Malone Bronze Powder Works, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1940

19 N.L.R.B. 449 (N.L.R.B. 1940)

In the Matter of MALONE BRONZE POWDER WORKS, INC. AND MALONE
ALUMINUM CORPORATION and ALUMINUM AND BRONZE POWDER
WORKERS UNION No. 21211, AFFILIATED WITH THE A. F. OF L.
Case No. B-1624.-Decided January 15, 1940
Bronze and Aluminum Powder Manufacturing Industry-Investigation of
Representatives : controversy concerning representation of employees: rival
organizations ; controversy concerning appropriate unit; contract , no bar to,
where petition had been filed before execution of contract-Unit Appropriate
for Collective Bargaining : all production and maintenance employees of both
Companies excluding executives , supervisory employees, and watchmen ; central-
ization of management ; interchange of employees ; similarity of wages, hours,
working conditions , and manufacturing operations ; extent of organization-
Election Ordered
Mr. Peter Crotty , for the Board.
Ribyat, Walsh & Meyers , by Mr. John J. Walsh , of Utica, N. Y.,
for the A. F. of L.
Mr. Frederick B. Bryant, of Malone, N. Y., for the Independent.
Moore & Herron, by Mr. George J. Moore, of Malone, N. Y., and
Buckley c Buckley, by Mr. David Buckley, of New York City, for
the Companies.
Mr. Ray Johnson , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 6, 1939, Aluminum and Bronze Powder Workers
Union No. 21211, affiliated with the A. F. of L., herein called the
A. F. of L., filed with the Regional Director for the Third Region
(Buffalo, New York) a petition and on September 11, 1939, an
amended petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Malone Bronze
Powder Works, Inc., and Malone Aluminum Corporation, Malone,
New York, herein respectively called the Bronze plant and the
Aluminum plant, and collectively called the Companies, and request-
ing an investigation and certification of representatives pursuant to
19 N. L. R. B., No. 52.
449
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. On October 23, 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 Rela-
tions Board Rules, and Regulations-Series 2, ordered an investiga-
tion and authorized the Regional Director to conduct it and. to
provide for an appropriate hearing upon due notice.
On October 27, 1939, the Regional Director issued a notice -of
hearing, copies of which were duly served upon the Companies,
upon the A. F. of L., and upon the Malone Independent Union,
herein called the Independent, a labor organization claiming to repre-
sent employees directly affected by the investigation. Pursuant to
notice a hearing was held on November 16, 1939, before Berdon M.
Bell, the Trial Examiner duly designated by the Board. The.Board,
the Companies, the A. F. of L., and the Independent were repre-
sented by counsel and participated in the hearing. At the opening
of the hearing the Independent moved to intervene; the motion
was granted by the Trial Examiner. 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 beginning of
the hearing the Companies filed an answer to the petition and moved
to strike.from the petition the allegation that the Companies had,
refused to bargain with the A. F. of L. The Trial Examiner -re-
served his ruling on this motion. The _ motion. is hereby . denied-.
During the course of the hearing the Trial Examiner made several
rulings on other motions and on objections to the admission of
evidence. The Board has reviewed all the rulings of the Triad
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. On November 21, 29, and December 1,
1939, respectively, the A. F. of L., the Independent, and the Com-
panies filed briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
Malone Bronze Powder Works, Inc., and Malone Aluminum Cor-
poration are both wholly owned subsidiaries of the Metallic Products
Corporation, a holding company incorporated in the State of Mary-
land. T. B. Wainwright is both treasurer of the Bronze plant and
President of the Aluminum plant. The Companies employ a common
personnel director and ultimate responsibility for the labor relations
policies of the Companies is vested in David A. Buckley, Jr., president
of the Metallic Products Corporation.
,MALONE BRONZE POWDER WORKS , INCORPORATED 451
Malone Bronze Powder Works, Inc., a New York corporation, with
its principal office and place of business at Malone, New York, is
engaged in the business of manufacturing bronze powder . During
the year ending June 30, 1939 , the Bronze plant used raw materials
valued at approximately $50,000, approximately 50 per cent of which
were shipped to its plant at Malone , New York, from points outside
the State of New York. During the same period , it sold products
valued at approximately $100,000 , approximately 30 per cent of which
were shipped to points outside the State of New York.
