The International Nickel Co., Inc.

In the Matter of THE INTERNATIONAL NICKEL COMPANY, INC. and SQUARE DEAL LODGE No. 40 , AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTIIjj AMERICA, THROUGH STEEL WORKERS ORGANIZING COMMITTEE Case No. 11-640 Metal Products Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees : objections to report of Regional Director on conduct of the ballot relating to challenged votes at election-Unit Appropriate for Collective Bargaining : employees engaged in production, maintenance, service, and transportation , who are paid on an hourly, piece, or tonnage basis, excluding subforemen, assistant foremen, sub- stitute foremen, leadmen, and certain other categories ; duties of leadm.en ; history of collective bargaining relations with employer; status of leadmen as supervisory employees-New Election Ordered Mr. W. J. Perricelli, for the Board. Mr. Henry S. Wingate, of New York City, and Sullivan cC Crom- well, by Mr. John C. Bruton, Jr. and Mr. Marshall MacDufe, Jr., of New York City, for the Company. Mr. Benjamin C. Sigal, of Pittsburgh, Pa., for the Lodge. Mr. A. M. Foose, of Huntington, W. Va., for the Association. Mr. Wendell P. Kay, Jr., of counsel to the Board. SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTION February 9, 1939 On May 6, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled case., ' The Direction of Election provided that an election by secret ballot be conducted within twenty (20) days of the Direction among the employees of The International Nickel Company, Inc., hereinafter called the Company, at its Huntington, West Virginia, plant, who were employed by it during the pay-roll period immediately preceding March, 14, 1938, engaged in produc- tion, maintenance, service, and transportation, who were paid on an 27 N. L. R. B. 46. 11 N. L. R. B., No. 19. 97 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hourly, piece, or tonnage basis, except inspectors, mill clerks, police- men, timekeepers, hospital employees, officials, and others in a super- visory position, stenographers, secretaries, other clerical employees, and those who had since quit or been discharged for cause, to de= termine whether they desired to be represented by Square Deal Lodge No. 40, Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Steel Workers Organizing Committee, hereinafter called the Lodge, or by Nickel Alloy Em- ployees Association, Inc., hereafter referred to as the Association, for the purposes of, collective bargaining, or by neither. Pursuant to the Direction, an election by secret ballot was con- ducted on May 24, 1938, at Huntington, West Virginia, under the direction and supervision of the Regional Director for the Ninth Region (Cincinnati, Ohio). On June 22, 1938, the said Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the election. As to the results of the secret ballot, the Regional Director re- ported as follows : Total number of alleged eligible voters______________________ 908 Total number of ballots cast________________________________ 890 Total number of unchallenged ballots for Nickel Alloy Em- ployees Association, Inc----------------------------------- 371 Total number of unchallenged ballots for Square Deal Lodge No. 40, Amalgamated Assn. of Iron, Steel and Tin Workers of N. A. affiliated with the S. W. 0. C____________________ 393 Total number of unchallenged ballots for neither ------------ 70 Total number of challenged ballots__________________________ 54 Total number of blank ballots______________________________ 2 Total number of spoiled ballots_____________________________ 0 Thereafter, objections to the Intermediate Report were filed both by the Company and by the Lodge. Finding that such objections raised a substantial and material issue with respect to the conduct of the ballot, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations- Series 1, as amended, issued and duly served upon the parties a notice of a hearing on such objections. Pursuant to the notice, a hearing upon the objections was held at Huntington, West Vir- ginia, on September 8, 9, and 10, 1938, before Henry W. Schmidt, the Trial Examiner duly designated by the Board. At the hearing the Board, the Company, the Lodge, and the Association were repre- sented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing THE INTERNATIONAL NICKEL COMPANY ET AL. 99 the Trial Examiner made several rulings on objections to the admis- sion of evidence. The Board has reviewed his rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Company and the Lodge filed briefs with the Trial Examiner. An oral argument set to be held before the Board in Washington, D. C., on December 29, 1938, was canceled after waiver by all parties. The Lodge's first objection alleged that the Association was per- mitted to have a supervisory employee as an observer at the polls. The individual in question was a leadman. The status of employees classified as leadmen is discussed 'below. The second objection of the Lodge denies that it had an opportunity to examine the