McWane Cast Iron Pipe Co.

National Labor Relations Board - Board Decisions

Jan 15, 1940

19 N.L.R.B. 458 (N.L.R.B. 1940)

In the Matter Of MCWANE CAST IRON PIPE COMPANY and STEEL
WORKERS ORGANIZING COMMITTEE
Case No. B-1653.-Decided January 15, 1940
Cast Iron Pipe Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees: employer refuses to enter
into an exclusive bargaining contract with petitioning industrial union ; rival
organizations ; controversy concerning appropriate unit-Units Appropriate for
Collective Bargaining : craft or industrial : factors evenly balanced ; election to
determine ; separate unit of pattern makers excluding foremen, if election shows
these employees desire it ; unit composed of all other production and main-
tenance employees excluding foreman-Elections Ordered
Mr. Clarence D. Musser and Mr. Alexander E. Wilson, Jr., for the
Board.
Mr. Yelverton Cowherd and Mr. Noel R. Beddow, of Birmingham,
Ala., for the S. W. O. C.
Mr. J. A. Lipscomb, of Bessemer, Ala., for the Association.
Mr. Jelkes H. Cabaniss, of Birmingham, Ala., for the Company.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On September 21, 1939, Steel Workers Organizing Committee,
herein called the S. W. O. C., filed with the Regional Director for
the Tenth Region (Atlanta, Georgia) a petition alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of McWane Cast Iron Pipe Company, Birmingham, Ala-
bama, 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
November 25, 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 Regula-
tions-Series 2, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
19 N. L. R. B., No. 53.
458
McIVANE CAST IRON PIPE COMPANY 459
On November 27, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company and the
S. W. O. C. Pursuant to notice, a hearing was held on December - 6,
1939, at Birmingham, Alabama, before E. G. Smith, the Trial Ex-
aminer duly designated by the Board. At the hearing, Pattern
Makers' Association of Birmingham, affiliated with Pattern Makers
League of North America, herein called the Association, filed a peti-
tion to intervene which was granted by the Trial Examiner. The
ruling is hereby affirmed. The Board, the Company, the S. W. O. C.,
and the Association 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 upon the issues
was afforded all parties. During the course of the hearing the Trial
Examiner made a number of rulings 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.
On December 18, 1939, the Association filed a brief which we have
considered. Pursuant to notice, a hearing was held before the Board
in Washington,,D. C., on December 21, 1939, for the purpose of oral
argument. The Association was represented by counsel and partici-
pated in the argument before the Board. The Company and the
S. W. O. C. did not appear.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
McWane Cast Iron Pipe Company, an Alabama corporation, is
engaged at its plant in Birmingham, Alabama, in the manufacture
and sale of cast-iron pipe and fittings. The raw materials, consisting
principally of pig iron, cast iron, scrap, and coke, purchased annually
by the Company are valued at approximately $100,000, of which
approximately 90 per cent are purchased in the State of Alabama. It
produces annually more than 25,000 tons of manufactured products,
valued at approximately $1,000,000, of which 90 per cent are shipped
from its plant to destinations outside the State of Alabama. It em-
ploys approximately 475 production and maintenance employees; 2
pattern makers and a pattern-maker foreman; and about 75 super-
visory and clerical employees.'
' These facts were taken from a stipulation. All parties agreed that the Company was.
engaged in interstate commerce, within the meaning of Section 2 (6) of the Act.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization
affiliated with the Congress of Industrial Organizations, admitting to
membership all employees of the Company except clerical and super-
visory employees.
Pattern Makers Association of Birmingham is a labor organization
affiliated with Pattern Makers League of North America, and through
it with the American Federation of Labor, admitting to membership
all pattern makers and apprentices employed by the Company.
M. THE QUESTION CONCERNING REPRESENTATION
Shortly before the hearing, the S. W. O. C. requested the Company
to enter into a written bargaining contract, providing for the recogni-
tion of the S. W. O. C. as the exclusive representative of all the
Company's employees. The Company declined to accept this contract.
At the hearing the S. W. O. C. and the Association presented con-
flicting claims concerning the appropriate bargaining unit.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. TILE 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 com-
merce and the free flow of commerce.
V. THE APPROPRIATE UNITS
The S. W. O. C. contends that all ppoduction and maintenance
employees, excluding supervisory and clerical employees, constitute
a unit appropriate for the purposes of collective bargaining. The
Association opposes the inclusion of the two pattern makers em-
ployed by the Company in the large unit and requests the estab-
lishment of a separate unit for pattern makers excluding foremen.
For the past several years the Company has met with employee
representatives of the S. W. O. C.2 to discuss working conditions.
2 The record does not reveal the unit that the S. W. O. (' purported to represent at those
meetings.
McWANR CAST IRON PIPE COMPANY 461
As a result of these meetings certain working rules were agreed upon
and embodied in a written statement signed by the Company. The
first statement dated March 19, 1935, was subsequently revised in
1936 and 1937. Although the extent and results of such meetings are
not indicated in the record , the Company has also met with its pat-
tern makers concerning wages, hours , and working conditions. How-
ever, no representative of the pattern makers employed by the
Cornpiiny . has,ever , requested the Company to bargain collectively.
