Electric Metallurgical Co.

National Labor Relations Board - Board Decisions

Jul 22, 1946

69 N.L.R.B. 772 (N.L.R.B. 1946)

In the Matter Of ELECTRO METALLURGICAL COMPANY and UNITED
STEELWORKERS OF AMERICA, CIO
Case No.10-R-1'761.Decided July 22,1946
Mr. William C. Treanor, of New York City, and Mr. Burton R.
Buck, of Sheffield, Ala., for the Company.
Messrs. R. M. Poarch and if. J. Shewnurke, both of Birmingham,
Ala., for the CIO.
Mr. Paul Chipman, of Atlanta, Ga., and Mr. W. H. Johnson, of
Sheffield, Ala., for the TAM.
Mr. Robert Lanier, of Sheffield, Ala., for the Iron Workers.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America,
CIO, herein called the CIO, alleging that a question affecting com-
merce had arisen concerning the representation of employees of
Electro Metallurgical Company, Sheffeld, Alabama, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Albert D. Maynard, Trial
Examiner. The hearing was held at Sheffeld, Alabama, on May 10,
1946. The Company, the CIO, International Association of Machin-
ists, Lodge 1189, herein called the TAM, and International Association
of Bridge Structural and Ornamental Iron Workers, Local Union
477, herein called the Iron Workers, appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
1 The Iron Workers moved to intervene, and the Trial Examiner granted the motion.
Later, the Iron Workers ' representative withdrew from the hearing without notice to the
Trial Examiner or to any of the parties . Upon discovery of the withdrawal , the Trial
Examiner stated that he would no longer regard the Iron Workers as a party to the
proceeding . After the hearing , in response to the Board 's telegram notifying it of exten-
sion of time for filing briefs, the Iron Workers sent a telegram to the Board stating, inter
alia, that it had intervened "in support of the agreement" between the Company and the
IAM. We therefore consider the Iron Workers as an intervenor.
69 N. L. R. B., No. 94.
772
ELECTRO METALLURGICAL COMPANY 773
issues. The Company, the TAM, and the Iron Workers moved to
dismiss the petition . For reasons stated in Sections III and IV, infra,
the motions are hereby denied. The Trial Examiner 's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Electro Metallurgical Company is it West Virginia corporation
engaged in the manufacture, sale, and distribution of ferro-alloys. It
operates eight plants located in Canada and the United States, includ-
ing its plant at Sheffield, Alabama, the only one involved in this
proceeding. During the year ending December 1945, the Company
purchased in excess of $1,000,000, worth of raw materials, approxi-
mately 75 percent of which was shipped to its plant in Sheffield,
Alabama, from States other than the State of Alabama. During the
same period, the Company at its Sheffield, Alabama, plant sold in
excess of $1,000,000, worth of finished products, about 90 percent of
,which was shipped to, into, and through States other than the State of
Alabama.
The Company admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America is a labor organization, affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
International Association of Machinists, Lodge 1189, is a labor
organization admitting to membership employees of the Company.
International Association of Bridge, Structural and Ornamental
Iron Workers, Local Union 477, is a labor organization, admittting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the CIO as the
exclusive collective bargaining representative of certain of its employ-
ees until the CIO has been certified by the Board in an appropriate
unit.
On March 23,1945, the IAM first notified the Company of its interest
in employees of the Traffic and Maintenance Departments. On De-
cember 14, 1945, the Company and the IAM entered into a written
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement defining a bargaining unit (Traffic and Maintenance De-
partment employees only) and providing for recognition of the TAM
if it won a card-check to be conducted by the United States Concilia-
tion Service. At this time, the CIO had apparently not begun organ-
izing the Company's plant.
A Commissioner of the United States Conciliation Service held the
card-check on December 14, 1945, and found that 43 of the 60 em-
ployees in the unit had signed cards.2 Accordingly, the Commissioner
"found and determined" that a majority of the employees in the unit
desired to be represented by the TAM. The TAM and the Company
then entered into negotiations 3 which culminated on March 7, 1946,
with the signing of a 1-year collective bargaining contract 4 covering
employees in the Traffic and Maintenance Departments. The previous
day, March 6, 1946, the Company had received a letter from the CIO
in which the CIO requested recognition as the bargaining agent for a
plant-wide unit. The Company replied on March 14, 1946, suggesting
that the CIO submit the matter to the Board. The CIO filed the
present petition on March 11, 1946.
