Aluminum Co. of America

National Labor Relations Board - Board Decisions

Jul 8, 1938

8 N.L.R.B. 164 (N.L.R.B. 1938)

In the Matter of ALUMINUM COMPANY OF AMERICA and INTER-
NATIONAL UNION, ALUMINUM WORKERS OF AMERICA
Case No. 8-649. , Decided July 8, 1938
Aluminum Manufacturing Industry-Investigation of Representatives : contro-
versy concerning representation of employees : controversy concerning appro-
priate unit ; employer's refusal to. grant recognition of union until question
concerning representation is determined by Board-Unit Appropriate for Col-
lective Bargaining : production and maintenance employees , including scale
clerks, tally clerks, and timekeepers who are paid on an hourly basis and whose
duties are wholly confined to the factory buildings , but excluding other clerical
employees and supervisors-Representattives : eligibility to participate in choice :
persons who have seniority standing, though not at work at present time-
Election Ordered-Certification of Representatives.
Mr. George J. Bott, for the Board.
Beaumont, Smith c€ Harris, by Mr. Albert E. Meder, of Detroit,
Mich., for the Company.
Mr. J. Alfred Wilmer, of Pittsburgh, Pa., for the Union.
Mr. Richard H. Meigs, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 8, 1938, International Union, Aluminum Workers of
America, herein called the Union, filed with the Regional Director for
the Seventh Region (Detroit, Michigan) a petition alleging that a
question affecting commerce had arisen concerning the representation
of, employees of Aluminum Company of America, Pittsburgh, Penn-
sylvania, herein called the Company, at its Detroit, Michigan, plant,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On March 11, 1938, 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 1, as amended,
ordered an investigation and authorized the Regional Director to
conduct it, and to provide for an appropriate hearing upon due
notice.
8 N. L. R. B., No. 20.
164
DECISIONS AND ORDERS 165
On March 11, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and upon
the Union. Pursuant to the notice, a hearing was held on March
18 and 19, 1938, at Detroit, Michigan, before Bernard A. Clark, the
Trial Examiner duly designated by the Board. The Board, the
Company, and the Union were represented by counsel and partici-
pated in the hearing. 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
Trial Examiner made several 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 com-
mitted. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
L THE BUSINESS OF THE COMPANY
Aluminum Company of America, a Pennsylvania corporation, is
engaged, together with approximately 17 subsidiaries, in the mining,
reduction, refining, manufacturing, and fabricating of aluminum. It
owns and operates 13 plants throughout the United States. The
present proceeding involves only the plant of the Company at De-
troit, Michigan, which engages principally in the fabrication of
metallic aluminum into castings and extruded mouldings or shapes.
During the 14 months' period ending February 1938, approxi-
mately 10,800 tons of fabricated products were shipped from the
Detroit plant. Approximately 25 per cent of this amount was
shipped out of the State of Michigan.
Raw materials used in the manufacturing operations of this plant
during the same period aggregated 26,000 tons, variously composed
of aluminum ingot, coal, fuel oil, iron, steel, alloying materials, etc.,
having a total value of approximately $5,600,000. Approximately 77
per cent of said raw materials were shipped to the plant from points
outside the State of Michigan.
II. THE ORGANIZATION INVOLVED
International Union, Aluminum Workers of America, Local 11, is
a labor organization affiliated with the Committee for Industrial
Organization. It admits to its membership all production and
maintenance workers, exclusive of supervisors and clerks, employed
in the Company's plant at Detroit, Michigan.
166 NATIONAL LABOR RELATIONS BOARD
III. THE QUESTION CONCERNING REPRESENTATION
On December 2, 1936 , the Company entered into an agreement with
various Aluminum Workers' locals affiliated with the American Fed-
eration of Labor, herein called the A. F. of L. The agreement cov-
ered six plants of the Company and its subsidiaries, and by its terms
was to remain in effect "until November 1, 1937, and thereafter until
modified after at least thirty (30) days notice."
