Basic Magnesium, Inc.

In the Matter of BASIC MAGNESIUM, INC. and INTERNATIONAL UNION OF MINE, MILL AND SMEIJFER WORKERS, LOCAL 629, C. I. O. Case No. R-4973 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES July 15, 1943 On April 16, 1943, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding., Pursuant to the Direction of Election, an election by secret ballot was conducted on May 7, 1943, under the direction and supervision of the Regional Director for the Twentieth Region (San Francisco, Cali- fornia). On May 12, 1943, the Regional Director, acting pursuant to Article III, Section 10, of National Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties a Report on Ordered Election. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list___________________________________ 3, 149 Total ballots cast_________________________________________ 2,226 Total ballots challenged___________________________________ 85 Total void ballots_________________________________________ 10 Total valid votes counted_________________________________ 2,131 Votes cast for C. I. 0, International Union of Mine, Mill & Smelter Workers --------------------------------------- 1,122 Votes cast for A. F. of L___________________________________ 985 Votes cast for neither_____________________________________ 24 On May 14, 1943, the American Federation of Labor, herein called the A. F. of L., filed Objections to the Conduct of the Ballot and Elec- tion Report, alleging substantially as follows : - -1. The A. F. of L. never had access to a proper eligibility list; the list was changed at the time of the election without the knowl- edge of the A. F. of L.; and the list was inaccurate in that it 1 48 N. L. R. B. 1310. 51 N. L. R. B., No. 74. 354 C. BASIC MAGNESIUM, INC. 355 contained the names of persons ineligible to vote and omitted the names of persons eligible to vote. 2. The Board's agents denied eligible employees the right to vote. 3. The Board's agents refused to designate observers for the A. F. of L., as required by law, and improperly rejected three A. F. of L. observers on the eve of the election with the result that the substituted observers had no opportunity to become acquainted with the eligibility list or with their duties as observers. 4. The election was in part conducted in and during the ab- sence of the Board's agents. 5. Insufficient election notices were posted, and the Interna- tional Union of Mine, Mill & Smelter Workers, Local 629, affili- ated with the Congress of Industrial Organizations, herein called the C. I. 0., was improperly designated on the ballot to the dis- advantage of the A. F. of L. 6. A contract between Basic Magnesium, Inc., herein called the Company, and the A. F. of L. is a bar to the conduct of the election. After a full and exhaustive investigation of each of the allega- tions appearing in -the Objections, the Regional Director, on June 25, 1943, issued and duly served on the parties his Report on Ob- jections to Conduct of the Ballot and Election Report, in which he recommended that the Board find that the objections raise no mate- rial or substantial issues. On July 1, 1943, the A. F. of L. filed a formal protest to the Report on Objections. The Board has care- fully considered the Objections and the Regional Director's report thereon. For the reasons discussed below, we find no merit in the objections. 1. ALLEGED IRREGULARITIES IN ELIGIBILITY LIST The most serious of the objections concerns the alleged improper omissions of eligible employees from the eligibility list used at the election. The Company maintains 4 pay rolls. Pay rolls Nos. 1 and 2 con- tain the names of management, administrative, technical, and super- visory employees. Pay roll No. 3 includes, for the most part, clerical and office employees, as well as a small group, considered herein- after, carried on pay roll No. 3 as a matter of convenience. The No. 4 pay roll contains all employees engaged in operations and maintenance. , Following the issuance of the Decision and Direction of Election, the Company,' at the request of the board's agent, pre- 540612-44-vol. 51-24 356 DE CISIONS OF NATIONAL LABOR RELACLIONS BOARD pared a list of employees, according to job classifications, for the week ending April 11, 1943, the date as of which eligibility was to be determined in accord with the Board's Direction. This pay roll, hereinafter called pay roll A, contained the names of all persons on pay roll No. 4, excluding persons not on that pay roll because they were ill, on leave, or on vacation. We particularly note these exclu- sions for further mention. The Company added to pay roll A, 3 typewriter maintenance employees and 10 water treatment and sew- age disposal plant employees who were carried on pay roll No. 3 for administrative convenience. Copies of pay roll A were furnished to both unions and remained in their possession for a week in advance of the election. Each union was requested to check the list for omissions or erroneous inclusions. Certain omissions were called to the attention of the Board agent in charge of the election by the A. F. of L. representatives. The Company advised the agent that it considered