Lawson Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 22, 1940

19 N.L.R.B. 756 (N.L.R.B. 1940)

In the Matter of LAWSON MANUFACTURING COMPANY and DEFENDERS
OF AMERICA , PITTSBURGH CHAPTER No. 2
Case No. R-1650.-Decided January 22, 1940
Water Heater Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : rival organizations ; dispute
as to majority status; demand for recognition unnecessary to establish existence
of question concerning representation-Labor Organization : Act not concerned
with alleged anti-labor purposes and objectives of organization formed by
employees for purpose of collective bargaining , free from interference , restraint,
and coercion of employer-Unit Appropriate for Collective Bargaining : unions
agreed, and employer made no objection to unit consisting of all employees
engaged in production , maintenance , and service , exclusive of clerks, foremen,
and supervisory employees , and night janitor ; night janitor nevertheless in-
cluded in unit : duties and interests not distinguishable from those of day
janitor and laborer included in unit by agreement ; apparently covered by prior
contract ; exclusion inconsistent with character of bargaining unit; dispute as
to alleged supervisory employee-Representatives : proof of substantial member-
ship by both labor organizations ; certification on record not requested-Election
Ordered
Mr. Robert H. Kleeb, for the Board.
Mr. Ralph H. Frank, of Pittsburgh, Pa., for the Company.
Mr. Louis Rosenfield, of Pittsburgh, Pa., for the Defenders.
Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the S. W. O. C.
Mr. David Findling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 20, 1939, Defenders of America, Pittsburgh Chapter No.
2, herein called the Defenders, filed with the Regional Director for
the Sixth Region (Pittsburgh, Pennsylvania) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Lawson Manufacturing Company, Pitts-
burgh, Pennsylvania, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On October 20, 1939, 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, ordered an investigation and
19 N. L. R. B., No. 81.
756
LAWSON MANUFAC'TUR'ING COMPANY 757
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On November 13, 1939, the Regional Director issued a notice of
hearing, and on November 24, 1939, a notice of postponement of hear-
ing, copies of each of which were duly served upon the Company,
the Defenders, and Steel Workers Organizing Committee, Local No.
2117,E on behalf of Amalgamated Association of Iron, Steel, and
Tin Workers of North America, affiliated with the Congress of Indus-
trial Organizations, herein called the S. W. O. C., described'in the
petition as a labor organization claiming to represent employees of
the Company directly affected by the investigation. Pursuant to the
notice of postponement, a hearing was held on December 4, 1939, at
Pittsburgh, Pennsylvania, before Peter F. Ward, the Trial Examiner
duly designated by the Board. At the opening of the hearing, the
S. W. O. C moved to intervene in the proceedings. The Trial Exam-
iner granted the motion. The Board, the Company, the Defenders,
and the S. W. O. C. were represented by counsel 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. At the conclusion of the hearing, the
S. W. O. C. moved to dismiss the petition on the ground that the
Defenders was not a labor organization within the meaning of the
Act, and on the further ground that no question concerning repre-
sentation had been shown to exist. The Trial Examiner denied the
motion. For reasons appearing hereinafter, the ruling is hereby
affirmed. During the course of the hearing the Trial Examiner also
made rulings on other 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 affirmed.
Pursuant to leave granted, on December 20, 1939, the Company and
the Defenders, and on December 22, 1939, the S. W. O. C. filed briefs
which the Board has considered. Pursuant to notice duly served upon
all the parties, a hearing for the purpose of oral argument was had be-
fore the Board in Washington, D. C., on December 22, 1939. The
Company and the Defenders were represented by counsel and partici-
pated in the argument; the S. W. O. C. did not attend or participate.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Lawson Manufacturing Company, a Pennsylvania corporation,
having its plant and principal office in Pittsburgh, Pennsylvania, is
'Erroneously designated as Local No . 1167 in the petition which was amended in this
respect at the hearing, without objection.
283030-41-vol. 19--49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in the manufacture and sale of gas and kerosene water.
heaters, wall insert heaters, floor furnaces, and thermostat valves.
The Company also maintains sales representatives and warehouse
stocks in several large cities throughout the country. Only em-
ployees of the Company at its plant in Pittsburgh are involved in
these proceedings. At the time of the hearing, approximately 85 per-
sons, of whom approximately 66 were production employees and
the remainder supervisory and clerical employees, were employed at
this plant.