Thereafter, dissension arose between the A. F. of L. and the afore-
said locals, and in April 1937, a majority of the members of the
locals transferred their affiliation from the A. F. of L. to Interna-
tional Union, Aluminum Workers of America. The Company was
notified of this transfer of affiliation, and thereafter the terms of the
A. F. of L. contract were extended to apply to the Union as the
representative of its members in the plants previously covered by
said contract. The Company also bargained with the Union as the
representative of its members in several plants, including the Com-
pany's Detroit, Michigan, plant, which had not been included in the
A. F. of L. contract., The evidence indicates that the terms of the
contract were voluntarily observed by the Company in such plants as
well as in those which had been specifically covered by the A. F. of L.
contract.
In a series of letters, the first of which was dated September 30,
1937, the Union called the Company's attention to the fact that the
contract under which they had been bargaining would expire on
November 1, 1937, and submitted a copy of a revised contract for
consideration. The letters also stated that the Union represented a
majority of the employees in all the plants of the Company and its
subsidiaries, including the Detroit, Michigan, plant, and requested
that the Company conduct all negotiations with the Union, exclu-
sively. In reply, the Company refused to negotiate any agreement
with the Union unless and until it has been established that, under
the Act, the employees of each plant have designated the Union as
their representative. % -
We find that a question has arisen concerning 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
I Local 11 , of International Union , Aluminum Workers of America, was known as Local
204, of United Automobile Workers of America prior to July 27, 1937.
DECISIONS AND ORDERS 167
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
The Union claims that the production and maintenance employees,
exclusive of supervisory and office employees, of the Company's plant
at Detroit, Michigan, constitute a unit appropriate for the purposes
of collective bargaining. The Union further claims that all clerical
employees who are paid on an hourly basis and whose duties are
wholly confined to the factory buildings should be included, in the
aforesaid unit. There are three such groups of clerks employed in
the Company's Detroit plant, namely : scale clerks, tally clerks, and
timekeepers. The Company concedes that the scale clerks can be
properly included within the unit, but insists that tally clerks and
timekeepers are confidential employees who should be excluded from
the unit claimed by the Union to be appropriate. There is some
evidence that in the past the Union has settled grievances of its
members from all three groups of clerks without objection from the
Company.
An investigation of the duties of tally clerks and timekeepers re-
veals that approximately 90 per cent of the employees at the Com-
pany's Detroit plant work under a bonus system, i. e., a certain length
of time is set by the Company as a standard for the performance of
each job. If the employee completes it in less than the standard time,
he receives a bonus in addition to his hourly rate of pay. Thus, in
order to determine the wages that are to be paid, two factors must
be considered : time at the standard rate and bonus. Under this
system it is the duty of tally clerks to record the number of pieces,
or units, made by each employee and the time required to make them.
These reports are then turned over to the timekeepers who allocate
them to the job numbers by which cost records are kept. The time-
keepers also extend the hours each man works as computed from the
time cards. Ultimately the complete records reach the bonus depart-
ment where the actual determination is made from the records of
both tally clerks and timekeepers as to whether or not the standard
number of pieces per hour has been exceeded, and where the amount
due to each employee is-computed.
Although timekeepers and tally clerks require no special skill,
act in no supervisory capacity, and perform the greater part of their
work in the factory, their records are used to determine the hourly
pay and bonuses of the men in the departments to which they are
assigned. On this ground the Company claims that it must rely
upon the integrity of said clerks and timekeepers, and that they are
168 NATIONAL LABOR RELATIONS BOARD
therefore confidential employees and should be excluded from the
appropriate unit. The Company's contention, however, is not per-
suasive. The fact that greater reliance is placed upon the character
of this group of employees for integrity is not such a factor as will
warrant our denial of the Union's request to include them in the
bargaining unit.
