Flint Steel Corp.

FLINT STEEL CORPORATION 271 Flint Steel Corporation and Shopmen's Local Union No. 813 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, Petitioner. Case 26-RC-2963 November 16, 1967 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer W. Meredith Clark of the National Labor Relations) Board. Thereafter, all the parties filed briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connec- tion with this case to a three-member panel. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby af- firmed. Upon the entire record in this case, including the briefs filed by all the parties, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner and Intervenor are labor or- ganizations which claim to represent certain em- ployees of the Employer.' 3. A question affecting commerce exists con- cerning the representation of employees of the Em- ployer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. The Petitioner seeks to represent all production and maintenance employees in the Employer's structural department in its West Memphis, Arkan- sas, plant. The Employer and the Intervenor con- tend that these employees are an accretion to the unit of employees at the Employer's former plant located in Memphis, Tennessee. They further con- tend that Petitioner is barred by a contract, effec- tive May 8, 1966, until May 8, 1969, between the Employer and the Intervenor, allegedly covering the employees in question. Finally, they argue that the unit requested is inappropriate, and only a plant- wide unit is appropriate. The Petitioner denies the existence of a contract bar, claiming that the Inter- venor's contract with the Employer does not cover structural department employees, and also disputes the accretion and inappropriate unit contentions, On May 8,1966, a contract for the purposes of collective bargaining was entered into by the Em- ployer and the Intervenor. This contract covered all production and maintenance employees at the Memphis, Tennessee, plant, which constituted, in effect, the plate department. During the negotia- tions, it was determined that the plate department would be transferred to a new plant located 13 miles away in West Memphis, Arkansas, and that a struc- tural department would be added at the new loca- tion. Since the structural department was entirely new to the Company's operations in this area, the Employer and the Intervenor agreed that the Com- pany would be permitted to establish unilaterally "wages, hours and working conditions in those por- tions of the new plant other than the Plate Depart- ment" for the life of the contract, which expires in May 1969. It was further agreed that all "fringe benefits" applicable to the employees in the plate department be applied equally to employees hired in the structural department, and that, upon the ex- piration of the contract in 1969, the Employer would recognize the Intervenor as representative of the new employees. In January 1967, the Company transferred ap- proximately 50 of the 60 employees in its plate de- partment to the new plant. Structural department operations had already begun at this time, and at the time of the hearing this department employed 56 men - all new employees - plus supervisory person- nel. The total complement of employees was 112. The Company's and the Intervenor's contention that the structural department is an accretion to the existing unit is supported by some evidence. There is some similarity in the work performed at the structural and plate departments; both share the same raw material storage area and are served by a common rail spur. Maintenance men, although listed as working in one department or the other, perform functions in both. The employees of both departments share the same washroom facilities, timeclock, parking lot, and personnel office. The contract between the Employer and the Intervenor covers the new employees in the structural depart- ment as to fringe benefits. The evidence against the accretion theory con- cerns the dissimilarity in employment classifica- tions and status of the men in the two departments. The Employer's exhibits show that there were 9 types of jobs in the plate department (other than helpers and trainees) as of the hearing, while the new structural department had 15 additional clas- sifications, not duplicated in the older department. Only the plate department had a posted seniority list. There had been no transfers between depart- ments. All the men in the structural department were considered trainees by the Employer, while many of the plate department men were fully qualified at their jobs. The short answer to the accretion and contract- I International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths , Forgers and Helpers , AFL-CIO, Local Lodge No 263, hereinafter called Intervenor, was allowed to intervene at the hearing on the basis of its contract with the Employer and for the purposes of protect- ing its rights thereunder 168 NLRB No. 41 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bar contentions is found in the language of the con- tract, which reserves for the Employer's unilateral determination "wages, hours and working condi- tions" in the new department. The Employer's testimony that hours, starting wages, and the like were in fact the same for both groups of employees is irrelevant; the contract did not require any of these conditions, the Intervenor had no part in mak- ing them, and it would have no contractual standing to protest if the Employer should change them. Ac- tual practice under the contract confirms the lack of representation for structural department em- ployees. There was testimony that the Intervenor made no attempt, through bulletin boards or other- wise, to tell structural department employees that it was representing them. Half of the plate depart- ment men were on checkoff, but none of the struc- tural employees. The Employer said it would have entertained grievances of structural department men processed by the Intervenor as specified in the contract, but that there were none. The normal grievance channel was through the shop steward, however, and there was no steward in the structural department - nor had employees there been told that they could go to the plate department stewards for this purpose. In fact, according to the unchal- lenged testimony of structural department em- ployees James Martin and Bobby Long, Depart- ment Manager Nance told them, and other men, that there would be no union in their department. Long had taken a grievance directly to Nance, and testified that other employees regularly did the same. Thus there is no evidence that the Intervenor actually represented structural department em- ployees, despite the language of the contract and its statutory duty to represent these new employees, if they were indeed within the unit. The newly hired complement of employees has grown to the point where they represent one-half of the employees. The record shows that they are presently without adequate representation, and, under the terms of the contract, these employees would continue in the same position until the ex- piration of the present contract 2 years hence. The contract, rather than covering the structural department employees, specifically excludes them, under its terms, from representation by the Inter- venor. Under these circumstances, we find no merit in the accretion and contract-bar contentions of the Employer and the Intervenor. 4. The Company and Intervenor further contend that, even if accretion and contract bar are inap- plicable, the only appropriate unit is a plantwide unit of all production and maintenance personnel. While the plantwide unit would undeniably be an appropriate one, we have found that the Employer and the Intervenor, by their contract, have precluded representation of the structural depart- ment employees in such a unit until 1969. In these circumstances, we find that the structural depart- ment employees are an identifiable, homogeneous, departmental unit of employees appropriate for the purposes of collective bargaining.2 We find the following employees of the Employer constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in the Employer's structural department, but ex- cluding all other employees, watchmen, guards, and supervisors as defined in the Act. [Direction of Election 3 omitted from publication.] L In all the circumstances set forth above, we find no merit in the Peti- tioner's contentions that the Intervenor has waived its right to represent these employees and has made no interest showing among them, and we shall place the name of the Intervenor , as well as the Petitioner , on the bal- lot The Intervenor's existing contract covering part of the present work force constitutes a sufficient concern with, and relationship to, the directed election to warrant placement of the Intervenor's name on the ballot An election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region 26 within 7 days after the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc, 156 NLRB 1236