Schmieg Industries

National Labor Relations Board - Board Decisions

Jul 27, 1945

62 N.L.R.B. 1474 (N.L.R.B. 1945)

In the Matter of J. D. SCHMIEG AND F. A. SCHMIEG INDIVIDUALLY AND
AS CO-PARTNERS , DOING BUSINESS AS SCHMIEG INDUSTRIES ' and SHEET
METAL WORKERS INTERNATIONAL ASS'N, LOCAL UNION No. 292,
A. F. L.
In the Matter of PETERS-DALTON, INC. and SHEET METAL WORKERS
INTERNATIONAL ASS'N, LOCAL UNION No. 292, A. F. L.
Cases Nos. 7-R-1985 and 7-R-1986, respectively, Decided July 27, 1945
Mr. David Karasick, for the Board.
Mr. N. J. Biddle, of, Detroit, Mich., for the Companies.
Mr. George S. Fitzgerald, of Detroit, Mich., for the AFL.
Mr. Nicholas J. Rothe, of Detroit, Mich., for the CIO.
Mr. Jack Mantel, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by Sheet Metal Workers International
Ass'n, Local Union No. 292, A. F. L., herein called the AFL, alleging
that a question affecting commerce had arisen concerning the representa-
tion of employees of J. D. Schmieg and F. A. Schmieg, Individually and
as Co-Partners, doing business as Schmieg Industries, herein called
Schmieg, and Peters-Dalton, Inc., herein called Peters, both of Detroit,
Michigan, and collectively referred to as the Companies, the National
Labor Relations Board provided for an appropriate hearing upon clue notice
before Sidney L. Feiler, Trial Examiner. Said hearing was held at Detroit,
Michigan, on May 17 and 18, 1945. The Companies, the AFL, and United
Steelworkers of America, Local No. 1511, CIO, herein called the CIO,
I At the heating, the pleadings were amended to conform to the corrected name of this company
as set forth above
62 N. L . R. B., No. 205.
1474
SCHMIEG INDUSTRIES 1475
appeared and aprticipated. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Trial Examiner's rulings 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES
J. D. Schmieg and F. A. Schmieg, Individually and as Co-Partners,
doing business as Schmieg Industries, maintain their sole office and plant
at Detroit, Michigan, where they are engaged in the design, manufacture,
and installation of dust collecting and fume elimination equipment, and
in general industrial sheet metal work. The principal raw materials used in
the manufacturing operations are steel sheets, plates, structurals, and
related mechanical assemblies and accessories. During them year 1944,
Schmieg purchased materials and equipment valued at $335,000, of which
$85,000 represented shipments of materials and equipment to the Detroit
plant from points outside the State of Michigan. During the same period,
the sales of this company amounted to $1,090,000, of which $310,000 rep-
represented sales in which shipments were made from the plant to points
outside the State.
Peters-Dalton, Inc., a Michigan corporation, maintains its sole office
and plant at Detroit, Michigan, where it is engaged in the fabrication and
installation of industrial equipment including dust 'collectors, ovens, and
industrial ventilating systems. The principal raw material used in its oper-
ations is steel . During the year 1944, Peters purchased materials and
equipment valued at $551,530, of which $396,000 represented shipments
of materials and equipment to its Detroit plant from points outside the
State of Michigan. During the same period, the sales of this company
amounted to $1,264,370, of which $894,000 represented sales in which
shipments were from the plant to points outside the State.
Each of the Companies admits that it is engaged in commerce within
the meaning of the National Labor Relations Act. ,
II. THE ORGANIZATIONS INVOLVED
Sheet Metal Workers International Ass'n, Local Union No. 292, affili-
ated with the American Federation of Labor, is a labor organization admit-
ting to membership employees of the Company.
United Steelworkers of America, Local No. 1511, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE QUESTIONS CONCERNING REPRESENTATION
On February 26, 1945, the AFL addressed similar letters to each of
the Companies claiming to represent a majority of the employees at their
respective plants and requested exclusive bargaining rights. The Companies
did not reply to these letters, and the AFL, on March 5, 1945, filed its
petitions herein.