The TAM and the Iron Workers assert that the card-check and the
subsequent contract between the TAM and the Company constitute
bars to the present proceedings, at least, insofar as it affects employees
of the Traffic and Maintenance Departments. The Company states
that it entered into the contract in good faith and does not desire to
contend either that the contract is or is not a bar.
We are of the opinion that neither the card-check nor the contract
precludes a present determination of representatives. The record
discloses that neither the card-check agreement, nor the results of the
card-check were posted. Under our present procedure, if it appears
as the result of a cross-check that the union involved has been desig-
nated by a majority of employees in the agreed unit, notices to that
effect are posted on the employer's premises for a period of 5 days,
during which any interested party has an opportunity to file objections
to the conduct of the cross-check. Where this procedure is followed,
the cross-check has effect equal to that of a secret election. On the
other hand, where, as here, such safeguards are absent, the Board'
will not consider the card-check as satisfactory as the election method
of ascertaining the true desires of employees.5
' The "cards" were union representation authorization forms.
In these negotiations , the IAM, in accordance with oral arrangements with the Iron
Workers, acted on behalf of all affected employees , including a few Iron Workers ' members.
The Iron Workers was not represented at the conference, nor does its name appear in the
contract itself.
* The contract was renewable automatically from year to year, unless terminated by
60 days' prior written notice by either of the parties.
L Matter of Joe Hearin, Lumber, 68 N. L. R. B . 150. Moreover, in Matter of Victory
Chemical Company, 60 N. L. R. B. 997, the Board held that recognition based on a card-
ELECTRO METALLURGICAL COMPANY 775
Before the contract between the IAM and the Company was signed,
the CIO had notified the Company, in writing, that it represented a
majority of the Company's employees and desired recognition as
their exclusive bargaining represenative. Since this notice was
timely, and was followed within 10 days by the filing of the petition,
the contract is not a bar to a present election.°
The Company and the IAM objected to the proceedings on the
ground that the report on investigation of interest of contending labor
organizations was not put in evidence. This objection has no merit.?
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The CIO seeks a unit composed of the Company's production and
maintenance employees, while the IAM contends that a unit of the
Maintenance and Traffic Departments employees is appropriate. The
Company takes a neutral position.
The Company has divided its plant into 6 departments, 3 of which
(mix, furnace, and packing) are considered production departments,
and the other 3 (traffic, maintenance, and laboratory) are considered
auxiliary or "overhead expense" departments. The Maintenance De-
partment consists of approximately 50 employees of all trades and
skills classified as mechanics. Their job is to maintain and repair
equipment in all departments. About 65 percent of their work is
done within the Maintenance Department building, and 35 percent
takes them into the Traffic Department and the production depart-
ments. The Traffic Department consists of about 21 employees. Their
job is to transport raw materials coming into the plant to the raw
material bins and to transport finished products to storage piles or
to railroad cars for shipment. For this purpose, they use Diesel
check conducted by a Commissioner of the United States Conciliation Service was not a
bar to the direction of an election.
The IAM relies on Matter of Adams and Westlake Company, 30 N. L. R. B. 1222, in
which the Board found that an exclusive recognition agreement based upon a card-check
conducted by "an independent third party " was a bar to an election within 1 year. How-
ever , that case was later specifically overruled to the extent that it holds that a bare
grant of exclusive recognition , is, of itself , sufficient to preclude an election . Matter of
Henry Weis Manufacturing Company, 49 N. L. it. B. 511.
Matter of General Electric X-Ray Corporation, 67 N. L . R. B. 997 ; Matter of Eicor,
Inc., 46 N . L. it. B. 1035 ; Matter of Mill B ., Inc., 40 N. L . it. B. 346. The IAM cites Mat-
ter of Hettrick Manufacturing Company , 25 N. L . it. B.722 , in which the Board, held that
no election would be conducted during the term of a contract executed in the interim
between oral notification to the employer of the claim of the petitioning union and the
filing of the petition . The doctrine of the Hettrick case has not been followed by the
Board in recent years. Insofar as it is inconsistent with anything contained herein, the
Hettrick case is hereby specifically overruled.
