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 NORTH AMERICA, THROUGH STEEL WORKERS ORGANIZING COMMITTEE Case No. R-640 SECOND SUPPLEMENTAL DECISION AND CERTIFI- CATION OF REPRESENTATIVES November 9, 19.39 On February 9, 1939, the National Labor Relations Board, herein called the Board, issued a Supplemental Decision and Second Direc- tion of Election 1 in the above-entitled case. On February 13, 1939, the Company petitioned the Board to modify the Supplemental De- cision and Second Direction of Election so as to provide that the list of employees eligible to vote in the election should be those employed by the Company during the pay-roll period immediately preceding issuance of the Second Direction of Election. On February 15', 1939, the Board issued ,in order denying this petition. Thereafter, ex- ceptions to the Supplemental Decision and Second Direction of Election were filed by the Lodge. These exceptions alleged 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 requested an amendment to the Second Direction of Election to so direct. On February 25, 1939, the Board issued an order overrul- ing and denying the. exceptions and request of the Lodge, and amend- ing its. Second Direction of Election by striking therefrom the words "within twenty (20) days from the date of this Direction," and sub- stituting therefor the words "within fifty (50) clays from the date of this Direction." Pursuant to the Second- Direction of Election, as amended, an elec- tion by secret ballot was conducted on March 16, 1939, atIuntington, West Virginia,' under the direction and supervision of the Regional Director for the Ninth Region (Cincinnati, Ohio). On April 3, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, 1 11 N. L. R. B. 97. 17 N. L. R. B., No. 35. 458 THE INTERNATIONAL NICKEL COMPANY, INC. 459 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 reported as follows : Number of alleged eligible voters----------------------------- 805 Number of ballots placed in ballot box------------------------ 767 Number of unchallenged ballots for Square Deal Lodge No. 40__ 374 Number of unchallenged ballots for Nickel Alloy Employees Association, Inc------------------------------------------- 273 Number of unchallenged ballots for neither------------------ 49 Number of challenged ballots-------------------------------- 66 Number of blank ballots------------------------------------ 2 Number of disputed ballots--------------------------------- 3 Among the 66 persons whose right to vote was challenged, 21 were challenged by the agents of the Board in charge of the election. Thirteen of these voters were not on the list of eligible voters sub- mitted by the Company. At a prior election, held May 24, 1938, these men were eligible -to vote, but the Company now alleged that their positions no longer existed because of the introduction of labor-saving machinery. The Regional Director held that these men had been permanently laid off by the Company and that, therefore, their votes should be deducted from the total number of votes cast. He further held that eight men who appeared at the polls and were challenged by the Board's agents were ineligible under the terms of the Board's Supplemental Decision and Direction of Election.2 Deducting the ballots of these 21 ineligible voters from the 767 ballots cast, and in addition, deducting the 3 disputed ballots, which were void because marked in such a manner as to be capable of identification, and the 2 blank ballots, the Regional Director found that the corrected total number of ballots cast was 741, and recommended that the Lodge be certified by the Board as exclusive representative. On April 6, 1939, objections to the Intermediate Report on the ballot were filed both by the Nickel Alloy Employees Association and by the Company. On April 18, 1939, the Company filed -an- ampli- fication of its objections. These objections to the Intermediate Report on the conduct of the ballot were overruled by the Regional Director on dune 19, 1939, whereupon the Company filed a motion for a re- port on the objections, which motion was granted by the Board on August 5, 1939. On August 12, 1939, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, accordingly issued and duly served upon the parties his Report on Objections. The objections alleged, in substance, that (1) the Lodge received the votes of less than a majority of the total number of employees in the plant and less than 2 11 N. L. R. B. 97. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a majority of the eligible voters, (2) two of the disputed ballots clearly designated a choice and should have been counted for the organization so designated, (3) the disputed and blank ballots should have been counted in determining the total number of votes cast, (4) all the challenged ballots should have been considered by the Regional Director, (5) the votes of Lucien P. Nicholas, Harry Patterson, W. L. Thornton, J. M. Carr, Charles W. Eastham, N. N. Patton, Creath Peyton and John F. Sayre should have been counted, (6) the Board's Supplemental Decision and Second Direction of Election of Febru- ary 6, 1939, erred in redefining the appropriate unit so as to exclude assistant foremen, subforemen, substitute foremen, leadmen, annealers, rollers, melters, picklers, hammermen, mill clerks and inspectors without notice that such redefinition was contemplated and without a hearing on the propriety of such redefinition, (7) 27 employees have been permanently laid off and a "large number" of new men employed between the date for determining eligibility to participate in the election set by the Board and the date of the election, (8) the failure of the Board to clarify the question of whether the character of work performed after the eligibility date affected eligibility to vote caused confusion among the employees and impeded a fair election, (9) lack of clarity in the Board's Supplemental Decision and Second Direction of Election as to the eligibility of certain rollers and annealers re- sulted in confusion among the employees deterring employees from voting and impeding a fair election. With respect to the first