Wallington Tube Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1944

57 N.L.R.B. 763 (N.L.R.B. 1944)

In the Matter of WALLINGTON TUBE CORPORATION and AIRCRAFT LODGE
No. 703, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL
Case No. 2-R-4638.-Decided July 29, 1944'
Whitman, Ransom, Coulson cC Goetz, by Mr. Colley E. Williams, of
New York City, for the Company.
'Mr. Jerome Y. Sturm, of New York City, for the AFL.
Mr. Samuel L. Rothbard, of Newark, N. J., for the CIO.
Mr. Max M. Goldman, of counsel to the Board.
DECISION
AND,
DIRECTION OF ELECTION
STATEMENT OF THE CASE k
Upon a petition duly filed by Aircraft Lodge No. 703, International
Association of Machinists, AFL, herein called the AFL, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Wallington Tube Corporation, Wallington, New
Jersey, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Leon
Novak, Trial Examiner. Said, hearing was held at Passaic, New
Jersey, on June 5, 1944. At the hearing the Trial Examiner granted
a motion to-intervene made by United Steelworkers of America, Local
No. 2583, CIO, herein called the CIO. The Company, the AFL, and
the CIO appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The CIO moved to dis-
miss the petition on the following grounds: (1) the Company had
not yet fulfilled its obligation to post a notice for 60 days in accord-
ance with the terms of an agreement settling a charge alleging its vio-
lation of Section 8 (1) of the Act in Case No. 2 -C-5496; (2) the CIO's
contract with the Tube Reducing Corporation, the Company's parent
corporation , is a bar to this proceeding; (3) if an election is directed
and the AFL is selected and certified, this proceeding would have the-
effect of setting aside the CIO's contract with the Tube Reducing Cor-
poration , and would thereby violate the limitations on 'the expendi-
57 N. L . it B., No. 128.
763
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tures of the Board's funds provided for iii the 1944 Appropriations
Act; (4) the unit sought by the AFL is inappropriate; (5) since the.
Company anticipates an expansion of its operations in the immediate
future, the proceeding is premature; and ,(6) the CIO filed a charge
in Case No.2-C-5545 alleging that the Company had violated Section
8 (3) of the Act, which the CIO refused to waive as a basis for object-
ing to any election which might ensue from this proceeding. The
Trial' Examiner referred this -motion to the Board. The motion is
denied in all respects.' 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 COMPANY
Wallington Tube Corporation, a Delaware corporation wholly
owned by Tube Reducing Corporation, has its principal office and
place of business in Wallington, `New Jersey, where it is engaged in
the' manufacture of seamless steel tubing and propellor blade cores.
In the manufacture of such products the Company purchases raw
materials consisting chiefly of steel billets.
The plant and equipment used by the Company are owned by De-
fense Plant Corporation. The Company has exclusive control over
the hiring and discharging of personnel arid their working conditions,
and pays its employees on its own checks, keeps Social Security records
for them, and carries workmen's compensation insurance. It has its
own'system of bookkeeping and maintains a bank account in,its cor-
porate name. , It is engaged exclusively in the manufacture of war
products.
The Company concedes that it 'is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONTS- INVOLVED
Aircraft Lodge No. 703, international Association of Machinists,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company. ,
i
' The reasons for rejecting the grounds of the CIO's motion, are hereinafter set forth in
the same order in which the grounds are mentioned above (1) we provide in our Direction
of Electioh that the Regional Director shall not conduct the election until after the Com-
pany has, complied with this settlement agreement; (2) see Section III, infra; (3) the 1944
and current Appropriations Acts for the National Labor Relations Board refer specifically
to a "complaint" proceeding, and thus have no application to representation cases (See
Matter of U S Bedding Company, 52 N. L. R B. 382) ; (4) see Section IV, infra; (5) see
Section V, infra, (6) on July 13, 1944, the Regional Director refused to issue a complaint
-based upon this charge. .
WALLINGTON TUBE CORPORATION, 765
-United-Steelworkers of America, Local No.'2583, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the Company.
