Central Pattern & Foundry Co.

National Labor Relations Board - Board Decisions

Jul 17, 1943

51 N.L.R.B. 400 (N.L.R.B. 1943)

In the Matter Of CENTRAL PATTERN & FOUNDRY COMPANY and UNITED
FOUNDRY WORKERS LOCAL 738 (INDEPENDENT)
Case No. R-5444-Decided July 17, 1943,
Mr. Lester Asher, of Chicago, Ill., for the Board.
Mr. Otto A. Jaburek, of Chicago, Ill., for the Company.
Mr. Leon M. Despres, of Chicago, Ill., for the Independent.
Messrs. Ben Meyers and A. C. Skinner, of Chicago, Ill., for the
International. -
Mr. Arthur Leff, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Foundry Workers
Local 738 (Independent), herein called the Independent, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Central Pattern & Foundry Company,
Chicago, Illinois, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Henry J. Kent, Trial Examiner. The hearing was held at Chi-
cago, Illinois, on May 24, 25, and 26, 1943. The Company, the Inde-
pendent, and International Union of Mine, Mill and Smelter Workers,
C. I. 0., herein called the International, appeared, participated, and
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 International moved to dismiss-
the petition. For the reasons indicated below the said motions are
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. On June 9, 1943, briefs were filed
with the Board by the Company, the Independent, and the-
International. .
Upon the entire record in the case, the Board makes the following:-
51 N. L. R. B., No. 80.
400
CENTRAL PATTERN & FOUNDRY COMPANY 401
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Central Pattern & Foundry Company is an Illinois corporation
with its general office and only plant located in Chicago , Illinois.
The Company is engaged in the operation of a jobbing foundry. Its
principal raw materials are aluminum , brass, and bronze, and its
finished products are castings and patterns . During the year 1942,
the Company purchased raw materials valued at approximately
$600,000 , approximately 25 percent of which was shipped to the Com-
pany's plant at Chicago from points outside the State of Illinois.
During the same year , the Company 's sales of finished products
amounted in value to approximately $2,000 ,000, of which approxi-
mately 70 percent represented shipments to points outside the State
of Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Foundry Workers Local 738 is an unaffiliated labor organ-
ization admitting to membership employees of the Company.
International Union of Mine, Mill and Smelter Workers affiliated
with the Congress of Industrial Organizations, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In November 1940, the Company entered into a collective bar-
gaining agreement with the National Association of Die Casting
Workers, affiliated with the Congress of Industrial Organizations,
Local No. 38, for a term expiring January 31, 1943. In January
1942, the National Association of Die Casting Workers merged with
the International, and Local 38 became known as Local 738 of the
International. The Company recognized the International as the
successor collective bargaining representative for the balance of the
term of the unexpired contract.
Negotiations with the Company for a new contract began about
January 1943. Representatives of the International and a negoti-
ating committee of Local 738, headed by Bennie Banks, the Local
president, participated in the conferences which followed. With the
aid of a Federal conciliator, an accord was reached on March 30,
1943, on all issues except wages and vacations which it was agreed
would be submitted to the National War Labor Board. The terms
,and conditions of the accord were then reduced to writing in the
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form of a written agreement, dated March 31, 1943, which named as
the parties thereto the Company and the International "on behalf
of their Local Union No. 738." 1 The written form of agreement,
which was not signed, expressly stated that "this agreement shall
not be binding upon either party until ratified and accepted by Local
Union No. 738."
On April 1, 1943, a membership meeting of Local Union No. 738,
was held to consider ratification of the agreement. Concerning the
action taken at this meeting, there is a sharp conflict in the testi-
mony. According to the testimony of International witnesses, a
motion was carried to ratify the agreement in the form drafted; but
according to Independent witnesses ratification was rejected unless
certain changes were made in the agreement, including a correction
to name Local Union No. 738 instead of the International as the con-
tracting party. At this meeting, or shortly thereafter, a schism
developed in the ranks of Local Union No. 738, as a result, of which
one group, led by Bennie Banks, voted at a meeting held on April
7, 1943, to disaffiliate from the International and set itself up as an
independent labor organization, styled United Foundry Workers,
Local 738, Independent, the petitioner in this proceeding. The other
group, led by Al Skinner, International representative, at a separate
meeting held on April 4, 1943, suspended Banks as president, elected
an administrative committee to run the affairs of the Local in place
of its former officers, and, on April 9, 1943, proceeded to execute the
theretofore unsigned collective bargaining agreement, dated March 31,
1943.
