Electric Metallurgical Co.

In the Matter Of ELECTRO METALLURGICAL COMPANY and UNITED STEELWORKERS OF AMERICA, CIO Case No.10-R-1'761.Decided July 22,1946 Mr. William C. Treanor, of New York City, and Mr. Burton R. Buck, of Sheffield, Ala., for the Company. Messrs. R. M. Poarch and if. J. Shewnurke, both of Birmingham, Ala., for the CIO. Mr. Paul Chipman, of Atlanta, Ga., and Mr. W. H. Johnson, of Sheffield, Ala., for the TAM. Mr. Robert Lanier, of Sheffield, Ala., for the Iron Workers. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by United Steelworkers of America, CIO, herein called the CIO, alleging that a question affecting com- merce had arisen concerning the representation of employees of Electro Metallurgical Company, Sheffeld, Alabama, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon due notice before Albert D. Maynard, Trial Examiner. The hearing was held at Sheffeld, Alabama, on May 10, 1946. The Company, the CIO, International Association of Machin- ists, Lodge 1189, herein called the TAM, and International Association of Bridge Structural and Ornamental Iron Workers, Local Union 477, herein called the Iron Workers, 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 1 The Iron Workers moved to intervene, and the Trial Examiner granted the motion. Later, the Iron Workers' representative withdrew from the hearing without notice to the Trial Examiner or to any of the parties . Upon discovery of the withdrawal , the Trial Examiner stated that he would no longer regard the Iron Workers as a party to the proceeding. After the hearing, in response to the Board's telegram notifying it of exten- sion of time for filing briefs, the Iron Workers sent a telegram to the Board stating, inter alia, that it had intervened "in support of the agreement" between the Company and the IAM. We therefore consider the Iron Workers as an intervenor. 69 N. L. R. B., No. 94. 772 ELECTRO METALLURGICAL COMPANY 773 issues. The Company, the TAM, and the Iron Workers moved to dismiss the petition . For reasons stated in Sections III and IV, infra, the 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: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Electro Metallurgical Company is it West Virginia corporation engaged in the manufacture, sale, and distribution of ferro-alloys. It operates eight plants located in Canada and the United States, includ- ing its plant at Sheffield, Alabama, the only one involved in this proceeding. During the year ending December 1945, the Company purchased in excess of $1,000,000, worth of raw materials, approxi- mately 75 percent of which was shipped to its plant in Sheffield, Alabama, from States other than the State of Alabama. During the same period, the Company at its Sheffield, Alabama, plant sold in excess of $1,000,000, worth of finished products, about 90 percent of ,which was shipped to, into, and through States other than the State of Alabama. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED United Steelworkers of America is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. International Association of Machinists, Lodge 1189, is a labor organization admitting to membership employees of the Company. International Association of Bridge, Structural and Ornamental Iron Workers, Local Union 477, is a labor organization, admittting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the CIO as the exclusive collective bargaining representative of certain of its employ- ees until the CIO has been certified by the Board in an appropriate unit. On March 23,1945, the IAM first notified the Company of its interest in employees of the Traffic and Maintenance Departments. On De- cember 14, 1945, the Company and the IAM entered into a written 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement defining a bargaining unit (Traffic and Maintenance De- partment employees only) and providing for recognition of the TAM if it won a card-check to be conducted by the United States Concilia- tion Service. At this time, the CIO had apparently not begun organ- izing the Company's plant. A Commissioner of the United States Conciliation Service held the card-check on December 14, 1945, and found that 43 of the 60 em- ployees in the unit had signed cards.2 Accordingly, the Commissioner "found and determined" that a majority of the employees in the unit desired to be represented by the TAM. The TAM and the Company then entered into negotiations 3 which culminated on March 7, 1946, with the signing of a 1-year collective bargaining contract 4 covering employees in the Traffic and Maintenance Departments. The previous day, March 6, 1946, the Company had received a letter from the CIO in which the CIO requested recognition as the bargaining agent for a plant-wide unit. The Company replied on March 14, 1946, suggesting that the CIO submit the matter to the Board. The CIO filed the present petition on March 11, 1946. The TAM and the Iron Workers assert