Witteman Steel Mills, Inc.

I)ECISIO)NS 01 NATIONAL IAH()R RELATIONS BO()AR) Witteman Steel Mills, Inc.' and United Steelwork- ers of America, AFL-CIO/CIC, 2 Petitioner. Case 31-RC-4694 November 17, 1980 DECISION ON REVIEW AND DIRECTION OF ELECTI()N BY CHIIR.MAN FANNIN( ANI) MI:NSIltRS JINKINS ANI) P1 NI I () Upon a petition duly filcd under Section (c) of the National I ahor Relations Act, as amended, a hearing \vas held before a hearing officer of the National Labor Relations Board. On March 25, 1980() the Acting Regional Director for Region 31 issued his Decision and Order in the above-entitled proceeding, :' in which he dismissed the petition as premature, finding that the Employer did not employ a substantial and representative work force at the time of the hearing. Thereafter, in accord- ance with Section 102.67 of the National Labor Relations Board Rules and Regulatiotn,, Series 8, as amended, the Petitioner filed a timely request for review, contending that the Acting Regional Di- rcctor's factual findings were clearly erroneous and that these errors prejudicially affected his ruling. On May 21, 1980, the National Labor Relations Board, by telegraphic order, granted the request for review. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record in this case, including the briefs of the Petitioner and the Employer, and makes the following findings: I. The Employer is engaged in the manufacture and sale of steel products at its facility in Fontana, California. After having ceased production and un- dergone bankruptcy proceedings in 1977, the Em- ployer, in September 1979, resumed operations under new ownership. At the time of the hearing, the Employer had only one department, the rolling mill, in full operation, but planned to have the melt shop and continuous casting facility operating at full capacity in another 4 or 5 months. The Acting Regional Director concluded that the present complement was not a representative and substantial one because at the time of the hear- ing, February 26, 1980, the Employer employed 58 I I pltlonll rid other formal papers were illell d atl llt he healrilng s Ilal tile nalti iof the Emploelr r would clrl-Ctl appear il he captilllls i ht, ilalile I he I'iliiaionper s ppears as aindidlle tilt tcilring :' Hod (larriers, Colrltructionll, i'lloduct ilr l and Vlalilellalleicu Ia lrtir1. I Oial 7.I AFI ( ()w. las pertrlltred hi t illrcrcle oil the basis soi io . - ilg ,l illltrcs Its ina e appcatF ils 1lleTidCLd ilt tie hiering 253 NLRB No. 41 employ ees in 15 job classifications and planned to expand its work force to a total of 159 employees in over 35 classifications in another 4 to 5 months, aind to 250 employees in 4(t classifications by 1982. 4 The Petitioner contends that the Acting Regional Director erred in his calculation of both the pres- ent and projected number of employees and the present and projected number of job classifications. 'Ihe Petitioner also contends that the Acting Re- gional Director should have confined his compari- sons to the projected expansions which the Em- ploer contemplated would occur within the 4 or 5 months from the date of hearing. We find merit in the P'etitioner's contentions. First, in our opinion, the only reasonable project- ed expansion of the Employer's operations against which to measure the substantiality of the present work force is that anticipated to take place by July 1980, 4 or 5 months from the date of the hearing. The expansion anticipated to occur beyond July 1980() depends on the Employer's purchase of two new pieces of equipment, a shredder and a shearer, and the erccton of a new building. Since, at the time of the hearing, the Employer had not yet pur- chased the new equipment, and had not yet begun construction of the new building, we find the ex- pansion contemplated to occur by 1982 too indefi- nite and speculative to use as a standard by which to measure the present complement of employees. Accordingly, we will look only to the expansion projected to take place by July 1980 in determining the substantiality of the Employer's work force. As noted above, the Petitioner disputes the Acting Regional Director's calculations as to the present and projected complement of employees. Based on the Employer's organizational chart dated February 23, 1980, we agree with the Peti- tioner and find, contrary to the Acting Regional Director, that at the time of the hearing the Em- ployer employed 54 employees in 15 job classifica- tions, and planned to employ by July 1980, 149 em- ployees in approximately 36 job classifications. 