The principal raw materials used in the business of the Company,
are copper tubing, gray-iron castings, iron tanks, and steel. During
the first 6 months of 1939 the cost of these, raw materials, of which
approximately 85 per cent in value were shipped to Pittsburgh
from States other than the State of Pennsylvania, was in excess of
$200,000. ;;During the same period, the total sale price of the
products, manufactured by the Company, of which approximately
80 per cent in value were shipped to points outside the State of
Pennsylvania, was in excess of $300,000. The Company admits
that it is subject to the jurisdiction of the Board.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee, Local No. 2117,2 is a labor
organization authorized to act on behalf of the Amalgamated Asso-
ciation of Iron, Steel, and Tin Workers of North America, which, in
turn, is a labor organization affiliated with the Congress of Industrial
Organizations.3 Steel Workers Organizing Committee, Local No.
2117, admits to its membership employees of the Company.4
Defenders of America, Pittsburgh Chapter No. 2, the petitioner
in the instant proceedings, is an unincorporated association which
admits to membership native-born or naturalized citizens of the
United States who are "wage or salaried employee(s) of the Lawson
2 See footnote 1, supra.
3 Although the record herein does not disclose the relationship between the Steel Workers
Organizing Committee and the Amalgamated Association of Iron, Steel, and Tin Workers
of North America, we have found in other cases that the Steel Workers Organizing Com-
mittee is a committee composed of representatives of a group of unions affiliated with
the Congress of Industrial Organizations, with power to act on behalf of the Amalgamated
Association of Iron, Steel, and Tin Workers of North America in matters relative to or-
ganizing employees in the steel and affiliated industries, and for collective bargaining
purposes. See Matter of Western Pipe and Steel Company of California and Steel Workers
Organizing Committee et al., 14 N. L. R. B. 473 ; Matter of Bethlehem Steel Corpora-
tion, a Delaware Corporation, Bethlehem Steel Corporation, a Pennsylvania Corporation
and Steel Workers Organizing Committee, 14 N. L. R. B. 539 ; Matter of Inland Steel
Company and Steel Workers Organizing Committee and Amalgamated Association of Iron,
Steel, and Tin Workers of North America, Lodge Nos. 611, 1010, and 1101, 9 N. L. R. B. 783.
4 Its membership cards, one of which is in evidence, state that the employee requests and
accepts membership in the Amalgamated Association of Iron. Steel, and Tin Workers of
North America, through the Steel Workers Organizing Committee, and authorizes the Steel
Workers Organizing Committee to act for him as collective bargaining agency.
LAWSON MANUFACTURING COANIPANY 759
Manufacturing Company, not employed in any administrative or
policy-forming capacity, nor having the right to employ or dis-
charge." Chartered "to act as the sole bargaining unit" e of the
employees of the Company, its powers and purposes include the
arbitration of differences between its "members and employees with
their employer"; the investigation of grievances, and the conduct of
negotiations with the Company for their adjustment; and the ap-
pointment of committees for such purposes. Clearly, it is an organi-
zation in which employees participate; exists, at least in part, for the
purpose of dealing with an employer concerning "grievances, labor
disputes, wages, rates of pay, hours of employment or conditions of
work"; and is, therefore, within the letter of the definition of a labor
organization as set forth in the Act.6 The S. W. 0. C., however,
contends that other considerations establish that it is not a labor
organization, and urges, accordingly, that the petition should be
dismissed.
Among the declared purposes and objectives of Defenders of
America, Pittsburgh Chapter No. 2, as set forth in its constitution,
is the prohibition of all strikes by legislation. While we have had
occasion recently to point out that a provision in the governing rules
of an organization outlawing the right to strike is calculated to
render the organization impotent,' where, as in the instant case, there
is no showing that such a limitation is not self-imposed by the em-
ployees who have formed the particular organization, the existence
of such a fetter upon effective action presents no issue under the
Act. With such considerations the Act is not concerned," but seeks
only to assure that employees may form, join, or assist labor organiza-
tions of their own choosing, free from restraint, coercion, or
interference by their employer.
It follows from what has been said above that there is no merit in
the contention made by the S. W. 0. C. that the Defenders of
America, Pittsburgh Chapter No. 2, should be declared not to be a
labor organization, on the ground that it is chartered by, and must
conform to the purposes of, Defenders of America, Pittsburgh
Chapter No. 1, which both the petitioner and the S. W. 0. C. style
a "patriotic organization." No claim being made that the formation
or administration of Pittsburgh Chapter No. 1 has been interfered
The record leaves no doubt that by "sole bargaining unit" is meant "exclusive repre-
sentative of the employees in a unit appropriate for the purposes of collective bargaining."