that the card-check and the subsequent contract between the TAM and the Company constitute bars to the present proceedings, at least, insofar as it affects employees of the Traffic and Maintenance Departments. The Company states that it entered into the contract in good faith and does not desire to contend either that the contract is or is not a bar. We are of the opinion that neither the card-check nor the contract precludes a present determination of representatives. The record discloses that neither the card-check agreement, nor the results of the card-check were posted. Under our present procedure, if it appears as the result of a cross-check that the union involved has been desig- nated by a majority of employees in the agreed unit, notices to that effect are posted on the employer's premises for a period of 5 days, during which any interested party has an opportunity to file objections to the conduct of the cross-check. Where this procedure is followed, the cross-check has effect equal to that of a secret election. On the other hand, where, as here, such safeguards are absent, the Board' will not consider the card-check as satisfactory as the election method of ascertaining the true desires of employees.5 ' The "cards" were union representation authorization forms. In these negotiations , the IAM, in accordance with oral arrangements with the Iron Workers, acted on behalf of all affected employees , including a few Iron Workers' members. The Iron Workers was not represented at the conference, nor does its name appear in the contract itself. * The contract was renewable automatically from year to year, unless terminated by 60 days' prior written notice by either of the parties. L Matter of Joe Hearin, Lumber, 68 N. L. R. B . 150. Moreover, in Matter of Victory Chemical Company, 60 N. L. R. B. 997, the Board held that recognition based on a card- ELECTRO METALLURGICAL COMPANY 775 Before the contract between the IAM and the Company was signed, the CIO had notified the Company, in writing, that it represented a majority of the Company's employees and desired recognition as their exclusive bargaining represenative. Since this notice was timely, and was followed within 10 days by the filing of the petition, the contract is not a bar to a present election.° The Company and the IAM objected to the proceedings on the ground that the report on investigation of interest of contending labor organizations was not put in evidence. This objection has no merit.? 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 DETERMINATION OF REPRESENTATIVES The CIO seeks a unit composed of the Company's production and maintenance employees, while the IAM contends that a unit of the Maintenance and Traffic Departments employees is appropriate. The Company takes a neutral position. The Company has divided its plant into 6 departments, 3 of which (mix, furnace, and packing) are considered production departments, and the other 3 (traffic, maintenance, and laboratory) are considered auxiliary or "overhead expense" departments. The Maintenance De- partment consists of approximately 50 employees of all trades and skills classified as mechanics. Their job is to maintain and repair equipment in all departments. About 65 percent of their work is done within the Maintenance Department building, and 35 percent takes them into the Traffic Department and the production depart- ments. The Traffic Department consists of about 21 employees. Their job is to transport raw materials coming into the plant to the raw material bins and to transport finished products to storage piles or to railroad cars for shipment. For this purpose, they use Diesel check conducted by a Commissioner of the United States Conciliation Service was not a bar to the direction of an election. The IAM relies on Matter of Adams and Westlake Company, 30 N. L. R. B. 1222, in which the Board found that an exclusive recognition agreement based upon a card-check conducted by "an independent third party " was a bar to an election within 1 year. How- ever, that case was later specifically overruled to the extent that it holds that a bare grant of exclusive recognition , is, of itself, sufficient to preclude an election. Matter of Henry Weis Manufacturing Company, 49 N. L. it. B. 511. Matter of General Electric X-Ray Corporation, 67 N. L . R. B. 997 ; Matter of Eicor, Inc., 46 N . L. it. B. 1035 ; Matter of Mill B ., Inc., 40 N. L . it. B. 346. The IAM cites Mat- ter of Hettrick Manufacturing Company , 25 N. L . it. B.722 , in which the Board, held that no election would be conducted during the term of a contract executed in the interim between oral notification to the employer of the claim of the petitioning union and the filing of the petition . The doctrine of the Hettrick case has not been followed by the Board in recent years. Insofar as it is inconsistent with anything contained herein, the Hettrick case is hereby specifically overruled. 