Diamond Magnesium Co.

In the Matter of DIAMOND MAGNESIUM CO. and UNITED MINE WORKERS OF AMERICA , DISTRICT 50 Case No. R-4857.Decided March 15,1943 Jurisdiction : alloy metals manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to recognize union until certified by the Board ; second contract executed after petitioner's certification purporting to include employees within pro- posed unit, held no bar, when contract thereby covered a unit larger than that certified by the Board ; election necessary. Unit Appropriate for Collective Bargaining : determination of, dependent upon desires of employees as expressed in an election as to whether the employees involved shall constitute a separate unit or be merged with a previously established unit comprising a parent company and two of its other subsidiaries. Practice and Procedure : motion made at commencement of hearing by petition- ing labor organization to withdraw its petition because it had a contract with the company, denied, when the contract did not constitute a bar to a determina- tion of representatives. Mr. Glenn Smith and Mr. Charles J. Smith, of Cleveland, Ohio, for the Company. - Mr. Stanley Denlinger, of Akron, Ohio, for District 50. Mr. Samuel Handelman, of Cleveland, Ohio, for the C. I. O. , Mr. W.W. Flacke, of Willoughby, Ohio, for the A. F. of L. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Mine Workers of America, District 50, herein called District 50, alleging that a question affecting commerce had arisen concerning the representation of employees of Diamond Magnesium Co., Painesville, Ohio, herein called the Com= pany, the National Labor Relations Board provided for an appro- priate hearing upon due notice before Louis Plost, Trial, Examiner. Said hearing was held at Painesville, Ohio, on February 8, 1943: 48 N. L. R. B.; No. 15. 67 521247-43-vol 48 6 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company, District 50, and United Gas, Coke and Chemical Workers of America, Local 161, C. I. 0., and Construction and General Laborers Union, Local 496, A. F. of L., herein called the A. F. of L., appeared, participated, and were afforded full oppor- tunity to be heard, to examine- and cross-examine witnesses, and to introduce evidence bearing on the issues.' District 50 moved to with- draw its petition during the hearing on the ground that it already had 'a contract with the Company. 'Ruling on this motion was reserved for the Board. In view of the findings set forth in Section III, infra, the motion is hereby denied. The Trial Examiner's, rulings 'made at the hearing are free from prejudicial error and are hereby affirmed. On February 15, 19, and 20, 1943, District 50, the A. Y. of L., and the C. I. 0., respectively, filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Diamond Magnesium Co., an Ohio corporation, is a wholly owned subsidiary of Diamond Alkali Company. It operates a defense plant in Painesville Township, Ohio, built by the Defense Plant Corpora- tion, where it manufactures magnesium, and magnesium alloy metals which are used entirely by the United States government in the war effort. The value of the raw materials used at the plant, as well as the value of the products made by the'plant, exceeds $100,000 annually. II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District 50, is a labor organiza- tion admitting to membership -employees of the Company. United Gas, Coke and Chemical Workers of America, Local 161, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. Construction and General Laborers Union, Local 496, is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership employees of the Company. 'The following labor organizations - also entered appearances but subsequently with- drew from the hearing : International Union of Operating Engineers ; International Union of Firemen and Oilers ; and International Brotherhood of Electrical Workers. United As- sociation of Journeymen , Plumbers and Steamfitters of the United States and Canada moved to intervene , but its motion was denied by the Tiial Examiner since it did not claim to rep- resent any of the Company 's employees. - - • - DIAMON'D MAGNESIUM CO. III. THE QUESTION CONCERNING REPRESENTATION 69 On November 25, 1942, District 50 wrote the Company a letter, claiming to represent a majority of the Company's employees and requesting bargaining rights for the employees. The Company re- plied by a letter in which it, in effect, advised District 50 to seek certification from the Board. As has been indicated heretofore, District 50 moved that its petition be withdrawn. The ground advanced in support of this motion was that District 50 had, a contract with Diamond Alkali Company and its subsidiaries, and that the Company herein, being a subsidiary, was included in the terms of the contract. The Company took no position as to the scope of this contract but urged an election. On July 3, f941, the Board certified District 50 as the collective bargaining representative in a production and maintenance unit com- prising employees of Diamond Alkali Company and two of its sub- sidiaries (the Standard Portland Cement Company and the Buckeye Soda Company' ).2 Shortly thereafter, District 50 negotiated a con- tract covering the employees in the certified unit. This