these omitted employees as "technicians" within the exclusions of the unit. The agent then informed the A. F. of L. of the Company's position and stated that these employees could vote challenged ballots. Because pay roll A was not in a form suitable for use at the polls, the Board's agent in charge requested the Company to prepare another list in badge number order. Such a list was prepared and submitted 2 days before the election. The new list, hereinafter called pay roll B, was a run of pay roll No. 4 for May 3, 1943. The Company stated that it included the names of persons on leave, sick or on vacation, who were improperly omitted from pay roll A, and that it omitted the names of persons who had quit or been discharged subsequent to April 11, 1943, the eligibility date.2 The Board's agent, prior to the election, made a spot check of pay roll B and found that it was apparently compiled as the Company represented. Copies were submitted to both unions for an opportunity to check. Neither union alleged that it requested an opportunity for a further check, or that such a check was denied. - In the Regional Director's investigation with respect` to the A. F. of L.'s objections, it developed that (a) 210 names on pay roll A were not on pay roll B; "(b) 461 names appeared on pay roll B which were not on pay roll A; and (c) the names of other employees, alleged as eligible by the A. F. of L., appeared on neither pay roll. A comparison and analysis of the 2 pay rolls was made in order to determine if the discrepancies between them contributed materially to the failure of eligible employees to vote, or the voting of ineligible employees, as the A. F. of L. has alleged. It also omitted persons hired after April 1; 1943, the eligibility date. BASIC MAGNESIUM, INC. 357 a. Omissions from pay roll B Of the 210 names appearing on pay roll A. and not on pay roll B, 174 were the names of persons who had quit, been discharged for cause, or been terminated and rehired between April 11 and May 3, 1943. Two were the names of employees transferred after April 11 from eligible into ineligible classifications. Thus the omission of these 176 names from pay roll B was proper. Nineteen names were left off pay roll B through error. Of these 19, 3 were the type- writer maintenance men and 10 the water plant and sewage plant dis- posal employees, whose names were on pay roll No. 3 and included on pay roll A; all 3 typewriter maintenance men and 8 of the 10 water plant and sewage plant disposal employees voted challenged ballots. Two made no attempt to vote. Since the omission of their names was not noted prior to the election and since all the others in this group voted, it cannot be presumed that these 2 failed to appear at the polls by reason of the omission of their names .3 Of the other 6 of the 19 whose names were inadvertently omitted, 2 voted challenged ballots, and 4 did not vote .4 One, Nilan, appeared at the polls but declined to cast a challenged ballot. Since he, was advised that he could cast a challenged ballot, we find that he was not denied the right to vote. Of the remaining 15 names omitted from pay roll A, 14 were the names of persons who had been terminated subsequent to the eligi- bility date, but whose terminations had been rescinded, and 1 was the name of an employee on leave of absence. As all these employees were eligible to vote, the omission of their names was in error. How- ever, as their omission was not detected prior to the election, it is unreasonable to conclude that the omission of their names was in any way responsible for their failure to appear at the polls. This is particularly true in view of the fact that 5 of the 14 appeared at the polls and cast challenged ballots. , In summary, we do not find that a single eligible employee, whose name was among the 210 omitted from pay roll B, was denied the opportunity to cast at least a chal- lenged ballot. b. Additions to pay roll B With respect to the 461 names on pay roll B which did not appear on pay roll A, 195 were those of plant-protection employees specifi- cally excluded from the unit. All the parties knew that these em- a Szemere knew that be could vote because he admitted that fellow employees told him that their votes were being challenged . There is no evidence that either he or Ross appeared at the polls or were denied the right of casting at least a challenged ballot. * Other than Nilan, there is no evidence that the three who did not vote appeared at the polls, were denied the right to vote, or knew that their names had been omitted. 