We find that the production and maintenance employees at the
Company's Detroit, Michigan, plant, excluding clerks and super-
visors, but including scale clerks, tally clerks, and timekeepers who
are paid on an hourly basis and whose duties are wholly confined to
the factory buildings, constitute a unit appropriate for the purposes
of collective bargaining and that said 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
The Union claims to represent a majority of the production and
maintenance employees in the ' Company's Detroit plant. At the
hearing it introduced a list of members prepared from financial rec-
ords of the Union. Two lists of the Company's employees were also,
introduced, one prepared from the pay roll for the week ending
September 4,1937, and the other from the pay roll for the week ending
February 5, 1938. A comparison of these lists indicates that on Sep-
tember 4, 1937, a period of peak employment, the Union had a clear
majority of the 659 production and maintenance workers then em-
ployed. The Company's business at its Detroit plant has since fallen
off until, on February 5, 1938, it employed only 260 production and
maintenance workers, of which approximately 111 appear on the
Union's list as members in good standing and 40 as members delin-
quent in payment of dues.
There is some evidence that the Union has used coercive tactics in
obtaining some of its members.
We find that an election by secret ballot 'is necessary to resolve
the question concerning representation.
The Union urges that, in the event of an election, September 4,
1937, be selected as the date for determining eligibility to vote, claim-
ing that the names of the men who have been laid off since that date
are retained in the Company's "dead" file to be called back in order
of their seniority when production warrants their reemployment, and
for this reason they are still to be considered as employees of the
Company. The Company claims that September 4, 1937, was a peak
period of employment which will probably never occur again due to
the'fact that a new plant has been erected at Lafayette, Indiana, to
DECISIONS AND ORDERS 169
serve the geographical area previously served by the Detroit plant.
It further contends that the laid-off employees turned in their badges,
that their cards are retained in the "dead" file for rehiring purposes
only, and that it does not consider them employees. It urges that, if
an election is held, the eligibility date of February 5, 1938, should be
adopted as representing more accurately the number of men employed
at present and to be employed in the future. '
The testimony of the Company's plant manager to the effect that
the Detroit plant will never again employ as many men as were em-
ployed on September 4, 1937, is conjectural at best. It was admitted
at the hearing that, should production warrant it, the employees who
have been laid off since that date will be reemployed in accordance
with the Company's conceded policy of rehiring such employees in
order of their seniority as it appears on their cards which are re-
tained in the "dead" file. It is evident, therefore, that these men,
during the period in which they are laid off, retain an interest in
working conditions which may be determined at this factory. It is
our opinion that all persons who were employees of. the Company
within the appropriate unit during the pay-roll period ending Sep-
tember 4, 1937, including those who, though not at work at the, pres-
ent time, have seniority standing, are entitled to participate in the
election. We hold that all such persons shall be eligible to vote in
the election ordered herein.
On the basis of* the above findings of fact, and upon the entire
record in the proceeding, the Board makes the following :
CONCLusIONs OF LAW
1. A question affecting commerce has arisen concerning the-rep-
resentation of employees of Aluminum Company of America at its
Detroit, Michigan, plant, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the National Labor Relations Act.
2. The production and maintenance employees of the Company at
its Detroit, Michigan, plant, including scale clerks, tally clerks, and
timekeepers who are paid on an hourly basis and whose duties are
wholly confined to the factory buildings, but excluding other clerical
employees and supervisors, 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-
170 NATIONAL LABOR RELATIONS BOARD
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
Dii ED that, as a part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Aluminum Company of America, Detroit, Michigan, an elec-
tion by secret ballot shall be conducted within fifteen (15) days from
the date of this Direction, under the direction and supervision of
the Regional Director for the Seventh 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 the
production and maintenance employees of Aluminum Company of
America at its Detroit, Michigan, plant, who were employed by it
during the pay-roll period ending September 4, 1937, including scale
clerks, tally clerks, and timekeepers who are paid on an hourly basis
and whose duties are confined wholly to the factory, but excluding
other clerical employees, supervisors, and any employees who have
since quit or been discharged for cause, to determine whether or not
they desire to be represented by International Union, Aluminum
Workers of America, Local 11, affiliated with the Committee for
Industrial Organization, for the purposes of collective bargaining.
