The American Roller Mill Co.

In the Matter of THE AMERICAN ROLLING MILL COMPANY, EMPLOYER and UNITED STEELWORKERS OF AMERICA, AFFILIATED WITH THE C. I. 0., PETITIONER In the Matter of THE AMERICAN ROLLING MILL COMPANY, EMPLOYER and BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION, LOCAL 57, A. F. OF L., PETITIONER Cases Nos. 9-R-2W and 9-R-455, respectively.Decided April .8, 1947 Frost c6 Jacobs, by Messrs. Cornelius J. Petzhold and Charles A. Atwood, of Cincinnati, Ohio, for the Employer. Mr. Julius Holzberg, of Cincinnati, Ohio, for the Steelworkers. Mr. John W. Jockel, of Cleveland, Ohio, for the Bricklayers. Mr. Henderson Estes, of Middletown, Ohio, for the Independent. Mr. Gerald P. Leicht, of counsel to the Board: DECISION DIRECTION OF ELECTION - AND , ORDER Upon separate petitions duly filed, a consolidated hearing in these cases was held at Middletown, Ohio, on December 16, 17 and 18, 1946, before William O. Murdock, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby, affirmed. Upon the entire record in the case,l the National Labor Relations Board makes the following : FINDINGS OF FACT I. TIIE BUSINESS OF THE EMPLOYER The American Rolling Mill Company, an Ohio corporation, is en- gaged in the business of producing iron and steel and manufacturing 3 On January 6, 1947, the Employer moved that the record be corrected in certain minor respects. On January 7, 1947, the Board served upon the parties notice that the motion would'be granted unless sufficient cause for denial were-shown by January 17, 1947. No objections to the granting of the motion having been filed, the record is.corrected as re- quested by the Employer. 73 N. L.R B, No. 119. 617 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -iron and steel products. It operates several plants, including a steel mill and fabrication plant in Middletown, Ohio, which alone are in- volved in this proceeding. The Middletown plants annually use raw materials valued in excess of $5,000,000, of which approximately 75 percent is shipped to the plants from points outside the State of.Ohio. These plants 'annually manufacture products having i value in excess of $10,000,000, of which approximately 75 percent is shipped to points outside the State of Ohio. The Employer admits and we find that- it' is engiged in commerce within the meaning of the National Labor Relations Act. II.-THE ORGANIZATIONS INVOLVED The Petitioner, United Steelworkers of America, herein called the Steelworkers, is a labor organization affiliated with the Congiess of Industrial Qrganizations, claiming to represent employees of the Employer. . The Petitioner, Bricklayers, Masons -and Plasterers International Union, Local 57, herein called the Bricklayers, is a labor organization affiliated with the American Federation of Labor, claiming to repre- sent employees of the Employer. Armco. Employees Independent Federation, Incorporated, herein called the Independent, is an unaffiliated labor organization, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize either the Steelworkers or the_ Bricklayers)as the exclusive bargaining representative of employees of the Employer in the absence of Board certification. On June 6, 1944, the Independent was certified as the bargaining representative of employees of the Employer in the same basic unit which is here sought by the Steelworkers in Case No. 9-R-92443; this unit included the employees here sought by the Bricklayers in Case No. 9-R-2455.2 The Employer and the Independent entered into a 2-year collective bargaining agreement on December 7, 1944, which provided that the agreement should be ' automatically extended from year to year, unless notice of termination were given by either party 30 days prior to any anniversary date. The Steelworkers and the Bricklayers filed their respective original'petitions prior to the 1946 effective date of the automatic renewal clause of the contract. The contract is there- fore not a bar to the instant proceedings and none of the parties so contends. We find that in Case No. 9-R-2443 a question affecting commerce has arisen concerning the representation of employees of the Em- 2 llMatter of The American Rolling Mill Company, 56 N L R B 609 THE AMERICAN ROLLING MILL COMPANY 619 ployer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. For reasons hereinafter stated we make no finding at this time with respect to the alleged question concerning"representation in Case No., 9-R-2455. IV. THE APPROPRIATE UNIT A. The contentions of the parties In Case No. 9-R-2443, the Steelworkers seeks a unit of all production and maintenance employees in the Fabricating Division, and the Mid- dletown Division (steel mill) of the Employer, including weighmen, recorders,-scrap yard men, and river pump men, but excluding mill clerks,-junior mill clerks, schedule clerks, order dispatchers, salaried fuel men, salaried inspectors, all janitors (except plant janitors), sal- aried motor testers, salaried meter repair men, all wood and metal pat- tern makers, pattern maker apprentices, plant-protection employees, weighmasters, tiniekeepers, premium checkers, employees in the first aid and medical departments, salaried -employees in the metallurgical department, all employees in the home office, all employees in the main office of each.Division, all salaried employees not directly connected with production and maintenance, occasional, irregl.ilar, and substi- tute foremen, all co-op student employees, all part-time employees not regularly scheduled, all part-time employees who work less than 20 hours per week, foremen, assistant foremen, chief mill clerks, and all other supervisory employees with authority to hire, promote, discharge. discipline, or otherwise effect changes in the status of- employees, or effectively recommend such action, constitute a .unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In