General Steel Tank Co.

National Labor Relations Board - Board Decisions

Mar 10, 1949

81 N.L.R.B. 1345 (N.L.R.B. 1949)

In the Matter of GENERAL STEEL TANK COMPANY, EMPLOYER and
SHOPMEN's LOCAL UNION No. 539 OF THE INTERNATIONAL ASSOCIA-
TION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL,
PETITIONER
Case No.10-RC-387.Decided March 10, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing officer
of the National Labor Relations Board. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer, within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.'
Chairman Herzog and Members Reynolds and Gray.
At the hearing, the Employer moved to dismiss the petition as premature, on the
ground that the Employer has not declined to recognize the Petitioner before the petition
was filed . The record shows that declinations occurred both in a letter to the Petitioner
after the filing of the petition , and at the hearing itself . We find that a question concern-
ing representation presently exists which can best be resolved by an election , and the
Employer 's motion to dismiss is, accordingly , denied . Matter of American Enka Corp.
(Lowland ), 80 N. L R . B. 298 ; Matter of Advance Pattern Company, 80 N. L. R. B. 29
(on reconsideration).
After the hearing , the Employer filed a motion to strike a brief of the Petitioner, which
set forth information not produced at the hearing , principally a chronology of events
regarding its letter to the Employer requesting recognition , the filing of its petition, and
the action of the Regional Office with respect to its investigation As each party is enti-
tled, under the Board 's Rules and Regulations , to file a timely brief commenting on the
evidence and setting forth its position , we shall deny the Employer ' s motion to strike the
81 N. L. R. B., No. 217.
1345
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The appropriate unit:
The Petitioner seeks a unit of all production and maintenance em-
ployees in the Employer's plant at Birmingham, Alabama, excluding
clerical and professional employees, office janitors, watchmen, and
supervisors as defined by the Act. The Employer contends that each
of its three production departments constitutes a separate appropri-
ate unit, but agrees on the specific exclusions and inclusions sought by
the Petitioner, except that the Employer would include three leadmen
whom the Petitioner regards as supervisors.
The Employer is engaged in fabricating steel sheets and plates into
storage and septic tanks, truck tank bodies, coal washing machinery,
and parts and accessories for such equipment. The Employer's pro-
duction operations are conducted through its Standard Tank, Truck
Tank, and Montgomery Coal Washing Machinery Departments.
The Employer's operations at the time of the hearing were conducted
in two separate buildings, with a third under construction, and ex-
pected to be ready for occupancy a few months after the hearing.
When this structure is completed, each of the Employer's three de-
partments will occupy its own building. The Employer has two fore-
men under its plant engineer, one of whom supervises the Truck Tank
Department, while the other supervises the Standard Tank and Coal
Washing Machinery Departments. Although there is no interchange
of employees between departments, the type of work done and the skills
required are similar. In all three departments, steel sheets or plates
are marked, fabricated, welded, and assembled into the Employer's
final products.
There are approximately 55 employees in Petitioner's proposed unit,
of whom about half are welders or semi-skilled helpers, employed in
each of the three departments. Maintenance work at the plant is done
by two or three machinists who work out of the machine shop, which is
a part of the Coal Washing Machinery Department. Aside from some
variation in the amount of heavy physical labor required, there are
no significant differences in working conditions between the three de-
partments. There is no previous history of collective bargaining. We
are satisfied that the establishment of three departments in the Em-
ployer's plant is not founded on differences in basic craft skills, but is
based on the Employer's convenience in having a separate organization
for each of the major products manufactured at the plant. We see no
Petitioner's brief. Our decision, however, denying the Employer' s motion to dismiss the
petition is not in any wise based upon consideration of factual material presented for the
first time in the Petitioner's brief, but solely upon evidence introduced into the record at
the hearing.
GENERAL STEEL TANS COMPANY 1347
cogent reason for finding less than a plant-wide production and main-
tenance unit to be appropriate.2
The parties agree that the truck drivers, all of whom are engaged in
making long over-the-road hauls of the Employer's products directly
to its customers, should be excluded from the unit. As the truck
drivers do not work at the plant, and may be absent from it for ex-
tended periods, we will, in conformance with the agreement of the
parties, exclude the truck drivers from the unit.
There are three persons who the Petitioner asserts are leadmen
possessing such supervisory status that they should be excluded. These
are Scroggins in the Standard Tank Department; Lovelady in the
Coal Washing Machinery Department; and Sweatt in the machine
shop adjunct of that department. Scroggins is classified as a tank
assembler. He operates a number of machines for rolling, shearing,
and punching steel sheets, assembles the sheets into tanks and partially
welds them. He has from one to three helpers assisting him in per-
forming these operations. Sweatt, classified as a machinist, is assisted
by two machinists in repairing plant machinery. Lovelady, who is a
skilled welder, does not appear to have any regular helpers. The Em-
ployer does not regard him as in any sense a leadman. Neither Sweatt
nor Scroggins may hire, dismiss or otherwise change the status of em-
ployees in their crew, and any recommendations they may make in that
regard are subject to further investigation by admitted supervisors
of the Employer. It appears that Scroggins spends all his time act-
ually working in production and whatever supervision he exercises over
other employees is merely of the type normally exercised by a skilled
workman over helpers. Although Sweatt is the person through whom
the plant engineer transmits orders to the employees in the machine
shop, there is no indication in the record that he has been given respon-
sibility to direct their work. On the entire record in the case, we are
not satisfied that Lovelady, Scroggins, or Sweatt exercises responsible
direction over the work of other employees or that their recommenda-
tions as to changes in status of employees have any effective weight.
We shall, therefore, include them in the unit as production and mainte-
nance employees.
We find that the following employees at the Employer's plant at
Birmingham, Alabama, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act : All production and maintenance employees,3 excluding cleri-
2 Matter of Cupples-Hesse Corporation, 80 N. L. R. B. 14; Matter of Sheffield Iron and
Steel Company , 77 N. L. It. B 998.
3 Including Scroggins , Lovelady, and Sweatt.
829595-50-vol. 81-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cal and office employees , truck drivers , office janitors , watchmen,4 and
supervisors as defined by the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer , an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction , under the direction and super-
vision of the Regional Director for the Tenth Region and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, as amended, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election , including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off , but excluding those employees who have since
quit or been discharged for cause and have not been rehired or re-
instated prior to the date of the election , and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented , for purposes of collective bar-
gaining, by Shopmen 's Local Union No. 539 of the International
Association of Bridge , Structural and Ornamental Iron Workers,
AFL.
* There is one full-time watchman employed at the plant who is engaged in enforcing
rules designed to prevent theft, fire, or other damage to the Employer 's property. We
find that he is employed as a guard and shall exclude him from the unit. Matter of C. V.
Hill & Co., Inc., 76 N. L. R. B. 159. An employee who works in the plant all week doing
general utility work relieves the full-time watchman on Sundays . As he spends the
majority of his time in production work , we shall include him as a production employee
in the appropriate unit. Matter of United States Gypsum Company, 79 N. L. R. B 536.