Each of these groups now contends that it is the legal successor of
the local labor organization previously recognized as the bargaining
representative for employees of the Company, and disputes the right
of the other to hold itself out as such. The Independent asserts that
the action taken by the Skinner group at its meeting of April 4, 1943,
was unauthorized under the International constitution and therefore
without legal effect. The International similarly relies on the union
constitution in asserting that the defection of the Banks group was
invalid and that consequently the Independent never attained any
status and is not now entitled to recognition as an independent labor
organization. As we have under analogous circumstances indicated
in the past, where a schism occurs in a labor organization we will
not undertake to resolve questions involving an interpretation of a
union constitution, to determine which faction enjoys legal successor-
ship.'- The right to require adherence to the provisions of a union
1 At a convention of the International held in September 1942, a resolution was adopted
requiring all local contracts to be drawn in this form.
z Cf Matter of Brenizer Trucking Company, 44 N. L. R. B . 810. Matter of Harbison-
Walker Refractories Company, 44 N. L. R. B. 816; Matter of 4tlantso Waste Paper Company,
Inc., 45 N. L. R. B. 1087.
CENTRAL PATTERN & FOUNDRY COMPANY 403
constitution is, in any event, subordinate to the right, protection by
the Act, of employees to exercise their full freedom of association,
self-organization, and designation of representatives of their own
choosing. It is clear from the record in this case that each of the
rival factions is organized as a labor organization within the meaning
of the Act. Although the Company by virtue of the contract executed
April 9, 1943, has chosen to recognize the International, a statement
of_the Regional Director, introduced in evidence at the hearing, indi-
cates that a substantial number of employees in the unit hereinafter
found appropriate have associated themselves with the Independent
and have designated it as their bargaining representative.3 Under
the circumstances we are of the opinion that the conflicting claims of
successorship, asserted by the rival factions, in themselves, establish
that there is an unresolved doubt, and hence a question concerning
representation, as to the identity of the labor organization which the
employees desire to represent them.
We have next to consider the question of the effect to be given to
the contract, dated March 31, 1943, which was executed by the Inter-
national and the Company on April 9, 1943. Both the International
and the Company argue that since the terms of this contract were
fully agreed upon on March 30, 1943, and, as they claim, were ratified
at the Local membership meeting held on April 1, 1943, before there
was any split in the ranks of the Local, the contract operates as a
bar to, the Independent's representation claim. This argument is
predicated on the premise that the contract was finally consummated
on or prior to April 1, 1943, and that the signing of the contract on
April 9, 1943, was a mere formality. The argument, however, over-
looks the principle which we enunciated in the Eicor case,' and which
we now reaffirm, that the signing of a collective bargaining agreement
cannot be regarded as a mere formality and that such an agreement
which has not been reduced to writing and signed does not constitute
a bar to a determination of representatives. In view of the applica-
bility of this principle, it is unnecessary for us to resolve the conflict-
ing testimony concerning the action taken.by the membership of Local
738 at the ratification meeting held on April 1, 1943. It is necessary
only to consider whether the Company had notice of the Independent's
representation claim on April 9, 1943, when its contract with the
International was formally signed.
3 The Regional Director reported that the Independent submitted 198 designation cards,
187 of which bole apparently genuine original signatures and that the names of 156 per-
sons appearing on the cards were listed on the Company 's pay roll of April 11 , 1943, which
contained the names of 277 employees in the appropriate unit . The cards were dated
as follows : 3 in March 1943; 1 on April 2, 1943; 26 on April 7, 1943; 101 on April 8,
1943; and 15 were undated
Hatter of Eieor, 46 N L R. A. 1035.
