Wm. Lans Co.

National Labor Relations Board - Board Decisions

Mar 2, 1940

21 N.L.R.B. 31 (N.L.R.B. 1940)

In the Matter of WM. -LANs Co. and INTERNATIONAL HOD CARRIERS',
BUILDING AND COMMON LABORERS' UNION OF AMERICA, LOCAL No.
1426, AFL
Case No. R-1699.-Decided March 2, 19.40
Junk Business-Investigation of Representatives : controversy eoncerning repre-
sentation of employees : refusal to recognize union as exclusive representative
questioning status of three employees-Unit Appropriate for Collective Bar-
gaining: all employees at two junk yards in same city , excluding office and clerical
employees ; no dispute as to-Representatives : all parties desire election;
eligibility to participate in choice : three "casual " employees placed upon prefer-
ential employment list--Election Ordered
Mr. Frederick P: Mett, for the Board.
Mr. W. H. Arnold, of Beloit, Wis., for the Company.
Mr. Carl E. Bitnce, of Janesville, Wis., for the Union.
Mr. Harry Cooper, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On October 13, 1939, International Hod Carriers', Building and
Common Laborers' Union of America, Local No. 1426, AFL, herein
called the Union, filed with the Regional Director for the Twelfth
Region (Milwaukee, Wisconsin) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Wm. Lans Co., Beloit, Wisconsin, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On January 9, 1940, 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 Regulations-Series 2, ordered an investi-
gation and authorized the Regional Director to conduct it and to
provide for an appropriate hearing.upon due notice.
On January 11, 1940, the Regional Director issued a notice of hear-
ing, and on January 16, 1940, a notice of postponement of hearing,
21 N. L . R. B., No. 5.
31
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of both of which were duly served upon the Company and the
Union. Pursuant to notice, a hearing was held on January 25, 1940,
at Beloit, Wisconsin, before Charles E. Persons, the Trial Examiner
duly designated by the Board. The Board and the Company were
represented by counsel; the Union, by its business agent. All partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made several rulings on motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Wm. Lans Co. is a partnership with its place of business and plants
located at Beloit, Wisconsin, where it is engaged in purchasing, sorting,
cutting, grading, and selling scrap iron, rags, paper, and other kinds
of junk. It operates two yards, both of which are connected by sidings
with the Chicago and North Western Railroad Company and one of
which is also connected with the Chicago, Milwaukee, St. Paul and
Pacific Railway Company. The Company occasionally purchases car-
loads of material in States other than Wisconsin, although at least
90 per cent of the materials purchased by it originate in Wisconsin.
At times it sends certain employees to Illinois to obtain goods. Of
the materials sold by it, it ships 40 per cent in tonnage and 60 per cent
in dollar value to points outside Wisconsin.
H. THE ORGANIZATION INVOLVED
International Hod Carriers', Building and Common Laborers' Union
of America, Local No. 1426, AFL, is a labor organization, affiliated
with the American Federation of Labor, which admits to its member-
ship all employees of the Company except office and clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
On October 6, 1939, the Union requested the Company to bargain
collectively with it as the exclusive representative of its employees,
and on that date and thereafter the Company refused to do so, ques-
tioning the status of the three so-called "temporary" employees
discussed below.
We find that a question has arisen concerning representation of em-
ployees of the Company.
WM. LANS COMPANY 33
IV. THE 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 commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union contends that all the Company's employees at both its
yards in Beloit, Wisconsin, except office and clerical employees, con-
stitute a unit appropriate for the purposes of collective bargaining.
The Company agrees that the employees at both yards constitute an
appropriate unit, and does not otherwise dispute the appropriateness
of the unit claimed by the Union. All employees in the claimed unit
are engaged in handling junk. All are eligible to membership in the
Union. We see no reason to depart from the unit claimed by the
Union.
We find that all employees of the Company, at both its yards in
Beloit, Wisconsin, excluding office and clerical employees, constitute
a unit appropriate for the purposes of collective bargaining and that
said unit will insure to employees of the Company the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Union and the Company desire and we shall direct that an
election by secret ballot be held to resolve the question concerning
representation.
The Union and the Company, agree that 11 employees, named in Ap-
pendix A, who are considered by the Company to be its regular
employees, are eligible to vote in the election. The Union contends