[SAME TITLE]
AMENDMENT TO DIRECTION OF ELECTION
July 19, 1938
On July 8, 1938, the National Labor Relations Board, herein called
the Board, issued a Decision and Direction of Election in the above-
entitled proceeding, the election to be held within fifteen (15) days
from the date of the Direction, under the supervision of the Regional
Director for the Seventh Region (Detroit, Michigan).
A motion has been filed by International Union, Aluminum Work-
ers of America, the petitioner herein, to defer the election. We
shall not pass on the said motion at this time. The Regional Direc-
tor has informed the Board that additional time is necessary in which
to conduct the election and has recommended that the period desig-
nated by the Board in its Direction be extended twenty ,(20) additional
days. Upon the basis of the recommendation of the Regional Direc-
tor, we shall defer the election as requested.
The Board hereby amends its Direction of Election by striking out
the words "within fifteen (15) days" and substituting therefor the
words "within thirty-five (35) days."
8 N. L. R. B., No. 20a.
DECISIONS AND ORDERS
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
August 30, 1938
171
On July 8, 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 directed that an election
by secret ballot be conducted among the production and maintenance
employees of Aluminum Company of America at its Detroit, Michi-
gan, plant, who were employed by it during the pay-roll period end-
ing September 4, 1937, including scale clerks, tally clerks, and time-
keepers who are paid on an hourly basis and whose duties are con-
fined wholly to the factory, but excluding other clerical employees
and supervisors and any employees who had since quit or been dis-
charged for cause, to determine whether or not they desire to be
represented by International Union, Aluminum Workers of America,
Local 11, affiliated with the Committee for Industrial Organization,
for the purposes of collective bargaining. On July 19, 1938, pursuant
to the recommendation of the Regional Director, the Board issued
an Amendment to Direction of Election, postponing the election for
twenty (20) additional days.
Pursuant to the Direction of Election and the Amendment to
Direction of Election, an election by secret ballot was conducted on
August 9, 1938, under the direction and supervision of Harold A.
Cranefield, the Acting Regional Director for the Seventh Region
(Detroit, Michigan). On August 10, 1938, the said Acting 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. No objections or exceptions to the Intermediate Report have
been filed by any of the parties.
As to the balloting and its results, the Acting Regional Director
reported as follows :
Total number eligible to vote_ ______________________________ 680
Total number of ballots cast ________________________________ 464
Total number of blank ballots _______________________________ 0
Total number of void ballots ________________________________ 3
Total number of challenged ballots__________ _________________ 17
Total number of votes in favor of International Union, Alumi-
num Workers of America , Local No. 11, affiliated with the
Committee for Industrial Organization_____________________ 344
Total number of votes against International Union, Aluminum
Workers of America, Local No. 11. affiliated with the Com- o
mittee for Industrial Organization _________________________ 100
172 NATIONAL LABOR RELATIONS BOARD
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
1, as amended,
IT IS HEREBY CERTIFIED that International Union, Aluminum
Workers of America, Local No. 11, affiliated with the Committee for
Industrial Organization, has been designated and selected by a ma-
jority of the production and maintenance employees of the Alumi-
num Company of America at its Detroit, Michigan, plant, including
scale clerks, tally clerks, and timekeepers who are paid on an hourly
basis and whose 'duties are confined wholly to the factory, but ex-
cluding other clerical employees and supervisors, as their represent-
ative for the purpose of collective bargaining, and that, pursuant
to Section 9 (a) of the Act, International Union, Aluminum Workers
of America, Local No. 11, affiliated with the Committee for Indus-
trial Organization, is the exclusive representative of all such em-
ployees for the purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, and other conditions of
employment.
MR. EDWIN S. SMITH took no part in the consideration of the
above Certification of Representatives.
8 N. L. R. B., No. 20b.
0