Milwaukee Welded Products, Inc.

National Labor Relations Board - Board Decisions

Mar 8, 1944

55 N.L.R.B. 321 (N.L.R.B. 1944)

In the Matter Of MILWAUKEE WELDED PRODUCTS, INC. Cl cd INTERNA-
TIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON
WORKERS, LOCAL 471, A. F. of L.
Case No. 13-R4,,028.-Decided March 8, 194w1
Messrs. August C. Backus, Jr., and John Weiler, of Milwaukee, Wis.,
for the Company.
Mr. C. J. Mathias, of Milwaukee, Wis., and Mr. William Wachall,
of West Allis, Wis., for the Iron Workers.
Mr. Roman H. Pitz, of Milwaukee, Wis., and Mr. Joseph Wojcih, of
Waukesha, Wis., for the Weldors.
Mr. Max M. Goldman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
b
STATEMENT OF THE CASE
Upon a petition duly filed by International Association of Bridge,
Structural and Ornamental Iron Workers, Local 471, affiliated with
American Federation of Labor, herein called the Iron Workers, alleg-
ing that a question affecting commerce had arisen concerning the repre-
sentation of employees of Milwaukee Welded Products, Inc, West
Allis, Wisconsin, herein called the Company, the National Labor Re-
lations Board provided for an appropriate hearing upon due notice
before Bernard Cushman, Trial Examiner. Said hearing was held
at Milwaukee, Wisconsin, on December 7, 1943. At the hearing the
Trial Examiner granted a motion of Wisconsin Welders Association
of Milwaukee County, Local 67, affiliated with the United Brotherhood
of Weldors, Cutters and Helpers of America, herein called the Wel-
dors, to intervene. The Company, the Iron Workers, and the Weldors.
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file.
briefs with the Board.
55 N. L R. B., No. 58.
321
578129-44-vol. 55--22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Milwaukee Welded Products, Inc., a Wisconsin corporation, is en-
gaged in the fabrication of steel products, such as hydraulic hoists,
water tanks, and underground tanks, at West Allis, Wisconsin. In the
manufacture of its products the Company uses finished steel plates and
sheets, approximately 90 percent of which is purchased by the Com-
pany and shipped to the plant from points outside the State of Wis-
consin. The value of such materials so purchased during the year
1942 was approximately $72,000. The sales of the Company during
the same period amounted in value to approximately $200,000, of
which approximately 5 percent was sold and shipped to points outside
the State of Wisconsin.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Bridge, Structural and Ornamental
Iron Workers, Local 471, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees
of the Company.
Wisconsin Welders Association of Milwaukee County, Local 67,
affiliated with the United Brotherhood of Weldors, Cutters and
Helpers of America, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 12, 1943, a collective bargaining contract was entered into
between the Company and the Weldors for a period of 1 year covering
the welders , cutters, and their helpers in the Company 's employ. Five
or six days later, the parties agreed upon the terms of a new contract
for a term of 1 year from August 1, 1943, to supersede the first, which
differed from the earlier instrument in that it established new wage
rates and certain objective standards of proficiency for the classifica-
tion and wages of welders .' On July 28 , 1943, the Iron Workers
' The witnesses referred to this contract as an amendment or clarification of the contract
of July 12 , 1943. Assuming arguendo that the second instrument is only a modification of
the first, that fact per se would not render that contract effective as a bar to this pro-
ceeding. See Matter of Phtiladelph,a Dairy Products Co., Inc., 36 N . L. It. B. 737; Matter
of Bucyrus-Erie Co , 41 N L R. B 939
MILWAUKEE WELDED PRODUCTS, INC. 323
notified the Company that it represented a majority of the Company's
employees, including welders, cutters and their helpers, and requested
recognition as the exclusive bargaining representative of these em-
ployees. The Company refused to grant such recognition because of
its contract with the Weldors.
The Weldors claims that its second contract, which is dated August
1, 1943, was executed July 26, 1943, and asserts that either its first
or second contract operates as a bar to this proceeding insofar as the
Company's welders, cutters and helpers are concerned. The testimony
concerning the date of the execution of the second contract is conflict-
ing and contradictory. In resolving this conflict, we find, in accord-
ance with the principle that the date of the signing may be presumed
from the purported date of the document,' that it was executed on
August 1, 1943. Since the first contract was superseded by negotia-
tions for the second,-' and has now expired, and since the Iron Workers'
claim was made prior to the time the second contract was executed, we
find, in accordance with our usual practice, that neither contract
constitutes a bar to a determination of representatives at this time.4
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Iron Workers represents a substantial number
of employees in the unit hereinafter found appropriate.r,
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Iron Workers seeks a production and maintenance unit, ex-
cluding clerical and supervisory employees. The Weldors contends
that the welders, cutters, and their helpers, excluding supervisors,
constitute a separate unit appropriate for collective bargaining. The
Company's position accords with that of the Iron Workers.
The Company conducts its business of steel fabricating in a plant
which consists of one room about 200 feet long and 80 feet wide. All
the employees are under the supervision of the plant superintendent
and his assistant. In the process of manufacture, the raw materials,
steel plates, and sheets, are first marked for size by the lay-out man.
'Then the machine operators cut the materials to size with shears and
2 See 9 Wigmore on Evidence ( 3d ed ) 436.
3 See Matter of Port Costa Packing Company, 46 N. L R. B 931.
4 See Matter of Eicor, Inc., 46 N. L. R. B. 1035.
6 The Regional Director reported that the Iron Workers submitted 14 application cards,
which bore apparently genuine signatures ; that the names of 13 persons appearing on the
