Wheeling Steel Corp.

In the Matter Of WHEELING STEEL CORPORATION , STEUBENVILLE, OHIO and ORDER OF RAILWAY CONDUCTORS OF AMERICA Case No. R-759-Decided July 6,1938 Iron and Steel Industry-Investigation of Representatives: petition for, dis- missed, where no question has been raised concerning the representation of employees in an appropriate unit ; alleged waiver by one union of its right to represent certain employees ; unit sought in petition , composed of brakemen and conductors at one of employer's plants, found not to be appropriate : functional coherence ; wages, hours, and working conditions determined by central office and applied throughout all departments of all plants ; railroad operated wholly within confines of plant and used mainly for transporting materials between departments ; interchange of employees of railroad with other departments ; representation of brakemen and conductors under existing contract ; history of collective bargaining relations in industry-Order: dismissing petition. Mrs. Mary Telker Iliff, for the Board. Thorp, Bostwick, Reed cf Armstrong, by Mr. John E. Laughlin, Jr., of Pittsburgh, Pa., for the Company. Mr. Thomas J. McBride, of Youngstown, Ohio, for O. R. C. Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for S. W. O. C. Mr. Howard S. Friedman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 8, 1938, Order of Railway Conductors of America, herein called O. R. C., filed with the Regional Director of the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Wheeling Steel Corporation, Steubenville, Ohio, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 'Stat. 449, herein called the Act. On April 14, 1938, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional 8 N. L. R. B., No. 13. 102 DECISIONS AND ORDERS 103 Director to conduct it and to provide for an appropriate hearing upon due notice. On April 23, 1938,1 the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, O. R. C., and Steel Workers Organizing Committee, herein called S. W. O. C., a labor organization claiming to represent employees directly affected by the investigation. On April 28, 1938, S. W. O. C., acting in behalf of the members of the Amalgamated Association of Iron, Steel, and Tin Workers of North America, filed with the Regional Director a motion for inter- vention, claiming (1) that it has a contract with the Company cover- ing all its employees, including those whom O. R. C. claims to repre- sent, (2) that S. W. O. C. represents a majority of the Company's employees at the Steubenville plant in the unit claimed by O. R. C., and (3) that the unit requested-by O. R. C. is not an appropriate bargaining unit. The motion to intervene was granted by the Trial Examiner at the commencement of the hearing. The ruling is hereby affirmed. Pursuant to the notice, a hearing was held on May 2, 1938, at Steubenville, Ohio, before Charles W. Whittemore, the Trial Exami- ner duly designated by the Board. The Board, the Company, O. R. C., and S. W. O. C. were represented by counsel and participated in the hearing. The Company did not present a case in its own 'behalf, but its officers appeared and testified as witnesses for the other parties and one exhibit was designated as Company Exhibit No. 1. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing the Trial Examiner informed the parties that they were entitled to apply for oral argument before the Board at Washington, D. C., within 10 days after the hearing. None of the parties availed themselves of this opportunity, nor did they file briefs. On May 14, 1938, the Board issued an order transferring the case to the Eighth Region, in which the Steubenville plant of the Com- pany is located, and retransferring it to the Ninth Region; both transfer and retransfer to operate nuns pro tune as-of April 12, 1938. Upon the entire record in the case, the Board makes the following : 1 The notice of hearing was incorrectly dated May 23, 1938. In Board Exhibit No. 1 the affidavits of service of the notice of hearing are dated April 23, 1938, and the return re- ceipts of the parties served by registered mail bear the date of April 25, 1938. 104 NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Wheeling Steel Corporation is a Delaware corporation or- ganized in 1920 and maintains its main offices in Wheeling, West Virginia. - It is engaged in the business of manufacturing, selling, and distributing various kinds of iron, steel, and tin products. The Company owns 11 plants, of which 5 are steel manufacturing plants located at Beachtown and Benwood in West Virginia and at Ports- mouth, Yorkville, and Steubenville in Ohio. The Company's plant at Steubenville, Ohio, is hereinafter referred to as the Steubenville plant. The Company owns and operates iron properties in Minnesota, coal properties in West Virginia, and has warehouses in Texas and Ten- nessee. Several of its wholly owned subsidiaries own and operate coal properties in Pennsylvania, Olio, and Kentucky. In addition it has sales offices, in almost every