Aluminum Co. of America

In the Matter of ALUMINUM COMPANY OF' AMERICA and FEDERAL LABOR UNION 23538, A: ,F-. OF L., .Case No. 4-R-1,9,29.-Decide d `Nov'ember: 6•, 1943 - Mr. John B. Holmies, of Burlington, N. J., for the Company. Mr. Edward Kennedy, of Trenton, N. J., for the Union. Miss Muriel J. Levor, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon amended petition duly filed by Federal Labor Union 23538, A. F. of L., herein called the Union,' alleging that a question affecting commerce had arisen concerning the representation of employees of Aluminum Company of America, Burlington, New, Jersey, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Eugene M. Purver, Trial Examiner. Said hearing was held at Burlington, New Jersey, on October 11, 1943. The Company and the Union appeared, par- ticipated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs with the Board. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Aluminum Company of America, a Pennsylvania corporation, oper- ates a plant for the production of pig aluminum at Burlington, New Jersey. It is with this plant, owned by the United States Govern- ment, that we are concerned herein. The principal raw material, - I A motion was made and granted at the hearing to amend the petition and other formal documents to set forth the name of the Union, as above 53 N. L R. B., No 84. 482 ALUMINUM COMPANY OF AMERICA 483 alumina, used iij the plant's operations is shipped front points out- side the State of New Jersey at the rate of 1,00,0 tons monthly. Dur- ing. the month of. August 1943, 70,0 tons of pig aluminum, valued at more than $100,000, were produced at the Burlington plant, of which 95 percent was shipped to points outside the State of New Jersey. The Company concedes that it is engaged in commerce within the meaning of-the National Labor Relations Act. II. THE ORGANIZATION INVOLV:D Federal Labor Union 23538, is a labor organization affiliated with the American Federation of Labor, admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESEN' ATIQN On or about August 20, 1943, the Union asserted a, claim to repre- sent a majority of the plant-protection employees at the Burlington plant, and requested the Company to recognize it as their bargain- ing agent. The Company refused to accord such recognition, unless and until the Board certifies the Union, on the ground that these em- ployees do not constitute an appropriate bargaining unit. A statement of the Red onal' Director, introduced into evidence at the hearing, indicates that the Union represents a substantial num- ber 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 mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union seeks a collectivle bargaining unit composed exclusively of plant-protection employees at the Company's Burlington plant. The Company contends that a unit so constituted is inappropriate because plant-protection employees were expressly excluded from the unit of production and maintenance employees set up by the terms of a recent c9I}sent election agreement,3 and on the fu •ther ground that t4e duties of guards are confidential. There is no merit to either contention. The' he Board has carefully considered and re- considered, the problems presented herein but has always come to the conclusion that militarized guards are employees within the, meaning 'The Regional Director reports that the Union submitted 49 designations of which 48. bearing apparently genuine original signatures , correspond with names on the Company's pay roll of September 11, 1943, which contains 55 names. 3The agreement was between the Company and Aluminum Workers Local Union 23501, A. IF. of L., which as a result of an election held August 3, 1943, was found by the Regional Director to be the bargaining representative of the production and maintenance employees of the Burlington plant. 484 DEQISSONS OF N'AWIONAL LABOR RELATION'S BOARD of the Act and that they have a right to be represented in a unit of their own by the union of their choice 4 ' The plant-protection employees with which we are here concerned are ordinary uniformed and armed plant and fire guards. They are employees of the Company and retain the usual employer-employee relationship although they have been sworn as members of the Aux- iliary Military Police.. Their principal function, the custody and protection of company property, including its concomitant authority, is of a monitory and not a supervisory character. The parties are agreed that these guards have no supervisory functions with respect to the production and maintenance employees and it appears, that they do not have access in the course 'of their usual duties, to infor- mation of a confidential nature. We shall, therefore, establish a separate unit for the guards. There is a further controversy as to the composition of the unit since the Company asserts, and the Union denies, that sergeants and the fire marshal should be excluded from the unit as supervisory. The Com- pany employs a captain, who is in charge of the plant-protection force. A lieutenant heads each shift and has a sergeant to, assist, him and take charge in his absence. The Company employs no corporals. • It appears that a sergeant's authority is little less than that of a lieuten- ant, who is conceded to be a supervisory employee by the parties. Fur- thermore sergeants have the authority to make effective recommenda- tions concerning the status of other guards. The fire marshal super- vises the activities of the fire guards. Accordingly, we shall exclude the sergeants and the fire marshal as supervisory employees 6 We find that all militarized plant and fire guards of the Company's Burlington, New Jersey, plant, but excluding captains, lieutenants, sergeants, the fire marshal, and any other supervisory employees with authority to hire,' promote, discharge, discipline, or otherwise' effect changes in the status of employees, or effectively recommend such ac- tion, constitute a unit appropriate for the purposes of collective bar- gaining 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 eni- 4See Matter of Firestone Tire and Rubber Company , 50 N. L. R. B 679, and cases cited therein ; Matter of Drava Corp ., 52 N. L . R. B 322 : and Matter of Bethlehem Steel Company, Shnpbuolding Dkision, Hoboken Yard, 52 N L l: L' 1265. 5 See Matter of Creamery Package Mfg. Co . (Lake Mills Plant ), 34 N. L. R B. 108. 6 The Company employs a watchman , whose duties are those usually assigned to that type of employee. It appears that this particular watchman is a sworn member of the Auxiliary Military Police Accordingly, we do not find it necessary to exclude him from the unit of militarized guards. However, in accordance with our finding in the Drava case we shall exclude any non militarized watchmen whom the Company may employ hereafter. ALUMINUM COMPATNT OF AMERICA 485 in the appropriate unit who were employed during the pay-roll ployees period immediately preceding the date of our 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 Relations Board Rules and Regulations-Series 2, as amended, it is hereby Dn mmD that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Aluminum Com- pany of America, Burlington, New Jersey, 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 Fourth Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, 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 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 or not they desire to be represented by Federal Labor Union 23538, affiliated with the American Federation of Labor, for the purposes of collective, bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.