The American Brass Co.

National Labor Relations Board - Board Decisions

Jun 23, 1944

56 N.L.R.B. 1611 (N.L.R.B. 1944)

In the Matter of THE AMERICAN BRASS COMPANY AND THE KENOSHA
BRASS COMPANY and INTERNATIONAL UNION OF, MINE, MILL &
SMELTER WORKERS , C. I. O. ' 1
Case No. 13-R-2410.-Decided June 23, 1944
Shaw, Muskat & Paulsen, by F. H. Prosser, of Milwaukee, Wis., for
the Company.
Mr. Patrick J. O'Neill, of Waterbury, Conn., ,for the CIO.
Messrs. Alfred G. Goldberg and David Sigman, both of Milwaukee,
Wis., for the AFL. -
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND -
DIRECTION OF ELECTION
I-
STATEMENT OF THE CASE
Upon a ,petition duly filed by International Union of Mine, Mill
Smelter Workers, C. I. 0., herein called the CIO, alleging that a
question affecting commerce had arisen concerning the representation
of employees of The American Brass Company, Kenosha, Wisconsin,.
herein called American,' the National Labor Relations Board provided
for an appropriate hearing upon due notice before Robert T. Drake,
Trial Examiner., Said' hearing was held at Kenosha, Wisconsin, on
May 25, 1944. The Companies, the CIO, and Brass and Copper
Workers Federal Labor Union Local #19322, herein called the AFL,
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. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed..
Both the AFL and the Companies moved to dismiss the petition. For
-the reasons -appearing hereinafter, the motions are denied. All parties.
were afforded an opportunity to file briefs with the Board.
' At the hearing the CIO amended its petition so as to include, as an employer, Kenosha
Brass Company, herein called Kenosha. Both concerns will hereinafter Jointly be-
0
referred to as the Companies.
56 N. L. R. B., No. 291.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 11, 1944, pursuant to the provisions of Section 8 (a) of
the War Labor Disputes Act,' the A. F. L. gave notice of a labor dispute
'involving the Company and its employees. On June 12, 1944, acting
pursuant to Section 8 (a), subsection 3, of the War Labor Disputes
Act, this Board conducted a vote by secret ballot among the Company's
employees. The issue specified on the ballot was the "Demand of (the
A. F. L.) that.the National Labor Relations Board dismiss the petition
for certification as the exclusive bargaining representative for certain
employees of" the Companies, filed by the C. I. O. The ballot also
set forth the status of the instant proceeding before this Board. The
results of such balloting, as certified by an order of the Board, 'showed
that, of 2,156 eligible voters, 1,508 cast valid ballots, of which 1,219 were
in favor of permitting an interruption of war production and 289
opposed to such interruption.
Since the aforesaid proceedings-the Board has received from the
AFL several communications in,the nature of motions, demanding
that the Board dismiss the petition herein in order to avert the
threatened strike. We are constrained to deny these motions. As
we pointed out in the Allis Chalmers case,3 where a similar issue was
presented, the Board's exercise of its discretion, conferred upon it
in the National Labor Relations Act, to determine whether and when
it will proceed with an investigation and certification of representa-
tives, is .not controlled by the outcome of strike ballots conducted
under the provisions of the War Labor Disputes Act. We find in
Section III, ,in f ra, that a question concerning the representation of
the Companies' employees has arisen, and we conceive it to_ be our
statutory duty to direct that that question be resolved by an election
by secret ballot. - The Board cannot permit itself to be influenced in
the'performance of its duty under the Act by strikes, threats of
strikes, or other forms of-pressure. The AFL's motion to dismiss the
petition on this ground are hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American, Brass Company is a Connecticut corporation, a subsidiary
of Anaconda Copper Mining Company. American Brass Company
operates a plant at Kenosha, Wisconsin; Immediately across the
street from American's plant is the plant of Kenosha Brass Company,
a wholly owned subsidiary of American Bt ass Company. These two
plants are operated as a single unit, having the same central super-
vision and frequently interchanging employees. Copper, zinc, tin,,
2 Public Law 89, 78th Congress , Chapter 144 , 1st Session.
i Matter o f Allis-Chalmers Manufacturing Company, 52 N. L. R. B. 100.