Case No. 9-R-2455, the Bricklayers seeks a unit of all bricklayers and apprentices in the Middletown plant of the Employer, excludin g foremen and group leaders and all other supervisory employees. At the hearing, the Steelworkers took no position with respect to the unit sought by the Bricklayers. Subsequent to the hearing, how- ever, the Steelworkers notified the Board that it opposed the unit sought by the Bricklayers in view of the "integrated character of steel production" and the history of collective bargaining in this case, and desired their inclusion in the unit-it-is seeking. The Employer and the Independent contend that their contract covering production and main- tenance employees establishes a history of collective bargaining on a plant-wide basis and that therefore the unit sought by the Bricklayers is inappropriate. - - . With respect to the unit sought by the Steelworkers, the Employer and the Independent are in disagreement with the Steelworkers as to. 620 DECISIONS OF NATIOI\TAL, LABOR' RELATIONS BOARD the exclusion of certain categories of employees which are discussed in detail in subsection D, infra. In taking such a position they contend that the unit previously established by the Board 3 and which was embraced,by their contract is determinative, there being no change in circumstances warranting any modification of the unit at this time. B. The history of collective bargaining In 1943, the Pattern Makers League of North America petitioned for a unit of all wood and metal pattern makers and their apprentices, employed in the Fabricating Division of the Employer at Middletown. During the same year, the Independent petitioned for a unit of produc- tion and maintenance employees, excluding, among others, the em- ployees sought by the Pattern Makers. The two cases were consoli- dated for hearing, and the Steelworkers, as an intervening party, con- tended that certain categories of employees sought by the Independent should be excluded .4 On March 2, 1944, the Board issued its Decision and Direction of Elections,5 directing that separate elections be con- ducted among the employees sought by the P. M. L. and the Inde- pendent, respectively. The Board included in the production and maintenance unit sought by the Independent the categories of em- ployees, noted in footnote 4, above, whom the Steelworkers sought to exclude. A description of the Employer's plants and operations is described in considerable detail in that Decision. The record in the instant case indicates that the operations today are substantially as previously found. Pursuant to the Direction, elections were conducted. among the pattern makers on March 31, 1944, and among the production and maintenance employees on March 30 and 31, 1944. The P. M. L. received a majority vote in the, pattern makers unit and on April 12, 1944, was certified as .the collective bargaining representative of the pattern makers. The Tally of Ballots cast in the election among the production- and maintenance employees:disclosed that the challenged ballots cast were sufficient in number to affect the outcome of the election. On May 5, 1944, the Regional Director issued his Report on Challenged Ballots, recommending the overruling of certain of the challenges and the sus- taining of others, On May 17, 1944, the Board issued its Supple- mental Decision and Direction, affirming' the recommendations of the Regional Director and directing him to open and count ballots as to which the challenges were overruled. On May 26, 1944, the Regional 8 See Matter of The American Rolling Mill Company, 55 N. L. R. B. 231. Mill - clerks, junior mill clerks , schedule clerks, order, dispatchers , salaried fuel men, salaried inspectors, janitors, salaried motor tests, and salaried meter repair men. 55 N L. R B. 231 , Supra. THE AMERICAN ROLLING MILL COMPANY 621 Director issued his Revised Tally of Ballots, which showed that a majority of the valid votes had been cast for the Independent. As al- ready noted, on June 6, 1944, the Board certified the Independent as collective bargaining representative of the production and main- tenance employees. Also as noted, the Employer and the Independent entered into a 2-year contract covering the employees for whom the Independent was certified as bargaining representative. C. The unit sought by the Bricklayers Except for fringe issues, there is no dispute as to the appropriateness of a production and maintenance unit, apart from the issue raised by the Bricklayers as to the separation of the bricklayers and appren- tices from the larger unit. The Bricklayers' petition for a separate unit of approximately 23 bricklayers and apprentices requires fur- ther deliberation by the Board, inasmuch as it involves the general problem of craft versus industrial unit in the steel industry.6 But the fringe issues are relatively simple and their prompt resolution will fix the contours of the basic production and maintenance unit, per- mitting an immediate election to be held among approximately 4,000 employees. Therefore, we shall not pass upon the Bricklayers' peti- tion at this time, but shall proceed to dispose of the Steelworkers' petition, thus severing the two cases and avoiding further delay for the overwhelming majority of employees. Although we make no determination now of whether to include the bricklayers and appren- tices in the production and maintenance unit, as hereinafter provided in Section V they shall be allowed to vote in the election we are direct- ing among the employees in the production and maintenance unit. However, the Regional Director shall segregate and impound their ballots until we have acted upon the Bricklayers' petition and deter- mined whether or not they are to be included in the production and maintenance unit or permitted a separate election. We turn now to a consideration of the fringe