objection, the Board has repeatedly re- jected an interpretation of Section 9 (a) of the Act such as the Com- pany here urges, requiring a labor organization to obtain a majority of those eligible to vote as a prerequisite to exclusive recognition, and has held that Section 9 (a) entitles a labor organization to such recognition if it receives a majority of the votes cast at an election within an appropriate unit.3 As to the second and third objections, the disputed ballots were not cast in the manner required by the rules of the election, although the election rules were prominently printed upon each ballot. These ballots were capable of identification and should not be counted. Neither should blank, spoiled, or void ballots be counted in determin- ing the total number of votes cast in the election 4 As to the fourth objection, no purpose would have been served had the Regional Director considered all the challenges in addition to 8 See, for example, Matter of R. C. A. Manufacturing Company, Inc. and United Electrical d• Radio Workers of America, 2 N. L. R. B. 168. See Virginian Ry. Co. v. System Federa- tion, 300 U. S. 515. 4 Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and Tin Workers, 4 N. L. R. B. 55; Matter of Calumet Steel Division of Borg-Warner Corpo- ration and Steel Workers Organizing Committee, 7 N. L. R. B. 340. THE INTERNATIONAL NICKEL COMPANY, INC. 461 those made by the agents of the Board, since the challenges made by the parties could not possibly affect the election results. As to the fifth objection, the challenges in question require that we construe the language of the Supplemental Decision and Second Direction of Election. We think it clear from a consideration of that Decision that Lucien P. Nicholas, Harry Patterson, W. L. Thorn- ton, J. N. Carr, and John F. Sayre were within excluded categories of employees and were ineligible to vote. On the other hand, Charles W. Eastham, N. N. Patton, and Creath -Peyton were eligible and their votes should have been counted. As the Regional Director noted, however, the ballots of these individuals cannot affect the outcome of the election. With respect to the sixth objection, the Board stated in its Supple- mental Decision," However, in order to avoid any similar confusion at the new election, it becomes necessary to clarify and redefine the appro- priate unit for collective bargaining, the members of which will be eligible to participate in the new election. In clarifying and redefining the unit the Board made no change in the unit which it had previously determined to be appropriate.6 Con- fusion having arisen as to the meaning of the term "others in a super- visory position," as used in the Board's first Direction of Election, the Board was merely stating the exact meaning of that term. In addition, it should be pointed out that the Company, as .evidenced by the testimony of its officials and the statements of its counsel, from the first point in the controversy took the position that all leadmen should be treated in the same manner as to eligibility and considered the primary problem one of the eligibility of a class of employees, rather than a series of individual cases.7 The substance of the seventh objection has previously been con- sidered by the Board. On February 13, 1939, the Company petitioned the Board to modify its Supplemental Decision and Second Direction of Election so as to provide that eligibility to participate in the elec- tion would be determined by a more recent pay-roll date. This mo- tion, after due consideration, was denied by the Board. With regard to the eighth and ninth objections, it is sufficient to note that the Company did not, between the date of the issuance of the Board's Supplemental Decision and Second Direction of Election 5 11 N. L. It. B. 97, at 99. 7 N. L. R. B. 46. 7 Thus. in a Memorandum Brief, filed for the use of the Trial Examiner by the Company, counsel stated : The major point at issue is the eligibility of those employees who were challenged on the ground that they are "leadmen," and proceeded to a general discussion of the eligibility of "leadmen" as a group. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the date of the election, make any objection to that decision on the ground of lack of clarity, nor did the Company ever take any formal steps aimed at the clarification of that Decision. We are satisfied that there was no lack of clarity in these respects. impeding a fair election. The Board has fully considered the Objections filed by the Associa- tion and the Objections and amplified Objections filed by the Com- pany, and the Regional Director's Report thereon. The Board finds that the Objections raise no substantial and material issues with respect to the conduct of the ballot. They are hereby overruled. CERTIFICATION OF REPRESENTATIVES 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, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, IT IS HEREBY CERTIFIED that Square Deal Lodge No. 40, Amalga- mated Association of Iron, Steel and Tin Workers of North America, through Steel Workers Organizing Committee, has been designated and selected by a majority of the production, maintenance, service, and transportation employees of the International Nickel Company, Inc., Huntington, West Virginia, who are paid on an hourly, piece, or tonnage basis, except inspectors, mill clerks, policemen, timekeep- ers, hospital employees, officials and others in a supervisory position, foremen, assistant foremen, subforemen, substitute foremen, leadmen, stenographers, secretaries, and other clerical employees, as their rep- resentative for the purposes of collective bargaining, and that pur- suant to the provisions of Section 9 (a) of the National Labor Rela- tions Act, Square Deal Lodge No. 40, Amalgamated Association of Iron, Steel and Tin Workers of North America, through Steel Work- ers Organizing Committee, is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of,.pay, wages, hours of employment, and other conditions of employ- ment. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Second Supplemental Decision and Certification of Represent- atives.