540612-44-vol 51--27
404 DECISIONS OF NATIONAL LABOR REiiLA'TIONS BOARD
We are persuaded by the record in this case that the Company did
have such notice. On April 2, 1943, the negotiating committee of the
Local, headed by Bennie Banks, called on the Company and demanded
that the contract be redrawn so as to name Local Union No. 738 in-
stead of the International as a party thereto, but the Company declined
to effect this change without the consent of the International. On
April 5, 1943, the attorney for the Independent advised the Company
that although a "rump" group of Local 738 was claiming bargaining
rights, the only group that had a right to represent the employees was
the group which recognized Banks as the Local president. On April
co, 1943, in a letter to the Company, the Independent's attorney advised
that he had reason to believe that "an attempt may be made to inveigle
you into signing the contract with an unauthorized representative,"
that such action would violate the Act, and that there was "only one
authorized representative of your employees and that representative
is United Foundry Workers, Local 738 5 of which Bennie Banks is the
president." The letter closed : "In behalf of such exclusive bargain-
ing agency, I hereby request that you immediately execute with said
bargaining agency and under its title the contract which has been the
subject matter of recent negotiations." On April 8, 1943, there came
to the attention of the company officials Independent leaflets distribut-
ed at the company plant reporting that at a Local meeting held the
previous evening Local Union No. 738 had withdrawn its affiliation
from the International and had established itself "as an Independent
Union to be known as United Foundry Workers Local 738, Independ-
ent." The leaflet also stated: "All members of our union are being
asked to sign new application cards so we can go before the Labor
Board tomorrow and apply for certification."
In the meantime, the International faction was also pressing, for
recognition. On April 7, 1943, Skinner, the International representa-
tive, wrote the Company advising it that a new negotiating committee
had been elected and requesting a meeting on April 9, 1943, at 5 p. in.
"to complete negotiations of the contract." Skinner's request was
granted by the Company, aswas also his subsequent request to advance
the time of the meeting to 9 a. in. of the scheduled date. At about
9: 40 a. in. on April 9, 1943, the contract between the Company and the
International was executed. At about 9: 52 a. in. on the same morn-
ing, the attorney for the Independent telephoned the president of the
Company, stated that the Independent represented a majority of the
Company's employees and requested recognition, but the Company
refused to accord such recognition, basing its refusal on the ground
that the Independent had no authority to represent such employees.
' This is the first time the name, "United Foundry Workers" appears
CENTRAL PATTERN & FOUNDRY COMPANY 405
On the same morning the Independent filed its petition in the instant
proceeding. We cannot attach importance to the contention of the
Company and the International that no recognition demand was made
by the Independent, acting as an unaffiliated group, until shortly
after the contract was signed. The chronology of events recited above
makes it clear that even before that time the Company had abundant
notice of the unresolved question of representation which, as above
noted, arose from the factional dispute within Local Union No. 738, as
well as notice that the Independent had been set up as a separate
labor organization and, as such, was pressing its representation claim
in opposition to that of the International. The Company made no
effort to deny that it had full notice of the Independent's position even
before the receipt of the telephone call on the morning of April 9,
1943. Having entered into the contract in the face of such notice, the
Company may not now urge the existence of the contract as a bar to
a present determination of representatives.
We accordingly 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 parties stipulated that the bargaining unit described in the
questioned- contract, dated March 31, 1943, -is an appropriate bargain-
ing unit. In accordance with this stipulation, as modified by our
usual policy concerning the exclusion of supervisory employees, we find
that all production and maintenance employees6 of the Company,
excluding superintendents, foremen, assistant foremen; pattern
makers, truck drivers, watchmen, office workers, salesmen, confidential
clerks, time-study men, technical employees, and salaried employees not
engaged in production and maintenance work ,7 and excluding also all
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees 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 em-
'The liarties stipulated that repair shop equipment employees are included in the pro-
duction and maintenance category , and we so find
The parties, stipulated that the phrase "not engaged in production and maintenance
work,';, applies only to salaried employees.
406 t OISIONS OF NATI NAL LABOR REILA .TIONS BOARD
ployees 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 Direc-
tion.
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 2, as amended, it is hereby
DIRECrED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Central Pattern
& Foundry Company, Chicago, Illinois, 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 super-
vision of the Regional Director for the Thirteenth Region, acting in
this matter as agent for the National Labor Relations Board, -and
subject to Article III, Section 10, of said Rules and Regulations, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, 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, to
determine whether they desire to be represented by United Foundry
Workers, Local 738 (Independent), or by International Union of Mine,
Mill and Smelter Workers, affiliated with the Congress of Industrial
Organizations, for the purposes of collective bargaining, or by neither.