American Chain & Cable Co., Inc.

National Labor Relations Board - Board Decisions

Nov 29, 1944

59 N.L.R.B. 644 (N.L.R.B. 1944)

In the Matter of AMERICAN CHAIN & CABLE COMPANY, INC. and FED-
ERAL LABOR UNION 23732, AMERICAN FEDERATION OF LABOR ,
Case No.4-R-1595.Decided November 29, 1944
Fisher, Ports, and May, by Mr. Ralph F. Fisher, of York, Pa.,
for the Company.
Messrs. Edward Davis and Thomas Mallon, of Philadelphia, Pa.,
and Messrs. John Carl Foster, Jr., and Russell S. Stine, of York, Pa.,
for the A. F. of L.
Mr. Harry Boyer, of Reading, Pa., for the C. I. 0.
Mr. Julius Kirle, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Federal Labor Union
23732, American Federation of Labor, herein called the A. F. of L.,
alleging that a question affecting commerce had arisen concerning
the representation of employees of American Chain & Cable Com-
pany, Inc., York, Pennsylvania, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before Herman Lazarus, Trial Examiner. Said hear-
ipg was held at York, Pennsylvania, on October 24 and 25, 1944. The
Company, the A. F. of L., and the United Steelworkers of America,
herein called the C. I. 0.,1 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 C. I. 0. moved to dismiss the petition on the
ground that its contract with the Company is a bar to the instant pro-
ceeding. Ruling on the motion was reserved for the Board. For
reasons stated in Section III, infra, the motion is hereby denied.
The Trial Examiner's rulings made at the hearing are free from
1 The C. I. 0 appeared in behalf of its Local 1852 Prior to October 21, 1943 , an Inter-
national representative was designated by the C I. O. to supervise the affairs of Local
1852 , which presently represents the employees of the E W Division involved herein
59 N. L. R. B., No. 128.
644
AMERICAN CHAIN & CABLE COMPANY, INC. 645
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 snakes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Chain & Cable Company, Inc., a New York corporation,
is engaged in the manufacture of chains, cranes, garage equipment,
and malleable castings. It operates 20 plants located in various parts
of the United States, Canada, and England, including 3 plants at
York, Pennsylvania. We are concerned here with the E. W.. Division
at York, Pennsylvania. During the past year, the Company's E. W.
Division used raw materials valued in excess of $500,000, 10 percent
of which was shipped to it from points outside the Commonwealth of
Pennsylvania. During the same period, the E. W. Division produced
finished products valued in excess of $500,000, 95 percent of which was
shipped to points outside the Commonwealth.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union 23732, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership em-
ployees of the Company.
United Steelworkers of America, affiliated with the Congress of
.Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On October 21, 1943, the Company and the C. I. O. executed a col-
lective bargaining contract covering the production and maintenance
employees of the E. W. Division.2 The contract contained the fol,
lowing clause :
The 1943 agreement shall continue until changed or terminated
as follows: (a) either party may subsequent to July 1, 1944, at any
time and from time to time give ten (10) days written notice to
the other party of the time for the commencement of a confer-
ence of the parties for the purpose of negotiating the terms and
conditions of a change of the 1943 agreement, which conference
2 The contract was signed by the officers and representatives of Local 1852 and by the
International representatives of the C. I O.
X646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be at the office of the Company in York, Pennsylvania, un-
less otherwise mutually agreed, and (b) if because of failure to
agree, the 1943 agreement is not changed by written agreement
entered into by the Company and the Union within 20 days from
the giving of said notice, then, unless extended by mutual agree-
ment between the parties, the 1943 agreement and all the provi-
sions thereof shall terminate upon the expiration of 20 days from
the giving of said notices
On July 3, 1944, the C. I. O., by letter, notified the Company of its
desire to negotiate a new contract for the E. W. Division, negotiations
to commence on July 14, 1944. On July 15, 1944, the day after ne-
gotiations were to commence, the Company wrote a letter to the
C. I. O. confirming a telephone conversation on that date and agree-
ing that "negotiations between United Steelworkers of America,
Local Union No. 1852 and our Company be postponed and the present
agreement be extended pending the issuance of a Directive Order of
the National War Labor Board." On July 13 and 20, 1944, the
'C. I. O. filed petitions with the N. W. L. B. requesting an interim
directive order for the extension of existing collective bargaining
agreements, including those of the Company. On August 9,'1944,
the A. F. of L. requested recognition and on August 18, 1944, filed
its petition. On September 5, 1944, the N. W. L. B. issued an interim
directive order directing the continuance of the terms of the 1943
contract between the Company and Local 1852 until the execution of
a new contract.
The Company contends that its contract with Local 1852 and the
subsequent proceeding before the N. W. L. B. constitute a bar to the
instant proceeding. We do not agree with these contentions. The
Board has repeatedly held that mere submission of a dispute to the
N. W. L. B. for adjudication, or the pendency of a case before that
Agency, does not require the Board to delay or refuse to proceed to an
immediate determination of a collective bargaining representative
where there exists a valid question concerning representation.-' In