issues raised by the Steelworkers' petition in Case No. 9-R-2443. D. The disputed categories. in the production and maintenance unit Mill clerks, junior mill clerks, schedule clerks, order dispatchers, Sala- Pied fuel ,men, salaried inspectors, salaried motor testers, and salaried meter repair men The Steelworkers, as in the prior case, is seeking to exclude these classifications of employees from the unit. The Employer and the- Independent oppose such exclusions. The Board, in its prior Do- See, e g (Matter of Tennessee Coal, It on and Railway Company , 39 N L R , B 617 Matter of Geneva Steel company, 57 N L R B 50 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cision, considered each of these categories and included them. In the election directed by the Board in the prior case, the Steelworkers' chal' lenged the ballots of employees in a number of these categories.' -The Regional Director, in his Report on Challenged Ballots, recommended the overruling of these challenges, which recommendation was affirmed' by the Board, and the challenged ballots of these employees were opened and counted. Although the record-indicates that there have been, additional em- ployees employed in several of these ' categories, there appears to be no substantial change in the duties, relationship, and functions of the employees in the categories. We shall, accordingly, include then. Janitors Contrary to the desires of the Employer and the Independent, the Steelworkers seeks to remove all janitors, except plant janitors, from the unit. There are, apparently three types- of janitors employed by the Employer in Middletown : general office janitors, main, office jan- itors, and plant janitors. The general offices for all the Employer's plants are located at Middletown, Ohio. Nohe of the parties con`- tends for the inclusion of the general office janitors and they were-not included in the unit in the prior case or in the contract between the Employer- and- the Independent. Accordingly, we shall exclude them. - The main office janitors of the East Works Divisions and the Fabricating Division were included in the unit the Board estab- lished in its prior Decision. Because there appears to be no substantial change in their duties; relationship, and functions, we shall include them. None of the parties contends for the exclusion of plant janitors. We shall, accordingly, also include them.. Part-time employees not regularly scheduled The record indicates that there are "probably a few employees" em- ployed in this category. There is no controversy, however, between the parties with respect to these employees. - All agree to their ex- - clusion. We shall, accordingly, exclude them. Part-time employees regularly scheduled- who work less thane, 20 hours per, wee/c The Steelworkers seeks, to exclude these employees, numbering approximately 35, from the unit. The Employer and the Independ- ent, however, would include them. The Steelworkers also contended in the prior case that part-time employees should not be eligible to N1111 clerks, junior mill clerks, schedule clerks, order dispatchers , salaried inspectors Also referred to as the Middletown Division ( steel mill) THE AMERICAN ROLLING MILL COMPANY 623 vote. The Board, however, in its Decision, found that they had a substantial interest in the selection of a collective bargaining repre- sentative and were thus eligible to vote. Part-time employees were aaso'challenged by the Steelworkers at the prior election on the ground that they were working less than 24 hours. The Regional Director, however, recommended that the challenged ballots of these employees, some of whom n`orked as little as 8 hours per week, should be opened and counted. This recommendation was affirmed by the Board and the challenged ballots were opened and counted. The record does not show that there is any substantial change in the duties, relationship, and functions of these part-time employees, and we shall, accordingly include them. _ Co-op Student Employees The Steelworkers would exclude Co-ops, whereas the Employer and the Independent would include them. , The Employer employs eight persons in this category. They are all engineering students attending the University of Cincinnati. The prior Board Decision did not treat with Co-ops, as none were employed by the Employer during the war period. Co-ops were, however, employed both before and after the war. The present Co-ops are "'ex-G. L's." They work in pairs, al= ternately attending school and working for 7-week periods, during the entire university course.9 It, therefore, appears that Co-ops are not steady employees and that their employment is merely incidental to their education. We accordingly find that they do not have a strong community of interest with the other production and maintenance em- ployees, and we shall exclude them. Occasional, irregular and substitute foremen These approximately 100 employees, whom the Steelworkers would exclude, and the Employer and the Independent include, were re- ferred to in the record as "spellmen." They consist of regular produc- tion and maintenance employees who regularly "act for," "spell," or "float out" turn foremen, in their absence. It appears that the prac- tice of spelling supervisors has existed for many years. However, this practice has increased recently due to the practice of placing all super- visors on a salary basis and changing them from a 48-hour to a 40-hour week. The spellmen are usually the most skilled production and maintenance employees in their section and have, what was character- ized by witnesses for the Employer, "a job knowledge." Although they have a good chance for promotion to the position of foreman in 9 They work in the galvanizing maintenance , cold strip maintenance, metalluigical and open hearth furnace departments of the East Works Division . The record reveals that if they are employed at all on a permanent full-time basis upon completion of their studies, 11 will be ina technical or supervisory capacity. 