THE AMERICAN ;BRASS aOMPANY •1613
manganese , lead, and other materials are used at both plants. Dur-
ing the,year 1943 American Brass Company produced 227 million
pounds of products, valued at $48,000,000. Kenosha Brass Company
produces wholly for the United States Army, and did a substantial
,business in the year 1943. , Almost all of the latter's • products
are shipped from the Company's Kenosha plant- to points outside the
State of Wisconsin. Thirty percent of American's finished products
is shipped from its Kenosha plant to points outside the' State of
Wisconsin.
We find that the Companies are engaged in commerce and that they
jointly constitute an employer within the meaning of the National
Labor Relations Act.
r
II. THE ORGANIZATIONS INVOLVED
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.
Brass and Copper Workers Federal Labor Union #19322, affiliated
with the American Federation of Labor, is a labor organization
admitting to membership employees of the Company,
III. THE QUESTION CONCERNING REPRESENTATION,
On or about March 30, 1944, the CIO wrote to American requesting
recognition . On May 12, 1944, that company replied, refusing such
recognition. No mention was made in this correspondence of the
existence of Kenosha. At the hearing the Companies contended that
the CIO's notice was defective because it had failed to mention
Kenosha; that the AFL's contract with the Companies renewed itself
on April 11, 1944; and that the contract is therefore a bar to a present
determination of representatives 4 We find no merit in ' this conten-
tion. The officials of the two Companies are the same persons, and
the main office of American "services both Companies. Since 1940
the employees of both have been treated as a single unit for bargaining
purposes. Furthermore, by the time of American's reply to the
* The contract relied upon by the AFL was dated May 11, 1942 , and by its terms was to
be for a period of 1 year, with an automatic yearly renewal clause In addition , however,
the contract provided that if either party; at least 30 days prior to the expiration of any
yearly period , gave notice of desire to amend or terminate the contract , the parties were
to negotiate a new contract , and that if no agreement was reached before the end of the
contract period, then the "entire agreement shall terminate and come to an end as of that
date. " In 1943, the parties were unable to reach an agreement on proposed changes and
were forced to submit their disagreement to the war Labor Board. It is clear , there-
fore, that the contract actually terminated in 1943 , as no agreement was reached before the
end of the contract period . Since the ,parties have not executed a new contract since the
expiration of the afore -mentioned one, it is apparent that the parties have been operating
ever since under a mere oral arrangement . Furthermore , since the CIO's notice was sent
to the Companies 10 days before the automatic renewal date, even if the contract had con-
.tinued to remain in force, it would still be no bar to this proceeding.
587784-45-vol. 56-103
,1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO's request, that company had in its possession a copy of the CIO's
petition, filed April 11, which indicated that the appropriate unit
contained approximately 2,500 employees, slightly more than the
,total personnel of both plants. It is clear, therefore, that the Com-
panies knew at the time American refused to recognize the CIO that
the CIO was claiming to represent the employees of both Companies.
At the hearing, it was admitted that Kenosha, as well as American,
would have refused to recognize the CIO if its request had been
directed to both Companies.
The Companies and the AFL also urge that the petition should be
dismissed on the ground that there is presently pending before the
National War Labor Board a dispute with reference to certain working
conditions and that this Board should therefore "refuse to take juris-
diction in this proceeding. The theory of the Companies and the AFL
appears to be that the situation should be governed by.this Board's de-
cision in the Allis-Chalmers case.5 In that case we held that a newly
certified representative was entitled to' a reasonable opportunity to ob-
tain the benefits of certification and that where reasonable efforts were
made to procure a collective bargaining contract immediately after
certification but resulted in a deadlock, and the dispute was then re-
ferred to the War Labor Board, with the result that a formal contract
was not entered into until after the claim of the rival union, the con-
tract should be treated as a bar to a new determination of representa-
tives. Such, however, is not the situation in the instant case, for the
AI'L has been the exclusive bargaining representative of the employees
for 10 years and has, therefore, had ample opportunity to obtain the
benefits of collective bargaining for the employees. We have already
held that such circumstances clearly present a different situation from
that presented by the Allis-Chalmers case.e We reaffirm our decisions
in those cases and find that they are controlling in the instant pro-
ceeding. The motions of the Company and the AFL to dismiss on this
ground are denied.