view of the C. I. O,'s contractual relations with the Company since
1938, it is clear that it has obtained for the employees substantial bene-
fits of representation throughout that period. Thus, the C. I. O. is not
in the position of a newly certified representative which is entitled to
a reasonable opportunity to act as the exclusive representative and
secure for the employees the benefits of representation 5 Moreover, on
July 3, 1944, pursuant to the terms of the 1943 contract, the parties
evinced an intention to terminate such contract and to enter into nego-
tiations for a new one; thus, on August 9, 1944, when the A. F. of L.
8 Since the notice was given on July 3, 1944, the termination date would be July 23,
1944.
4 See Matter of Caterpillar Tractor Company, 57 N. L. R. B. 1798.
1 See Matter of Allis-Chalmers Manufacturing Company, 50 N. L . R. B. 306.
AMERICAN CHAIN & CABLE COMPANY, INC. 647
requested recognition and on August 18, 1944, when it filed its petition,
both of which events occurred prior to the issuance of the interim order
by the N. W. L. B., a question concerning representation arose. Even
if we are to assume that the letter of July 15, 1944, from the Company
to the C. 1. 0., constituted a sufficient written agreement to continue the
1943 contract in effect pending the interim order of the N. W. L. B., it
still would not serve as a bar to the instant proceeding since it would
be an extension of the 1943 contract for an indefinite period .e In view
of these circumstances, we find that neither the 1943 contract nor the
subsequent order of the N. W. L. B. constitutes a bar to the instant
proceeding.?
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the A. F. of L. represents a substantial number of
employees in the unit hereinafter found 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 A. F. of L. seeks a unit of all production and maintenance em-
ployees of the Company's E. W. Division, excluding executives, fore-
men, assistant foremen, salaried employees, and plant-protection em-
ployees. The Company, on the other hand, contends that the appro-
priate unit should include the production and maintenance employees
.in all of the Company's three plants comprising the York Division.
The C. I. 0. takes no position with respect to the appropriate unit.
During the period from 1938 to 1943, the E. W. Division, the W. M.
Plant, and the foundry, comprising the York Division, were bar-
gained for as a multiple-plant unit by Local 1852. However, in 1943,
the -employees of the W. M. Plant and the foundry broke away from
the employees of the E. W. Division and formed a bargaining unit
of their own, separate and distinct from the employees of the E. W.
Division, and were granted a charter as Local 3066. The employees
of the E. W. Division, thereupon, withdrew from any further nego-
tiations involving the employees of the other two plants. Subse-
quently, separate contracts were executed in behalf of Local 1852
covering employees of the E. W. Division, and in behalf of Local
3066 covering the employees of the W. M. Plant and the foundry, as
distinct units.
Although the foregoing collective bargaining history shows that
the employees of the E. W. Division can properly function as part of
6 See Matter of Eicor, Inc , 46 N. L. R. B. 1035 ; Matter of Rheem Manufacturing Com-
pany, 56 N L . R. B. 159.
7 See Matter of Caterpillar Tractor Company, footnote 4, supra.
'The Field Examiner reported that the A . F. of L. submitted 686 cards , all dated in
August 1944; and that there are 1,204 employees in the claimed appropriate unit.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a multiple-plant unit, the more recent breaking away by the em-
ployees of the W. M. Plant and the foundry from the E. W. Division
indicates a distinct cleavage between the two groups. The establish-
ment of separate bargaining units as a result of this cleavage is clearly
shown by the subsequent withdrawal of the E. W. Division from
negotiations involving the W. M. Plant and the foundry and the
execution of separate contracts by the Company and the respective
^C. I. O. locals. Neither the C. I. O. nor its Locals 1852 and 3066
have expressed any desire to change the bargaining units thus estab-
lished. Since the alleged close integration between the operations of
the E. W. Division and the two other operating plants of the Company
apparently has not impeded the functioning of the E. W. Division
as a separate unit, we see no reason to find, under the circumstances
here present, that only a single multiple-plant unit is appropriate.
We. find that all production and maintenance employees of the
Company's E. W. Division, but excluding executives, foremen, assist-
ant foremen, salaried employees, plant-protection employees, and all
other supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute 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 the
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 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 American Chain
& Cable Company, Inc., York, Pennsylvania, 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 Fourth Region, acting
in this matter as agent for the National Labor Relations Board, and
AMERICAN CHAIN & CABLE COMPANY , INC. 649
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions , among the employees in the unit found appropriate in Section
IV, above, who were em ployed 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 vaca-
tion 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 any 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 Federal
Labor Union 23732, A. F. of L., or by United Steelworkers of America,
C. I. 0., for the purposes of collective bargaining , or by neither .9
9 The A . F. of L and the C I. 0 requested that they be designated on the ballot as set
forth above The request is hereby granted