West Steel Casting Co.

National Labor Relations Board - Board Decisions

Jun 20, 1946

68 N.L.R.B. 795 (N.L.R.B. 1946)

In the Matter of WEST STEEL CASTING COMPANY and INTERNATIONAL
MOLDERS & FOUNDRY WORKERS OF NORTH AMERICA (AFL)
Case No 8-R-2055 -Decided June 20, 1946
Stanley & Smoyer, by Mr Eugene B. Schwarts, and Mr W. F Toll,
both of Cleveland, Ohio, for the Company
Messrs. James H. Martin, Jack Langley, and Issac C Chapman, all
of Elyria, Ohio, and Mr. Carl Hubbell, of Cleveland, Ohio, for the
Union.
Horan & Bell, by Mr R S Horan, and Mr. Joseph Alabise, both of
Cleveland, Ohio, for the Independent.
Mrs Margaret H. Patterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Molders & Foundry
Workers of North America (AFL), herein called the AFL, alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of West Steel Casting Company, Cleveland,
Ohio, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Richard C.
Swander, Trial Examiner. The hearing was held at Cleveland, Ohio,
on March 28, 1946. The Company, the AFL, and Westeel Independ-
ent Union, herein called the Independent, 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.
At the hearing, the Company and the Independent moved to dismiss
the petition. The Trial Examiner referred this motion to the Board.
For reasons stated hereinafter the motion is hereby denied. The Trial
Examiner' s rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded opportunity to file
briefs with the Board.
68 N. L. R. B., No. 107.
795
796 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
West Steel Casting Company, an Ohio corporation located in Cleve-
land, Ohio, is engaged in the manufacture, sale, and distribution of
steel castings and wheels. The principal raw material used by the Com-
pany is scrap iron. During the 6 months preceding the hearing, it pur-
chased approximately $50,000 worth of such material, all within the
State of Ohio. During the same period it produced finished products in
the amount of $500,000, approximately 10 percent of which was shipped
out of the State.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
If. THE ORGANIZATIONS INVOLVED
International Molders & Foundry Workers of North America, af-
filiated with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company.
Westeel Independent Union, unaffiliated, is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the A. F. L. as the
exclusive bargaining representative of its production and maintenance
employees asserting, as does the Independent, that a collective bargain-
ing contract with the Independent signed on February 11, 1946, is a
bar to this proceeding.
On July 21, 1941, as the result of a consent election, the Board cer-
tified the Independent as the exclusive bargaining representative of the
Company's production and maintenance employees.' Thereafter, the
Company and the Independent entered into a number of collective bar-
gaining agreements, including a contract which was to expire on January
31, 1946, subject to 30-day automatic renewal. On August 7, 1945, the
AFL filed its initial petition with the Board but withdrew it on
November 2, 1945. On December 3, 1945, prior to the operative date
of the renewal clause, the AFL filed the present petition.2 In January
i Matter of West Steel Castings Company, 33 N. L. R. B 694.
2 The Company objected that the A. F L. made no formal demand for recognition prior to
the filing of the petition. Such a demand is not a prerequisite for the creation of a question
concerning representation . See Matter of Gunite Foundries Corporation , 65 N L R B 43;
Matter of Portland Lumber Mdls, 56 N. L. R. B. 1336.
WEST STEEL CASTING COMPANY 797
1946, the Company and the Independent entered into negotiations for
a new contract to replace the one about to expire. Because they were
unable to reach an agreement on the terms of the new contract by
January 31, 1946, the contracting parties extended their old contract for
1 month to February 28, 1946. On February 11, 1946, the Company
and the Independent signed a new contract supplanting the old agree-
ment. The Company and the Independent contend that this contract,
which is for a 1 year term, is a bar to the present proceeding.
As indicated above, the February 11, 1946, agreement was signed
after the AFL had filed its petition with the Board. Under estab-
lished principles, therefore, the contract cannot operate as a bar.
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 appropriate .3
The Company and the Independent contend, however, that the effect
of the timely filing of a petition in this case is dissipated by the fact
that the AFL did not represent a substantial number of employees
in the appropriate unit either at the time the petition was filed or at
the time of signing of the February 11 contract ; that, consequently, no
question of representation existed on the latter date ; and that they were
entitled, regardless of the petition filed by the AFL, to enter into
the new contract which is a bar to this proceeding.
We disagree. The fact that some of the cards were signed after the
date of filing of the petition is not material. The submission of authori-
zation cards to the Regional Director is an administrative expedient
adopted by the Board to aid it in determining whether or not the petition-
ing union has sufficient prima facie interest to justify the Board in pro-
ceeding with an investigation 4 The Board's administrative requirements