358 DECISIONS OF NATIONAL LABOR R'ELAfr'ION5 BOARD ployees were ineligible to vote, and none voted. Hence, it is impossible to attach any significance to their inclusion on pay roll B. Of the re- mainder, 194 were the names of persons who did not vote, and 72 were of employees who did vote. No explanation was given by the Company as to why the names of 194 employees were omitted from pay roll A, and, since such employees did not vote, no analysis was made of their eligibility. If any were ineligible, their inclusion on pay roll B did not affect the conduct of the election inasmuch as, they did not attempt to vote. Of any who were eligible, it is a logical and reasonable assumption that a fairly large number con- sisted of those employees on leave, sick, or on vacation who had been omitted from pay roll A. Such employees, according to the specific language of the Direction of Election, were eligible to vote whether or not their names appeared on either pay roll. Without further speculation as to why the 194 employees did not vote, the important consideration is whether or not it can reasonably be assumed that the omission of their names from pay roll A influenced the failure to vote of those who were eligible. We find that such an assumption is unwarranted. All parties had full access to pay roll A, and none raised any question 'regarding the omission of the 194 names. Either the parties did not detect the omissions, and hence the 194 persons had_ no knowledge that they were omitted, or else the parties approved the omissions. In the latter event the employees themselves indicated their interest by not appearing at the polls. Our conclusions are supported by the actions of the 72 who did cast ballots, although their names were omitted from pay roll A. With respect to these,. 69 were clearly eligible. The remaining 3, who were not eligible and whose eligibility was not contested at the polls, cast unchallenged ballots. They were ineligible by reason of termination prior to the election. Although these 3 were improperly allowed to vote, the omission of their names on pay roll A obviously had nothing to do, with the fact that they voted, nor do their votes materially affect the- result of the election. In summary, we find that none of the eligible employees whose names did not appear on pay roll A were, by that. fact, prevented from exercising the right to vote. Immediately prior to the election, pay roll B was brought up to. date by striking therefrom the names of persons who had been termi- nated since the preparation of said pay roll. During the course of the investigation it was found that all but 18 of these employees had either quit or been discharged. As their status at the time of the- election was in doubt, the 18 would have had to vote challenged ballots. Five did. One, Judy, claims she was denied the right to, cast a challenged ballot. There is no evidence that the others ap- peared at the polls or expressed any desire to vote. ` BASIC MAGNESIUM, INC. 359 c. Omissions from both pay roll A and pay roll B The A. F. of L. alleges that it was prejudiced in that numerous groups of eligible employees were erroneously omitted from both pay rolls and, by reason of their omission, were in effect denied the right to vote. The following table shows the group and the status of their ballots : Classification Number in Number group Voted un- challenged Voted chal- lenged Did not vote Electrical operators____________________________________ 7 1 5 1 Maintenance men or pump operators___________________ 3 0 3 0 Load dispatchers -------------------------------------- 11 0 7 4 Inspectors ---------------------------------------------- 6 0 3 3 Hospitalengineers ------------------------------------- 3 1 0 2 Instrument shop employees---------------------------- ------------ ------------ ------------ 5 Samplers ----------- ----------------------------------- 8 0 0 8 Sample preparation employees_________________________ 7 0 1 6 Stores department: Warehousemen------------------------------------- 11 5 0 6 _________________________________ Material checkers---------------------------------- Messengers --------------------------------------------- Messengers--------------------------------------------- 13 4 0 0 0 0 13 4 Seven electrical operators, employed some 12 miles from the plant, were, with one exception, carried on the No. 3 pay roll. They were intentionally omitted from pay roll B by the Company on the ground that they are technicians within the exclusions of the unit. The one exception, was carried on pay roll No. 4; he voted an unchallenged ballot. The omission of the other six was noted by the A. F. of L. prior to the election, and the Board agent notified the A. F. of L. of the Company's contention. During the Regional Director's investi- gation, the Company admitted that these employees should have been eligible to vote. Despite this admission their eligibility at the time of the election was in doubt due to the Company's position. Of the six, five properly voted challenged ballots. As there is no evidence that the remaining one appeared at the polls or expressed a desire to vote, we find that no harm was committed in the omission of these employees' names from the eligibility list. The names of three maintenance men or pump operators were omitted through oversight occasioned by the fact they were carried on the No. 3 pay roll. The erroneous omission of their names, how- ,ever, was cured in that all three appeared at the polls and voted. The Company purposely omitted the names of 11 employees, classi- fied as load dispatchers, on the ground that they fell within the ex- clusions of the unit. These men are highly skilled electrical tech- nicians and, as such, were carried on pay roll No. 2. Since the election they have been reclassified as "Operating Foremen" and "Assistant Operating Foremen." We find that these employees were properly omitted from the pay roll. Of the 11, 7 voted challenged ballots and none voted unchallenged; the remaining 4 did not appear at the polls. 