records of the Company relative to the challenged voters, or that it agreed to certain of the facts as recited in the Intermediate Report. It appears that the Lodge has had an opportunity since the election to consult the Company's records. It further appears that representa- tives of the Lodge at the polls certified the election as fairly and impartially conducted. Since we shall direct the conduct of a new election, we need not pass upon the merits of these preliminary ob- jections. Allegations contained in the "New Matter" filed as part of the Lodge's objections were not supported by the evidence and are hereby dismissed. The remainder of the Lodge's objections, and all the objections of the Company, have to do with the recommendations of the Regional Director in regard to the 54 votes challenged at the election. These votes were challenged, either by the Lodge or by the Association, on the ground that the men challenged were ineligible to participate under the terms of the Direction of Election of May 6, 1938. The record shows, however, that in many cases in which the challenges have merit, men occupying substantially similar positions to the men challenged were permitted to vote. It appearing to the Board that a new election must be held because of this inconsistency, it is unnec- essary to discuss the validity of the individual challenges. However, in order to avoid any similar confusion at the new election, it be- comes necessary to clarify and redefine the appropriate unit for collective bargaining, the members of which will be eligible to par- ticipate in the new election. Therefore, upon the entire record in the case the Board makes the following : SUPPLEMENTAL FINDINGS OF FACT Inspectors: Two men 2 were challenged by the Association as in- spectors. 'They are classified on the pay roll from January 1, 1938, to 2 Wilbur L. Emmert and F . B. Matheny. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the date of the election 3 as "crane inspectors," and the record shows that their duties are chiefly those of maintenance or repairmen on the cranes. They do not inspect and check the finished products for flaws, as do those inspectors excluded by the Board's Decision. They are within the appropriate unit and, along with other employees similarly occupied, should be permitted to vote at the new election. Leadmen: 4 Approximately 35 leadmen were challenged, in most part by the Lodge, as falling within the category of supervisory em- ployees. Some of these men are classified as annealers, picklers, melters, hammermen, or rollers, although their work is substantially that of leadmen s They serve in various departments of the plant and the nature of their work varies widely. In general, the record shows that they are employed in production, maintenance, service, or transportation on an hourly, piece, or tonnage basis, for 40 hours a week with time and a half for overtime. They are subject to duty, and are paid only when work is available and they are called. They receive vacations of only 1 week a year, and their pay stops if they are absent because of illness. They act as leadmen (or group leaders) of crews of from 3 to 20 men, for whom they are responsible. They receive the orders for the crews, relay them to the men, and are viewed by the Company as the most responsible members of their respective crews. While leadmen have no power to hire or discharge, they are under a duty to report poor work or infractions of the rules by crew members, and may recommend discipline. In general, they receive a higher rate of compensation than other men on their crews. The power to sign "Pass" and "Injury" slips, ordinarily confined to the foremen, has often been delegated to leadmen. In a number of in- stances the record reveals that these, employees have $5,000 group- insurance policies, although the customary policy for non-supervisory employees is $2,500. The Company contends that leadmen are not supervisory employees and points to those characteristics which identify them with general employees and distinguish them from the foremen and higher super- visory officials. Thus the Company points out that employees classi- fied by it as supervisory are subject to full-time duty and payment 8 A table showing the classifications on the pay roll of the men challenged between the dates mentioned above was introduced in evidence ( Company Exhibit No. 2). All refer- ences to pay-roll classifications are to that exhibit. 4 The Association has informally taken the position that leadmen are not supervisors, but made no claim concerning these men at the hearing. Although the Association challenged leadmen in a few cases, it has since indicated that these challenges were made only to "keep up" with the Lodge. 