A statement by a Board agent, introduced into evidence at the hear-
ing, indicates that the CIO represents a substantial number of employ-
ees 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.
5 Matter of Allis -Chalmers Manufacturing Company, 50 N. L. R B 306
u See Matter of Foster-Grant Co, Inc , 54 N L R. B. 802 ; Matter of International Har-
vester Company, 55 N L. R B . 497, and cases therein cited.
The , Board agent reported that the CIO submitted 762 application -for-membership cards,
bearing apparently genuine original signatures , and that there are approximately 2100
employees in the appropriate unit.
.THE AMERICAN BRASS COMPANY 1615'
IV. THE APPROPRIATE UNIT
. The parties are agreed that the appropriate unit should conform to
the unit covered by the past contracts between the AFL and the Com-
panies, and should include all hourly-paid employees of both Com-
panies, excluding watchmen," armed guards, salaried employees, main
office employees, members of the machinists' craft, foremen, assistant
foremen, and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend sue 1 action. They are further
agreed that there should be included in'the unit thus described shift
foremen, subforemen, working foremen, weighers, and shop or de-
partment clerks. _
Except as to the shift foremen, subforemen and working foremen,
we see no reason to depart from the unit proposed by the parties,
which is, essentially, a unit of production and maintenance workers.
The weighers and department clerks are all hourly paid, have the-,
same working hours as production employees, receive the same vaca-
tions as production employees, work in ' small department offices lo-
cated adjacent to the departments, and tyre under the supervision of
the department heads.0 All of the salaried non-supervisory
employees have different working hours, receive longer vacations, and
are located in the main office, where they seldom come in contact with
the production employees. The AFL has represented all hourly paid
employees, including weighers and the shop or department clerks,
during its entire 10-year bargaining history.
Subforemen, shift foremen, and working foremen are hourly paid
employees. According to the testimony of the superintendent and
assistant superintendent of the plants, these employees have authority
effectively to recommend transfer, discharge, or discipline of em-
ployees. On the other hand, the record reveals that these employees
have nearly all been members of the AFL, some of them being stewards
actively participating in the presentation of grievances. on behalf of
employees, and that some of them have authority effectively to recom-
mend disciplinary action while others do not: We shall therefore
make no finding with respect to these employees as separate employ-
ment categories 10
The machinists in the Companies' employ are represented by the
International Association of Machinists and all parties are agreed
8 There are only three watchmen. They are superannuated employees who are paid for
past services rather than for work done at the present time, and are regarded as pensioners
The weighers and department clerks include promise clerks , promise clerk -time checkers,,
outside scalemen -clerks, mill clerks, ' clerk-time checkers , inside weighers , outside weigher-
clerks, weighers
21 See Matter of Victor Chemical Works, 52 N. L. R. B. 194.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they should be excluded from the appropriate unit. We shall,
exclude them. - -
We find that all hourly paid employees of the Companies at their
plants in Kenosha, Wisconsin, including all weighers, and all clerks
employed in the department offices, but excluding watchmen, guards, •
salaried employees, members of the machinists' craft, main office em-
ployees, foremen, assistant foremen, and all other supervisory em-
ployees 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 pur-
poses 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-
ployees in the `appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein; subject to the limitations and additions set forth in the
Direction.
The Company urges that the CIO local, rather than the Interna-
tional, be designated on the ballot. The International, however, is
the petitioner in the proceeding and wishes to be so designated on the
ballot.' We shall place the International on the ballot.
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with The Amer-
ican Brass Company and Kenosha Brass Company, Kenosha,
Wisconsin,' an election by secret ballot shall be conducted as early,
as possible, but not later than thirty (36) days from the date of this
Direction, under the direction and supervision of the Regional Di-
rector for the Thirteenth 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 the em-
ployees 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
THE AMERICAN BRASS COMPANY a 1617
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 Inter-
national Union of Mine, Mill and Smelter Workers, affiliated with
the Congress of Industrial Organizations, or by Brass and Copper
Workers, Federal Labor Union #19322, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, or
by neither.,