360 DECISIONS OF, NATIONAL LABOR. RELATION BOARD Six employees, classified as engineering inspectors, were also carried on the No. 2 pay roll, and were purposely omitted from the eligibility list for the same reason as were the load dispatchers. Three of the six voted challenged ballots, and none voted unchallenged: The re- maining three did not appear at the polls. Inasmuch as their duties indicate that they are technical employees, we find that the engineer- ing inspectors were properly omitted from pay roll B. Three boiler-room engineers, who work outside the plant at the Company's hospital, were also omitted from pay roll B. Although hospital employees were excluded from the unit, these employees per- form work similar to that of the boiler-room engineers inside the plant who were eligible to vote. All three appeared at the polls; but did not vote. Brewer 5 and Kerley, who were told they were not on the eligibility list, do not claim they were denied the right to vote a challenged ballot. Peterson claims he was denied the right to vote a challenged ballot. As all three employees appeared at the polls, we find that, with the possible exception of Peterson," no prejudicial error was committed by the omission of these three names. With a few exceptions, all instrument shop employees appeared on the eligibility list. The A. F. of L. claims that five, Ball, Biddy, Brad= shaw, Greathouse, and Windell were erroneously omitted. Windell is clearly a foreman, and his name should have been omitted. Ap- parently the names of the other four were omitted because they were carried on the No. 3 pay roll. Although these four did not appear at the polls, it is unreasonable to assume that the omission of their names had any effect upon their failure to vote, since their omission was not noted prior to the election, and since others in their group appeared rand voted. Eight samplers and seven sample preparation employees were omit- ted. Their omission was not detected prior to or during the election. These employees are engaged in gathering and preparing metals, dry mixes, and solutions for laboratory analysis. Apparently they per- form duties which bring them within the classification of laboratory employees or chemical assistants, excluded from the unit. There is no evidence that any, save one who voted a challenged ballot, ap- peared at the polls or desired to vote. Under these circumstances we find that the omission of their names was not prejudicial to the in- terests of the parties. Among its stores department employees, the Company employs per- sons classified as warehousemen, material checkers, and clerks. The 5 Brewer's name appeared on pay roll A but not on pay roll B due to the fact that he was transferred shortly before the election from a Job inside the plant to the hospital. Peterson's statement alleges that the Board 's agents prevented his casting a challenged ballot. The Board's agents do not remember Peterson , but all state that the agreed-upon election procedure, discussed hereinafter, was strictly adhered to, and that no employee was denied the right to cast a challenged ballot. BASIC MAGNESIUM, INC. 361 latter two groups were specifically excluded from, the unit, and none voted. The A. F. of *L. contends that some of the material checkers are erroneously classified, and that, in all, 24 persons in the depart- ment should have been eligible. The Regional Director's investiga- tion revealed that, of the 24,10 classified as warehousemen were on pay roll B and 5 voted. One was omitted by mistake. The status of the remaining 13, classified as material checkers, was certainly in doubt as employees in their classification were specifically excluded. Inasmuch as none of the 13 appeared, at the pollsor attempted to vote, although they could have cast a challenged ballot, we find. it unreasonable to assume that the omission of their names had any effect on their failure to vote. Messengers were specifically excluded from the unit. However, the A. F. of L. contends that one group of four messengers should have been eligible to vote. These employees apparently comprise a fringe group, the proper inclusion or exclusion of which would necessarily have depended on circumstances which were not revealed in the record. Their omission was not noted prior to the election. Inasmuch as their eligibility was at best doubtful, their ballots, had any been cast, were certainly' subject to challenge and should have been challenged. For these reasons, we find that no harmful error was committed by their omission. The Board's Direction of Election excluded foremen and higher ranking supervisors. The A. F. of L. contends that, among others, Hess, Marsh, Glazer, and Benedict, carried on the No. 2 pay roll, should have been eligible to vote. The investigation revealed that each of these men was a general foreman with exclusive supervisory authority at the time of the election. As such, their names were properly omitted from the eligibility list. No other foremen in similar supervisory positions voted. 