Aluminum Co. of America

National Labor Relations Board - Board Decisions

Oct 14, 1947

75 N.L.R.B. 25 (N.L.R.B. 1947)

In the Matter of ALUMINUM COMPANY Or AMERICA and FOREMEN'S
ASSOCIATIOA3j OF AMERICA (INDEPENDENT), CHAPTER No. 254
Case No. 2-C-6506.-Decided October 14,1047
Mr. George Turitz, for the Board.
Messrs . Leon E. Hickman and David B . Buerger, of Smith, Buchan-
an and Ingersoll , of Pittsburgh , Pa., and Mr. Arthur E. Reyman,
of New York, New York, for the Respondent.
Mr. Peter Tilling, of Newark, N. J., for the Union.
DECISION
AND
ORDER
On November 25, 19461 Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had unlawfully refused to bargain with the Union as the
collective bargaining representative of a unit of its supervisory em-
ployees previously found appropriate by the Board,' and recommend-
ing that it cease and desist therefrom and take certain affirmative ac-
tion, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the respondent filed exceptions to the Interme-
diate Report, a supporting brief, and a request for oral argument. In
view of our disposition of the case, the Board deems oral argument
unnecessary, and hereby revokes its previous actions granting the re-
spondent's request and denying the Union's "Motion to Deny Com-
pany's Request for Oral Argument."
Since the issuance of the Intermediate Report herein, the National
Labor Relations Act has been amended so as to exclude "any individual
employed as a supervisor" from the definition of "employee" con-
tained in the Act.2 Supervisory employees are, therefore, now outside
the coverage of the Act. We are therefore of the opinion, without
considering the merits of the case, that it would not effectuate the poli-
cies of the Act, as amended, to require the respondent to take any reme-
1 Matter of Aluminum Company of America, 67 N. L. R. B. 958. The Union won the
election and was certified by the Board on June 15, 1946.
9 Section 2 (3) and (11).
75 N. L. R. B., No. 3.
25
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dial action in this case, which involves nothing except a refusal to bar-
gain.3 Accordingly, we shall dismiss the complaint.
ORDER
IT IS HEREBY ORDERED that the complaint against the respondent,
Aluminum Company of America, Edgewater, New iersey, be, and it
hereby is, dismissed.
INTERMEDIATE REPORT
Mr. George Turitz, for the Board.
Messrs. Leon E. Hickman and David B. Buerger of Smith, Buchanan and
Ingersoll, of Pittsburgh, Pa., and Mr. Arthur E. Reynaan, of New York, N, Y., for
the *respondent.
Mr. Peter Willing, of Newark, N. J., for the Union.
STATEMENT OF THE CASE
Upon a charge filed on August 19, 1946, by Foreman's Association of America
(Independent), Chapter No. 254, herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Second Region (New York, New York), issued a complaint dated October 16,
1946, against Aluminum Company of America, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein
called the Act.
With respect to the unfair labor practices, the complaint alleged that on or
about July 3, 1946, and at all times thereafter, the respondent refused to bargain
collectively with the Union as the exclusive representative of employees in an
appropriate unit, thereby interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On November 4, 1946, the respondent filed an answer admitting some of the
allegations of the complaint with respect to the nature of its business, but
denying that it had engaged in any unfair labor practices. As affirmative
defenses the respondent's answer alleged, in substance, and this is the sole
issue in the case, that the unit contended for is not appropriate for the purposes
of collective bargaining, because (1) the employees included therein are not
employees within the meaning of the Act, but are supervisory employees who
formulated and effectuate management policies, and hence are a part of man-
agement, and (2) because the Union is not independent of the labor organization
which represents production and maintenance employees.
Pursuant to notice, a hearing was held on November 4, 1946, at New York,
New York, before Horace A. Ruckel, the undersigned Trial Examiner duly ap-
pointed by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and participated in the hearing. The Union was rep-
resented by its Regional Director. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties.
811atter of Westinghouse Electric Corporation, 75 N L . R. B 1; L. A. Young Spring
Wire Corporation v. N L R B, 163 F. (2d) 905 (C. A.-D. C.).
