The Babcock & Wilcox Co.

In the Matter of THE BABCOCK & WILCOX Co. and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, C. I. O. Case No. 10-B-103.-Decided December 29, 19115 Messrs. Throp, Boswick, Reed d Armstrong, by Mr. D. W. Ebbert, of Pittsburgh, Pa., Messrs. Hull, Barrett, Willingham & Towill, by Mr. J. J. Willingham, of Augusta, Ga., for the Company. Mr. Sam H. Scott, of Winston-Salem, N. C., and Mr. Ben L. Widen- house, of Augusta, Ga., for the Union. Mr. Donald B. Brady, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Stone and Allied Products Workers of America, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of The Babcock & Wilcox Co., Augusta, Georgia, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William V. George, Trial Examiner. The hearing was held at Augusta, Georgia, on Au- gust 16,1945. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. 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 1. THE BUSINESS OF THE COMPANY The Babcock & Wilcox Co. is a New Jersey corporation engaged at its plant in Augusta, Georgia, in the manufacture, sale, and distribu- tion of refractory materials. During the year ending July 1945, the Company purchased raw materials, consisting principally of clay, 65 N. L. R. B, No. 20 93 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD valued at more than $500,000, of which 66 percent was shipped to it from points outside the State of Georgia. During the same period, the Company sold finished products valued at more than $1,000,000, of which approximately 90 percent was shipped to points outside the State of Georgia. The Company admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED United Stone and Allied Products Workers of America is a labor organization, affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. TIIE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of its employees until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate." 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) itnd (7) of the Act. IV. THE APPROPRIATE UNIT The Company's manufacturing operations are conducted through 11 departments and a technical service division, in about 15 or 16 buildings. At the head of the plant supervisory hierarchy is the plant superintendent; under him are department heads, foremen, and night superintendents. The foremen, about 10 in number, are each in charge of a department during the day shift. About 300 hourly paid pro- duction and maintenance workers are regularly employed on the day shift in all departments; about 75 employees are off duty every day; about 75 and 50 employees, respectively, work on the second and third shifts, each of which is in charge of a night superintendent. The parties substantially agree that the appropriate unit should consist of all the Company's plant employees, excluding office and shop clerical employees,2 ceramic engineers, watchmen, brick masons, and supervisory employees. They likewise agree that the plant super- 'The Field Examiner reported that the Union submitted 214 application cards and that there are approximately 529 persons in the appropriate unit 8 Excluded under this category are shipping clerks and clerks in the repair and mold shop and kiln department. THE BABCOCK & WILCOX CO. 85 intendent, foremen, and others mentioned above are supervisors and excluded from the unit as such. The Company would include a num- ber of hourly paid assistant foremen and others whom the Union would exclude as supervisory employees. The parties also disagree as to the proper classification of weighers, whom the Union would exclude as clerical. Assistant foremen and gang bosses: The Company desires the in- clusion of 13 employees classified as assistant foremen who are lo- cated in the manufacturing, kiln, grinding, and repair and mold de- partments, and 8 additional employees classified as gang bosses who are employed in the crushing and cement, shipping, and grinding departments. The Union contends that the assistant foremen and gang bosses are supervisory personnel. The assistant foremen op- erate and make adjustments to equipment in their respective depart- ments. Gang bosses secure an adequate supply of raw materials and also operate and maintain the machinery in their departments. These two groups have substantially similar functions and authority. Both devote a substantial amount of working time to manual labor. Both report directly to the departmental foremen. Unlike the ordi- nary production and maintenance employees the assistant foremen and gang bosses rotate on various shifts. The assistant foremen are paid 85 cents to $1.07 per hour and the gang bosses receive 65 cents to 95 cents per hour, whereas the employees with whom they work receive 50 cents to 65 cents per hour. The record does not definitely establish the number of employees who work with each assistant fore- man or gang boss; the only testimony directly on the point is that their crews vary in size from 2 to 20. However, the evidence indi- cates that the four departments in which the assistant foremen are employed are large ones utilizing the services of about 370 employees on all three shifts, out of the plant's total complement of 500. Ap- parently only one foreman is present in each department on the day shift, when the great majority of employees are at work. Although the Company contends, despite this fact, that the assistant foremen and gang bosses are only non-supervisory production workers or ma- chine operators possessed of superior skill and experience, it concedes that they have the authority to make recommendations concerning the status of the employees working with them.8 The record shows, also, that the departmental foremen solici^the concurrence of assist- ant foremen and gang bosses when initiating pay increases for other employees. Considering all these factors, we are of the opinion that the assistant foremen are, as their title implies, vested with sub- a The Company's works superintendent, the only witness who testified concerning the jobs of assistant foremen and gang bosses, insisted that these recommendations are adopted only if the foreman concurs in them on the basis of independent investigation. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial supervisory authority. In view of the comparable pay dif- ferential enjoyed by the gang bosses and assistant foremen and the agreement of all parties that these two classifications are equivalent in rank, we shall exclude both assistant foremen and gang bosses from the unit. Leaders: The Union desires the exclusion of about 16 employees in this classification. These employees, who have shown exceptional ability in the work in which they are engaged, are used to lead and instruct "green hands" or small groups of employees in their duties. The leaders in the kiln train the new employees and actually set brick with their crews. The leaders and their crews are both paid the same hourly wage of 50 cents to 65 cents per hour. We find that these employees are not supervisors, and we shall include them. Firemen: The Union wishes to exclude from the unit 12 firemen who are responsible for all operations of their kilns. There is no evidence indicating that these employees are vested with supervisory authority. We shall include them in the unit. . Inspectors: The Company has three classes of inspectors located in the grinding, shipping and kiln departments. They inspect brick which is brought to their stations of work by other employees. They have authority to reject work within the limits prescribed by the Chief Inspector. Although they report rejected work to the Chief Inspector, who may report the -defective' work to foremen of the department, they have no authority to recommend any disciplinary action for any employee' who produces inferior products. In ac- cordance with our general practice as to inspectors, we shall include them. Weighers: The Company desires the inclusion of a number of employees who are classified as weighers, Class A and B. These workers weigh raw materials which are brought to and removed from the ;scales by helpers, who assist them in batch mixing opera-, tions. The weighers spend 90 percent of their time in manual labor and 10 percent in clerical work, making a tally of the weights. We do not agree with the Union's contention that the weighers are clerical employees. We shall include them in the unit. We find that all of the Company's employees at the plant in Augusta, Georgia, including leaders weighers, inspectors, and firemen, but ex- cluding office and shop c1 fical employees, watchmen, ceramic engi- neers, brick masons, gang bosses, assistant foremen, 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. THE BABCOCK & WILCOX CO. V. THE DETERMINATION OF REPRESENTATIVES 87 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations tact, and pursuant to Article III, Section 9, of National Labor Re- lations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain represen- tatives for the purposes of collective bargaining with The Babcock & Wilcox Co., Augusta, Georgia, an election by secret ballot shall be conducted as early as possible, but not later than sixty (60) 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 Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, 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 employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to deter- mine whether or not they desire to be represented by United Stone and Allied Products Workers of America, C. I. 0., for the purposes of collective bargaining.