6 Section 2 (5).
7 Matter of American Scale Company and International Molders Union of North A merica,
Local 149, 1.4 N. L . R. .13. 971 . Indeed , in that case we found such a provision to be a.
badge of company domination otherwise shown to' exist.
8 Similarly , we are not concerned with the fact that, among other declared purposes of
the Defenders of America , Pittsburgh Chapter No . 2, are "repeal of the exemptions for labor
unions in the Sherman Anti-Trust and the Clayton Acts " and "legislative regulations
[sic] of all labor unions."
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, dominated, or given financial or ot]ier support by an -employer,
whether it is itself a labor organization and the extent of its control
over Defenders of America, Pittsburgh Chapter No. 2, are obviously
of no consequence.
III. THE QUESTION CONCERNING REPRESENTATION
On December 6, 1938, the S. W. O. C. and the Company entered
into a written agreement covering rates of pay, hours of work, and
conditions of employment, of employees of the Company. The con-
tract, which expired by its terms on June 30, 1939, also provided that
the Company recognize the S. W. O. C. as the "sole collective bar-
gaining agency for all employees of the Company" with the exception
of "foremen or supervisors in charge of any class of labor, or watch-
men, and all salaried employees." 9
On May 29, 1939, the Defenders, claiming to represent a majority
of the Company's employees, requested the Company to recognize
it as their exclusive representative. On June 13, 1939, the S. W. O. C.
demanded that the Company negotiate a new contract to take effect
upon the expiration of the contract dated December 6, 1938. On June
16, 1939, the Company advised the S. W. O. C. and the Defenders
that it would not recognize the Defenders until its claim of majority
representation was established "in some formal and reasonable (sic)
incontrovertible manner"; and that it would not negotiate a new
agreement with the S. W. O. C. until the Defenders had had an
opportunity to establish its claim. As has been stated above, on June
20, 1939, the Defenders filed its petition herein. Thereafter, the
S. W. O. C. and the Company entered into agreements renewing for
periods of one month, the contract dated December 6, 1938. On Sep-
tember 30, 1939, the last of such renewals expired.
As we have previously stated, at the hearing the S. W. 0. C. moved
to dismiss the petition on the ground that no question concerning rep-
resentation had been shown to exist. The contention of the
S. W. O. C. in this regard is based upon .the premise that the request
of the Defenders on May 29, 1939, for recognition by the Company,
-was made upon the suggestion of representatives of the Board, "in
-order to create a controversy for the record." The motion is
obviously without merit, since it is well settled that a demand for
recognition is not necessary to establish the existence of a question
concerning representation.'0
e While other provisions of the contract indicate that it covered only employees of the
.Company who were members of the Union, we find it unnecessary in this case to resolve
this apparent inconsistency.
10 See Matter of Ohio Steel Foundry Company and International Molders Union of North
America, 6 N. L. R. B. 127; Matter of Johns-Manville Products Corporation and Interna-
tional Union of Mine, Mill d Smelting Workers, 7 N. L. R. B. 1055 ; Matter of Granite
Finishing Works of Proximity Mfg. Company and Teatile Workers Organizing Committee,
LAZVsON MANUFACTURING 0'011PAN1Y 761
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
At the hearing, the Defenders and the S. W. 0. C. stipulated and
agreed that all employees of the Company "engaged in production,
maintenance, and service, exclusive of clerks, foremen, and super-
visory employees, and night janitors" constitute a unit appropriate
for the purposes of collective bargaining. The Company made no,
objection to this unit.
The pay roll of the Company for the week ending November 15,
1939, which is in evidence, contains one employee who is classified as
a "night janitor" and one employee who is classified as a "day jani-
tor and laborer." The unit upon which the parties have agreed
would thus exclude the night janitor and include the day janitor and
laborer. The record does not disclose what the duties of the day
janitor and laborer are, or what proportion of his time is devoted
to his duties as janitor, and what proportion to his duties as laborer.
