Electro Metallurgical Co.

In the Mattel' of ELECTRo METALLURGICAL COMPANY (NIAGARA WORKS) and DISTRICT 50, UNITED MINE WORKERS OF AMERICA In the Matter of ELEOTRo METALLURGICAL COMPANY and BROTHER-' HOOD OF RAILROAD TRAINMEN _ In the Matter of ELFcTRO METALLURGICAL COMPANY and BROTHER- HOOD OF LOCOâlOTIvE FIREMEN & ENGINEMEN Cases Nos. 3-R-773, 3-R-818 and 3-R-8,00 respectively.-Decided July 21, 1944 Messrs. Clarence L. Sager, and William C. Treanor, both, of New York City, for the Company. Mr. Stanley Denlinger, of Akron, Ohio, and Air. Rinaldo Cappellini, of Niagara Falls, N. Y., for District 50. Mr. Gavin Mitchell, of Niagara Falls, N. Y., and Mr.Char_les_ A. Doyle, of Niagara Falls, N. Y., for the C. 1. 0. Messrs.' Harold C. Heirs and Russell B. _Day, both of Cleveland, Ohio, for the B. R. T. and the Firemen. Mr. David'V. Easton, of counsel to the Board. DECISION DIRECTION' OF ELECTION AND ORDER STATEMENT OF THE CASE Upon a petition duly filed by District 50, United Mine Workers of ,America;, herein called District 50, alleging that a question affecting commerce had arisen concerning the representation of employes of Electro Metallurgical Company (Niagara Works), Niagara Falls, New York, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Peter J. Crotty, Trial Examiner. Said hearing was held at Niagara Falls, New York, on May 22, 1944. The Company, District 50, and Local 250, United Gas, Coke and Chemical Workers, C. I. 0., herein called the C. I. 0., appeared, participated and were afforded full opportunity to be heard„to examine and cross-examine witnesses, and 57 N. L. R. •B., No. 93. 518 ELECTRO METALLURGICAL COMPANY 519' to introduce evidence bearing on the issues. During the hearing, the parties, executed- an "Agreement for a Consent Election," 1 and the hearing was adjourned indefinitely. Thereafter, a first amended peti- tion was duly filed by Brotherhood of Railroad Trainmen, herein called the B. R. T. and a petition was duly filed by Brotherhood of Locomotive Firemen and Enginemen, herein called the Firemen, each alleging that a question affecting commerce had arisen concerning the representation of employees of the Company. The Board consolidated all the cases and provided for a further hearing upon due notice before Peter J. Crotty, Trial Examiner. Said hearing was held at Niagara Falls, New York, on' June 15, 1944. The Company, District 50, the C. I. 0., the B. R. T.,2 and the Firemen 3 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 this hearing both District 50 and the Company moved upon vari- ous grounds to dismiss the petitions filed by the B. R. T. and the Fire- men; the Trial Examiner referred these motions to the Board. For the particular reasons.hereinafter set forth, the motions are hereby granted' The rulings of -the- Trial Examiner'made at both hearings. are free from prejudicial error and are hereby affirmed. All parties- were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following:. FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Electro Metallurgical Company (Niagara Works), a West Virginia corporation authorized to conduct business in the State of New York,. is engaged in the manufacture of calcium carbide and ferro-alloys. During the period between January 1, 1943, and December 31, 1943,. the Company used raw materials at its Niagara Works valued in ex- cess of $500,000, of which more than 90 percent represents shipments to the Company from, points--outside the State of New York. During- the same period, the Company manufactured finished products at its Niagara Works valued in excess of $500,000, of which more than 75 percent represents shipments made to points outside the State of' New York. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. I This agreement was approved by the Regional Director on May 23, 1944. 8 The record discloses that Lodge 639 is the local organization more particularly- Involved herein. O The record discloses that Lodge 362 is the local organization more particularly- Involved herein. .520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATIONS INVOLVED District 50, United Mine Workers of America, is a labor-organiza- -tiori admitting to membership employees of the Company. Local 250, United Gas, Coke and Chemical Workers, is a labor organization affiliated with the Congress of Industrial Organizations,, admitting to membership -employees of the-Company. Local 639, Brotherhood of Railroad Trainmen, and Lodge 362, Brotherhood of Locomotive Firemela_and Enginemen, are labor or- ganizations admitting to membership. employees of the Company. - III. THE QUESTION CONCERNING REPRESENTATION The. Company refuses to recognize any labor organization as the ,collective bargaining representative of its employees, in the absence of certification by the Board. Statements of a Board Field Examiner, introduced into evidence Ilt the, hearing, indicate that District 50 represents -a -substantial number 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 meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Company, District 50, and the C. I. O. agree that all hourly paid production and maintenance employees of the Company, in- cluding'watchmen, hourly paid research laboratory and development - laboratory workers, but excluding all office and clerical ' and medical service employees, militarized plant-production employees, and super- visory employees with authority to hire;'promote,^discharge,•discipline, ,or otherwise'effect changes in the status of employees, or effectively recommend such action, constitute-an appropriate unit.5 The B. R. T. seeks a unit composed of conductors, switchmen, and brakemen, an( the Firemen seeks a unit consisting of railroad engineers, firemen, and hostlers; the employees sought by these two organizations are 4 The statements of the Field Examiner may be summarized by the following chart : Type of unit Prod.and,maint. unit______________________ B R. T. unit------------------------------- Firemen's unit______________________________ No em- ployees in unit 2.366 21 17 Representation showing in units District 50 • 1 894 C I O. 1 215 B. R. T ------s 12 Firemen 214- Spot checks were made of these designations against the Company's pay roll of March 4, 1944. 