Wheeling Steel Corp.

In the Matter Of WHEELING STEEL CORPORATION and UNITED FOREMEN OF AMERICA, LOCAL 1444 (C. I. 0.) Case No. 8-R-1987.Decided July 1, 1946 Messrs. William F. Howe and Karl M. Dollak, both of Washington, D. C., and .Jfr. A. K. Monroe, of Wheeling, W. Va., for the Company. Mr. Frank Lasick, of Bellaire, Ohio, for the Union. Mr. Seymour M. Alpert, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon an amended petition duly filed by United Foremen of America, Local 1444 (C. I. 0.), herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Wheeling Steel Corporation, Yorkville, Ohio, herein called the Company,' the National Labor Relations Board provided for an appropriate hearing upon due notice before Thomas E. Shroyer, Trial Examiner. The hearing was held at Yorkville, Ohio, on May 1, 1946. The Company and the Union 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. At the hearing, the Company made two separate motions to dismiss the petition, one on the ground that the Union is not a labor organiza- tion within the meaning of the Act, and the other on the ground that its foremen and supervisors are not employees within the meaning of the Act. The Trial Examiner referred these motions to the Board. For reasons stated hereinafter, both motions are hereby 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 with the Board. Upon the entire record in the case, the Board makes the following: ' The name of the Company appears as amended at the hearing. 69 N. L. It. B., No. 19. 208 WHEELING STEEL CORPORATION FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 209 Wheeling Steel Corporation, a Delaware Corporation, is engaged in the manufacture and sale of tin plate, terneplate, and black plate. The Company operates several plants including the one at Yorkville, Ohio, which is solely involved in this proceeding. The Company annually purchases raw materials for use at this plant in an amount exceeding $10,000,000, more than 10 percent of which is obtained from points outside the State of Ohio. Of the Company's annual sales, which exceed $20,000,000 in value, over 75 percent represents shipments to points located outside the State. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Foremen of America, Local No 1444, is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership supervisory employees of the Company.2 III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as the collective bargaining representative of any of its supervisory employees. As noted above, the Company moved to dismiss the petition on the ground that its foremen and supervisors are not employees within the meaning of the Act. For the reasons stated by us in the L. A. Young case,3 and following cases,' we find, contrary to the Company's contention, that its foremen and supervisors are employees within the meaning of Section 2 (3) of the Act. 2 In support of its initial motion to dismiss the petition, the Company contends that the Union is not a labor organization within the meaning of the Act, because the Union never formally accepted the charter issued to it by the C. I. 0., and because the Union's member- ship never formally adopted a constitution and bylaws. We find this contention to be lacking in merit. The form of the Union's internal organization , to which the Company's objections are directed, is clearly not a prerequisite for recognition as a labor organization under the Act. Section 2 (5) of the Act defines a "labor organization" in the broadest terms declaring that "the term `labor organization' means any organization of any kind, or any agency or employee representation committee or plan , in which employees participate and which exists for the purpose, in whole or in part, of dealing with employees concerning grievances , labor disputes , wages, rates of pay, hours of employment, or conditions of work." The Union meets the test of a labor organization prescribed by the statute. Accordingly we find it to be a labor organization within the meaning of the Act. See Matter of Indus- trial Collieries Corporation, 65 N. L. R. B 683, Matter of Gielow, Inc., 60 N. L. R. B. 1477. 3 Matter of L A. Young Spring & Wire Corporation, 65 N L R. B. 298. 4 Mater of The B. F. Goodrich Company, 65 N L It. B 294 , Matter of The Midland Steel Products Company, Palish & Bingham Division, 65 N. L R' B 997; Matter of Simmons Company, 65 N. L. R B 984: Mattel of Jones & Laughlin Steel Corporation, V esta-Shan- nopin Coal Division, 66 N L R B. 386 701592-47-vol 69-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 UNITS The Union seeks a unit of all production, maintenance, and plant- protection supervisory employees below the rank of assistant depart- ment superintendent. Should-the Board refuse to include plant pro- tection supervisory employees in the desired unit, the Union requests, in the alternative, that a separate bargaining unit of these employees be established. Without waiving its position that these employees cannot form any appropriate unit, the Company asserts that the grouping sought by the Union is inappropriate in that it would in- clude plant-protection supervisors and employees who, although in the desired classifications. do not in fact possess supervisory authority. We have heretofore held that the pattern for supervisory employees should generally follow the pattern of organization established for the rank and file employees in the absence of a history of collective bargaining for supervisory employees in the industry involved. The record reveals that the Company's rank and file employees are or- ganized into separate units of plant protection employees, clerical employees, and production and maintenance employees, and there is apparently no history of collective bargaining for supervisors in this industry. Accordingly, we shall reject the Union's primary position which contravenes the established rank and file bargaining pattern, but shall instead adopt the Union's alternative position and find two units appropriate, one consisting of supervisory production and main- tenance employees and the other of supervisory plant-protection per- sonnel.' We now come to a specific consideration of the two units : A. The plant-protection supervisory unit The Company employs five plant-protection supervisory employees. Four of them are lieutenant patrolmen who are responsible to- the fifth who is a chief patrolman. The lieutenant patrolmen are salaried and unarmed; three of them are deputized by the County. On their respective turns they supervise the plant guards and can effect a change in the status of these employees. The chief patrolman 6 is directly responsible to the plant assistant general manager, and it appears that he is on the same level of supervision as the production Matter of Federal-Mogul Corporation , 66 N. L . R B 532 ; Matter of Westinghouse Electric Corporation (East Springfield Works ), 66 N L R B. 1297. 