Buffalo Tank Corp.

National Labor Relations Board - Board Decisions

May 23, 1944

56 N.L.R.B. 829 (N.L.R.B. 1944)

In the Matter of BUFFALO TANK CORPORATION and LOCAL 576 OF THE
INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNA-
MENTAL IRON WORKERS (A. F. OF L.) , ,
Case No. 3-R-758.-Decided May 23, 1944
Keneflek, Cooke, Mitchell, Bass of Letchworth, by Mr. LeGrand F.
Kirk, of Buffalo, N. Y., for the Company.
Mr. George Mintzer; of Buffalo, N. Y., for the Iron Workers.
Mr. Ray Oberholtzer, of Buffalo, N. Y., for the Boilermakers.
Mr. John F. Gunderman, of Buffalo, N. Y., for the Welders.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petition duly filed by Local 576 of the International Associa-
tion of Bridge, Structural and Ornamental Iron Workers (A. F. of
L.), herein called the Iron Workers, alleging that a question affecting
commerce had arisen concerning the representation of employees,of
Buffalo Tank Corporation, Lackawanna, New York, herein called the
Company; the National Labor Relations Board provided for an ap=
propriate hearing upon due notice.before Peter J. Crotty, Trial Ex-
aminer. Said hearing was held at Buffalo, New York, on April 6,
1944. The Company, the Iron Workers, and Local No. 7, Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, A. F. of L., herein called the Boilermakers, and Asso-
ciated Welders of Western New York, Inc., herein called the Welders,
appeared, participated, and were afforded full opportunity to be
-heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The rulings of the Trial Examiner made
at the hearing are free from prejudicial error and are hereby af-
firmed. Al] parties were afforded opportunity to file briefs with the
Board.
56 N L. R B., No. 154.
829
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the'Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE COMPANY
Buffalo Tank Corporation, a New York corporation, is engaged at
two plants in the manufacture of tanks and steel plate products. Only
its Lackawamria, New York, plant is involved in the present pro-
ceeding. During-the year 1943, the Company used at its Lackawanna
plant raw materials having Ia value in excess 'of $100,000, of which
more than 40 percent represents the value-of materials shipped to the
plant from points outside the State of New York: During the same
period, the-Company manufactured at its Lackawanna -plant finished
products having a value' in excess of $200,000, of which more than 40
percent represents the value of products shipped from the plant-to
points outside the State of New York. -
The Company admits that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Local 576 of the International Association of Bridge, Structural and
Ornamental Iron Workers is' a labor organization affiliated with the
American Federation of Labor, admitting to membership employees
'of the Company. ' -
Local No. 7, International Brotherhood of Boilermakers, Iron Ship-
'builders and Helpers of America, is a' labor organization affiliated with
the American Federation of Labor, admitting to membership employees
of the Company.
Associated Welders of Western New York, Inc., is an unaffiliated
labor organization admitting to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
On January 28, 1944, the Iron Workers mailed a letter to the Com-
pany in which it'claimed to represent a majority of the Company's
.employees and requested a conference to discuss bargaining relations. -
The Company replied," in effect,'that it would not bargain with ,any
labor organization not certified by the Board.
A statement of a Field Examiner of the Board, introduced into evi-
dence at the hearing, indicates that each of the labor organizations
represents a substantial number of employees in the unit it contends
-to 'be appropriate.'
The Field Examiner stated that the Iron workers submitted to him 38 authorization
cards, and that 34 of the cards bore names of persons whose names appeared on the Com-
BUFFALO TANK CORPORATION 831
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 DETERMINATION OF REPRESENTATIVES
A. The contentions of the -parties
The Iron Workers request a unit of all production and maintenance
employees at, the Company's Lackawanna plant, including the in-
spector, but excluding the janitor, watchmen, the timekeeper, office
and clerical employees, and supervisory employees.
The Boilermakers agrees that the unit requested by the Iron Workers
is appropriate with the additional inclusion of three' outside employees.
The Welders contends that welding employees should not be in-
cluded in a production and maintenance unit but should be found to
constitute a separate unit.