principal city in the United States. The Steubenville plant comprises approximately 125 acres of land, on which are located 145 coke ovens, with an annual estimated capac- ity of 700,000 gross tons of coke, a coke byproduct recovery plant, 2 blast furnaces, with an annual estimated capacity of 460,000 tons of pig iron, 11 open-hearth furnaces with an estimated annual capacity of 900,000 gross tons of steel, rolling mills for the conversion of the ingots into billets, slabs, sheet bars, pipe mills, with an estimated annual capacity of 160,000 tons, and continuous hot- and cold-rolled strip mills, with an estimated annual capacity of approximately 600,000 gross tons of hot-rolled and 200,000 gross tons of cold-rolled products. Under ordinary circumstances, and with operations at normal, the company employs between 5,000 and 6,000 men at its Steubenville plant. The Company uses as its main raw materials iron ore of various grades, coal, limestone, and scrap. The iron ore used in the'Steuben- ville plant is obtained from iron ore properties situated outside the State of Ohio, and is transported by lake steamers to the lower Lake Erie ports from which it is transported by rail carriers to the Steu- benville plant. The coal used at the Steubenville plant is obtained for the most part from mines situated in the State of Pennsylvania, and is transported to the Steubenville plant by barges on the Alle- gheny and Ohio Rivers. Scrap is obtained from a number of sources, and is transported to the Steubenville plant by rail carriers and by barges on the Ohio River. The limestone used at the Steubenville plant is obtained, for the most part, in the State of West Virginia,- and is transported to the Steubenville plant by rail carriers. ' Other raw materials are transported to the Steubenville plant ordinarily by rail carriers. DECISIONS AND ORDERS 105 Of the products manufactured at the Steubenville plant, it is esti- mated that approximately 90 per cent are sold to customers located in States other than the State of Ohio. • The finished products are transported from the Steubenville plant to such customer's by rail carriers and, to a lesser extent, by barges on the Ohio River. A comparatively small amount of the finished products is transported by trucks. - At the hearing, upon the statement by counsel for the Company that there had been no important changes in corporate structure or method of operations since that time, it was agreed to by counsel for all the parties that facts concerning the business of the Company which were established in Matter of Wheeling Steel Corporation and The Amalgamated Association of Iron, Steel & Tin Workers of North America 2 were to be admitted as part of the record in this proceeding. II. THE ORGANIZATIONS INVOLVED The Order of Railway Conductors of America is a labor organiza- tion which has been in existence since 1868. Originally it admitted to its membership only railway conductors. In 1934 it extended-its jurisdiction to brakemen and switchmen, so that now it represents the men engaged in the operation and movement of trains, except engineers and firemen. In this case it admits to membership brake- men and conductors employed in the intraplant railroad of the Steubenville plant of the Company.s Steel Workers Organizing Committee is a special committee set up in June 1936 for the purposes of organizing steel workers along in- dustrial lines.4 The functions of S. W. O. C. and the Amalgamated Association of Iron, Steel and Tin Workers of North America are woven together. 'Workers who join are, for all practical purposes members of both the Amalgamated and S. W. O. C.5 It admits to 2 Case No. C-3, 1 N. L. R. B. 699 ( May 12, 1936). - 8 While the petition was filed by the Order of Railway Conductors of America and the membership cards have the same title, the testimony of Herring , an official of O. R. C., indicates that those joining would be considered to be in Division No. 217 ( Steubenville, Ohio ) of that organization. A copy of the "Memorandum of Agreement" between the Amalgamated Association of Iron, Steel and Tin Workers and the Committee for Industrial Organization was introduced into evidence as S. W. 0 C. Exhibit No. 5. It provides for the establishment of the S. W. O. C. which has "power to handle all matters relative to the organizing campaign, other than the issuance of charters ." It further provides that "the Committee and the officers of the Amalgamated Association shall have exclusive power to deal with the steel companies in order to reach agreements." 5 Membership cards introduced into evidence are headed "Steel Workers Organizing Com- mittee" and read as follows : "I hereby request and accept membership in the Amalgamated Association of Iron, Steel, & Tin Workers of North America through the Steel Workers Organizing Committee and of my own free will authorize it, its agents or representatives to act for me as a collective bargaining agency in all matters pertaining to pay, rates, wages, hours of employment and other conditions of employment." 