I
III. THE QUESTION CONCERNING REPRESENTATION
The Company has-refused to grant recognition to the AFL, as the
exclusive bargaining representative of its employees until the AFL
has been certified by the Board in an appropriate unit.
On March 4, 1944, about 1 month after operations at the Company's
plant were commenced, the CIO and the Tube Reducing Corporation
entered into a collective bargaining contract, covering the Tube Re-
ducing Corporttion's production and maintenance employees. By its
terms the contract may be terminated by either party at any time upon
30 days' notice. It does not purport to cover the Company's em-
ployees, although the Company's plant was in operation when it was
executed. Despite the CIO's assertion that this agreement bars the
instant proceeding, we find that it does not preclude a determination
of representatives of the Company's employees.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the AFL represents a substantial number of
employees-in the unit hereinafter found to be appropriate.'
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 AFL seeks a unit of the Company's production and main-
tenance employees. However, the CIO contends that the unit sought
by the AFL is Inappropriate and that there should be one unit com-
posed of the employees at the Company's plant and the employees at
the Tube Reducing Corporation's plant. The Company agrees with
the AFL's position.
As indicated above, the Company is a wholly owned subsidiary of
the Tube Reducing Corporation. The operations of both the Com-
pany's plant and the Tube Reducing Corporation's plant a,re admin-
2 The Field Examiner reported that the AFL submitted 73 authorization cards ; that the
names of 67 persons appearing on the cards were listed on the Company 's pay roll of
Maich 30, 1944 , which contained the names of 91 employees in the alleged appropriate"
unit ; and that the cards were dated as follows : 49 in March 1944, and 18 in Apiil 1944.
The Field Examiner also reported that the CIO submitted 10 authorization cards , that the
names of S persons appearing on the cards were listed on the sane pay loll ; and that the
cards were dated as follows : 3 in February 1944, 1 in March 1944, and 4 undated
The Trial Examiner reported that at the hearing the AFL submitted 40 additional cards ;
that 5 cards contained navies of persons listed on the above pay roll; and that the CIO
submitted 15 additional cards , 9 'of which contained names of, persons listed on the same
pay roll
I
766 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
istered by the same officers and executives. In many instances the
employees at both plants .are subject to the direction of the same
supervisors. The representatives of management who act for both
plants are either on the pay rolls of both corporations or' on the pay
roll of•one under a reimbursement arrangement between the corpora-
tions. The plants, which are about 200 feet apart, are located on
adjacent land with a wire fence between them. Both plants are served
by a common railroad siding. The Tube Reducing Corporation per-
forms certain receiving, storing, inspecting, and clerical functions
for the Company, and the Company pays the Tube Reducing Cor-
poration for such services.
However, each plant' operates as a separate entity. The Tube-Re-
ducing Corporation's plant is devoted exclusively to the manufacture
of straight tubing, While the Company's plant is devoted to both
straight and tapered tubing. • Special steel and equipment are re-
quired for tapered tubing. In addition, a greater degree of skill' is
essential to operate the tapered tubing machines than the straight
tubing machines. Each plant completes its own product and is not
dependent upon the other in its production processes. Each plant has
separate maintenance crews and independent heating and lighting
systems. There is little, if any, interchange of employees between
the plants, and the employees at each plant have their own eating
places and medical facilities. In view of the foregoing, we are of
the opinion that the employees of the Company comprise a separate
appropriate unit. On the other hand, we are also of the opinion•that,
in the event the Company's employees select the CIO as their 'bar-
gaining representative, and the -CIO, the Company, and its parent,
the Tube Reducing Corporation, agree to bargain collectively for'the
employees of both corporations as a single group, it will not be in-
appropriate for these parties to engage in bargaining upon such basis.
There remains for consideration the specific composition of the
appropriate unit. The parties are agreed to the inclusion of inspec-
tors, porters,,electrical welders, and crane operators, and to the exclu-
sion of sales employees; guards, foremen, and other supervisory
employees. There is, however, some question as to the following
categories:
Office employees: The AFL would exclude the office employees. The
Company and the CIO take no position as to these employees. In
accordance with our usual practice of excluding office employees from
production and maintenance units, we'shall-exclude them.
