Donner-Hanna Coke Corp.

National Labor Relations Board - Board Decisions

May 21, 1941

31 N.L.R.B. 1139 (N.L.R.B. 1941)

In the Matter of DONNER-HANNA COKE CORPORATION and STEEL
WORKERS ORGANIZING COiVIMITTEE, LOCAL UNION 2268
Case No. R-24192-Decided May 01, 19V
Jurisdiction : coke and its byproducts manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition, no provision made on ballot for intervenor
which has not made a sufficient showing of current designation by employees
of the Company; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees of the Company, exclusive of foremen. exeentives, office employees,
watchmen and guards
O'Brian, IJellings, Ulsh and Morey, of Buffalo, N. Y., by Mr. Dana
B. Hellings and Mr. John Pan Sickle. - for the Company.
Mr. Philip Halpern, of Buffalo, N. Y., for the S. W. O. C.
Mr. John Miller, Mr. Oscar Griffin, Mr. Davidson and Mr. L. Eggler,
ull of Buffalo, N. Y., for the E. R. P.
Mr. Louis S. Penfield, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION,
STATEMENT OF THE CASE
On April 8, 1941, Steel Workers Organizing Committee, Local
Union 2268, herein called the S W. O. C., filed with the Regional
Director for the Third Region (Buffalo, New York) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Donner-Hanna Coke Corporation,
Buffalo, New York, herein called the Company, 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 April 21, 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,investiga-
iion and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice.
31 N. L R. B, No. 172
441 5 43-4 2-iol 31--T t
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1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 20 , 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon the S. W.
O. C., and upon Employees Representation Plan, herein called the
E. R. P., which claims to,represent employees directly affected by
the investigation. Pursuant to notice a hearing was held at Buffalo,
Neiv York, on April 23, 1941, before Edward D. Flaherty, the Trial
Examiner duly designated by the Chief Trial Examiner . The Com-
pany and the Union were represented by counsel, the E. R. P. by
its representative; all participated in the hearing. At the conclusion
of the hearing the S. W. O. C. moved to strike the testimony given
by representatives of the E. R. P. on the ground that the E. R. P.
was not properly a/party to the proceedings and that it had made
no prima facie case entitling it to a place on the ballot. This motion
was denied by the Trial Examiner. During the course of the hearing
the Trial Examiner made several other rulings on motions and on "
objections to the admission of evidence . The Board had reviewed all
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
I. TIIE BUSINESS ' OF THE COMPANY
Donner-Hanna Coke Corporation, a New York corporation, is en-
gaged in business at Buffalo, New York, in the manufacture and sale of
coke and its byproducts. In connection with its business the Company
purchases coal, sulphuric acid, wash oil, lime, and caustic soda. For
the past 3 years approximately 95 per cent of the aforesaid raw
materials with an average annual value of approximately $4,800,000,
have been shipped to Buffalo from points outside the State of New
York. The average annual value of the products produced by the
Company is $6,000,000 for the coke and $2,000.000 for the byproducts.
Approximately 10 percent of the coke and 20 percent of the byprod-
ucts are shipped to customers outside the State of New York.
II. THE ORGANIZATION INVOLVED
Steel Workers Organizing Committee, Local Union 2268, is a
labor organization affiliated with the Congress of Industrial Organ-
izations. It admits to membership employees of the Company.
III. THE QUESTION CONCERNING-REPRESENTATION
Shortly before the filing of the petition herein, the S. W. O. C.
requested of the Company -recognition as the statutory representative
of its employees . The company refused to grant recognition until
}
DONNER-HANNA COKE CORPORATION 1141
the S. W 0. C. had been certified as such representative by.the
Board.
A statement of the Regional Director introduced in evidence shows
that the S. W . 0. C. represents a substantial number of employees
in a 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
The S. W. 0. C. and the Company agreed that all production and
maintenance employees, exclusive of foremen, executives, office em-
ployees, watchmen, and guards, constitute a unit appropriate for the
purposes of collective bargaining.2 Although the parties agreed on
the scope of the unit, there was some dispute regarding the status of
certain persons whose names appeared on a pay roll introduced in evi-
dence which purported to contain only the names of persons within
the agreed unit. At the hearing agreement was reached among the
parties with respect to the status of some of the persons," but not as
' The statement of the Regional Director shows that 231 authorization cards were sub-
mitted to him, 6 dated between April 1938 and September 1940, 4 undated, and the remain-
(lei dated between, October 1 1940, and April 1, 1941 Two hundred and seventeen of these
cards appear to bear genuine, ouginal signatures The Company's pay roll of April 1 to 15,
1941, contains the names of approximately 370 persons in the appropriate unit The state-
ment does not show how many of the cards bear the names of persons on this pay roll.
The Company how ever did not contest the assertion that the S W. 0 C represents a sub-
stantial number of employees
2 The E R P. took the same position as the Company with respect to the appropriate
unit Since, however, as we find below, the E R P has made no showing of designation,
by employees as their bargaining representative, and will not be accorded a place on the
ballot in the election to be conducted, we shall weigh its contentions with respect to the
appropriate unit in the light of those facts. Cf Matter of Western Union Telegraph Com-
pany and American Federation of Labor, Federal Union No 221,60, 30 N L R. B 679
3 The parties agreed that the following persons whose names appear on such pay roll
should be excluded from the agreed unit. Gerald Coveny, Herbert L Stage, Alfred Tilbury,
Edwaid J llammersmith, Hairy E Lain, Alfred Wolfmueller, William J Linder, Peter
Darbrake. John C. Scott, Phillip Pizzuti, \Iark,Ilolden, Arthur Ludlow-, Paul E Griffin, Carl
E Nash, Virgil Sallee
The parties agreed that the following persons whose names appear on such pay roll should
be included in the agreed unit : Charles Rindflelsch, William Troy, Fred J Piegay, Jr,
Stephen Berner, Roman Rusky, Samuel Ferguson, Frank Harm, Charles R. Isch, Clayton
P Obersheimer, Robert Walbridge, Ivan Tamsic, Ferdinand Critz, Stanley Borsrer, Frank
Donahy.
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1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to others. We shall consider the individuals concerning whom there,