The Company made.no contention as to the appropriate unit. It
asserted that it has met "with all groups of employees or their rep-
resentatives that have presented themselves ," but has not accorded
exclusive recognition to any.
Pattern makers are a well-defined and highly skilled craft. The
two pattern makers employed by the Company work under the pat-
tern-maker foreman in a building separated from the rest of the plant
and produce all the patterns used in the plant. , A question arose
at the hearing as to the classification of Thompson , who does some
work in the pattern shop. The Company classifies . Thompson as a
carpenter and there is no evidence that he is a skilled pattern maker.
We find that he is not a pattern maker.
Since it appears from the evidence that the pattern makers could
function either as a separate unit or as a part of a single industrial
unit , we hold that the determining factor is the desires of the
employees themselves.3
Therefore , an election will be held among the pattern makers ex-
cluding foremen, employed by the Company to determine whether
they desire to be represented by the S. W. 0. C. or by the Association
for the purposes of collective bargaining , or by neither . If a ma-
jority of such employees choose the Association, we shall hold that
they constitute a separate appropriate unit; if a majority of such
employees choose the S. W. 0. C., we shall hold that they constitute
a part of the single industrial unit requested by the S. W. 0. C.
We find that all production and maintenance employees of the
Company, excluding supervisory and clerical employees , may prop-
erly constitute a unit appropriate for the purposes of collective
bargaining which would insure to the employees of the Company
the full benefit of the right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act. As
indicated above, pattern makers may or may not be included in
such unit, depending on the result of an election which we shall
order. We shall , therefore , make no final determination of the ap-
8 Matter of The Globe Machine and Stamping Co. and Metal Polishers Union, Local No. 3,
et al., 3 N. L. R. B. 294, and subsequent cases.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriate unit pending the election to be conducted among the
pattern makers.
VI. THE DETERMINATION OF REPRESENTATIVES
The S. W. O. C. claims to represent approximately 375 employees,
within the unit it contends to be appropriate. In support of this
claim, the S. W. O. C. introduced in evidence its membership ledger
and a block of promissory notes alleged to have been executed by its
members for their initiation fees. This evidence was withdrawn by
agreement of all parties after it was examined by the Trial Examiner
who reported that there were 362 of such notes. The record does
not reveal the dates or authenticity of these notes or whether all
members of the S. W. O. C. are now employed, by the company.
The Association claims to represent the two pattern makers and
introduced in evidence an affidavit signed by them, dated December
5, 1939, wherein they designate the Association as their representa-
tive. However, the S. W. O. C. claims to represent more than one
pattern maker.
We find the question concerning representation which has arisen
can best be resolved by separate elections by secret ballot among the
pattern makers and among the other production and maintenance
employees, of the Company. We shall direct that such elections
be held.
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
A question affecting commerce has arisen concerning the represen-
tation of employees of MeWane Cast Iron Pipe Company, Birming-
ham, Alabama, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
DIRECTION OF ELECTIONS
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, it is hereby
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective bar-
gaining with McWane Cast Iron Pipe Company, Birmingham, Ala-
bama, elections by secret ballot shall be conducted as early as possible,
but not later than thirty (30) days from the date of this Direction
MoWANE CAST IRON PIPE COMPANY 463
of Elections, under the direction and supervision of the Regional
Director for the Tenth Region, acting in this matter as agent for
National Labor Relations Board and subject to Article III, Section 9,
,of said Rules and Regulations, among :
(1) All the pattern makers employed by said Company during
the pay-roll period last preceding the date of this Direction of
Elections, including any who did not work during such pay-roll
period because they were ill or on vacation, and any who were then
or have since been temporarily laid off, but excluding foremen and
employees who have since quit or been discharged for cause, to
.determine whether they desire to be represented by Pattern Makers
Association of Birmingham, affiliated with the American Federation
of Labor, or by Steel Workers Organizing Committee, affiliated with
the Congress of Industrial Organizations, for the purposes of col-
lective bargaining, or by neither;
(2) All production and maintenance employees who were em-
ployed by the said Company during the pay-roll period last pre-
ceding the date of this Direction of Elections, including any 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 tem-
porarily laid off, but excluding all pattern makers and all super-
visory and clerical employees and any employees who have since
quit or been discharged for cause, to determine whether or not they
desire to be represented by Steel Workers Organizing Committee,
:affiliated with the Congress of Industrial Organizations, for the
purposes of collective bargaining.
MR , EDWIN S. SMITH, dissenting :
For the reasons given in my dissenting opinion in Matter of Allis-
-Chalmers Manufacturing Company,4 I would not permit the pattern
makers to set themselves apart in a bargaining unit separate from
the industrial unit.
4Matter of Allis-Chalmers Manufacturing Company and International Union, United
Automobile Workers of America, Local 248, 4 N. L . R. B. 159.