7 Matter of O. D. Jennings & Company, 68 N. L. it. B. 516.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
locomotive cranes and Diesel locomotives. Each of the 6 departments
has its own supervision , but there is the same over-all general super-
vision. Each department is set up separately on the Company's pay
roll. There appear to be no definite craft lines between the depart-
ments. The production departments and the Traffic Department
operate 3 shifts daily, while the Maintenance Department operates
only 1 shift. The Maintenance Department is in a separate building.
The Traffic Department is also separated physically from the other
departments. There is some interchange of employees between the
Traffic Department and the Maintenance Department, but there is
virtually no interchange between the Traffic and Maintenance De-
partments on the one hand and the production departments on the
other hand.
The history of collective bargaining in this plant is comparatively
recent. The IAM apparently started organizing the Traffic and Main-
tenance Departments in March 1945. It conferred with the Company
on behalf of the employees in these two departments from the card-
check of December 1945, until the consummation of the present con-
tract, a few days before the instant petition was filed. There is no
evidence that the CIO asserted any,interest in the Company's em-
ployees prior to March 5, 1946.
In the past, the Board has had occasion to determine appropriate
units in cases involving other plants of the Company. In two cases
the Board, in accordance with the desires of the parties, found a
plant-wide unit to be appropriate.' In a third case the Board es-
tablished a plant-wide unit over the objections of two of the unions?
In a fourth case the Board directed separate elections in two groups
of trainmen and firemen, respectively, reversing its previous holding
which established a plant-wide unit.1o Likewise, in a fifth case the
Board directed a separate election among Maintenance Department
employees over the objection of a union which sought a plant-wide
unit.,'
The operations of the entire plant are sufficiently integrated to make
feasible and appropriate for bargaining the plant-wide unit requested
by the CIO. On the other hand, the employees of the Traffic and
Maintenance Departments form an identifiable group working under
conditions differing somewhat from the conditions obtaining through-
out the remainder of the plant, and have carried on bargaining with
the Company as a separate group. Since the factors supporting the ap-
propriateness of a plant-wideunit and of a separate unit for Traffic
Matter of Electra Metallurgical Company , 8ubatituted for American Carbolite Company,
Inc., 45 N . L. R. B. 335, 339 (Duluth , Minnesota ), and Matter of Electro Metallurgical
Company, 51 N. L. R. B. 37 ( Alloy and Glen Ferris , West Virginia).
O Matter of Electro Metallurgical Company , 54 N. L. It. B. 15 ( Ashtabula , Ohio).
10 Matter of Electro Metallurgical Company, 57 N. L . R. B. 1764, reversing 57 N. L. R. B.
518 (Niagara , New York).
11 Matter of Electra Metallurgical Company, 56 N. L. It. B. 1464 ( Spokane, Washington).
ELECTRO METALLURGICAL COMPANY 777
and Maintenance Departments employees are evenly balanced, we are
of the opinion that the determination of the appropriate unit with
respect to the employees in question should depend, in part, upon the
desires of such employees, to be expressed in the elections hereinafter
directed among the voting groups set forth below. Consequently, we
shall make no final determination of the appropriate unit at this time,
but shall defer the determination pending the results of said elections.
In the Traffic and Maintenance Departments group all parties have
agreed on the exclusion of the leader maintenance, who is clearly a
supervisory employee with power to discharge and recommend hiring.
The parties have also agreed to exclude the toolroom attendant, who
is a clerical employee.
In the remainder of the plant the CIO and the Company agreed 12
on the inclusion of the head furnacemen, the leaders utility men, head
tappers, leaders mix department and leaders packing department, all
of whom are hourly paid employees with minor supervisory status,
lacking authority to recommend hire, discharge, promotion, demotion
or transfer. The CIO and the Company agreed to exclude gate at-
tendants, the first aid attendant, the leader guard, the master me-
chanic, the assistant chief electrician, Traffic Department foremen,
switchroom operators, the clerk in the packing department, weighers,
all chemists and analysts, and all clerical and supervisory employees
paid on a salary basis. We shall respect the wishes of the parties
with respect to the inclusion or exclusion of the various groups of
employees described above.