Malone Aluminum Corporation, a New York corporation , with its
principal office and place of business at Malone, New York, is engaged
in the manufacture of aluminum powder. During the year ending
June 30, 1939 , the Aluminum plant used raw materials valued at
approximately $50,000, most of which were shipped to its plant at
Malone, New York , from points outside the State of New York. Dur-
ing the same period , the Aluminum plant sold products amounting to ^
approximately $100,000 in value , most of which were shipped to points
outside the State of New York.
II. THE ORGANIZATIONS INVOLVED
Aluminum and Bronze Powder Workers Union No. 21211, is a labor
organization affiliated with the American Federation of Labor. It
admits to its membership all production and maintenance employees
of the Companies excluding executives, supervisory employees, clerical
employees, and watchmen. -
Malone Independent Union is an unaffiliated labor organization,
admitting to its membership all production and maintenance employees
of the Companies, excluding executives, supervisory employees, clerical
employees, and watchmen.
III. THE QUESTION CONCERNING REPRESENTATION
A brief history of union organization of the employees of the
Companies is necessary in order to determine whether the petition
filed by the A. F. of L. raises a question concerning representation.
In the fall of 1937, the A. F. of L. obtained the membership of a
majority of the employees of the Companies and requested the Com-
panies to sign a closed-shop contract recognizing it as the exclusive
representative of their employees. The Companies refused to sign
the contract and negotiations terminated. From December 1937 to
February 1938, the plants of both Companies were closed. During
this period and until September 1938, the A. F. of L. was apparently
inactive. On September 10, 1938, upon charges previously filed by the
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. F. of L., the Board issued its complaint against the Companies as
the respondents in Matter of Malone Bronze Powder Works, Inc. and
Malone Aluminum Corporation and Aluminum and Bronze Powder
Workers Union No. 21211, affiliated with the A. F. of L.,1 alleging,
inter alia, that they had refused to bargain collectively with the
A. F. of L., within the meaning of Section 8 (5) of the Act. During
the same month the Independent was organized and at various times
thereafter requested recognition from the Companies as the exclusive
bargaining representatives of their employees. The Companies, how-
ever, refused to grant such recognition until the Board should dispose
of the above-entitled case.
On September 6 and 11, 1939, respectively, the A. F. of L. filed
its petition and amended petition herein. On September 12, 1939,
the Board, with the approval of the A. F. of L. and upon a stipula-
tion signed by counsel for the board and the Companies, issued its
Decision and Order in the above-entitled case.2 Thereafter, by letter
dated September 14, 1939, the Regional Director informed the Com-
panies that the A. F. of L. had filed the above-mentioned petitions.
On September 18, the Companies entered into a contract with the
Independent, recognizing it as the exclusive bargaining representative
of their employees.
The Companies contend that the contract with the Independent
was executed before they had knowledge that the petitions had been
filed by the A. F. of L. and that therefore the contract, which is still
in effect, precludes a finding that a question concerning representation
has arisen. We find no merit in this contention. We have fre-
quently held that if an employer enters into an agreement with one
of two labor organizations at a time when both are. claiming the
right of exclusive recognition, such agreement cannot bar our con-
ducting an election, at least in the absence of clear evidence that at
the time of execution of the agreement the labor organization with
which it was made represented a majority of the employees.3
We cannot find that the Independent represented a majority of the
Companies' employees on September 18, 1939. As described above,
a proceeding in which the Companies were charged with having
refused to bargain with the A. F. of L. had been pending for over
a year. It was not until September 12, 1939, that the proceeding
1 15 N. L. R. B. 203.
2 Matter of Malone Bronze Powder Works , Inc., and Malone Aluminum Corporation and
Aluminum and Bronze Powder Workers Union No. 21211, affiliated with the A. F. of L.,
15 N. L. It. B. 203. The Order, inter alia , dismissed the allegation of the complaint that the
Companies had refused to bargain collectively with the A. F. of L.
3 Matter of Southern Chemical Cotton Company and Textile Workers Organizing Com-
mittee, 3 N. L. R. B. 869 ; Matter of American-West African Line, Inc. and National
Marine Engineers' Beneficial Association , 4 N. L. R. B. 1.086; Matter of Colonie Fibre
Company, Inc. and Cohoes Knit Goods Workers Union No. 21511, A. F. of L., 9 N. L. It. B.
658.
