Belmont Smelting & Refining Works, Inc.

BELMONT SMELTING & REFINING WORKS, INC. 495 In Northwest Airlines, Inc.,' we had before us the question whether a bomber modification project, conducted by the carrier employer, was so closely integrated with the employer's airline operations as to pre- clude us from taking jurisdiction of the employees on the bomber project. We held upon the facts in that case that the relation of the bomber project to the regular carrier activities was not so remote, tenuous, and negligible as to establish that the project is a separate and distinct enterprise and that the employer, as to that project, was an employer within the meaning of our Act. We also found in view of the provisions of Section 2 (2) of our Act, excluding any person from our jurisdiction who is subject to the Railway Labor Act, "it should be clear that the National Mediation Board, the agency primarily vested with jurisdiction by the terms of the Railway Labor Act, has declined to assume jurisdiction over the operations here involved." In the present case, we are administratively advised by the National Media- tion Board, under date of January 30, 1956, that, after studying the record herein, that board is of the opinion that it has jurisdiction over the employees involved in this proceeding. We, therefore, affirm our opinion in Northwest Airlines, Inc., that unless the National Media- tion Board definitely declines to assume jurisdiction over such disputed airline employees, this Board will not assert jurisdiction. Accord- ingly, we shall dismiss the petitions. [The Board dismissed the petitions.] 8 47 NLRB 498. Belmont Smelting & Refining Works, Inc., Petitioner and Local 365, International Union, United Automobile, Aircraft and Ag- ricultural Implement Workers of America, AFL-CIO I and Edward Kramer. Case No. 2-RM-716. February 17,1956 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Meyer G. Reines, 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, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. Edward Kramer , an employee of the Employer , and the labor organizations involved claim to represent employees of the Employer.2 1 The AFL and CIO having merged since the hearing in this case , we are amending the Unions' affiliation. 2 The UAW and Kramer were named in the petition, filed herein on June 24, 1955, as "parties or organizations which have claimed recognition as representatives" or as 115 NLRB No. 73. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. We find that all production, maintenance, shipping, and receiv- ing employees at the Employer's Brooklyn, New York, plant, exclud- ing office employees, chauffeurs, chauffeurs' helpers, salesmen, watch- men, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9 (b) of the Act.3 5. The principal issue in this case involves the eligibility of certain strikers for voting purposes. The employees involved here went on strike about February 1, 1955, when the Employer and the UAW failed to reach agreement on a new contract. This caused a plant shut- down which lasted about 3 months. Thereafter the plant resumed operations. About half of the 50 strikers abandoned the strike and returned to work and the Employer added new employees to its work force. When the hearing ended in November 1955, the Employer had in its employ approximately the same number of unit employees as it had on its payroll when the strike began. The 26 strikers who returned to work are eligible to vote in the elec- tion hereinafter directed if they meet the usual requirements, which are set forth below. No issue is now raised as to their eligibility. Also, no issue has been raised as to eligibility to vote of four employees who engaged in the strike and did not return to work. During the course of the strike, 1 of these, Peter Gulden, died; another, William Zeidler, retired; and 2, William Banyasz and William Schwenzer, submitted resignations in writing. The Employer, the UAW, and Kramer agreed that these four are ineligible to vote. We so find. As to the remaining 20 strikers who have not returned to work, the Employer asserts that 18 have been permanently replaced; that another, Stephen Yarnecki, although never replaced, has never applied for reinstatement; and that the remaining striker, Heinz Tschirpke, quit. For these reasons, the Employer contends that these 20 strikers are ineligible to vote. The UAW contends that these 20 strikers are eligible to vote. "interested in the unit" involved Kramer was designated as collective-bargaining repre- sentative in a "petition," signed by a numerical majority of employees, which they pre- sented to the Employer on June 23, 1955 The UAW, certified by the Board in 1946, had a series of contracts, the most recent of which expired on February 1, 1955. We reject the Employer's contention that the UAW has an insufficient interest "as a party or inter- venor" in this proceeding Local 1205, I. B. T, AFL-CIO, appeared initially at the hear- ing shortly before it closed, and moved to intervene. The hearing officer permitted Local 1205 to do so, provided it produced a sufficient showing of interest . Thereafter, Local 1205 deposited certain authorization cards with the Regional Director . The Board is adminis- tratively satisfied that Local 1205 has made a sufficient showing of interest. We there- fore,grant Local 1205 's motion, filed with the Board after the close of the hearing , to inter- vene in this proceeding. - a The unit found appropriate is as stipulated by the Employer, the UAW, and Kramer, and conforms in substance to the unit covered in the UAW's most recent contract Local 1205 agreed to accept the record as made and has raised no issue as to the appropriate unit or any other issue. BELMONT SMELTING & REFINING WORKS, INC. 497 According to uncontradicted testimony , which we credit, Tschirpke orally notified the Employer that he had