Phoenix Iron Co.

In the Matter Of PHOENIX IRON COMPANY and STEEL WORKERS ORGAN- IZING COMMITTEE, AFFILIATED WITH THE C. I O. Case No R-34419 SECOND SUPPLEMENTAL DECISION AND DIRECTION July 11, 19112 On February 17, 1942, the National Labor Relations Board, Belem called the Board, issued a Decision and Direction of Election, and on March 13, 1942, a.Supplemental Decision and Second Direction of Election,2 in the above-entitled proceeding Pursuant to the Second Direction of Election, a iun-off election by secret ballot was conducted on March 25, 1942, under the direction and supeivision of the Regional Director for the Fourth Region (Philadelphia. Pennsylvania) On April 11, 1942, the Regional Director, acting pursuant to Aiticle III, Section 9, of National Labor Relations Board Rules and Regulations- Series 2, as amended, issued and duly served upon the parties his Sup- plemental Election Report, in v. Bich lie i epoited as to the balloting and the results thei eof : Total on eligibility Psl____________________________________ 131,3 Total ballots cast---------------------------------------- 1189 Total malid votes counted--------------------------------- 1115 Total ballots Challenged-----_ ----------------------- 26 Total blank ballots--------------------------------------- 3 Total void ballots---------------------------------------- 2 Votes cast foi Employees Association of Phoentc Tion Com- pany-------------------------------°------------------ 570 Votes castfot S W 0 C ---------------------------------- 588 In view of the fact that the results of the run-off election depended upon a deteiinlnation of the validity of the challenged ballots, the Regional Director conducted an investigation concerning each of the 26 challenged ballots and included in said Supplemental Election Report his findings and recommendations With respect thereto. 138N L R P. 1120 2 39 N L R n 775 42N L R B, No Si 344 PHOENIX IRON, COMPANY 1 345 The Regional Director repotted that 17 ballots had been challenged by Steel Woikeis Organizing Committee , affiliated with the C. I O. heleln called the S W 0 C, and 9 by Phoenix Iron Company, Phoe- nixville, Pennsylvania, herein called the Company . The Regional Dnectoi recommended that the S W 0 C's challenges to the ballots of Thomas McCracken , James Obelholzer , Fied Shoemaker, M A Moil is , J "I Hickman , C D Butt, John Petiet, and Michael Martin, be overruled None of the parties has objected to the foregoing iecominendatiou The challenges to the ballots of these employees, are her eby o-, ei i tiled The Regional Dir ectoi also recommended that the Company 's challenges to the ballots of Joseph Harvey, D F Hallman , Andrew J. Taroski, F A Pastva , J F Maiale, Peter Gere- mes, M Chapay, P Kucharik , and John Frankenburg , be overruled. He further i ecommended that the S W 0 C's challenges to the bal- lots of Benjamin A Carey , A J Gausch, Joseph Stiogus, Ross Den- mnger, And i ew Pete, Rowan Keenan , Vaughn Hilberg, James Con- way, and Isaac Detwiler, be sustained - On'April 18 , 1942, Employees Association of Phoenix lion Company, heieni called the Association , filed with the Regional Director a state- ment entitled, "Reply of Intervenor to the Election Report of Election held on Match 25, 1942," which we construe as Objections to the Sup- plemental Election Report On April 19, 1942, the Company filed with the Regional Diiector its "Objections to the Election Report and Conduct of the Election " In its objections the-Company alleged inter alia • (1) that there were 1334 persons on the eligibility list and not 1333 as found by the Regional Dii ector; (2) that one ballot which bears an "X" inatk outside the lai go square designating the Association on the ballot was a valid vote for the Association and should have been counted, and not declared void by the Regional Diiectoi ; ( 3) that 3 blank votes and 2 void votes should have been included in the total number of votes cast, in determining majority; (4) that Joseph Stiogus, Ross Demrmger , Andrew Pete, Rowan Keenan, Vaughn Hil- berg, James Conway, and Isaac Detwiler , are crane conductors and within the eligible category of working leaders; 3 ( 5) that Benjamin A Carey is also a crane conductor , that the S. W 0 C 's objection to his inclusion in the unit was withdrawn at the hearing , and that he is within the same eligible category ; (6) that A J Gausch is a pit leader IIn its Diieciion of Election , supra, the noaid provided that those eligible to vote'. ere the following All production and maintenance employees , including watchmen, lamtois, charwomen, chemists diattsmeu , obseiseis , melteis , working leideis, and clerical and office employees, except confidential clmieal and office employees of the Compann, emplo3ed at Phoenixville, Pennsl1Nama, duiing the pay-roll period mmiediiteh preceding the date of the Dnection of Election, including employees who did not work dun-ig such pay-roll period because they were ill of on Vacation of in the actiNe military serNice of tiaming of the United Stites, or tempoianly laid off, but excluding supeNisomy and confidential clerical and office emplomees , policemen, and non-noil.mg leidems , and employees who hame since quit of been discbamged foi cause 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and not a "Pit Boss" as found by the Regional Director, that he acts as a crane conductor and is within the same eligible category, and that the S W. O. C. made no objection to his inclusion in the unit at the hearing and thereby waived any such objection pursuant to the agree- ment had between the parties at the hearing that unless the S. W. 0 C. objected