The night janitor, who works from 4: 30 p. in. to 12: 30 a. m., which is
after the other employees have completed their duties for the day,-
sweeps and cleans the plant. It does not appear that the duties and
interests of the night janitor are distinguishable from those of the
day janitor and laborer. Moreover, the night janitor appears to have
been covered by the contract dated December 6, 1938, between the
S. W. 0. C. and the Company; no reason for his exclusion from the
unit has been offered by any of the parties; and the objection of the
S. W. 0. C. and the Defenders to his inclusion seems to be inconsistent
with the character of the bargaining unit sought by them. We shall
include the night janitor in the unit.12
7 N. L. R. B. 364; Matter of National Weaving Company and Textile Workers Organizing
Committee, 7 N. L. R. B. 916; Matter of Wickwire Spencer Steel Company and Federated:
Industrial Union, 18 N. L. R. B. 372.
"The Company does not usually operate a night shift.
'' Cf. Matter of Westchester Apartments, Inc. and United Building Service EmDlovees.
Local 675, 17 N. L. R. B. 433.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The S. W. 0. C. claims, and the Company and the Defenders deny,
that Eric Buckholz, who is listed on the Company's pay roll as a die
maker, is a supervisory employee and should be excluded from the
unit.13 Buckholz was described by the superintendent of the Com-
pany as the head die maker. He receives a higher rate of pay than
the other die makers in the Company's employ, and his duties include,
in addition to manual work similar to that of the other men, laying
out their work and instructing them in their duties. It also appears
that the die and tool-making department of the Company is not under
the direction of a foreman. We believe that the interests and duties
of Buckholz are sufficiently distinguishable from those of the other
employees to bring him within the class of employees whom we
normally exclude from a bargaining unit upon objection by one of
two rival labor organizations. 14
We find that all production, maintenance, and service employees
of the Company, including the night janitor, but excluding clerks,
foremen, and supervisory employees," constitute a unit appropriate
for the purposes of collective bargaining and will insure to 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. TIIE DETERMINATION OF REPRESENTATIVES
At the hearing, the S. W. 0. C. and the Defenders introduced evi-
dence that they each represent a substantial number of employees in
the unit which we have found to be appropriate for the purposes of
collective bargaining; neither requested certification on the record as
made; and both agreed that if the Board directed an election, the
names of both organizations should appear on the ballot.
We find that the question concerning representation of employees
of the Company can best be resolved by holding an election by secret
ballot to determine the choice of bargaining representative. Those
employees in the appropriate unit who were employed by the Com-
pany during the pay-roll period next preceding the date of the Direc-
tion of Election herein will be eligible to vote, subject to the limita-
tions and additions set forth in the Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
13 The record does not disclose whether Buckholz was regarded as one of the "foremen
or supervisors in charge of any class of labor" under the contract dated December 6, 1938,
and hence excluded from the unit defined in that contract.
14 See Matter of Kingsley Lumber Company and Lumber and Sawmill Workers, Local
No. 2879 , United Brotherhood of Carpenters and Joiners of America , Affiliated with the
American Federation of Labor, et at., 13 N. L . R. B. 174.
is As we have previously indicated , Buckholz is to be excluded as a supervisory
employee.
L.kWSON DIANI FACTORING COMPANY
CONCLUSIONS OF LAW
763
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of the Lawson Manufacturing Company, with-
in the meaning of Section 9 (c) and Section 2 (6) and (7) of the
.National Labor Relations Act.
2. The production, maintenance, and service employees of the Com-
pany, including the night janitor, but excluding clerks, foremen, and
supervisory employees," 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 Re-
lations Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with the Lawson Manufacturing Company, Pittsburgh, Pennsylvania,
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 Direc-
tor for the Sixth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Section 9, of
said Rules and Regulations, among all production, maintenance, and
service employees, including the night janitor, of said Company, who
were employed by the Company during the pay-roll period next pre-
ceding the date of this Direction of Election, and further including
employees who did not work during said pay-roll period because they
were ill or on vacation, and employees who were then or have since
been temporarily laid off, but excluding clerks, foremen, and super-
visory employees'16 and employees who have quit or have been dis-
charged for cause since said date, to determine whether they wish to
be represented by Defenders of America, Pittsburgh Chapter No. 2,
or by Steel Workers Organizing Committee, Local No. 2117, on be-
half of Amalgamated Association of Iron, Steel, and Tin Workers
of North America, affiliated with the Congress of Industrial Organi-
zations, for the purposes of collective bargaining, or by neither.
16 See footnote 15, supra.