MALONE BRONZE POWDER WORKS, INCOR'PORATED' 453
was closed. It is apparent therefore that on September 18 the Com-
panies were aware of the existence of the A. F. of L. as a labor
organization claiming to represent a majority of their employees.
Indeed, in the letter of reply to the Regional Director's notice that
the A. F. of L. had filed a petition, the Companies stated, "In our
discussions with the Board closing this matter [presumably referring
to the proceeding closed by stipulation] it was recognized that more
than one bona fide union existed in Malone and that it was our privi-
lege as employers, at our option, to petition the Board or not." The
Companies thus were aware of the existence of a question concerning
the representation of their employees, and chose to settle the question
by recognizing the Independent as the exclusive representative of
their employees.'
Their choice admittedly was based upon petitions containing the
names of a majority of the Companies' employees and presented by
the Independent to the Companies in May 1939, and upon the repre-
sentation by the Independent in September that the employees who
had signed the petitions were still members and that employees hired
since May had also joined the Independent. The record does not
show when the signatures on the petitions were obtained. During
the hearing, the Independent stipulated that a question concerning
representation had arisen. Under all the circumstances we are not
convinced that the Independent represented a majority of the Com-
panies' employees on September 18, 1939, when the contract was
executed.-' We conclude that the validity of the contract of Septem-
ber 18, 1939, between the Companies and the Independent cannot be
determined prior to the election which we shall order herein and
cannot constitute a bar to the instant proceeding.
We find that a question has arisen concerning the representation of
employees of the Companies.
IV. TIIE 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 Companies
4 The Companies claim that the Regional Director 's letter of September 14 was not
actually received in New York City by Buckley, the president of the Metallic Products
Corporation , to whom it was addressed , until September 18, and after the contract with
the Independent had been signed in Malone , New York. This claim , however, is not
material ; the petition was in fact filed before the contract was signed . In any event,
the Companies had knowledge that a question concerning representation had arisen 'even
though it may not have known that a formal petition had been filed . It is therefore
apparent that the Companies were not in the position of an employer acting in good
faith in recognizing a labor organization having no rival with a claim for similar
recognition.
5Cf. Matter of American -chest African Line, Inc. and National Marine Engineers' Bene-
ficial Association, 4 N. L. R. B. 1086.
283030-41-vol. 13-30
454 DECISIONS OF • NATIONAL LABOR RELATIONS BOARD
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 A. F. of L. contends that the appropriate unit consists of all
production and maintenance employees of both Companies, excluding
executives, supervisory employees, clerical employees, and watchmen.
The Independent contends that all production and maintenance em-
ployees of each of the Companies, excluding executives, supervisory
employees, clerical employees, and watchmen constitute separate
appropriate units.
In contending for separate units, the Independent stresses the
individual identities of the two Companies. The Bronze plant and
the Aluminum plant are located approximately 11/4 miles apart.and
are separate corporations maintaining separate pay rolls and sepa-
rate supervision over production. On the other hand both are wholly
owned subsidiaries of the Metallic Products Corporation in which
final authority to establish labor policies for both the Companies is
vested. The Companies have a common sales office in New York City.
They use the same warehouse and railroad siding. The general office
work for both Companies is handled at the same office. As described
above one personnel director serves both Companies. In addition,
wages, hours, working conditions, and manufacturing processes in
the two plants are substantially similar and there is some interchange
of employees between the two plants. Although maintaining their
identities as distinct corporate enterprises it is apparent from the
foregoing that in fact the Companies are operated to some extent
as a unified enterprise.
In support of its position the Independent claims that it has bar-
gained with each Company separately. It maintains that it repre-
sents a majority of the employees in the Aluminum plant, concedes
that the A. F. of L. probably has a majority of members in the
Bronze plant, and urges, apparently to show that a pattern of bar-
gaining for the employees in both plants as a single unit has not
been established, that the contract of September 18, 1939, was a con-
tract for members only and did not purport to grant exclusive recog-
nition to the Independent as the representative of the employees in
both plants as a single unit.
The foregoing claims of the Independent find no support in the
record. As early as 1937 the A. F. of L. organized the employees
in both plants and sought to bargain with the, Companies for a single
appropriate unit. Although the Independent had its origin in 1938
MALONE BRONZE POWDER WORKS, INCORPORATED' 455
in the Aluminum plant, it does not deny that its membership was
extended to the employees in the Bronze plant. Finally the contract
of September 18, 1939, unmistakably recognizes the Independent as
the exclusive bargaining representative of the employees of both
Companies in a single unit."