ALUMINUM COMPANY OF AMERICA 27
Upon the conclusion of the hearing the parties were afforded an opportunity
to argue orally before the Trial Examiner and to file briefs and/or proposed find-
ings of fact and conclusions of law with the Trial Examiner by November 19.
None of the parties argued orally. On November 19 the respondent filed a brief
together with proposed findings of fact.'
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Aluminum Company of America, a Pennsylvania corporation, operates a, plant
at Edgewater, New Jersey, where it is engaged in the manufacture, sale, and
distribution of aluminum sheet, press forgings, screw machine products, and foil
During the year 1945, substantially all the raw materials used by the respondent
in its operations were shipped to its Edgewater plant from points outside the State
of New Jersey. Raw materials purchased by the respondent and sales of products
by it each exceeded $100,000 in that year.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America (Independent), Chapter No. 254, is an
unaffiliated labor organization admitting to membership supervisory employees of
the respondent.
III THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1 The appropriate unit
The Board's decision in a previous representation case,' dated April 29, 1946,
found that all forelaclies, the assistant composition supervisor, the composition
supervisor, assistant unit foremen, unit foremen, assistant shift foremen or
assistant foremen, shift foreman or foremen, assistant general foremen, general
foremen, assistant supervisors and supervisors, in the production, inspection, and
maintenance departments of the respondent's Edgewater plant, including the
supervisor in the planning department of the sheet mill who is in charge of the
pre-heat furnaces, but excluding all other supervisors, constituted a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
The respondent here makes the same contention with respect to the appro-
priateness of the unit which it made in the prior representation case. In support
of its contention that the unit as found by the Board is not appropriate, the
respondent offered in evidence the testimony of certain witnesses whose evidence
was substantially' excluded by the Trial Examiner, and the Board in the repre-
sentation case, (1) to show that the persons included in the appropriate unit are
supervisory employees who are in a position to formulate, and effectuate, and
s The Trial Examiner accepts proposed findings 1 , 13, and 20. He rejects 2 , 3, 4, 5, 6, 7,
8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, and 21.
'Aluminum Company of America and Foreman 's Association of America ( Independent),
Chapter No. 254, 67 N L. R B. 958.
3 The Board , in its decision , admitted the offers of proof on the excluded testimony for
the limited purpose of showing the functional grouping of supervisors and the levels of
supervision The respondent in making its offer here stated specifically that it was not
for the purpose of showing such functional grouping or levels of supervision , but for the
purposes here setfoith.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do formulate and effectuate, management policies, and (2) to show certain state-
ments of policy allegedly formulated by the executive board of the Union re-
specting its relationship with non-supervisory employees in the event of strikes,'
and to show' a connection with and between the Union and United Steelworkers
of America, affiliated with the Congress of Industrial Organizations!
The undersigned, upon the objection of counsel for the Board, rejected offers
of proof made on the proffered testimony and refused a request for subpenas
directed to certain officers of the Union whose testimony was sought to establish
the facts pertaining to the respondent's second affirmative defense.
The undersigned finds that the above-described unit constitutes an appropriate
unit for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
On June 15, 1946, pursuant to an election held on May 28, 1946, among the
employees in the appropriate unit, the Board certified the Union as the exclusive
representative of all employees within the unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, and other
conditions of employment.
The undersigned finds, that at all times material herein, the Union was the
duly designated representative of a majority of the employees in the said
appropriate unit within the meaning of Section 9 (a) of the Act.
3. The refusal to bargain
The respondent admits, and the undersigned finds, that on June 28, 1946, the
Union wrote the respondent requesting a meeting for the purposes of collective
bargaining , and that on July 3, 1946, the respondent replied refusing the request,
advancing as its reason that the Board 's decision in the representation case was
erroneous , and that the respondent intended to seek a review of the decision.
The respondent admits, and the undersigned finds, that at all times since July 3,
the respondent has continued to refuse to meet with representatives of the
Union for the purposes of collective bargaining, or to iecognize the Union as the
bargaining representative of the employees within the unit.