2 Names appearing upon these designations also appeared upon the Company's pay roll of March 4, 1944. ° This is the unit which was agreed upon in the "Agreement for Consent Election." ELECTRO METALLURGICAL COMPANY ,521.' employed on the railway ow ned and operated by the Company's Niagara Works.6' The Raw Materials and Traffic Department of the Company, of which the railway -employees form a part,7 is under the immediate supervision of the general yard master. The department is re- sponsible for the receiving and unloading of all raw materialsi the delivery to various points in the plant for processing, the loading of the finished products, and their delivery to the railroads servicing the Niagara Works.8 These movements of material within the plant are made upon the intraplant railway previously referred to, which is comprised of approximately 15 miles of track. Besides the rail- way employees, the department includes employees classified as ma- terial handlers, laborers, raw material crusher attendants, belt men, oilers, shredding machine operators, Larry car operators, various types of crane operators, and repair crews, all of whom are directly 'concerned with the transportation of materials within the plant. Each of these classifications bears a close functional relationship to the others in the department as well as to employees working in the various production departments. The railway employees are primarily concerned with operating the tracks and rolling stock of the intraplant railway. On occasions caused by the fact that the Company does not possess sufficient siding space, some of these employees may have to leave the confines of the plant and place cars on the connecting lines between the railroads serv- icing the plant and the plant itself. There is some evidence which indicates that,' under certain circumstances, these employees may perform some switching operations on the main line of one of'the serv- icing railroads. However, the major portion of the duties of the rail- way employees is performed within the plant itself. The railway employees are not necessarily persons who have had prior experience with railroads, and a majority of them have been trained by the Com- pany in order to perform their present duties. The Company's policy has been- to make interdepartmental transfers during slack periods without regard to classification. Since, as previously indicated, the majority of the railway employees were originally hired for positions other than those -which they now occupy, they are equally affected by this policy of the Company. Although there has been no collective bargaining history covering the employees at the Niagara Works, the Company, is presently bar-' gaining collectively-with respect to employees in eight of its plants.' 9 These employees are hereinafter referred to collectively as the railway employees. 7 The department has about ,116 employees . The railway employees comprise approxi- mately 32 percent of this number. ' 8 There are two railroads which service the Company . , Each owns connecting lines linking the plant 'with its main lines. 522 DECISIONS OF 'NATIONAL-LABOR RELATIONS BOARD In each of these plants the employees are represented on the basis of an industrial unit. In discussing a similar, situation involving an- ,other plant of the Company,° we stated : Where, as here, there is no history of collective bargaining, the form, which collective bargaining,has taken in other plants of an employer' is regarded by the Board as a-significant,factor'i-ri 'de- termining the appropriate unit. Moreover, the history of collec- tive bargaining throughout the steel industry generally, affords ample precedent for the finding that an industrial unit is ap- propriate. We note further that the engine service men are an integral part of a department which is more intimately related to the production of ferro alloys than to railroad transportation. Under the, circumstances we shall retain the traditional bargain- ing unit in this' industry and shall include the engine service men in the comprehensive unit." For the same reasons we are, of,the.opinion,.that.separate units, of rail- ..way'employees of, the Niagara Works are not appropriate for the purposes of collective bargaining. Accordingly, we shall dismiss the petitions filed by the B. R. T. and the Firemen. We find that all hourly paid production and maintenance employees of the Company, including watchmen, hourly paid research labora- tory workers and development laboratory workers, but excluding all office and clerical and medical service employees, militarized plant- -protection employees, and supervisory employees with authority to -hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the ineaning 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 Election '-herein, subject to the-limitations and additions set forth in the Direc- tion. Since the units sought by the R. R. T. and the Firemen have not 3been found to be appropriate, and these organizations claim no interest in the appropriate unit, we shall not place their names upon the ballot;-, on the other hand, inasmuch as we are conducting an election, and a Matter of Electra Metallurgical Company, 54 N. L. R. B. 15, and cases cited therein. In that proceeding, involving the Ashtabula plant, the Firemen sought to establish, as in this case, a unit of engine service employees. 10 See also Matter of Geneva Steel Company, 57 N. L R. B 50, and cases cited therein. ELECTRO METALLURGICAL COMPANY 523 the C. 1. 0. has submitted some evidence of representation in the appro- priate unit, we shall accord it a place thereon. 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 DrRECrED that, as part -of the investigation to ascertain representa- tives for'the purposes of collective bargaining with Electro Metallur- gical Company (Niagara Works), Niagara Falls, New York, 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 supervision of the Regional Director for the Third Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Sections 10 and 11 , of said Rules and Regulations , among the employees in the unit found appro-, priate 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 and have not been rehired or reinstated prior to the date of the election , to determine whether they desire to be represented by District 50, United Mine Workers of America, or by Local 250, United Gas, Coke and Chemical Workers, affiliated with the Congress of Industrial Organizations , for the purposes of col- lective bargaining, 'or by neither. ORDER On the basis of the foregoing findings of fact, the National Labor Relations Board hereby orders that the petitions for investigation and certification of representatives, of employees of Electro Metal- lurgical Company (Niagara Works), Niagara Falls, New York, filed by Brotherhood of Railroad Trainmen, and by Brotherhood of Loco- motive Firemen & Enginemen in Cases Nos. 3-R-818 and 3-R-820, re- spectively, be, and they hereby are, dismissed. , [See infra, 57 N. L. R. B. 1764 for Supplemental and Amended Deci- sion and Direction of Elections.] . - . ,