to employees on the Company's pay roll, they would be deemed included in the unit; (7) that P. Kucharik, a ladle brick man, and John Frankenburg, a sand mill helper, had been discharged; and (8) that the remaining employees, referred to as bricklayer helpers, 1. e, Joseph Harvey, D. F. Hallman, Andrew J Taioski, F A. Pastva, J. F Maiale, Peter Geremes, and M. Chapay had been, "permanently laid off" and severed from the Company's pay roll. The Association made similar objections to the Supplemental Election Report, except that it did not object to the total on the eligibility list. On May 13, 1942, the Regional Director issued his Report on Objec- tions, copies of which were duly served upon the parties The Regional Director reported therein that there was no merit in the objections of the Company and the Association to the rulings of the Regional Director as to the total on the eligibility list, as to the 1 void ballot; and as to the exclusion of the 3 blank and 2 void ballots from the total of valid votes cast. The foregoing rulings ale hereby affirmed. The Regional Director also,affirmed his previous rulings with respect to the 26 challenged ballots. - By letter dated May 17, 1942, the Association requested the Board to provide a formal hearing and to grant oral argument "upon the matter of the Report of the Regional Director on the Run-off Elec- -tion." On May 19, 1942, the Company filed a formal petition asking leave to file a brief and to piesent oral ai gument "prior to any further order in respect to the election herein " By order dated May 22, 1942, the Board directed that the record be reopened and a further hearing held,, limited in scope to the question of whether the 9 em- ployees, heiennabove named, whose right to vote was challenged by the Company, were entitled to vote under the Board's Decision and Direction of Election. The Board further denied the request of the Association and the Company to file a brief and to present oral argu- ment. Pursuant to notice, a hearing was held on June 3, 1942, at Phoenixville, Pennsylvania, before Horace A Ruckel, Trial Exam- iner. The Company, the Association, and the S W. 0 C -appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues. The Trial Examiner's rulings made at the hear- ing are free from prejudicial error and aie hereby affirmed. At the hearing the Company filed a written objection to the limitation of the scope of the further hearing as provided by the Board's order. PHOENIX IRON COMPANY 347 Said objection is hereby overruled. On June 18, 1942, the Company and the S W. 0 C filed briefs which the Board has considered Upon the foiegoing record, the Supplemental Election Report, the objections, the Report on Objections, and the record previously made, the Board, acting pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations- Series 2, as amended, hereby makes the following : SUPPLEMENTAL FINDINGS OF FACT In October 1940, the Company commenced a program of plant expansion to meet the demands of the defense effort and undertook the repair and rebuilding of various parts of its plant, particularly the #2 open health furnace, which had not been in operation for more than 10 years. This program necessitated considerable brick work and required an increase in the Company's normal brick crew from 30 to 50 bricklayers and bricklayer helpers. Of the 9 employees chal- lenged-,by the Company, 7 are biicklayer helpers who were hired at about this time; another, P Kucharik, is a bricklayer, long in the employ of the Company; and the other, John Frankenburg, is a sand mill helper, employed by the Company since 1935. Bricklayer Helpers The Company contends (1) that the seven bricklayer helpers were "permanently laid off" and severed from the Company's pay roll on- March 17, 1942; and (2) that there is no prospect of reemployment for any of these men. The Association joins in this contention. The S W 0 C contends that these employees were "temporarily laid off" and therefore were eligible to vote under the Board's Supplemental Decision and Second Direction of Election. According to the Company, on March 17, 1942,'Malcolm Farmer, executive vice president, ordered a reduction in 'the brick crew and Chief Engineer Smith gave, instructions to this -effect to Bricklayer Foreman Beard The Company places emphasis upon a written memorandum, introduced into evidence, which purports to indicate that the employees listed' thereon, including the employees in dispute, were "permanently laid off." 4 Paymaster Wells, however, was unable, ' This documentaip evidence consists of 2 lists containing the names and numbers of 13 employees , 9 of whom are involved herein One list contains the names of 10 employees, including 6 involved heiem and bears the notation "Laid off 3/17/42 a/c no work, permanently laid off, cross of (sic ) list M F 3/18 " It is significant that alongside the name "A J Curtis ' ( an employee not involved herein ) is the notation ` left of his own accord " The second list contains the names of 3 employees who are involved herein and bears this notation "3/18 add to list of those who left employ M F per E C K" [Italics supplied ] Paymaster wells testimony is confusing as to when he and Farmer discussed matters conceinmg the group insurance and eligibility of the employees whose names appear on said lists He testified first that on March 18, 1942, be discussed with 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to specify one other instance where the notation "permanently laid off" was used on pay-roll iecotds or to produce pay-roll data contain- ing such notation The testimony is in conflict as to whether