The undersigned finds that on July 3, 1946, and at all times material there-
after, the respondent failed and refused to bargain collectively with the duly
designated representative of a majority of its employees within an appropriate
unit, thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
1V. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operation of the respondent as described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
4 To show, for example , that the supervisoiy employees agreed not to take the places of
strikers
5 The Board in Packard Motor Car Company and Foreman's Association of America,
61 N L. It B. 4 , considered this and similar contentions of the employer , and rejected
them
ALUMINUM COMPANY OF AMERICA
V THE REMEDY
29
Having found that the respondent has engaged in certain unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the undersigned finds will effectuate the policies
of the Act.
It has been found that the respondent has refused to bargain collectively with
the Union as the representative of its employees in an appropriate unit. In
order to effectuate the policies of the Act, the undersigned will recommend that,
upon request, the respondent bargain collectively with the Union as the exclusive
representative of its employees in the appropriate unit in respect to rates of pay,
wages, hours, and other terms and conditions of employment.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Foreman's Association of America (Independent), Chapter No. 254, is a
labor organization within the meaning of Section 2 (5) of the Act.
2. All foreladies, the assistant composition supervisor, the composition super-
visor, assistant unit foremen, unit foremen, assistant shift foremen or assistant
foremen, shift foremen or foremen, assistant general foremen, general foremen,
assistant supervisors and supervisors, in the production, inspection, and main-
tenance departments of the respondent's Edgewater plant, including the super-
visor in the planning department of the sheet mill who is in charge of the pre-
heat furnaces, but excluding all other supervisors, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. Foreman's Association of America (Independent), Chapter No. 254, was on
May 28, 1946, and at all times thereafter has been, the exclusive representative
of all the employees in such unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Foreman's Association of America
(Independent), Chapter No. 254, as the exclusive representative of the employees
in the appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
5 By said acts, the respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Aluminum Company of America, its officers, agents,
successors, and assigns shall
1 Cease and desist from :
(a) Refusing to bargain collectively with Foreman's Association of America
(Independent), Chapter No. 254, as the exclusive representative of the employees
in the aforementioned appropriate unit;
(b) Engaging in any other acts in any manner interfering with the efforts of
Foreman's Association of America (Independent), Chapter No. 254, to negotiate
for or represent the employees as the exclusive bargaining agent in the aforesaid
unit.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with Foreman's Association of America
(Independent), Chapter No. 254, as the exclusive representative of the employees
in the appropriate unit, and if an understanding is reached embody such under-
standing in a signed agreement ;
(b) Post at its plant in Edgewater, New Jersey, copies of the notice attached
hereto and marked "Appendix A " Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly signed by the
respondent's representative, be posted by the respondent immediately upon re-
ceipt thereof and be maintained by it for at least sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Second Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of the Intermediate Report, the respondent notifies said Re-
gional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 20339 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or coun-
sel for the Board may, within fifteen (15) days from the date of service of the
order transferring the case to the Board, pursuant to Section 203 38 of said Rules
and Regulations, file with the Board, Rochambeau Building, Washington 25,
D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon, to-
gether with the original and four copies of a brief in support thereof; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report Immediately upon
the filing of such statements of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.65. As further provided in said Section 203 39, should any party de-
sire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
Hoii . &cE A. RucKEL,
Trial Examiner.
Dated November 25, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
ALUMINUM COMPANY OF AMERICA 31
We will bargain collectively upon request with Foreman's Association of
America (Independent), Chapter No. 254, as the exclusive representative
of all employees in the bargaining unit described herein with respect to rates
of pay, hours of employment, or other conditions of employment, and if an
understanding is reached, embody such understanding in a signed agree-
ment. The bargaining unit is :
All foreladies, the assistant composition supervisor, the composition su-
pervisor, assistant unit foremen, unit foremen, assistant shift foremen or as-
sistant foremen, shift foremen or foremen, assistant general foremen, gen-
eral foremen, assistant supervisors and supervisors in the production,
inspection, and maintenance departments of the respondent's Edgewater
plant, including the supervisor in the planning department of the sheet
mill who is in charge of the pre-heat furnaces, but excluding all other
supervisors.
We will not engage in any acts in any manner interfering with the efforts
of the above-named union to negotiate for or represent the employees in the
aforesaid bargaining unit.
ALUMINUM COMPANY OF AMERICA,
By --------------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.