7 - No evidence was offered that the Company was guilty of bad faith or deliberate wrongdoing in connection with the discrepancies that occurred in the two.pay rolls or in the-alleged improper omissions in the eligibility list used. As already stated, both unions had an op- portunity to check the pay rolls. In every instance where the two pay rolls varied, the Regional Director's investigation has disclosed a reasonable explanation. With respect to the alleged improper omis- sions from both pay rolls, we have found that the majority of the omis- sions were either proper or occurred among fringe groups whose eligi- bility status was in doubt. In any event, none of the employees whose names were omitted, with the possible exceptions of Jody and Peter- son, were denied the opportunity of casting a challenged ballot. In * Goodrich and MoMonigat, subforemen , were listed on pay roll B, but claim they were denied the right to vote. Other subforemen in similar classifications voted unchallenged. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD large elections, and particularly where the rate of labor turnover is high, as is true in this case, inaccuracies in the eligibility list and doubt as to the eligibility status of employees in fringe groups are bound to occur. The procedure whereby employees may cast a challenged bal- lot was devised for just such situations in order to protect the interests of the parties and the Board, and at the same time insttre to em- ployees the opportunity to vote if they, so desire. II. ALLEGED MISCONDUCT OF BOARD AGENTS The five agents of the Board agreed in advance of the election to establish three voting tables for the purpose of checking voters, and one challenge table. An agent and observers for each party were to be stationed at each table. As an employee presented himself, if no question arose as to his eligibility, he was to be given a ballot. If his eligibility was not clear, a Board agent was to inquire the date he began to work, his job classification, and, if his name did not appear on the pay roll, any possible reasons for its omission. If from his statements,it appeared -that-the.employee -began, work` after the eligi- bility date, or was clearly in an ineligible classification, he was to be advised of the provisions of the Board's Direction of Election as to eligibility. If there appeared to be any further question as to his status, he was to be referred to the challenge table. The Board agents agreed that everyone who requested it was to be given the opportunity to cast a challenged ballot. Such procedure is in accord with that generally used in Board elections and Board agents are strictly en- joined not to refuse employees whose eligibility is questioned the right to cast a challenged ballot. No specific claim is made that any employees, other than Judy, Peter- son, Goodrich, and McMonigal, heretofore mentioned, were refused the right to cast a challenged ballot. The votes of these four employ- ees, whose statements are- either specifically contradicted by those of the Board agents or conflict with the Regional Director's finding that the agents did not refuse any employee the privilege of voting under challenge, could not affect the results of the election. Affidavits of C. I. 0. and company observers support the statements of the- Board agents and finding of the Regional Director. We find that the Board agents did not refuse to allow employees to vote a challenged ballot, and that the A. F. of L. objection in this respect is without merit. The A. F. of L. also claims that the Board agents improperly dis- ,qualified A. F. of L. observers. There is no requirement either in the National Labor Relations Act or in the Rules and Regulations that, the Board designate observers in an election. In the present case ,the Board's, agents followed the customary procedure in requesting- the BASIC MAGNESIUM, INC. 363 parties to submit a list of proposed observers. In the interests of conducting the election in as fair a manner as possible, the Board, as a matter of practice, prefers that the observers be non-supervisory employees. Three employees on the list of observers submitted by the Company held supervisory positions. The Board's agent, there- fore, properly suggested their removal, which the Company did by substituting non-supervisory employees in their place. One person on the C. I. O. list was not in the Company's employ. Upon the Com- pany's objection to his serving as,an observer and at the agent's sug- gestion, the C. I. O. withdrew this observer but in turn questioned the employee status of three of the A. F. of L. observers. These three, Turner, Smith, and Bennett, had been regular employees of the Com- pany. However, several months prior to the election they were granted leaves of absence by the Company and were employed and com- pensated by the A. F. of L. on a full-time basis. They actively par- ticipated in the A. F. of L.'s pre-election organizational campaign. Although the discussion with respect to this situation did not occur until the