5 Two men classified as heaters were challenged by the Association . The record shows that the duties of a heater are not in reality those of a leadman . Heaters are eligible to vote in the new election . See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1657, 4 N. L. R B. 55; Matter of Calumet Steel Division of Borg-Warner Corporation and Steel Workers- Organizing Committee, 7 N. L. R . B. 340. THE INTERNATIONAL NICKEL COMPANY ET AL. 101 whether or not work is immediately available, are not limited to 40 hours a week, and continue to receive pay for a period of time if absent because of illness, all in contradistinction to the leadmen. The Company emphasizes the fact that the leadmen are somewhat actively engaged in production, maintenance, service, or transportation, and have no power to hire or discharge. The importance of the power to sign "Pass" and "Injury" slips which has been delegated to the lead- men is minimized and justified on the ground of necessity. The Com- pany explains the presence of some $5,000 group-insurance policies among the leadmen either as mistakes in granting the policies, or as cases where the men in question had formerly been eligible for such policies but had since been reduced in rank. The Company further maintains that the Lodge bargained for the leadmen in obtaining the contract between the Company and the Lodge of April 20, 1937, and that the leadmen are included under its terms. That contract excludes " ... foremen, assistant foremen or supervisors in charge of any classes of labor . . ." Certain rate sched- ules and classifications posted by the Company about March 15, 1937, and annexed by reference to the contract of April 20, similar in classi- fication to those posted on December 1, 1936, carry the hourly rate of pay for leadmen. These schedules were concluded only after extended bargaining. As further evidence of inclusion in the contract, the Company argues that the Lodge has handled grievances on behalf of leadmen. In one instance it appears that the Lodge grievance com- mittee asked that a leadman be laid off under the seniority rule. The Lodge, on the other hand, emphasizes those characteristics which identify the leadmen with management. Thus the Lodge insists that the responsibility of the lead men for their crews, their duty to report poor work or infractions of the rules, their higher rates of pay, their power to sign "Pass" and "Injury" slips, and, in some cases, their higher group insurance, compels a conclusion that the leadmen are supervisory officials. Several witnesses testified that the men in the plant viewed the leadmen as "foremen" or "bosses." At the hearing the Lodge witnesses vacillated somewhat as to whether leadmen had been considered "foremen" or "supervisors" in negoti- ating the contract of April 20, 1937, but insisted that they were not- covered by its terms. Inclusion of the leadmen on the wage schedules assumes less significance in view of the fact that the rates of pay for hourly paid foremen, assistant foremen, substitute foremen, and sub- foremen, are also included. As to the asserted handling of griev- ances on behalf of leadmen, cases other than the one stated above were instances where the Lodge requested the Company to apply the seni- ority rule to promotions to the rank of leadmen. All the cases illus- trate only the natural desire of the Lodge to avoid lay-offs of Lodge 164275-39-vol. xi--8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD members, or to obtain promotions for them, and do not indicate that the Lodge sought to protect the leadmen or to bargain on their behalf. Several Lodge witnesses testified that leadmen, occupying a super- visory position, are ineligible for Lodge membership. In the light of the factors reviewed above, and on the basis of the whole record, we are of the opinion that the leadmen should be excluded from the unit if a labor organization party to the proceed- ing desires such exclusion.6 Where, as here, rival labor organizations seek to represent employees, it is important that the employer be free from the imputation of coercing his employees in their choice of representatives. Since annealers, melters, picklers, hammermen, roll- ers, and other leadmen are in some measure identified with the management, it is not improbable that their continued participation in this controversy between rival unions might eventually lead to charges of employer interference. We will, therefore, exclude all leadmen from the unit.? Foremen: Four of the men challenged were classified as foremen on the Company's pay roll.8 The Company maintained that the nature of their duties was such as to constitute them no more than leadmen. In view of our decision to exclude leadmen from the appropriate unit, it is clear that these four hourly paid foremen, and all others similarly situated, should also be excluded and should not vote in the new election. Substitute Foremen: Approximately 12 men 9 were challenged as supervisory employees by reason of more or less frequent substitution for their foremen. Some of these men appear to be regularly em- ployed as leadmen when not substituting for their foremen, while others are classed as subforemen on the pay roll. Subforemen and assistant foremen, as well as other employees who substitute for their foremen, are higher supervisory officials than the leadmen. We will, therefore, exclude all such employees from the unit. Clerical Employees: The group of "other clerical employees" ex- cluded from the appropriate unit by our Decision of May 6, 1938, was intended to include a "miscellany of clerical workers, vaguely defined and fitting into no homogeneous class of employees." 