The contract, which is signed by Wainwright in his dual capacity
as treasurer of the Bronze plant and president of the Aluminum
plant, is a single document recognizing the Independent "as the
Representative Bargaining Agency pursuant to law." The contract,
inter alia, -provides for the appointment by the Independent of a
"Shop Committee" to meet "with a representative of the Companies to
discuss working conditions, safety practices, general efficiency and
other matters of mutual interests to the parties." We conclude that
both the unions involved herein have extended their organization to
employees of the two Companies and that both unions have sought
to bargain with the Companies for their employees in a single unit.
We believe that the interest of the employees in both plants can best
be served by the establishment of a single bargaining unit.
The A. F. of L. would exclude Francis Labarge, a mechanic, from
the appropriate unit on the ground that he exercises supervisory func-
tions. The record shows that the only supervisory functions he ever
exercised was during a 2 weeks' period when his foreman was absent.
During this period,. Labarge placed slips in the barrels of aluminum
powder to designate their respective grades and closed the shop at
night. Labarge never performed these duties after the foreman
returned. We shall include him in the appropriate unit.
We find that all production and maintenance employees of the
Companies, excluding executives, supervisory employees , clerical em-
ployees, and watchmen constitute a unit appropriate for the purposes
of collective bargaining, and that said unit will insure to employees
of the Companies the full benefit of their right to.self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
171. THE DETERMINATION OF REPRESENTATIVES
Both the Independent and the A. F. of L. introduced evidence
that they represent a substantial number of the Companies' employees
and stipulated that an election is necessary to settle the question
concerning representation which had arisen. We shall accordingly
direct that an election by secret ballot be held to settle the question
concerning representation.
0In a letter dated November 10, 1938, from the Independent to the Aluminum plant,
the former requested negotiations as the sole bargaining agent for the employees of this
Company . It is apparent, however , that the Independent abondoned this request for a
request covering the employees of both the Companies.
456 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
The A. F. of L. requests that the pay-roll date of December 1937
be used to determine eligibility. It contends that 18, or 20 employees
who were laid off when the Companies shut down in December 1937,
and who have never been reinstated, should be permitted to vote in
any election which the Board may order. There is no charge or
evidence that these employees were refused reinstatement because
of their union activity when the plants reopened in February 1938.
Since- over- 2 years have elapsed since they lasts-worked for the Com-
panies, we do not believe that they may still be considered em-
ployees of the Companies. They shall therefore be ineligible to vote.
At the hearing the Independent requested that the pay-roll date
of October 30, 1939, should be used to determine eligibility to par-
ticipate in the election and in its brief that the pay-roll date of
September 11, 1939, be used. No reason appears in the record, how-
ever, why a current pay roll should not be used to determine eligi-
bility to participate in the election.
We shall direct that those persons eligible to vote shall be the
employees in the appropriate unit who were employed by the Com-
panies 'during the pay-roll 'period next preceding the date of this
Direction, including employees who did not work during such pay-
roll period because they were ill or on vacation and employees who
were then' or had since been temporarily laid- off, but excluding those
who have since quit or been discharged for cause.
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 rep-
resentation of employees of Malone Bronze Powder Works, Inc., and
Malone Aluminum Corporation, Malone, 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 Companies,
excluding executives, supervisory employees, clerical employees, and
watchmen, constitute a unit appropriate for the purposes of col-
lective 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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, it is hereby
MIA'LONE BRONZE PO'WDER WORKS, INCO'R'PORATED 457
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Malone Bronze Powder Works, Inc., and Malone
Aluminum Corporation, Malone, 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 agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all production and maintenance employees who
were employed by the Companies during the pay-roll period next
preceding the date of this Direction, including employees who did
not work during such pay-roll period because they were in or on
vacation, and employees who were then or have since been tem-
porarily laid off, but excluding executives, supervisory employees,
clerical employees, watchmen, and employees who have since quit or
been discharged for cause, to determine whether they desire to be
represented by Aluminum and Bronze Powder Workers Union No.
21211, affiliated with the A. F. of L., by Malone Independent Union,
or by neither, for the purposes of collective bargaining.