106 NATIONAL LABOR RELATIONS BOARD membership production, maintenance, and service employees of the Company. The service employees are those working directly on the plant property who do not leave the property. Included in this group are the transportation employees. III. THE APPROPRIATE UNIT On, April 19, 1937, S. W. O. C. signed a contract with the Company in which S. W. O. C. was recognized as the collective bargaining agency for those of its members who were employees in the Com- pany's steel manufacturing and byproduct coke plants. By this agreement, which was to terminate on February 28,1938, the Company agreed to maintain specified wages, hours, and working conditions. On March 1, 1938, this agreement was renewed for an indefinite period. On August 6, 1937, representatives of O. R. C. met in conference with officials of the Company. The position of the Company at that time was embodied in a letter sent the following day by H. D. Scott, vice president of the Company, to Herring, acting vice president of O. R. C. It stated that the Company felt it was in the steel business, not the railroad business; that the railroading work was incidental to the operation of the steel plants and practically confined to the limits of the Company's own plants; that the principles of wages, hours, and working conditions applicable to the employees were more prop- erly those of the steel industry than those of common carriers; and that the Company would recognize any representative acting in ac- cordance with the Act. The Company also stated at the conference that it had a contract with S. W. O. C. and presumed that S. W. O. C. would object to any negotiations between the Company and the O. R. C. At a second conference, the exact date of which is not stated, O. R. C. presented a proposed agreement whereby it was to be recog- nized as sole bargaining agent for the conductors and brakemen at the Steubenville plant. The Company refused to sign this agreement. Thereafter, O. R. C. filed its petition claiming that the brakemen and conductors employed at the Steubenville plant of the Company constitute a unit appropriate for the purposes of collective bargain- ing. It further claims it has the membership of a majority in this unit and that, S. W. O. C. having waived its rights under its general contract with the company to represent these employees, the Board should certify O. R. C. as their exclusive bargaining representative. To support the claim that S. W. O. C. waived its right to bargain for the brakemen and conductors at the Steubenville plant, O. R. C. produced a letter dated August 11, 1937, sent to the Company by Clinton S. Golden, director of the Northeastern Region of S. W. O. C., DECISIONS AND ORDERS 107 stating that S. W. 0. C. waived jurisdiction over employees of "the railroad operated by the Wheeling Steel Corporation" [ italic ours] and that S. W. 0. C. was willing to allow these men to seek representation through their respective railroad employees' union.° Copies of this letter were sent to Herring and to a representative of the Brotherhood of Locomotive Engineers. S. W. 0. C. takes the position that the bargaining unit claimed is not appropriate and that it never waived jurisdiction over the trans- portation employees at the Steubenville plant. In support of its claim that it has not waived jurisdiction over these employees, S. W. 0. C. introduced a letter, dated April 30, 1938, from Clinton S. Golden to Henry D. Scott explaining that the letter of August 11, 1937, referred to above, regarding the interest of S. W. 0. C. in engi- neers, firemen, trainmen, and conductors had been misconstrued by 0. R. C. and that the earlier letter had reference only to the em- ployees on the Bellwood and Wheeling Connecting Railroad, a com- mon carrier and a wholly owned subsidiary of the Company, and not to employees on trains which operate wholly within the Com- pany's various plant properties. An official of the Company in charge of its labor relations testified that he interpreted the original letter as referring only to the employees on the Benwood and Wheeling Connecting Railroad. 0. R. C. introduced evidence to prove that the men operating the trains at the Steubenville plant constitute a separate unit in the oper- ations of the Company; that the men consider themselves railroad men and are so regarded by others in the plant; that they are called conductors and brakemen in true railroad parlance ; that their sen- iority system and preferential bidding for jobs is similar to, although not identical with, that used on railroads generally; and that their 6 O. R. C. Exhibit No. 2. AUGUST 11, 1937. HENRY D. SCOTT, Vice President, Wheeling Steel Corporation, Wheeling, West Virginia DEAR MR . SCOTT: With further reference to the organization of engineers, firemen, trainmen , and conductors on the railroad operated by the Wheeling Steel Corporation per- mit nie to state that neither the S. W. O. C. nor the Amalgamated Association of Iron, Steel & Tin Workers makes any claim to represent men engaged in this class of service for your Company Our policy has been to advise such employees on railroads operated by any of the steel companies to seek representation through the respective Railroad Brotherhoods having jurisdiction over this sort of work. The purpose in writing you is to clear up any doubt that might exist in your mind as to whether we should lay claim at any future time as to our right to represent these men for collective bargaining purposes. On several other railroads operated by Steel companies with whom we have signed contracts such companies have entered into collective bargain- ing relationship with the Railroad Brotherhoods when requested to do so by the latter in accordance with the provisions of the Railway Labor Act or the National Labor Relations Act. Yours very truly, /S/ CLINTON S. GOLDEN, Director, Northeastern Region. 108 NATIONAL LABOR RELATIONS BOARD hours of work and lunch-hour regulations are like those of rail- road employees. To further identify them as railroad employees, it was shown that the main line of the, Pennsylvania Railroad runs through the Company's property at its Steubenville plant. To reach the Company's docks and wharves its trains must cross the Pennsyl- vania's tracks, an operation which requires the Company's trains to run on the Pennsylvania's tracks, for approximately one-fifth of a mile. When this crossing is made a pilot, who is an employee of the Pennsylvania Railroad, is in full charge; the Company's men are not allowed to touch any of the switches. It is necessary, however, for the Company's train crew to know the Pennsylvania's flagging rules. 0. R. C. contends that these factors indicate that the brake- men and conductors on the railroad at the Steubenville plant are not engaged in the production of steel, but are railroad men and, there- fore, constitute an appropriate bargaining unit. 0. R. C. also con- tends that, since there is no interchange of the railroad employees between the various plants of the Company, the brakemen and con- ductors employed on the railroad at the Steubenville plant consti- tute a unit distinct from the railroad employees at the other plants. The Company produced no witnesses in its own behalf, but its offi- cers were called as witnesses by the Board and by both unions. Their testimony shows that the brakemen and conductors are employees in the Company's yard transportation unit which is engaged in oper- ating the Steubenville plant yards and rolling stock. It was further clearly shown that the Company regards the entire yard transporta- tion system unit as an integral part of the steel production force and the Steubenville plant as an integral part of the Company's en- tire operations. The Company's officers stated that although the men in the yard transportation unit were referred to as railroad men they were all, in fact, engaged-in the production of steel to the same extent as the other employees. The general policies of wages, hours, and working conditions for all the Company's plants are determined at the central offices in Wheeling, West Virginia. Increases and decreases in pay are given at the same time and apply throughout all departments in all plants. This was true even before the Com- pany signed its contract with S. W. 0. C. covering all its plants. The average wage paid the brakemen and conductors at the Steuben- ville plant is slightly higher than the general average wage paid throughout the plant. However, several types of production em- ployees are paid considerably more than brakemen and conductors. The facts concerning the railroad at the Steubenville plant and the employees engaged in its operation are as follows : The railroad is used chiefly to transport materials from department to department within the plant and the trains do not run outside of DECISIONS AND ORDERS 109 plant property, except for the crossing of the Pennsylvania's tracks as stated above. It is not a common carrier and is not under the jurisdiction of the Interstate Commerce Commission. Cars are de- livered by interstate carriers to the edge of the plant where the Com- pany's men take them over. Similarly, when goods go out of the plant, the loaded cars are taken on the railroad to the edge of the plant property, where they are taken over by interstate carriers. In- bound and outbound shipments of freight constitute only a small proportion of the work of the yard transportation unit. The management structure of the Steubenville plant is not set up in a manner to make the yard transportation unit a separate division of the plant. There is a general manager in charge of the plant. Under him are 12 departments, each with its own superintendent. One of these is superintendent of transportation and labor. He has charge not only of those working in the yard transportation unit but also of the laborers, who handle not only maintenance and con- struction work on the railroad, but also general construction work about the plant. There