cards were listed on the Company's pay roll of September 25, 1943, which contained the
names of 20 employees in the appropriate unit; and that the cards were all dated during
.July 1943. The Weldors relies on its contract as evidence of its interest.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cut out slots with an acetylene torch,6 or punch holes' with the drill
press machines. They then shape the product with the breaking ma-
chine. The parts so prepared are fitted together and welded into a
complete unit by the welders with the assistance of their helpers.
After the welding process the product is ground, cleaned, painted,
and prepared for shipment by another group of helpers.
The Company employs about 11 welders who spend substantially
all of their time at welding.' Although they work in many parts of
the plant under the general supervision of the plant superintendent
and his assistant, their function is a distinct step in the fabricating
process and is not merged with the work of other employees in the
plant. The welders do all of the welding that is clone in the plant.
They are required to pass proficiency tests not required of other em-
ployees; and their wage scale, based upon the results of the tests,
differs and is higher than that of the other employees.
It appears, therefore, that the welders, in the Company's employ
constitute an identifiable group of skilled employees performing spe-
cialized functions. Moreover, the history of bargaining at the plant,
although it is brief, demonstrates the feasibility of their separate
representation. We are of the opinion that the welders may prop-
erly constitute a separate bargaining unit if they so desire." On the
other hand, the closely integrated character of the Company's opera-
tions indicates the propriety of including the welders in a plant-wide
unit. Accordingly, we shall make no present determination as to
the appropriate unit, but shall first ascertain the desires of the em-
ployees involved, to be expressed in separate elections hereinafter
directed.
There remains for consideration a question concerning the composi-
tion of the voting groups. The Company and the Weldors seek the
exclusion of the assistant plant superintendent; the Iron Workers
would include him in its proposed bargaining unit. This employee
receives a higher rate of pay than do the production men, he does very
little manual labor, and spends most of his time performing super-
visory duties. He has authority to recommend hire and discharge, and
he is the only person other than the superintendent who has super-
visory status at the plant. We find that the assistant plant superin-
"These employees, unlike the employee who uses an acetylene torch to do frame cutting,
are not coffered by the Weldors' contract
' Occasionally, they help unload trucks and perform other miscellaneous tasks around
the plant
8 See Matter of Pope Machine Company, 54 N L. R B 262, and decisions cited therein.
See also Md'tter of Port Houston Iron Works, 46 N. L R. B. 155, in which the problem is
discussed in detail While we recognize that all of the indicia of identifiability adverted
to therein are not here present, we take notice that in a plant so small as the one here
involved, departmentalization and division of authority is not common . We are satisfied
that the circumstances surrounding the work of the welders employed by.the Company
satisfy the general rule which is the basis of the Port Houston decision.
MILWAUKEE WELDED PRODUCTS , INC. 325
tendent is a supervisory employee, and accordingly we shall exclude
him from participation in the elections hereinafter directed. The
parties agreed at the hearing to exclude the shipping clerk. Since
there appears to be no reason for departing from this agreement, we
shall exclude the shipping clerk from the voting groups.
We shall direct that separate elections be held among the employees
of the Company in the following groups , excluding from each group
all office and clerical employees , the shipping clerk, the plant super-
intendent and his assistant , and all other supervisory employees with
authority to hire , promote , discharge , discipline , or otherwise effect
changes in the status of employees , or effectively recommend such
action , who were employed during the pay-roll period immediately
preceding the date of the Direction of Elections herein, subject to
the limitations and additions set forth in the Direction: (1) welders,
cutters , and their helpers ; and (2) the remaining production and
maintenance employees . Upon the results of these elections will de-
pend in part our determination of the appropriate unlit or 'units.
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 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Milwaukee Welded
Products, Inc., West Allis, Wisconsin, elections 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 for the Thirteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the following groups, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those em-
ployees who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election:
(1) All welders, cutters, and their helpers, excluding all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively re-
commend such action, to determine whether they desire to be repre-
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented by Wisconsin Welders Association of Milwuakee County, Local
67, affiliated with the United Brotherhood of Weldors, Cutters and
Helpers of America, or by International Association of Bridge,
Structural and Ornamental Iron Workers, Local 471, affiliated with
the American Federation of Labor, for the purposes of collective
bargaining, or by neither;
(2) All remaining production and maintenance employees of the
Company, excluding office and clerical employees, the shipping clerk,
the plant superintendent and his assistant and all other supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively re-
commend such action, to determine whether or not they desire to be
represented by International Association of Bridge, Structural and
Ornamental Iron Workers, Local 471, affiliated with the American
Federation of Labor, for the purposes of collective bargaining.