7 Matter of O. D. Jennings & Company, 68 N. L. it. B. 516. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD locomotive cranes and Diesel locomotives. Each of the 6 departments has its own supervision, but there is the same over-all general super- vision. Each department is set up separately on the Company's pay roll. There appear to be no definite craft lines between the depart- ments. The production departments and the Traffic Department operate 3 shifts daily, while the Maintenance Department operates only 1 shift. The Maintenance Department is in a separate building. The Traffic Department is also separated physically from the other departments. There is some interchange of employees between the Traffic Department and the Maintenance Department, but there is virtually no interchange between the Traffic and Maintenance De- partments on the one hand and the production departments on the other hand. The history of collective bargaining in this plant is comparatively recent. The IAM apparently started organizing the Traffic and Main- tenance Departments in March 1945. It conferred with the Company on behalf of the employees in these two departments from the card- check of December 1945, until the consummation of the present con- tract, a few days before the instant petition was filed. There is no evidence that the CIO asserted any,interest in the Company's em- ployees prior to March 5, 1946. In the past, the Board has had occasion to determine appropriate units in cases involving other plants of the Company. In two cases the Board, in accordance with the desires of the parties, found a plant-wide unit to be appropriate.' In a third case the Board es- tablished a plant-wide unit over the objections of two of the unions? In a fourth case the Board directed separate elections in two groups of trainmen and firemen, respectively, reversing its previous holding which established a plant-wide unit.1o Likewise, in a fifth case the Board directed a separate election among Maintenance Department employees over the objection of a union which sought a plant-wide unit.,' The operations of the entire plant are sufficiently integrated to make feasible and appropriate for bargaining the plant-wide unit requested by the CIO. On the other hand, the employees of the Traffic and Maintenance Departments form an identifiable group working under conditions differing somewhat from the conditions obtaining through- out the remainder of the plant, and have carried on bargaining with the Company as a separate group. Since the factors supporting the ap- propriateness of a plant-wideunit and of a separate unit for Traffic Matter of Electra Metallurgical Company, 8ubatituted for American Carbolite Company, Inc., 45 N. L. R. B. 335, 339 (Duluth , Minnesota ), and Matter of Electro Metallurgical Company, 51 N. L. R. B. 37 ( Alloy and Glen Ferris , West Virginia). O Matter of Electro Metallurgical Company, 54 N. L. It. B. 15 ( Ashtabula , Ohio). 10 Matter of Electro Metallurgical Company, 57 N. L. R. B. 1764, reversing 57 N. L. R. B. 518 (Niagara , New York). 11 Matter of Electra Metallurgical Company, 56 N. L. It. B. 1464 ( Spokane, Washington). ELECTRO METALLURGICAL COMPANY 777 and Maintenance Departments employees are evenly balanced, we are of the opinion that the determination of the appropriate unit with respect to the employees in question should depend, in part, upon the desires of such employees, to be expressed in the elections hereinafter directed among the voting groups set forth below. Consequently, we shall make no final determination of the appropriate unit at this time, but shall defer the determination pending the results of said elections. In the Traffic and Maintenance Departments group all parties have agreed on the exclusion of the leader maintenance, who is clearly a supervisory employee with power to discharge and recommend hiring. The parties have also agreed to exclude the toolroom attendant, who is a clerical employee. In the remainder of the plant the CIO and the Company agreed 12 on the inclusion of the head furnacemen, the leaders utility men, head tappers, leaders mix department and leaders packing department, all of whom are hourly paid employees with minor supervisory status, lacking authority to recommend hire, discharge, promotion, demotion or transfer. The CIO and the Company agreed to exclude gate at- tendants, the first aid attendant, the leader guard, the master me- chanic, the assistant chief electrician, Traffic Department foremen, switchroom operators, the clerk in the packing department, weighers, all chemists and analysts, and all clerical and supervisory employees paid on a salary basis. We shall respect the wishes of the parties with respect to the inclusion or exclusion of the various groups of employees described above. The CIO seeks the inclusion of leaders tapper and four sample pre- parers but the Company expresses no opinion with respect to the