10 0 See Matter of Pressed Steel Car Company, Inc. and Steel Workers Organizing Commit- tee, 7 N. L. R. B 1099; Matter of Sandusky Metal Products, Inc. and American Federation of Labor, 6 N. L. R. B. 12. 7 See Matter of Rex Manufacturing Co., Inc. and American Federation of Labor Federal Local Union No. 20893, 7 N L It. B. 95. 8 Clinton A. Chapman, William J. Gerlach, John Woods, and Stonewall J. Swann. 9 Robert W. Gray, Ray Massey, Franklin Myers, Lucien P. Nicholas, Harry Patterson, W. L. Thornton, T. M. Turley, Henry Hazeldine, Clarence Smith, A. M. Spangler, Charles W. Eastham, and Creath Peyton. The two men mentioned last do not appear to be func- tioning in any supervisory capacity. 10 7 N. L. R. B. 46, at 51. THE INTERNATIONAL NICKEL COMPANY ET AL. 103 Three employees" were challenged as falling within this excluded category. It would appear that in any instance in which the pre- ponderance of an employee's duties are clerical, he is not within the appropriate unit. Upon the basis of the above supplemental findings of fact and upon the entire record in the case, the Board makes the following : SUPPLEMENTAL AND AMENDED CONCLUSION OF LAW All employees of the Company at its Huntington, West Virginia, plant, engaged in production , maintenance, service, and transporta- tion, who are paid on an hourly, piece, or tonnage basis, except inspectors, mill clerks, policemen, timekeepers, hospital employees, officials and others in a supervisory position, foremen, assistant fore- men, subforemen , substitute foremen, leadmen, stenographers , secre- taries, and other clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. SECOND 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 Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The International Nickel Company, Inc., at its Huntington, West Virginia, plant, an election by secret ballot be conducted within twenty (20) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, act- ing in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the employees of The International Nickel Company, Inc., at its Huntington, West Virginia, plant who were employed by it dur- iiag the pay-roll period immediately preceding March 14, 1938, en- gaged in production, maintenance, service, and transportation, who are paid on an hourly, piece, or tonnage -basis, except inspectors, mill clerks, policemen, timekeepers, hospital employees, officials and others in a supervisory position, foremen, assistant foremen, sub- foremen, substitute foremen, leadmen, stenographers, secretaries, and other clerical employees, and those who have since quit or been dis- ii J. N. Carr, N. N. Patton, and John F. Sayre. Both Carr and Sayre appear from the record to be engaged in clerical work for a major portion of their time. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged for cause, to determine whether they desire to be represented by Square Deal Lodge No. 40, Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Steel Workers Organizing Committee, or by Nickel Alloy Employees Association, Inc., for the purposes of collective bargaining, or by neither. [SAME TITLE] ORDER AND AMENDMENT TO SECOND DIRECTION OF ELECTION February 25, 1939 On February 9, 1939, the National Labor Relations Board, herein called the Board, issued a Supplemental Decision and Second Direc- tion of Election in the above-entitled proceeding, the election to be held within twenty (20) days from the date of Direction, under the direction and supervision of the Regional Director for the Ninth Region (Cincinnati, Ohio). On February 16, 1939, Square Deal Lodge No. 40, Amalgamated Association of Iron, Steel and Tin Workers of North America, through Steel Workers Organizing Committee, herein called the Lodge, filed exceptions to the Supplemental Decision and Second Di- rection of Election on the ground that the Board had erred in not directing a run-off election to determine whether or not the employees desired to be represented by the Lodge and requesting an amend- ment to the Second Direction of Election so to direct. The Board has considered the exceptions and the request and finds them to be without merit. They are overruled and denied respectively. The Board, having been advised by the Regional Director for the Ninth Region that a longer period within which to hold the election is desirable, hereby amends its Direction of Election by striking therefrom the words "within twenty (20) days from the date of this Direction" and substituting therefor the words "within fifty (50) days from the date of this Direction." Mr. DONALD WAKEFIELD SMITH took no part in the consideration of the above Order and Amendment to Second Direction of Election. 11 N. L. R. B., No. 19a.