these employees w eie told that they were laid off temporarily Beard, the day bricklayer foreman, and McGee, the night bricklayer foreman, testified that they informed all these employees that they "vN eie laid off," without further comment Each of these employees testified that he was told that he was laid off temporarily and would be recalled when work was avail- able. All testified that they>left-articles of work apparel at the plant and did not learn of their alleged "permanent lay-off" until the election on March 25, when their votes were challenged It is the Company's practice to pay off discharged employees immediately, whereas employees "temporarily laid off" are expected to call for the balance due them on the next regular pay day It is also Company policy to take back employees' identification badges when they receive their final pay check In spite of the fact that these employees, as the Company claims, wei e seveied fiom the pay ioll on Mal cli l'T they were neither paid nor were they asked for their identification badges at that time While the Company contends that these employees wei e pet mauentl y rather than temporarily laid off, we aie not persuaded that the Com- pany had a iegular established practice=of noting a distinction between lay-offs Nor aie we convinced by the contention of the Company that there was no prospect of ieemploying any of these employees Although the testimony of the Company's repiesentatives indicates that the ienaining brick work can probably be handled, by the normal brick crew, it does not follow that these employees had no possibility of being recalled to perfoim the same of other woik Chief Engineer Smith, when questioned concerning the likelihood of their being re- called to woik, testified, merely, that laid-off employees were i.equned to apply to the employment office From the testimony of these em- ployees, which we credit, and, the other ciiclunstance detailed above. we conclude that the seven bricklayer helpeis, i e, Joseph Haivey, D F Hallman, Andrew J. Taroski, F A Pastva, J. F Maiale, Petet. Geremes, and M. Chapay, were temporarily laid off and that there is sufficient expectancy of their reinstatement to entitle then to vote in the run-off election Accordingly, we shall direct that their ballots be declared valid and counted. Farmer the status of these emplo3ees only in connection uitli the cancelation of then group insurance Thereafter he testifwd that it was on Mitch 21 a few days prior to the election and after iequest by a Roaid iepiesentative foi the Compau} s pa3-1o11 list, that he discussed eligibility with Faimei, who mstlu(ted him to place these employees on a separate ineligible list and that group instnance wis also discussed on this same occasion PHOENIX IRON COMPANY P. Kucharzk 349 The Company contends that Kucharik was dischaiged, while the S W. 0 C urges that he was temporarily laid off The record estab- lishes that Kucharik has been an employee of the Company since 1905 and has worked as a bricklayer since 1921 The Company claims that he is an "erratic worker" and that his work attendance record has been consistently bad for the past 4 yeais. The Company also urges that since it_ was ieducing the brick clew, it requned workers who weie steady and that Kucharik did not have this qualification Kucharik testified that Foieman McGee told him that he was laid off and that he would be iecalled as soon as the Company needed brick- layeis. He also left his tools at the plant and did not receive his pay check until the next regular pay day, about a week after his alleged dischaige Company witnesses asseited that Kucharik had been dis- charged 5 Nevertheless, he did not ieceive his pay at the time of such dischaige in accordance with the Company's piactice to pay off dis- chai ged employees immediately. We view with skepticism the contention of the Company that Ku- charik was discharged, particulaily because the situation as to his iriegularity in work attendance has obtained for a considerable period of time, without appalent complaint. For the reasons discussed above, we conclude that Kuchalik was temporarily laid off and that he had a sufficiently continuing interest in the deteiniination of representatives to entitle him to vote Under the cncumstances, we find-that P Ku- harik was eligible to vote in the run-off election and we shall direct that his ballot be declared valid and counted. John Frannkemburg Fiankenburg was employed by the Company in 1935 and woiked for almost 5 years on a cinder gang. He was injuied in, the course of his employment and thereafter was given work sweeping behind the fur- naces. For about a year lie has worked as one of three helpers in ,tile sand mill. ' Other than the general contention of the S W 0 C that all nine' employees challenged by the Company were temporarily laid off, no mention of Frankenburg is made in its biief and no argument is advanced in support of its contention in his case The Company's con- tention, as we construe it, is that Fiankenburg was discharged due.to the discontinuance by the Company of its pioduction of metal case brick and the curtailment of the expansion program The Company 5 Chief Engineer Smith insisted that Kucharik was discharged for cause Paymaster wells asserted that I{uchaiik was discharged but not fot cause in the sense of a nusdemeanoi 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formerly made its own metal case brick out of boiler tubes, cut to size and packed with magnesite which was ground up and mixed in the sand mill. Prior to the expansion program, the Company began to purchase metal case brick and it was found that the