5 Furthermore, we note that the Employer's expan- sion plans disclose that it will employ 22 of the an- ticipated additional employees in 30 days from the date of the hearing--i.e., by the end of March 1980-and, based on calculations most favorable to i ice record is serrelwll unclelir about "wh ir the second anllcipated txpaion wll hich insolvcs the purchase of tw,o new pieces of equipmenl. a shredder and a shearer, and hec colnsructionl of a new huilding for the ro i l mil peration will actiually lake place Hion'eser, it appears tha he shredder. ronce oi the Imiploycr's properl, will he operating i 4 o ( rmlorls, rand l Ihe rod mill ill ht operating h early 1982 It is unclear cNlactl w rili the shredlder iald the shearer will he n the Fmployer s proprt :' I his igure xicludes thlise oh Calssiicatitrls hat Ihe record shews are dpllcitcs 32) V -II[ EMAN SITEII_ MII.IS. INC. the Employer, these 22 employees will occupy 6 of the additional job classifications. 6 Thus, we find that, by the date of issuance of the Acting Regional Director's decision. the Employer, should have em- ployed a total of 76 employees in 21 different job classifications, or about 50 percent of the work force contemplated to be completed by July 1980 in nearly 60 percent of the anticipated classifica- tions. Under these circumstances, we are satisfied that the Employer's present complement of em- ployees is representative and substantial for pur- poses of directing an immediate election.7 2. Since the Acting Regional Director dismissed the petition as premature, he found it unnecessary to decide the issue of the unit placement of the lab- oratory technicians. The Petitioner contends, con- trary to the Employer, that these employees should not be included in the requested production and ' The Eploer's techilical direclor Ietlfied that 2() employees w ill be hired in the melt shop, and 2 of them will he hired i 2 different classifi- cations in the rolling deparlment Hased on the Employer's prolected number of job classificatons in the melt shop, and the numher of employ- ees to fill each classificatlon, it appears that those 2 prolected melt hop employees ill fill at least 4 different classifications Thus. the total number of new classifications that will he filled hb the end of March 1980 will be six. Wce note In addition, that. by the time of the issuace of this It)ei- sion. which is 4 to 5 months from the date of the hearing, the Employer. by its own admission, will be fully operatiotnal in all departments except those that require the purchase f ness equipment or the construction of new buildings. This is another reason to find that the petition should not be dismissed See Frolic Icbotwear, Inc.. 180 NLR B 188 1t969): he (h- ex Corporation. 180 NLRB 62 (1969). The cases cited by the Acting Regional Director and the Employer are distinguishable In Sornme lndustries.lncorlporated 204 NlRB 1142 (19731), at the time of the hearing the Employer employed only about 17 percent of the projected number of emploees in less than 50 percent of the pro- jected job classifications In Norunda .,l1ummtum,. In., 186 N RH 217 (19701. the Board fund the requested unit inappropriate and refused to order an election in a larger unit since the evidence showed that only 8 employees of a projected total of about 365 employees were employed in the rest of the plant at the time of the hearing Finalls. in K-P Hdrauhoi- Companv, 219 NLRB 138 (1975). the Board dismissed the petition be- cause it found that the Acting Regional )lireclor erred when he did nlot dismiss the petition after he fiound that the emploece cmplement was not substantial r representative where the employer employed only 26 per- cent of its total projected swork force in less thlan half of the pr(iected number of classifications maintenance unit. Although at the time of the hear- ing the Employer did not have any laboratory technicians, it planned to hire two laboratory tech- nicians within the next 4 to 5 months. According to the Employer, these two employees will spend approximately 75 percent of their time in a labora- tory area separate from the other unit employees, using various electronic equipment to test the qual- ity of samples from the melt shop. They will work under the immediate supervision of the metallur- gist, and will perform the same duties as the labo- ratory technicians that were excluded from the production and maintenance unit when those em- ployees were represented from 1975 to 1978 by an- other union. These laboratory technician employ- ees will be required to have at least a high school education in chemistry, and will be considered a separate category into which the other unit em- ployees cannot transfer. Based on the above, we agree with the Petition- er, and find that the laboratory technicians lack sufficient community of interest with the produc- tion and maintenance employees to require their in- clusion in the unit found appropriate herein, and we shall therefore exclude them. Accordingly, we find that the following employ- ees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act:8 All production and maintenance employees, in- cluding shipping, receiving, and warehouse employees employed at the Employer's Fon- tana, California, facility, excluding all office clerical employees, laboratory technicians, pro- fessional employees, watchmen, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] h Ih l IIler% crior agreed with the tctllln r till llli requLCet 321