are satisfied if, as in the present case, the petitioner has substantial rep-
resentation at the time of the Field Examiner's preliminary investigation.5
The further point raised by the Company and the Independent, to
wit, that in view of the possibility that many of the authorization cards
secured by the AFL were signed after the date of execution of the
February 11 contract, the AFL did not represent a substantial num-
ber of employees on the latter date, must also be rejected. Inasmuch as
the authorization cards were not submitted as proof of the number of
employees who had designated the AFL by February 11, but solely
'The Field Examiner reported on March 15, 1946, that the AFL had submitted 123
authorization cards, of which 67 bore the names of employees on the January 11, 1946, pay roll,
and th-,t 64 were dated in 1945, 50 were dated on unspecified dates in February, 1946, and 9
were undated. She further reported that there were approximately 218 employees in the
appropriate unit.
See Matter of Buffalo Armes Corporatwn, 57 N. L R B. 1560,
See Matter of Buffalo Arms Corporatwn, supra.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to meet the Board's administrative requirements,e they are clearly in-
competent evidence of the maximum number who had designated the
AFL on any date. We have, in any event, already adverted to the
dispositive rule,-that the filing of a formal petition prior to the execu-
tion of a contract prevents that contract from constituting a bar.7
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 all production and maintenance em-
ployees, including inspectors, but excluding factory timekeepers, office
and clerical employees, truck driver, guards, wood and metal pattern
makers and apprentices, technical and laboratory employees, superin-
tendents, foremen, assistant foremen, and all supervisory employees.
Except for the classification, factory timekeepers, whom the Company
and the Independent desire to include, all the parties agreed upon the
composition of the aforesaid unit.
Factory timekeepers: Factory timekeepers work solely in the factory
proper, following the metal through its various operations and heats,
maintaining card records on the specifications of the metal and on the
time of the employees who work on the various operations. The cards
are then turned over to the department foreman. These employees are
hourly paid, work plant instead of office hours and have the vacations
and other privileges of plant employees. They have been bargained for
by the Independent as collective bargaining representative of the pro-
duction and maintenance employees. Inasmuch as these factory time-
keepers appear to be plant clerical employees and have been included
in the production and maintenance unit represented by the Independent,
we shall include them in the unit."
We find that all production and maintenance employees of the Com-
pany, including inspectors and factory timekeepers, but excluding clerical
, As we have frequently stated, the report of a Board agent with respect to a claim of
authorization is taken , not as proof of the precise number of employees who desire to be
represented by a labor organization , but rather to give reasonable assurance that a substantial
number of employees desire so to be represented , and thus to rid the Board's investigaton
process of unfounded claims See Master of Amos-Thompson Corporation 49 N L R B 423
o Lawful bargaining relationships are not to be harrassed by the assertion of baseless or dila.
tory claims . See Matter of General Electric X-Ray Corporation, 67 N L R B 997; Matter of
Henry & Allen, Inc, 68 N . L. R B 724 . We distinguish , however, between delay in filing a petition,
which is the responsibility of the claimant , and delay in processing the petition, over which
the claimant has no control. Once the petition has been filed , the claim of representation is
immediately subject to the Board 's administrative scrutiny, and to the attendant risk of
dismissal as insubstantial . Where, as is here the case, a petition has been timely filed under
the Board 's established rules, the petitioner cannot in good conscience be held accountable for
the time elapsing before the preliminary investigation was made
• See Matter of Shartle Brothers Machine Company, 57 N. L . R. B. 1546; Matter of Morrow
Manufacturing Company, 59 N. L. R B 90, Matter of Frick Company, 63 N L R B 837,
WEST STEEL CASTING COMPANY 799
and office employees, truck drivers, guards, wood and metal pattern-
makers and apprentices, technical and laboratory employees, superin-
tendents, 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, consti-
tute a unit appropriate for the purposes of collective bargaining 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 employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with West Steel
Casting Company, Cleveland, Ohio, 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, under the direction and supervision of the
Regional Director for the Eighth 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 employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and includ-
ing 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 the election, to determine whether
they desire to be represented by International Molders & Foundry
Workers of North America (AFL), or by Westeel Independent Union,
for the purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.