The Company hikes, a neutral position, but suggests the exclusion
of the inspector:
B. Description of the plant; the proposed production 'and maintenance
unit
The Lackawanna plant consists of a single 1-floor building without
partitions, housing a total pf approximately 40' production and main-
tenance employees, including 8 welders. Because of its small size, it
is not departmentalized and operates on a single shift. Over the en-
tire plant is a superintendent, and below him 2 supervisors.' There
are no other regular supervisory employees. The plant has no moving
production line, but the various operations performed therein are
clearly interrelated and interdependent. These facts would clearly
support a finding that a single production and maintenance unit is
appropriate.' The Board, however, has frequently postponed its de-
termination of'the appropriate unit pending a reflection of the desires
of employees soukht to be set off in a separate unit,'where counter-
balancing considerations were present indicating the appropriateness
of a separate- craft unit. As is noted hereinafter, the instant case
presents such factors in favor of a separate unit of welders. Accord-
ingly, no final determination as to the appropriateness of ,a single pro-
duction and maintenance unit will be made at this time.
pany;s pay roll for 'February 26, 1944, which listed 40 employees in the unit claimed to be
appropriate by the Iron Workers . He stated that the Boilermakers submitted to him 21
authorization bards, 19 of which bore names of persons whose names appeared on the
above-mentioned pay roll, which listed 43 employees in the unit which the Boilermakers
claimed to be appropriate He further stated that - the Welders submitted to him, 6
authorization cards, all of which bore names of persons whose names appeared on the
above -mentioned pay roll, which listed 8 employees in the unit alleged to be appropriate
by the Welders.
.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above, the Boilermakers contends that outside em
ployees should be included' in any production and maintenance unit
found to be appropriate. The Company has three employees who
spend about 95 percent of their working time traveling to customers'
plants to make installations and to service boilers. The remainder
of the time they are engaged in production at the plant. These em-
ployees are covered at present by a contract between the Company and
the Boilermakers. In view of this contract and the nature of their
duties, we shall not include the outside employees in the voting groups
hereinafter established.
As previously stated, the Company suggests that its inspector be
excluded. Apparently the basis for this position is the belief that the
inspector's -work is confidential and managerial in nature. The 'in-
spector inspects welding, fitting, and the completed articles to see that
they are up to standard. According to the superintendent of the Com-
pany, if either of the supervisors were absent, the inspector would
take his place and exercise the power to recommend hiring, discharg-
ing, transfer, and promotion. In view of the inspector's designation
by the Company as what may be termed a substitute supervisor, we
shall, exclude him from the voting groups.
C. The Welders' proposed unit
The 8 welders employed by the Company fuse steel plates' and forms
together by arc welding, and also perform any needed maintenance
welding. The Company also employs burners whom the Welders does
not desire to include. In addition, there are 6 to 12 employees who
may assemble plates for the welders and tack weld them into position.
The Welders does not desire to include tack welders in its proposed
unit. The Company's welders are not only the most skilled craftsmen
in the entire plant, but aside from the layout men, appear to be the
only highly,skilled employees. Their wage rate is between, 48 and 58
cents higher than that of any other group. Rarely, if ever, do they
perform any work other than welding. All of them have been certified
in welding tests.
The Company's, welders have no shop of their -own, 'nor is their
work confined to any one section of the plant. Moreover, they do not
have a separate supervisor. Nevertheless, considering the small size
of the plant, these facts do not alter the conclusion that the Company's
welders constitute a clearly identifiable group of skilled employees
performing specialized functions.' We are of the opinion that, the
considerations in favor of an industrial unit are balanced by those
2 See Matter of M2lwaurkee Welded Products, Inc, 55 N. L. R. B 321 , and Matter of
Pope Machine Company, 54 N L. R. B. 262.
BUFFALO TANK CORPORATION 833
tending to favor a separate unit of welders, so that the welders could
function as a separate unit for the purposes of collective bargaining, or
be included in a single production and maintenance unit. Under the
circumstances, our determination of the appropriate trait, or units,
will depend in part, upon the results of the elections hereinafter
directed.