73992G-47-vol. 73-41 - 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the event of a vacancy, they are not necessarily the ones so selected, and they are so advised. While spelling they make decisions only frolic an operational or mechanical standpoint, their principal function be- ing to direct the working force. Also while spelling they are paid the hourly rate formerly, received by, turn foremen, which "can be" higher than their regular rate as production and maintenance employees. The following factors distinguish spellmen from supervisory em- -ployees: (1) working schedules are made up only by turn foremen; (2) they are not required to make recommendations as to the status of employees, as are the turn foremen, whose recommendations are given weight; (3) while they are required to report infractions of rules, this requirement is made of all production and maintenance em- ployees; (4) their opinion is not sought in the preparation of "labor audits," whereas the opinion of turn foremen is so sought; (5) they have no part in the handling of grievances as do the turn foremen; (6) the question of retention under the seniority clause in the contract be- tween the Employer and the Independent was not taken upwith spell- men but was taken up with turn foremen; (7) they do not receive supervisory passes as do'the turn foremen; (8) they do not attend school, as do the turn foremen, where supervisors are trained in man- agement policies b0 On the entire record, we are of the, opinion that spellmen are not supervisors within the Board's customary definition of that term, and we shall, therefore, include them in the unit. We find that all production and maintenance employees of the Fabricating Division and Middletown Division (steel mill) of the Employer in Middletown, Ohio, including,weighmen, recorders, scrap yard inen, river pump men, mill clerks, junior mill clerks, schedule clerks, order dispatchers, salaried fuel men, salaried inspectors, salaried motor testers, salaried meter repair meli, main office and plant janitors, regularly scheduled part-time employees, and oc- casional, irregular, and substitute foremen, but excluding all wood and metal pattern makers, pattern maker apprentices, plant protection employees, weighmasters, timekeepers, premium checkers, employees in the first-aid and medical departments, salaried employees in the metallurgical department, all employees in the home office, all em- ployees in the main office of each Division except janitors, all salaried employees not directly connected with production and maintenance, general office janitors, Co-op' student employees, part-time employees not regularly scheduled, foremen, assistant foremen, chief mill clerks and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- 10 At the Ashland, Kentucky, plant of the Employer, where the Steeln-oi kers is the collec- tivo bargaining agent for production and maintenance employees, such employees are in the contract unit ' THE AMERICAN ROLLING MILL COMPANY 625 ployees, or effectively-recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. Whether or not the bricklayers and apprentices will be included in the production and maintenance unit is yet to be, determined, as stated hereinabove. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen in Case No. 9-R-2443 be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direc- tion. - Bricklayers and apprentices shall be permitted to vote in the elec- tion, but the Regional Director shall segregate- and impound their ballots pending disposition of the petition in Case No. 9-R-2455. Whether or not such ballots are to be counted, assuming that they may affect the results of the election, shall be determined by our later decision in Case No. 9-R-2455 as to whether bricklayers and appren- tices are properly a part of the production and maintenance unit, or, on the other hand, are entitled to a separate election. It is -clearly to be understood that the omission of the name of the Bricklayers- Union from the ballot in the larger unit is not in any sense a pre- judgment of the right of that organization to be placed on the ballot in any separate election that might possibly be found appropriate later in Case No. 9-R-2455. Should such an election be directed, the name of the Bricklayers' Union will be placed on the ballot therein. DIRECTION OF ELECTION 11 As part of the investigation to ascertain representatives for the purposes of collective bargaining with, The American Rolling Mill Company, Middletown, Ohio, an election 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 Ninth Region, acting in this matter as agent for the Natonal Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board, Rules and Regulations-Series 4, among the employees in-the unit found appro- priate in Section IV, above (as well as bricklayers and apprentices), who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work dur- ing said pay-roll period because they were ill or on vacation or tempo- "Any participant in the election herein may, upon its prompt request to, and approval thereof by,-the Regional Director, have its name removed from the ballot. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but exclud- ing 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 United Steel- workers of America, C. I. 0., or by Armco Employees Independent Federation, Incorporated, for the purposes of collective bargaining, or by neither. ORDER IT IS HEREBY ORDERED that Case No. 9-R-2443, instituted by the United Steelworkers of America, affiliated with the C. I. 0., and Case No. 9-R-2455,-instituted by the Bricklayers, Masons and Plasterers In'-' ternational Union, Local' 57, A. F. of L., be, and they hereby are, severed.