The Companies and the CIO operated under individual collective bar-
gaining contracts from May 1937 to May 1940. From June 1940 to June
1943, the CIO negotiated each year with a group of from six to nine
firms designated in the resultant blanket contracts as "Sheet Metal Com-
panies." Schmieg and Peters, or their predecessors, were parties to these
blanket contracts. In May 1943, 1 month before the expiration of the last
agreement , the CIO wrote to each of the "Sheet Metal Companies"
requesting negotiations for a new contract
In December 1942, an organization known as the Associated Metal
Fabricators -and Engineers, herein called the Association, was formed,
admitting to membership any firm engaged in industrial sheet metal work.
Some of the purposes of the Association were to assist members with their
labor problems upon request, and to assist them in their relationship with
the various governmental agencies and bureaus. All of the employers,
including Schmieg and Peters, who were parties to the blanket agreement
with the CIO, with one exception, became members of the Association.
Upon the CIO's request to negotiate a new contract, the Association, by
its secretary, N. J. Biddle, took an active part in these negotiations in
behalf of its members. Although Biddle did not have authority to bind
the members, he acted as their spokesman. When negotiations with the
CIO reached an impasse, the issues were submitted to the United States
Conciliation Service which certified the dispute to the War Labor Board.
herein called the WLB, where the case is still pending. The CIO main-
tains that an election should not be held at this time because the W1_B has
not yet decided the issues in dispute. We find no merit in this" contention.
The record discloses that despite the fact that proceedings were and still
are pending before the WLB, another blanket contract was signed in
April 1945, by the CIO and seven of the nine employers who were parties
to the prior contract. Schmieg and Peters did not sign this contract. The
mere fact that governmental procedure has been invoked is not sufficient
to alter the rule that pending negotiations are not a bar to a determination
of representatives, where, as here, the pendency of issues before the WLB
did not foreclose the CIO from entering into a comprehensive collective
bargaining contract with the other employers, and the CIO has enjoyed
bargaining rights for the employees of Schmieg and Peters from 1937
to 1943.2
2 See American Car & Founds y Co , 60 N. L R B 735 , and cases cited therein
SCHIIIEG INDUSTRIES 1477
Statements of a Board agent, introduced into evidence at the hearing,
indicate that the AFL represents a substantial number of employees em-
ployed by Schmieg and Peters, respectively, in the separate units herein-
after found to be appropriate a
We find that questions affecting commerce have arisen concerning the
representation of employees of the Companies, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The AFL contends that separate plant-wide units for each of the Com-
panies are appropriate, Schmieg and Peters being in accord with this
position. The CIO, however, urges that a multiple-employer unit is appro-
priate because of its past bargaining history with the Companies on that
basis.
Although Schmieg and Peters were parties to the blanket sheet metal
company contracts with the CIO from 1940 to 1943, which were on an
informal and voluntary basis, Schmieg and Peters clearly indicated their
intention not to be included in such bargaining arrangements by refusing
to become parties to the contract executed by the CIO and seven other
firms in April 1945. The record also indicates that both Schmieg and
Peters, in February 1945, rejected the Association's authorization to rep-
resent them in the negotiation of labor matters. Since the Companies have
asserted an intention to pursue individual courses of action with Yegard
to their labor relations, we are of the opinion that separate units comprised
of employees of each of the Companies are appropriate."
Schmieg: As to the composition of the unit confined to Schmieg's em- -
ployees, the parties agreed to include all job foremen,'lay-out men, inechan-
ics, second-class mechanics, welders, erection men, helpers, painters, labor-
ers, truck drivers, shipping- and receiving employees, and stockroom em-
ployees, and to exclude the general superintendent of erection, shop fore-
men, and office and clerical employees. However, the parties are in dispute
concerning subforemen, whom Schmieg and the AFL would include in
the unit, and the CIO would exclude.