The CIO seeks the inclusion of leaders tapper and four sample pre-
parers but the Company expresses no opinion with respect to the in-
clusion or exclusion of these employees. Leaders tapper supervise
operations in the furnaces and are hourly paid. They have no au-
thority to hire or discharge, but may recommend hiring and dis-
charging. We are of the opinion that the leaders tapper fall within
our usual definition of supervisory employees, and should therefore
be excluded from any unit of production and maintenance employees.
Sample preparers are hourly paid unskilled workers who prepare
samples for the chemists and analysts. We believe that they should
be included in the group of production and maintenance employees.
Tie Company desires to exclude storeroom attendants as confiden-
tial employees, while the CIO desires the Board to determine their
status. These men work in the storeroom and keep records of incom-
ing and outgoing supplies and also sell supplies to other employees.
We consider these employees as clerical employees, and shall there-
fore exclude them from any unit of production and maintenance
employees.
12 The IAM apparently has no interest in the remainder of the plant.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company wants the guards excluded, while the CIO desires to
include them. They are deputized, bonded, and carry arms, but they
are not militarized. In accordance with our usual practice, we shall
exclude them from any unit of production and maintenance
employees.13
We shall direct that the question concerning representation which
has arisen shall be resolved by separate elections by secret ballot to be
held among the employees of the Company at its Sheffield, Alabama,
plant within each of the voting groups listed below who were em-
ployed during the pay-roll period immediately preceding the date of
the Direction of Elections herein, subject to the limitations and addi-
tions set forth in the Direction. Our determination of an appropri-
ate unit or units, if any, will depend, in part, upon the results of said
elections. There shall be excluded from each of said voting groups,
in addition to the employees specifically mentioned therein, all chem-
ists, analysts, clerical employees, guards, leaders guard, and all super-
visory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action. The respective voting groups
shall be :
1. All employees of the Traffic and Maintenance Departments,
excluding leaders maintenance and toolroom attendants.
2. All other employees of the Company, including head furnace-
men, leaders utility men, head tappers, leaders mix department, lead-
ers packing department and sample preparers, but excluding gate
attendants, first aid attendants, master mechanics, assistant chief
electricians, Traffic Department foremen, switchroom operators, clerks
in the packing department, weighers, leaders tapper, storeroom at-
tendants, and the employees in voting group 1.
The IAM has stated that, although it desires to participate in the
election in the Traffic and Maintenance Departments, it does not wish
to appear on the ballot in the election in the remainder of the plant.
We shall so direct. As the Iron Workers apparently did not desire to
appear on the ballot, we shall direct that its name shall not appear on
the ballots in either of the elections.
DIRECTION OF ELECTIONS
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
13 Matter of Columbian Paper Company, 60 N. L. R. B. 1201; Matter of Ingalls Ship-
building Corporation , 59 N. L. R. B. 924.
ELECTRO METALLURGICAL COMPANY 779
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Electro Metal-
lurgical Company, Sheffield, Alabama, elections 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 Tenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Arti-
cle III, Sections 10 and 11, of said Rules and Regulations, among the
following groups of employees who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, and including employ-
ees in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the elections, and excluding also all chemists and
analysts, clerical employees, guards, leaders guard, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees or effectively rec-
ommend such action :
(1) All employees of the Traffic and Maintenance Departments
employed by the Company at its Sheffield, Alabama, plant, excluding
leaders maintenance 'and toolroom attendants, to determine whether
they desire to be represented by United Steelworkers of-America, CIO,
or by International Association of Machinists, Lodge 1189, for the
purposes of collective bargaining, or by neither;
(2) All other employees at the Sheffield, Alabama, plant including
head furnacemen, leaders utility men, head tappers, leaders mix de-
partment, leaders packing department, and sample preparers, but
excluding gate attendants, first aid attendants, master mechanics, as-
sistant chief electricians, Traffic Department foremen, switchroom
operators, clerks in the packing department, weighers, leaders tapper,
storeroom attendants, and the employees in voting group (1), to
determine whether or not they desire to be represented by United
Steelworkers of America, CIO, for the purposes of collective
bargaining.