in- clusion or exclusion of these employees. Leaders tapper supervise operations in the furnaces and are hourly paid. They have no au- thority to hire or discharge, but may recommend hiring and dis- charging. We are of the opinion that the leaders tapper fall within our usual definition of supervisory employees, and should therefore be excluded from any unit of production and maintenance employees. Sample preparers are hourly paid unskilled workers who prepare samples for the chemists and analysts. We believe that they should be included in the group of production and maintenance employees. Tie Company desires to exclude storeroom attendants as confiden- tial employees, while the CIO desires the Board to determine their status. These men work in the storeroom and keep records of incom- ing and outgoing supplies and also sell supplies to other employees. We consider these employees as clerical employees, and shall there- fore exclude them from any unit of production and maintenance employees. 12 The IAM apparently has no interest in the remainder of the plant. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company wants the guards excluded, while the CIO desires to include them. They are deputized, bonded, and carry arms, but they are not militarized. In accordance with our usual practice, we shall exclude them from any unit of production and maintenance employees.13 We shall direct that the question concerning representation which has arisen shall be resolved by separate elections by secret ballot to be held among the employees of the Company at its Sheffield, Alabama, plant within each of the voting groups listed below who were em- ployed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and addi- tions set forth in the Direction. Our determination of an appropri- ate unit or units, if any, will depend, in part, upon the results of said elections. There shall be excluded from each of said voting groups, in addition to the employees specifically mentioned therein, all chem- ists, analysts, clerical employees, guards, leaders guard, and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. The respective voting groups shall be : 1. All employees of the Traffic and Maintenance Departments, excluding leaders maintenance and toolroom attendants. 2. All other employees of the Company, including head furnace- men, leaders utility men, head tappers, leaders mix department, lead- ers packing department and sample preparers, but excluding gate attendants, first aid attendants, master mechanics, assistant chief electricians, Traffic Department foremen, switchroom operators, clerks in the packing department, weighers, leaders tapper, storeroom at- tendants, and the employees in voting group 1. The IAM has stated that, although it desires to participate in the election in the Traffic and Maintenance Departments, it does not wish to appear on the ballot in the election in the remainder of the plant. We shall so direct. As the Iron Workers apparently did not desire to appear on the ballot, we shall direct that its name shall not appear on the ballots in either of the elections. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby 13 Matter of Columbian Paper Company, 60 N. L. R. B. 1201; Matter of Ingalls Ship- building Corporation, 59 N. L. R. B. 924. ELECTRO METALLURGICAL COMPANY 779 DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Electro Metal- lurgical Company, Sheffield, Alabama, elections 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 Tenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Arti- cle III, Sections 10 and 11, of said Rules and Regulations, among the following groups of employees 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 employ- ees 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 elections, and excluding also all chemists and analysts, clerical employees, guards, leaders guard, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively rec- ommend such action : (1) All employees of the Traffic and Maintenance Departments employed by the Company at its Sheffield, Alabama, plant, excluding leaders maintenance 'and toolroom attendants, to determine whether they desire to be represented by United Steelworkers of-America, CIO, or by International Association of Machinists, Lodge 1189, for the purposes of collective bargaining, or by neither; (2) All other employees at the Sheffield, Alabama, plant including head furnacemen, leaders utility men, head tappers, leaders mix de- partment, leaders packing department, and sample preparers, but excluding gate attendants, first aid attendants, master mechanics, as- sistant chief electricians, Traffic Department foremen, switchroom operators, clerks in the packing department, weighers, leaders tapper, storeroom attendants, and the employees in voting group (1), to determine whether or not they desire to be represented by United Steelworkers of America, CIO, for the purposes of collective bargaining.