day before the election, the A. F. of L. was not unaware of the doubt as to the- status of these employees since the question as to their eligibility -as, voters s had: been, discussed previously. At that time the Board's agent advised the A. F. of L. that they would be per- mitted to vote cehallenged ballots. The A. F. of L. complains that, because it was "forced" to substitute observes who were not familiar with the pay rolls, ineligible employees were allowed to vote without challenge, and eligible employees were denied the right to vote. With the exception of the three ineligible employes prviously mentioned who voted unchallenged and whose votes could not affect the results of the election, the A. F. of L. has not produced, nor did the investiga- tion disclose, any ineligible employee who voted without challenge. Nor is there any evidence to show that the disqualified observers had any special knowledge of the ineligible status of any employees, and would therefore have challenged voters who in fact- were allowed to vote unchallenged. We. have. already-discussed-the circumstances of the omission of allegedly eligible voters. With respect to the substi- tuted observers, it is difficult to see how the A. F. of L. was prejudiced. Each prospective voter was identified by name and badge number rather than by personal acquaintance, and all observers had the opportunity to have at the voting tables a list of persons to be chal- lenged. The A. F. of L. observers could not have prevented chal- lenges of the voters who were cheallenged by other parties or the Board, nor could they have encouraged employees who did not appear at the polls to vote any more than the original observers could, had they served. Moreover, three A. F. of L. observers of those originally selected, including the chief observer, served at the election. As the 364 DECISIONS OF , NATIONAL LABOR RELATIONS BOARD Regional Director points out, presumably. they had qualifications equal to those of the withdrawn observers which would have enabled them to protect the A. F. of L. interests in all respects. III. REMAINING OBJECTIONS In connection with objection number 4, there is no evidence what- ever that the election or any part of it was conducted in the absence of one or more Board agents. The signed statements of the A. F. of L. observers, as well as those of the other parties, refute this allegation. The allegation that there was a failure to post sufficient and adequate notices of the election is patently frivolous and without merit. Not only has no evidence been submitted in support of it, but the fact is that numerous notices were posted in the plant and distributed to'both organizations many days in advance of the election, both unions cam- paigned vigorously by handbills, paid advertisements, and radio, and the night before the election the A. F. of L. staged an election parade. In these circumstances, it is doubtful that any employee was unaware' that an election was to.be held. With respect to the objection that the C. 1. 0. appeared on the ballot to the disadvantage of the A. F. of L., we note that the same type print was used in the printing of both names, and both unions were, designated on the ballot in the exact manner which the Board had ordered in its Direction of Election in accordance with their respec- tive requests. We find no merit in the last objection that the A. F. of L. contract was a bar to the conduct, of the election, inasmuch as we found that the contract was no bar to the election in our original Decision, and Direction of Election." _ We have considered each of the objections of the A. F.'of L. and find that none of them raises any material 'or_ substantial issues. They are, accordingly overruled. Since the challenged ballots could, not affect the results of the election, it is unnecessary to pass on those not discussed above or to direct that any of them be opened. CERTIFICATION 'OF REPRESENTATIVES 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, Sections 9 and 10, of National -Labor- Relations Board Rules and Regulations=Series 2, as amended,, IT IS -HEREBY CERTIFIED that International Union of Mine, Mill and Smelter Workers, Local, 629, affiliated with the Congress of Industrial.' 8 Paraffne Companies, Inc., 28 N. L. R. B: 973.. BASIC MAGNESIUM, INC. 365 Organizations, has been designated and selected by a majority of the production and maintenance employees of Basic Magnesium, Inc., Las Vegas, Nevada, excluding foremen and higher ranking super- -visors; laboratory, technical, and hospital employees; members of the plant-protection division, including fire fighters, watchmen, and guards; office employees; chemical, metallurgical, engineering, and other professional employees and assistants; timekeepers; time- checkers; material checkers; and clerks, messengers, and confidential employees, as their representative for the purposes of collective bar- gaining, and that, pursuant to Section 9 (a) of the National Labor Relations Act, International Union of Mine, Mill and Smelter Work- ers, Local 629, affiliated with the Congress of Industrial Organizations, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.