D. The jurisdictional dispute
The Iron Workers and the Boilermakers, both of whom are affili-
ated with and subject to the jurisdiction of the American Federation
of Labor are seeking'to represent substantially the same employees of
the Company. The Boilermakers contends that a jurisdictional dis-
pute is thus presented and that the Iron Workers' petition should
therefore be dismissed.3 While we have on occasion dismissed pro-
ceedings involving jurisdictional disputes between two unions on the
theory that an issue was raised which the parent organization was
competent to decide, we have never done so where a third union, not
a party to the jurisdictional dispute, was also seeking to represent
the employees over whom the dispute had arisen.' Here, the Welders
is not a party to the jurisdictional dispute and seeks to represent some
of the employees involved in the controversy. We shall, therefore,
determine the question concerning representation despite the jurisdic-
tional dispute between the Iron Workers and the Boilermakers. The
names of both the Iron Workers and the Boilermakers shall be placed
on the ballots in the elections hereinafter ordered.5
E. Concluding findings -
In view of our findings with respect to the *elders employed by
the Company, we shall make 'no final determination at this time of
the unit, or units. We shall direct that the question concerning repre-
sentation which has arisen be resolved by separate elections by secret
ballot among the employees in the following voting groups who were
employed during the pay-roll period immediately preceding the date
8 There is in evidence an agreement between the parent bodies of the Iron Workers and
the Boilermakers , defining the respective jurisdictions of the two ormamzations We do not
feel called upon to interpret this document and determine whether it covers construction
work alone or both construction work and production The Iron Workers and Boiler-
makers are in dispute on the point and it will suffice to note here that the agreement is
not clear on its face
4 See Matter of Long-Bell Lumber Company , 16 N L It. B 892 , Matter of Campbell
'Wyant if Cannon Foundry Co. 32 N L It B 416; Matter of Truscon Steel Company, 33
N L It B 61 ; Matter of Weyerhaeuser Timber Company, Klamath Falls Branch, 42
N L It B 499; and Matter of United States Gypsum Company, 46 N L R B 23.
'If, as a result of the elections ordered in this proceeding, the 'It on workers or the
Boilermakers is certified as the representative of employees of the Company, our certifica-
tion will not be a determination that such A F of L affiliate is the union authorized by
the A. F. of L. to assert jurisdiction over such employees It will merely be a holding
that such A. F of L affiliate is the exclusive representative of employees of the Company
in an appropriate unit for the purposes of collective bargaining.
587784-45-vol. 56-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of our Direction of Elections,, subject to,the limitations and additions
set forth therein: (1) all welders and welder apprentices, 6 excluding
burners; tack welders, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, to
determine whether they desire to be represented by the Welders, the
Iron Workers, the Boilermakers, or none; and (2) all remaining pro-
duction and maintenance employees, excluding the janitor, watchmen,.
timekeeper, office and clerical employees, outside employees, the in-
spector, and all supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, to determine whether
they desire to be represented by the Iron Workers, the Boilermakers,
or neither.
Upon the results of these elections will depend, in part, our determi-
nation of the appropriate unit, or units, of production and mainte-
nance employees.
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 Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED, that, as -part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Buffalo Tank Cor-
poration,,Lackawanna, New York, 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 of Elections, under the direction
and supervision of the Regional Director for the Third Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and it, of said Rules and Regula-
tions, among the following , employees who were employed by the
Company during the pay-roll period immediately preceding the date
of this Direction of Elections, 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 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 elections :
1. All welders and 'welder- apprentices, excluding burners, tack.
welders, and all supervisory employees with authority to hire, pro-
Although the Company at present has no welder apprentices , the welders expressed
a desire that provision be made for the inclusion of possible future apprentices. This
, request is reasonable and is hereby granted.
BUFFALO TANK CORPORATION 835
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, to determine
.whether they desire to be represented by the Associated Welders of
Western New York, Inc., or by Local 576 of the International Associa-
tion of Bridge, Structural and Ornamental Iron Workers (A., F.
of L.), or by Local No. 7, International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, A. F. of L., for, the pur-
poses of collective bargaining, or by none; and -
2. All production and maintenance employees, excluding the janitor,
watchmen, timekeeper, office and clerical employees, outside 'em-
ployees, the inspector, all employees included in Group 1, above, and
all supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or '
effectively recommend such action, to determine whether they desire
to be represented by Local 576 of the International Association of
Bridge,'Structural and Ornamental- Iron Workers (A. F. of L.), or
by Local No. 7, International Brotherhood of Boilermakers, Iron -
Shipbuilders and Helpers of America, A. F. of L., for the purposes
of collective bargaining, or by neither.
CHAIRMAN MILIas took no part in the consideration of the above
Decision and Direction of Elections.