Aetna Iron & Steel Co.

In the Matter of AETNA IRON & STEEL Co. and INTERNATIONAL ASSOCIA- TION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRONWORKERS LOCAL No. 644, AFFILIATED WITH AMERICAN FEDERATION OF LABOR Case No. R-?817.-Decided September 3) 1941 Jurisdiction : steel products fabricating industry. Investigation and Certification of Representatives : existence of question: Com- pany concedes that it has refused to bargain because of doubt that the union represented a majority; election necessary. Unit Appropriate for Collective Bargaining : regular employees of the Company's fabricating plant, including common laborers, truck drivers, and the working foreman, but excluding supervisory, clerical, and office employees, and draftsmen. Absent a showing of sufficient differentiation in functions, employees will not be excluded from a unit upon racial considerations ; Company's objection to the inclusion of unskilled common laborers and truck drivers, most of whom are colored, with skilled white employees is without merit, where there is no such differentiation in function between these and the remaining employees in the unit consisting of all regular employees, and where all such employees are eligible to membership in sole union involved. Mr. Chester Bedell and Mr. George C. Bedell, of Jacksonville. Fla., for the Company. Mr. Carlton C. Arnow and Mr. Clyde Smith, of Jacksonville, Fla., and Mr. C. F. Strickland, of St. Louis, Mo., for the Union. Mr. Milton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 30, 1941, International Association of Bridge, Structural and Ornamental Ironworkers Local No. 644, affiliated with American Federation of Labor, herein called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) a peti- tion alleging that a question affecting commerce had arisen concerning the representation of employees of Aetna Iron & Steel Co., Jackson- ville, Florida, herein called the Company, and requesting an investi- 35 N. L. R. B, No. 26. 136 AETNA IRON & STEEL CO. 137 gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 14, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 21, 1941, the Acting Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on July 29, 1941, at Jacksonville, Florida, before Charles A. Kyle, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Company and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded both parties. During the course of the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company operates a plant in Jacksonville, Florida, where it is engaged chiefly in the fabrication and sale of structural steel products. During the year 1940, the Company purchased about $955,000 worth of structural steel shapes, approximately 90 per cent of which were shipped to the Company's plant from points outside the State of Florida. During the same period, the Company sold about $463,000 worth of finished products; approximately 41/2 per cent of which were shipped to points outside the State of Florida. II. THE ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Ironworkers Local' No. 644 is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company concedes that it has refused to bargain with the Union because of doubt as to the Union's majority status. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A statement of the Acting Regional Director, received in evidence at the hearing, shows that the Union represents a substantial number of employees in the collective bargaining unit hereinafter found to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. - V. THE APPROPRIATE UNIT In its petition, as amended at the hearing, the Union claimed that the appropriate unit consists of all regular employees of the Com- pany's fabricating plant, including common laborers and truck drivers (who customarily spend part of their time as common laborers), but excluding supervisory, clerical, and office employees, and draftsmen. The Company objected to this unit only in so far as it included com- mon laborers and truck drivers, most of whom the Company stated were colored employees. The Company contended that these unskilled colored laborers should not be included in a unit with skilled white workers, and, furthermore, that the common laborers and truck drivers are not eligible for membership in the Union. We have consistently held that absent a showing of differentiation in functions which would warrant their exclusion, we will not elude employees from a unit upon racial considerations.2 No such differen- tiation was established in the instant case. Furthermore, it appears that the colored employees are eligible to membership in the Union. Article II, Section 2, of the Constitution of the International, of which the Union is a local, provides that membership shall be limited 1 The statement of the Acting Regional Director shows that the Union submitted 71 signed application cards dated between June 12 and 17, 1941 ; that the signatures of all appear to be genuine ; and that 40 of the signatures correspond to names of employees within the appropriate unit on the Company' s pay roll for the week ending June 23, 1941. There were 45 persons employed within the appropriate unit on June 23, 1941. 2 Matter of American Tobacco Co , Inc. and Committee for Industrial Organization, Local No. 472, 9 N. L R. B. 579; Matter of Union Envelope Co. and Envelope Workers Union No. 393, 10 N. L. R. B. 1147; Matter of Floyd A Fradell and Granite Cutters' International Association of America, 11 N. L. R. B 249; Matter of Interstate Granite Corporation and Granite Cutters' International Association of America, Charlotte Branch, 11 N. L. R. B. 1046; Matter of Brashear Freight Lines, Inc. and International Association of Machinists, District No. 9, 13 N. L. R. B. 191. AETNA IRON & STEEL CO. 139 to workmen "versed in the duties of some branch of the trade." How- ever, a vice president of the International 'testified that since 1936 common laborers and truck drivers have been admitted to membership in and been represented by the International. The Union contends that E. M. Cox should be included within the appropriate unit. Although Cox is in charge of about six laborers he has no authority to hire or discharge, though he makes recom- mendations in such matters to Anderson, the head foreman. Unlike the Company's other foremen, Cox is paid on an hourly basis, and at times performs manual labor. We find that Cox is a working fore- man and as such mould be included within the appropriate unit. We find that all the regular employees of the Company's fabricating plant, including common laborers, truck drivers, and the working foreman, but excluding supervisory, office, and clerical employees, and draftsmen,3 constitute a unit appropriate for the purposes of collec- tive bargaining, and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees can best be resolved by an election by secret ballot. The Union states that it prefers to have eligibility to vote deter- mined by the pay roll of July 24, 1941, because'it believes that there has been and will continue to be a substantial turn-over in employ- ment. However, the Company's treasurer testified that the pay roll had not fluctuated substantially for several years, and that there was no, reason to anticipate that it would do so in the future. Accord- ingly, we shall adhere to our customary practice and direct that the employees eligible to vote will be those who were employed during the pay-roll period immediately preceding the date of this Direction of Election, subject to such limitations and additions as are hereinafter set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Aetna Iron & Steel Co., Jacksonville, Flor- 8In the list of employees as of July 24, 1941, furnished by the Company , the 53 em- ployees bearing numbers from 3 to 55, inclusive , were agreed to hold positions bringing them within this definition. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ida, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the regular employees of the Company's fabricating plant, including common laborers, truck drivers, and the working foreman, but excluding supervisory, clerical, and office employees, and drafts- men, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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, 49 Stat. 449, and pursuant to Article III, Section 8, 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 Aetna Iron & Steel Co., Jacksonville, Florida, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Fif- teenth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all the regular employees of the Company's fabricating plant, whose names appear on the pay roll for the period immediately preceding the date of this Direction of Election, including common laborers, truck drivers, and the working foreman, and employees who did not work during such pay-roll period be- cause they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but exclud- ing supervisory, clerical, and office employees, and draftsmen, and those persons who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Interna- tional Association of Bridge, Structural and Ornamental Iron- workers Local No. 644, A. F. L., for the purposes of collective bargaining.