is also an assistant superintendent of trans- portation and labor, called the general yardmaster, who supervises all the engineers, firemen, brakemen, and conductors in the plant. Under him there are yardmasters, who correspond to foremen in the other departments. The work of the employees engaged in operat- ing trains on runs known as stockhouse runs is closely interrelated with the work performed in the open-hearth furnace department. Their work is governed by the schedule of the furnaces and the open- hearth foreman exercises virtually exclusive jurisdiction over them. The yard railway system does not handle all the transportation in the plant. Some plant transportation is carried on by trucks under the supervision of the storeroom department, while other trans- portation work is done by a mechanical conveyor system. When the Company needs additional brakemen, it secures them from among its employees. When work is slack in transportation the Company, rather than furlough the men, places them at other jobs in the plant. Of the 77 conductors and brakemen in the unit claimed to be appropriate, 51 have done other work in the plant either as laborers in the yard or at regular production jobs. In 1937 the Company entered into a contract with S. W. O. C. covering all the latter's members employed in all steel manufacturing and byproduct coke plants owned by the Company. There is no evidence showing that collective bargaining on the basis of this ex- tensive industrial unit has not been satisfactory. Under the exist- ing contract there is nothing to prevent the employees in the yard transportation unit at the Steubenville plant from securing repre- sentation through the S. W. O. C. S. W. O. C. has members among 110 NATIONAL LABOR RELATIONS BOARD the conductors and brakemen at the Steubenville plant. While no occasion has arisen for S. W. O. C. to act for any of its members in the yard transportation unit at the Steubenville plant, it has handled grievances for the train crews at the Company's Portsmouth plant and a grievance concerning an individual in the yard transportation unit at its Benwood plant. In July and October 1937, the Company signed contracts granting exclusive bargaining rights for the Benwood and Wheeling Connect- ing Railway Company, a wholly owned subsidiary connected with the Company's Benwood, West Virginia, plant and a common carrier. One contract is with the Brotherhood of Railway Trainmen, govern- ing the brakemen and conductors, and the other with the Brother- hood of Locomotive Engineers and Firemen, governing the engineers and firemen. It is significant that neither of these contracts with the railroad unions covers employees in the yard transportation unit at the Portsmouth plant, who operate the intraplant railroad at that plant. There is nothing in the record to indicate that O. R. C. has organized the yard transportation units of the Company's other plants. In other steel companies whose plants and methods of operation are similar to those of the Company in this proceeding, it appears that in most instances brakemen and conductors engaged in operat- ing intraplant railroads have been included within and governed by a general contract similar to the one which S. W. O. C. has with the Company. - On the record in this case we are of- the opinion that a unit com- posed solely of brakemen and conductors working at. the Steuben- ville plant of the Company is not appropriate for the purposes of collective bargaining.' IV. THE QUESTION CONCERNING REPRESENTATION Since, as stated in Section III, we are unable to find an appropriate unit within the scope of that alleged in the petition filed in this case, we find that no question has been raised concerning the representa- tion of employees of the Company in an appropriate bargaining unit. Upon the basis of the above findings of fact and'upon the entire record in the case, the Board makes the following : ?Cf. Matter of Swift and Company and Packing House Workers Union, Local No. 563, 4 N. L. R. B. 779; Matter of American Woolen Company, Nat'l and Providence Mills and Independent Textile Union of Olneyville , 5 N. L. R. B. 144 ; Matter of Standard Oil Com- pany of California and Oil Workers International Union, Local 299, 5 N. L. R. B. 750; Matter of American Steel & Wire Company and Steel and Wire Workers Protective Associa- tion, 5 N. L. R. B. 871; Matter of Columbia Broadcasting System, Inc. and American Radio Telegraphists Association, 6 N. L. R . B. 166; Matter of Wisconsin Power and Light Company and United Electrical, Radio and Machine Workers of America, Local No. 1134, 6 N. L. R. B. 320. DECISIONS AND ORDERS CONCLUSION OF LAW - 111 No question concerning the representation of employees of Wheel- ing Steel Corporation, Steubenville, Ohio, in a unit which is appro- priate for the purposes of collective bargaining has arisen, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby dismisses the peti- tion for investigation and certification filed by Order of Railway Conductors of America.