found another' job and was quitting. We find no merit in the UAW's contention that the resigna- tion was ineffective because it was made orally . As Tschirpke is no longer an employee, he is ineligible to vote. Yarnecki, a laborer, admittedly has not been replaced. The Em- ployer's vice president testified that the Employer would reinstate him if work were available. The record indicates that work is available for Yarnecki for, when asked whether a job was currently open for Yarnecki, the Employer's vice president admitted at the hearing that ". . . we are still behind a little bit in maintenance work and I think we could probably use him." The Employer's position is that Yar- necki should not be permitted to vote because he never applied for re- instatement. Under the circumstances, we conclude that Yarnecki is eligible to vote. As indicated above, the Employer hired new employees and resumed operations in the spring of 1955. On April 28, 1955, the Employer sent a letter to strikers who had not returned to work requesting them to do so by May 2,1955 . On June 7,1955, the Employer notified strik- ers that those "who have not been permanently replaced will be placed on a preferred hiring list," and again urged these strikers to return to work. On June 28, 1955, the Employer sent to each of the 18 strik- ers, whose eligibility to vote is now questioned , a letter stating : ".. . your job has been filled . . . you have been permanently replaced, and . . . you are no longer an employee of our company." During the course of the strike , the Employer maintained a replace- ment chart which indicates that each of these 18 strikers was replaced by a specific new employee hired before June 28, 1955. The Employer notified each replacement shortly after hiring that he was regarded as a permanent employee whose job would continue as long as work was available and his work was satisfactory . At the time of the close of the hearing, the Employer had substantially a full complement of employees to handle existing business. The UAW contends that these 18 strikers were not permanently re- placed principally because the new employees were inexperienced and the Company advertised for help after July 1, 1955. However, while many replacements had no experience in the industry, the jobs they filled required little or no skill . None of the strikers applied for re- instatement before the replacements were hired . The Employer trained the new employees and closely supervised them. As late as October 1955, substantially all the replacements were still on the Employer's payroll. It is true that the Employer advertised for help in July, September, and October, 1955. However, the July advertisement called for a 390609--56-vol. 115 33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance man to replace striker Schwenzer who had tendered a written resignation. There was no other maintenance man on the pre- strike payroll and none of the 18 strikers had the qualifications to fill this specialized job. In September and October, the Employer ad- vertised for experienced men in crucible melting operations with the view of setting up a second shift to handle certain potential business. These advertisements were not for additional help on the day shift where the Employer was currently working to capacity with a full complement of employees. While 5 strikers applied for reinstatement thereafter, they had theretofore been replaced with specific replace- ments and the record does not establish that these 5 strikers had the specialized skills to meet the Employer's requirements. Under the circumstances, we find that the 18 strikers in question have been permanently replaced.4 Economic strikers lose their right to reinstatement upon being permanently replaced in a specific job." As these 18 economic strikers are not entitled to reinstatement, they are ineligible to vote .6 [Text of Direction of Election I omitted from publication.] 4 We find no merit in the UAW's contention that the "termination " of 1 of the 18 strikers, Thomas Liccardi , was illegal under the law of the State of New York because he was on workmen's compensation leave at the time. The alleged State law is irrelevant to the present inquiry. 6 N. L. R. B. v. Mackay Radno & Telegraph Co., 304 U. S 333. 9 See, e g., John W Thomas Co, 111 NLRB 226. 'UAW contends in effect that Kramer should not be placed on the ballot because he is fronting for a labor organization which has not complied with Section 9 (f), (g), and (h) of the Act or because he intends to establish such an organization in the future . Kramer testified in substance that if he is certified as bargaining representative , he will bargain with the Employer with the aid of a committee of employees and, if necessary to defray expenses, assess willing employees. Although Kramer intends to consult such employees with respect to bargaining matters, Kramer will reserve full rights as a certified repre- sentative We find no merit in the UAW's contention The showing of interest, as re- flected by the employees' petition of June 23 , 1955, runs to Kramer and not to any labor organization or any other person . There is no such supposed organization presently in existence Kramer's plans for establishment of an advisory organization to implement any certification he may receive do not preclude him from acting as a certified. representative. Malone & Hyde, Inc. and General Drivers, Salesmen & Ware- housemen's Local 984, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO,' Petitioner. Case No. 32-RC-861. February 17,1956 DECISION AND CERTIFICATION OF RESULTS OF ELECTION Pursuant to a stipulation for certification upon consent election executed July 29, 1955, between the parties and the Regional Director 1 We take official notice of the merger of the AFL and CIO and amend the identification. of the Petitioner's affiliation. 115 NLRB No. 79.