that three other employees, Walter Jones, Johnnie White, and Hayes
White, are also entitled to vote. The Company claims that these three
persons, among others, are only "extra" or "temporary" employees
and therefore should not be eligible to vote.
The Company regularly employs 11 employees and hires so-called
"extra" or "temporary" employees from time to time as required by
the exigencies of its business. During 40 weeks in 1939 the Company
employed 11 employees or fewer. During one week, it employed 12.em-
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees ; during 3 weeks, 13; during one week, 14; during one week,
15; during 4 weeks, 16; and during 2 weeks, 17. During the year
1937 the maximum number of employees employed by the Company
during any one week was 18; during 1938, 14.
Johnnie White was employed by the Company between January
1937 and February 1938 as a regular employee. The Company claims
that his work as a regular employee was terminated in February
1938. Thereafter, however, he was employed from time to time dur-
ing 1938 and 1939. In 1938, between April and November, he worked
117 hours; in 1939, 138. Walter Jones and Hayes White were first
employed by the Company in August 1939. From that time until the
end' of the year,, Jones 'worked' 192"hours and Hayes White worked
219 hours. Five other so-called "temporary" employees were also first
employed by the Company in August 1939 and worked, respectively,
the following number of hours during the period August-November :
204, 156, 106, 70, 32.
On September 29, 1939, the Company laid off 10 of its employees,
including 8 employees who joined the Union during the evening of
September 29. The eight included Walter Jones, Johnnie White,
Hayes White, and five regular employees. About October 4, in set-
tlement of a labor dispute. which resulted from the lay-off, the Com-
pany reinstated the five, regular employees and placed Jones and the
two Whites upon a preferential list to be given available work in the
future, which they were capable of doing, before other persons were
hired for such work. In a letter to the Regional Director dated
November 24, 1939, the Company reiterated its intention and desire
to comply in good faith with its agreement in regard to the preferential
list.
In view of the foregoing facts, Ave are of the opinion that Walter
Jones, Johnnie White, and Hayes White have an expectancy of fur-
ther employment with the Company sufficient to entitle them to vote
in the election we shall direct. The other "temporary" employees
who have heretofore been employed by the Company, not being upon
any preferential employment list, do not have such an expectancy.
We shall, therefore, direct that those eligible to vote in the election
will be the employees of the Company in the appropriate unit who
were employed by the Company during the pay-roll period immedi-
ately preceding the date of our Direction of Election herein, including
the employees named in Appendix A, Walter Jones, Johnnie White,
and Hayes White, employees 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 temporarily laid off, but excluding those who
have since quit or been discharged for cause and "extra" or "tempo-
WM. LANS COMPANY 35
rary" employees other than Walter Jones, Johnnie White, and Hayes
White.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Wm. Lans Co., Beloit, Wisconsin, within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All employees of the Company at both its yards in Beloit, Wis-
consin, excluding office and clerical employees, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
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 8, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purpose of collective bargaining
with Wm. Lans Co., Beloit, Wisconsin, 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 of Election, under the direction and
supervision of the Regional Director for the Twelfth Region, acting in
this matter as agent for the National Labor Relations Board and sub-
ject to Article III, Section 9, of said Rules and Regulations, among all
employees of Wm. Lans Co. at both its yards in Beloit, Wisconsin, who
were employed by it during the pay-roll period immediately preceding
the date of this Direction of Election, including the employees named
in Appendix A, Walter Jones, Johnnie White, and Hayes White, em-
ployees 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
temporarily laid off, but excluding office and clerical employees, those
who have since quit or been discharged for cause, and "extra" or "tem-
porary" employees other than Walter Jones, Johnnie White, and
Hayes White, to determine whether or not they desire to be represented
by International Hod Carriers', Building and Common Laborers'
Union of America, Local No. 1426, AFL, for the purposes of collective
bargaining.
a
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
William Budres.
John Blozek (Blazek).
Leo Dunaway.
Remus Goodwin.
Yates Hughes.
Joe Labanowski (Labanof-
sky).
Jacob Marks.
Lawrence Meinert.
Harry Neblock.
Emil Resler.
Tony Songal.
c