work in the sand mill could be carried on by two men. However, Frankenburg was kept on because the sand mill was also utilized for grinding brick dust for the extra brick work needed in the expansion program. When the brick work was curtailed, Frankenburg was no longer needed in the sand mill and since he had less departmental senioiity than the other two sand mill helpers, he was laid off. The testimony is uncontradicted that Frankenburg was not told, as were the other employees above discussed, that he would be recalled. He himself admitted that he was informed only that he was laid off and that there was no work for him. He did not testify, as did the other employees, that he learned for the first tune that he was discharged at the time of the election. Nor does the record disclose when he received his final pay or when he turned in his identification badge. Finally, Frankenburg testified that he applied for unem- ployment compensation 1 week after the termination of his employ- ment and has received weekly payments regularly since the second or third week after "I lost my job." Upon this state of the record, we- are of the opinion that Frankenburg was ineligible to vote in the run-off election and we direct that his vote be declared invalid and not counted. As indicated above, of the 17 ballots challenged by the S. W 0. C 8 have been declared valid upon the recommendation of the Regional Director to which no objections have been filed by any of the parties. With respect to the 9 S W. 0 C challenges which the Regional Direc- tor recommended be sustained, it appears that the employees in ques- tion are listed on the Company's pay roll as crane conductors, or if otherwise listed, serve in such capacity These employees engage in actual manual operations, ai e paid on an hourly basis, and according to the record previously made, have no authority to hire or discharge, or to recommend hire or discharge. They are employed in,more or less the same capacity as several other crane conductors who were permitted to vote without challenge by the S. W. 0. C 6 Their duties are no more supervisory in nature than those of other working leaders who were included in the unit and who, it would appear, were also permitted 9 The Company claimed in its objections that there were i3 crane conductors who voted unchallenged by the S W 0 C Reference to the Company's pay roll indicates that- T or 8 of this number are listed as "stock yard leaders," "stock yard loaders," or other classifications PHOENIX IRON COMPANY 351 to vote unchallenged 7 Their work, for the most part,-is similar to that of Benjamin A. Carey, whose vote was challenged, and to that of Millard D. Taylor, whose vote was not challenged, both of whom are employed as crane conductors. At the original hearing the S. W O. C. agreed that both of these employees were working leaders within the eligible category and specifically withdrew its objection to their in- clusion in the appropriate unit Furthermore, at the same hearing the parties stipulated that employees on the Company's pay roll would be deemed included in the unit, unless the S W 0 C made objection to designated employees. The procedure adopted by the parties, through- out the entire hearing, in the presentation' of evidence with respect to the inclusion or exclusion of employees was based upon this unequivocal agreement and the S W 0 C withdrew or waived objection to various employees, including the 9 employees now challenged by it. We are of the opinion that the S. W. 0 C. has assumed inconsistent positions with respect to these challenged employees and that its present position is tantamount to a repudiation of its stipulation at the hearing. Under the circumstances, we conclude that Benjamin A Carey, A. J Gausch, Joseph Strogus, Ross Demmnger, Andrew Pete, Rowan Keenan, Vaughn Hilberg, James Conway, and Isaac Detwiler were eligible to vote in the run-off election. Accordingly, we shall direct that their votes be declared valid and-counted. Since the results of the election may be affected by the counting of the 25 challenged ballots herein declared valid, we shall direct that they be counted. DIRECTION 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, 49 Stat 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby - DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Phoenix-Iron Company, Phoenixville, Pennsylvania, the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) shall, pursuant to said Rules and Regulations, and subject to Article III, Section 9, thereof, within 10 days from the date of this Direction, open and count the ballots of Thomas McCracken, James Oberholzer, Fred 4 Melters, for example, direct the work of as many as 40 men ; other types of working- leaders on the Company's pay roll are rivet, punch , bolt, and angle shear leaders , all- of whom were included in the unit without objection and were apparently permitted to vote without challenge by the S W 0 C - 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I Shoemaker, M A. Moms, J W. Hickman, C D Butt, John Petiet, Michael Martin, Joseph Harvey, D F Hallman, Andi.ew J Taroski. F. A.-Pastva, J. F Maiale, Peter Geiemes, Al Chapay, P Kuchaiik, Benjamin A. Carey, A. J GauAi, Joseph Stiogus, Ross Denninger, Andrew Pete, Rowan Keenan, Vaughn Hilbeig, James Conway, and Isaac Detwiler; and shall theieaftei piepaie and cause to be seived upon the paities a Second Supplemental Election Repoit embodying his findings tbetein and his reconunenilatunis as to the results of the balloting. AIR GERARD D. RriLLY took no part in the consideration of the above Second Supplemental Decision and Dnection.