Factory clerks and -warehousemen: Both the CIO and the, AFL
desire to include the factory clerks and warehousemen. The Company
would exclude them. The factory clerks perform the usual 'clerical
WALLINGTON TUBE CORPORATION 767'
functions in the factory relating to' production .. The warehousemen
.do work of a similar nature in the warehouse . The employees in
these classifications are under the supervision of the plant superin=
tendent and not the office manager. In view of the foregoing, we
shall include the factory clerks and the warehousemen.
Shipping clerks: The AFL and the CIO seek the inclusion of the
shipping and-receiving employees . The Company takes no position
as to them. The Company employs only one shipping clerk. He is
responsible to the plant superintendent and it does not appear that he
performs functions other than those customarily performed by em-
ployees in his work classification . Accordingly , we shall include the
shipping clerk.
Electrical maintenance employees: The Company would include
the electrical maintenance employees . Both the CIO and the AFL
oppose their inclusion . These employees have a higher' wage scale
than the production and maintenance employees . They have their
own supervisor and although they work throughout the plant, they
operate out ' of their own station. We shall , therefore, exclude the
electrical maintenance employees.
Shift group leaders: Botirthe CIO and the AFL urge the inclusion
of the shift group leaders .. The Company asserts that they are super-
visory employees and should be excluded . There are ,two workers in
this classification , and they, are employed on different shifts in the
machine shop . Each is in sole charge of the shop during his shift.,
They supervise and receive a -higher rate of pay than the other em-
ployees. ' Their recommendations concerning changes in the status
of the employees under their supervision are effective . We find that
the machine shop shift group leaders fall within our customary defi-
nition of supervisory employees . Consequently , we shall exclude
them. '
We find that all the Company 's production and maintenance em-
ployees, including inspectors , porters , electrical welders, crane
operators, factory clerks , warehousemen ,, and shipping clerks, but
excluding sales employees , guards, office employees , electrical main-
tenance employees , the machine shop shift group leaders, foremen,
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, constitute an appro-
priate unit within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES'
We shall - direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among ,the em-
768 DECISIONS - or, NATIONAL LABOR RELATIONS BOARD
k
ployees in the appropriate unit who,were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject-to; the limitations and additions set forth in the
Direction., It appears from the record that the number of employees
within the appropriate unit, may be more than doubled within 1 year
following any certification which we may, issue in this proceeding.
'While we disagree with the CIO's position that the instant proceed-
ing is premature, in accordance with the principle enunciated' in
Matter of Aluvninu m Company of America,3 we shall entertain a new
representation petition affecting the employees involved herein within
a period less than 1 year, but not before the expiration of 6 months
from the date of any certification which we may issue in the instant
proceeding upon proof (1) that the number 'of employees in the ap,
propriate unit is more than double the number of employees eligible
to vote in the election hereinafter directed, and (2) that the petition-
ing labor organization represents a substantial number of employees
in the expanded unit.4 '
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 Relations
Act, and pursuant to Article III, Section 9, of,National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Wallington Tube
Corporation, Wallington, New Jersey, 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, and not earlier than the day
following the last day of the Company's compliance with the settle-
ment agreement in Case No. 2-C-5496 respecting the posting of no-
tices, under the direction and supervision of the Regional Director
for the Second-Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III,'Sections
10 and 11, of said Rules and Regulations, among the employees in the
unit found-appropriate'in Section IV, above, who were employed dur-
ing the pay-roll period immediately preceding the date of this Di-
rection, 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
162'N. L R B. 1040 '
4 The AFL and CIO requested that they be designated on the ballot as their names
appear in the Direction of Election.
WALLINGTON TUBE CORPORATION 769
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, to
determine whether they desire to be represented by Interrn tional As-
sociation of Machinists, Aircraft Lodge_No. 703, AFL, or by United
Steelworkers of America, CIO, for the purposes of collective bar-
gaining, or by neither.
MR. GERARD D. •REILLY took no part in the consideration of the
above Decision and Direction of Election.
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