contract ex- pired in May 1942. On May 8, 1942, District 50 negotiated a new contract for a period ending July 22, 1943. By its terms, this con- tract covers "Diamond Alkali Company and its Subsidiaries, which now are in production in.Lake County, Ohio." The following addi- tional language is found therein: "By mutual agreement of the parties hereto, this agreement may be extended to cover other subsidiaries or operations of Diamond Alkali Company." It is unnecessary in this proceeding to determine whether it was the intent of District 50 and Diamond Alkali Company to include Diamond Magnesium Co. within the terms of the second contract above, for even should that have been the intent, we have recently held that where a contract purports to cover employees in a unit larger than that certified by the Board, we will not consider that contract a bar to a determination of representatives .3 We find, there- fore, that District 50's contract with Diamond Alkali Company and its subsidiaries is no bar to a present determination of representatives ,of employees of Diamond Magnesium Co. A statement of a Field Examiner of the Board, introduced in evi- -dence at the hearing, indicates that District 50; the C. LO., and the s Matter of The Diamond Alkali Company , The Standard Portland Cement Company, and The Buckeye Soda Company and Chemical Workers Federal Labor Union, Local 22162, A. F. L., 33 N. L. R B. 138. 3 Matter of Savannah Electric and Power Company and International Brotherhood of Electrical Workers, et al. (Cases Nos. R-4805 'and R-4806 ), N. L R. B., No. -. 70 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD A. F. of L. each represents a substantial number of employees in the unit they agreed to be appropriate 4 We find that a question affecting commerce has arisen concerning the representation of employees of the Company. - IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES After moving to withdraw its petition, the implied position of Dis- trict 50 as to the appropriate unit-was that the Diamond Magnesium Co. plant should be included in a unit with the plants of Diamond Alkali Company and its subsidiaries.5 Without waiving any of its rights under its motion to withdraw its petition, District 50 agreed with the other parties as to the appropriate unit within the "Mag- nesium plant." 'r The "Magnesium plant" is located approximately 1 mile from^the "Alkali plant." A small percentage of the officers and personnel now at the former plant was transferred there 'from the latter plant. Since the Board has previously certified District 50 as the collective bargaining representative of employees in a unit consisting of the plants of Diamond Alkali Company and two of its subsidiaries, we shall, under all the circumstances, make no final determination at this time as to the appropriate unit for employees of the Company. 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 unit to which the parties stipulated, namely, all hourly rated and piece-work employees engaged in production and mainte- nance, including yard employees, but excluding foremen, supervisors, watchmen, guards, clerical employees, nurses, and main laboratory employees, 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 therein, to determine whether they desire to be represented by District 50, by the C. 1. 0., by the A. F. of L., or by none. If a majority of the employees select District 50 as their 'representative, they will be included in ,the unit now consisting 4 The statement of the Field Examiner is summarized in the following table: Union Cards sub- Employees in unit Cards in mitted contended for the unit District 50 179 428 155 C I o-- -- - - -------------------------------------- --- 61 428 59 A F of - - - - -------- L ------------------------------------------------- 143 428 *134 *In addition to these cards, 23 additional "cards in the unit" were submitted by International Brotherhood of Electrical Workers and International Union of Operating Engineers. e This is the position taken by District 50 in its brief. DIAMOND MAGNESIUM CO. 71 of employees of Diamond Alkali Company and two of its subsidiaries; if a majority of them choose the C. I. O. or the A. F. of L., then these, employees alone shall be found to constitute an appropriate unit. 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. DIRECTED that, as part of the investigation to ascertain repre sentatives for the purposes of collective bargaining with Diamond Magnesium Co., Painesville , Ohio, 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 Eighth 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 all hourly rated and piece-work employees of the Company who are engaged in production and maintenance, including yard em- ployees, 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 foremen, supervisors , watchmen, guards, clerical employees, nurses, main laboratory employees, and any who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by United Mine Workers of America, District 50, or by United Gas, Coke and Chemical Workers of America, Local 161, C. I. 0., or by Construction and General Laborers Union, Local 496, A. F. of L., for the purposes of collective bargaining , or by none. -MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Direction .of Election.