6 The Union does not seek to represent him. WHEELING STEEL CORPORATION 211 and maintenance department' heads who are excluded by agreement from the production and maintenance supervisory unit. Under all the circumstances we find that the lieutenant patrolmen, excluding the chief patrolman, form a distinct homogeneous group appropriate for the purposes of collective bargaining. B. The production and maintenance supervisory unit From an operational standpoint, the Company's Yorkville Works is broken down into nine major departments. Each department, with two exceptions,? is headed by a department superintendent, who is assisted in most instances by an assistant department superintendent. Below the rank of assistant department superintendent appears the following job classifications : general foremen, foremen, assistant foremen, general turn foremen, turn foremen, assistant turn foremen, leaders, and assistant leaders. The employees within these classifi- cations with the exceptions of the assistant turn leader-black plate and reclaim department, assistant coater leader-lithographing de- partment, and coil storage leader-lithographing department 8 fall within the two lowest levels of supervision and possess supervisory authority within the Board's customary definition of that term. There is apparently no clear line of demarcation between the two lowest levels of supervision, and all the supervisors have substantially the same authority over their subordinates in matter of discipline, of specifying work to be performed, and of changing assignments. In addition, most of them participate in the first stage of the grievance procedure. The fact that a few of the leaders and assistant leaders take no part in the first stage of the grievance procedure while of some significance is not, contrary to the Company's position, the sole determinative test of supervisory status. In all such instances, we are persuaded that the duties, powers, and responsibilities of these leaders and assistant leaders bring them clearly within our usual supervisory, definition. In view of the foregoing, we conclude that the Company's general foremen (except general foreman-tin plate department, and general foreman-packaging, warehouse, and ship- ping department), foremen, assistant foremen, general turn foremen, turn foremen, assistant turn foremen, leaders (except coil storage lead- ers-lithographing department), and assistant leaders (except assist- ant turn leader-black plate and reclaim department and assistant 7 The head of the tin plate department, and the head of the packaging, warehouse, and shipping department are designated as general foremen. They have the duties, powers, and responsibilities of department superintendents , are treated as such by the Company, and the parties agree that they should be excluded from the unit. 8These three employees either have no subordinates or lack the power to make effective recommendations with respect to their subordinates , and accordingly are not supervisory within the Board's customary definition of that term. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coater leader-lithographing departmeht) constitute an identifiable and homogeneous group which may function together for collective bargaining purposes. There remains for consideration the question of including in or excluding from the production and maintenance supervisory unit certain employees bearing special job titles. Head reckoning checkers-tin plate assorting department : These two employees assemble and keep records for inventory and pay pur- poses, and are charged with the supervision of several reckoning checkers who fall within the rank and file clerical unit. Accordingly, we shall exclude them as clerical supervisors .9 Lubricating and combustion engineer-electrical department: In the course of his work this individual is charged with the supervision of four employees who fall within the rank and file production and maintenance unit. It appears that his interests are identified with those of the other supervisors in the production and maintenance supervisory unit hereinafter established. We shall therefore include him. Electrical Specialists-electrical department: This title is a mis- nomer in that these two employees are in fact electrical foremen, su- pervising the work of subordinates who fall within the rank and file production and maintenance unit. The interests of the electrical specialists are clearly identified with the supervisory employees already included in the appropriate unit. We shall therefore include the electrical specialists. Chief inspector of tin plate-tin plate assorting department: This employee is in fact a foreman in the tin plate assorting room, super- vising inspectors who fall within the rank and file production and maintenance unit. It appears that he has interests in common with those already included within the unit. We shall include him. Mechanical specialist-mechanical, maintenance and service depart- ment: This individual has no regular subordinates. On those occa- sions when employees are assigned to assist him he works along with them and assumes a role comparable to that of a skilled mechanic in relation to his helpers. Inasmuch as he is not a supervisor within the Board's customary definition, we shall exclude him. We find that the following units are appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : 1. All plant-protection supervisory employees at the Company's Yorkville, Ohio, plant, excluding the chief patrolman and all other supervisory employees. 9 Matter of The Midland Steel Products Company, Parish & Btngham Divtsron, supra. WHEELING STEEL CORPORATION 213 2. All general foremen , foremen, assistant foreman , general turn foremen, turn foremen, assistant turn foremen, leaders, and assistant leaders, in the production and maintenance departments of the Com- pany's Yorkville plant, including lubricating and combustion engi- neer-electrical department, electrical specialists-electrical depart- ment, and chief inspector of tin plate-tin plate assorting department, but excluding mechanical specialist-mechanical, maintenance and service department, coil storage leader-lithographing department, assistant turn leader-black plate and reclaim department, assistant coater leader-lithographing department, head reckoning checkers- tin plate assorting department, general foreman-tin plate depart- ment, general foreman-packaging, warehouse, and shipping depart- ment, plant-protection supervisory employees, and all other super- visory employees. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by elections by secret ballot among employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTIONS 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, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Wheeling Steel Corporation, Yorkville, Ohio, elections by secret ballot shall be con- ducted 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 Eighth Region, acting in this matter as agent for the National Labor Relations Board, subject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the units found appropriate in Section IV, above, who were em- ployed 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 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have not been rehired or reinstated prior to the date of the elections, to determine whether or not they desire to be represented by United Foremen of America, Local 1444, C. I. 0., for the purposes of collec- tive bargaining. MR. GERARD D. REILLY, dissenting. For the reasons stated in my dissenting opinions in Matter of Jones & Laughlin Steel Corporation, Vesta-Shcznatopin Coal Diaaisien,10 and Matter of Packard Motor Car Company," I am constrained to dissent from this decision. ao 66 N. L. R. B. 386. 61 N. L. R. B. 4.