is disagreement.
The'S. W. O. C. wishes to exclude from the unit Edward Sprickman,
Arnold James, and Thomas Metty. The first two work full time
as night yardmasters, while the third, listed as spare night yardmaster,
works five shifts a week performing the same duties. On their re-
spective shifts each of the men is in charge of one or two engines and
supervises their crews, although each performs a limited amount of
manual work. They are hourly paid employees who work under the
general "supervision of the day yardmaster, a salaried employee con-
ceded to have supervision over yard employees on all shifts. Only the
day yardmaster has the power to hire or discharge, but the night yard-
masters make recommendations with respect.to the hiring and dis-
charging of men working under them. We are of the opinion, and
find, that the duties of Sprickman, James, and Metty are largely
supervisory and that they should be excluded from the unit.
The S. W. O. C. also wishes to exclude August Klavoon, a head
pipe, fitter, working in charge' of seven pipe fitters and performing
a certain amount of manual work himself. Klavoon works at an
hourly rate, under the general supervision of a master mechanic. He
has the power to recommend hiring and discharge. We are of the
opinion, and find, that Klavoon's duties are largely supervisory and
that he should be excluded from the unit.
The S. W. O. C. would also exclude from the unit Lawrence Meehan,
Allen' Hamm; William Knott, and John Hackett, boilerhouse engi-
neers,. Each, engineer is in charge of the boilerhouse'on his respective
shift but the principal supervisory functions in connection with all
shifts are exercised by a chief engineer. We are of the opinion, and
find, that, although the duties of boilerhouse engineers include a
degree of authority to direct firemen and ashmen working in the
boilerhouse, such authority is only incidental to their main functions
and that they should not be classified as supervisory employees. Ac-
cordingly; we find that the aforementioned boilerhouse engineers
should be included in the unit.
The S. W. O. C. seeks to exclude Fred Rorick, an hourly paid
employee in charge of the rigging gang. Rorick works under the
general supervision of the master mechanic, bosses the work of five
employees, and performs some work himself. He has the power to
recommend hiring, and discharge. We are of the opinion, and find,
that the duties of Rorick are largely supervisory and that he should
be excluded from the unit.
The S. W. O. C. requests that Cecil George and Carlo Boccolucci,
salaried employees whose duties consist in making chemical tests of
coal and its byproducts under the supervision of the chief chemist,
DOI\^TER-HANNA COKE CORPORATION 1143
be -excluded from the unit on the ground that they are salaried
employees performing work .of a professional character . These men
appear to have little in common with the ordinary hourly paid
employees who comprise the agreed unit. Accordingly, Ave find that
George and Boccolucci should be excluded from the unit.
The S. W. 0. C. seeks to exclude William Hamilton and Chester
Adams, clerks in the master mechanic 's office and in the yard , respec-
tively, on the ground that they are clerical salaried employees.- , Both
are salaried employees, and although in the course of their duties
each performs some manual labor, the greater percentage of their
work, is clerical. We are of the opinion that they are properly
classified with the clerical employees, and find that they should be
excluded from the unit.
We find that all production and maintenance employees, exclusive
of foremen , executives , office employees , watchmen , and guards, con-
stitute a unit appropriate for the purposes of collective bargaining,
and that such unit will insure to employees of the Company the full
benefit of their right to self-organization and to collective bergainiiig
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 in the unit which we -have, found to be,appro-
priate can best be resolved by an election by secret ballot.
The S. W. 0. C. objected to the name of the E. R. P. appearing
on the ballot. Testimony was adduced at the hearing that the
E. R. P. had been in existence since 1933 and that in an election
conducted in June 1940, 96 per cent of the employees of the Company
had voted to elect representatives under the plan. All employees of
the Company were eligible to vote in such election solely by virtue
of their employment and were necessarily represented by the elected
representatives of the E: R. P., irrespective of whether or not they
participated in such election. In view of the latter fact and, the
fact that in any event the election occurred nearly 1 year ago, we
find that the E. R. P. has not made a sufficient showing . ,of current
designation by employees of the Company to warrant a' place on
the ballot.
Neither the Company nor the S. W. 0. C. took any position in
regard to'-a pay-roll date- for determining the eligibility of voters.
Accordingly , we shall follow our usual rule and direct that those
eligible to vote in the election shall be the employees in the
appropriate unit who were employed by the Company . during the
pay-roll period immediately preceding the date of the Direction of
`'-Pl44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Election herein, subject to such limitations and additions as are set
forth in our Direction of Election.
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 Donner-Hanna Coke Corporation, Buffalo.
New York, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company, ex-
clusive of foremen, executives, office employees, watchmen and guards,
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 Relations Act,
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 Donner-Hanna Coke Corporation, Buffalo, New York, an elec-
tion by secret ballot shall be conducted as early as possible, but not
later than thirty (30) days from the date of this Direction, under the
Direction and supervision of the Regional Director for the Third
Region, acting in this matter as agent for the National Labor Rela-
Lions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production and maintenance employees whose
names appear on the pay roll of the Company for the period immedi-
ately preceding the date of the Direction of Election, including em-
ployees who did not work during such pay-roll period because they
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding foremen, ex-
ecutives, office employees, watchmen and guards, and those persons
who have since quit or been discharged for cause, to determine whether
or not they desire to be represented by Steel Workers Organizing Com-
mittee, Local Union 2268, for purposes of collective bargaining.