerical employees, truck
drivers, and machinists , constitute a unit appropriate for the pur-
poses 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, 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 part of the investigation authorized by the
Board, to ascertain representatives for the purpose of collective
bargaining with Buffalo Pipe & Foundry Corporation, Tonawanda,
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 , under the direction and supervision of the Regional
Director of the Third 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 the Company who were employed during
the pay-roll period next preceding the date of the Direction of Election,
including employees who did not work during such pay-roll period
because they were ill or on vacation , and employees who were then or
have since been temporarily laid off, but excluding supervisors, fore-
men, watchmen , clerical employees; truck drivers , and machinists,
and those employees who have since quit or been discharged for cause,
to determine whether they desire to - be represented by The Inde-'
pendent Sanitary Iron Moulders Union, or by International Moulders
Union of North America, Local 261, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or by
neither.