Schmieg employs 2 subforemen, each of whom assigns and supervises
the work of from 25 to 50 employees. The subforemen spend approximately
5 percent of their time in performing manual work as distinguished from
a The Board agent reported that the AFL submitted 54 authorizations, and that the names appear-
ing on 44 of them were listed on Schmieg ' s pay roll for the period ending March 4, 1945, which
contained the names of 74 employees in the unit claimed to be appropriate The Board agent also
reported that the AFL submitted 35 authorizations , and that the names appearing on 57 of them were
listed on Peters ' pay roll for the period ending March 12, 1945, which contained the names of 90
employees in the unit claimed to be appropriate
The CiO relies upon i ts past contracts with the Companies for its interest in the proceedings
4 See Matter of Great Bear Logging Company, 59 N. L R. B 701, and Matter of George F Carte-
ton & Company, 54 N I. R. B 222
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their supervisory duties. The record is clear that they have the authority
effectively to recommend the discharge of employees who work finder their
direction . We are of the opinion that the subforemen come within the
Board's customary definition of supervisory employees ; we shall therefore
exclude them from the unit.
Peters: As to the composition of the unit confined to Peters' employees,
the parties agreed to include job foremen , lay-out men, mechanics , second-
class mechanics , welders, maintenance employees , stock employees, truck
drivers and helpers, and to exclude the works manager, the shop foremen,
the salaried subshop foremen , salaried timekeepers , and office and clerical
employees . However, the parties are in dispute concerning the hourly paid
subshop foremen , and one hourly paid timekeeper . Peters and the AFL
would'include these employees in the unit , whereas the CIO would exclude
them.
Peters employs two hourly paid subshop foremen whose duties are sub-
stantially the same as those performed by Schmieg 's subforemen . For the
same reason above in excluding the latter employees , we shall exclude from
the unit the subshop foremen.
There is one hourly paid timekeeper , concerning whom the parties are
in dispute , although they have agreed to exclude the salaried timekeepers.
We see no reason for not excluding the timekeeper who is hourly paid since
there is no substantial functional difference between his duties and those
of the timekeepers-paid on a salary basis. We shall , in accordance with
our customary practice , exclude all timekeepers.
We find that each of the following groups constitute units appropriate
for the purposes of collective bargaining , -within the meaning of Section
9 (b) of the Act.
1. All job foremen,' lay-out men, mechanic,, second-cla s mechanic,.
welders, erection men, helpers , painters , laborers, truck drivers, shipping
and receiving employees , and stockroom employees employed by Schmieg,
but excluding the general superintendent of erection , shop foremen, sub-
foremen, office and clerical employees, 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.
2. All job foremen ,' lay-out men , mechanics ,' second-class mechanics,
maintenance employees, stock employees, truck drivers and helpers, em-
ployed by Peters, but excluding the works manager, shop foremen, sub-
shop foremen , all timekeepers , office and clerical employees, and all other
supervisory employees with authority to hire, promote, discharge , disci-
5 The record reveals , and we find , that these employees do not have supervisory status within the
Board ' s customary definition thereof.
6 See footnote 5, supra
' In accord with the agreement of the parties , it is intended to include within this category painters,
cicctuciaus, lahmeis, stcamfitters; and millwrights
SCHMIEG INDUSTRIES 1479
pline, or otherwise effect changees in the status of employees, or effectively
recommend such action.
V. THE DETERMINATION OF REPRESENTATIVES
The AFL urges that certain employees, referred to in the record as
casual employees, who are hired temporarily by Schmieg and Peters for
specific construction jobs, should be eligible to vote if they are working
on the date of the election. The CIO claims that these employees are not
eligible, whereas the Companies take no position in the matter. On out-
of-town construction jobs, both Companies hire casual employees when
it is determined that the complement of regular workers assigned to the
job is insufficient. The casuals are employed at the locale of the construction
only for the duration of the specific job. The prior contracts which the
Companies had with the CIO did not cover casual employees, nor were
any such workers actually employed as of the time of the hearing, although
the Companies had several out-of-town construction jobs in progress.
Since the hire and tenure of their employment is of a temporary nature,
we find that the casual employees are ineligible to vote.
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the employees
of the Companies in the appropriate units 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.
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 Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with J. D. Schmieg and F. A.
Schmieg, Individually and as Co-Partners, doing business as Schmieg
Industries, Detroit, Michigan, and Peters-Dalton, Inc., Detroit, Michigan,
separate 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 Seventh
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 each of the units found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees who
did not work during the said pay-roll period because they were ill or on
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of each
election, to determine whether they desire to be represented by Sheet Metal
Workers International Ass'n, Local Union No. 292, A. F. L., or by
United Steelworkers of America, CIO, Local No. 1511, for the purposes
of collective bargaining, or by neither.