Halstead & Mitchell Co.

National Labor Relations Board - Board Decisions

Apr 6, 1965

151 N.L.R.B. 1460 (N.L.R.B. 1965)

1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that all the clauses here involved , even if revelant , are ambiguous,
if not clearly valid, I will recommend that the complaint be dismissed.21
RECOMMENDED ORDER
IT IS ORDERED that the complaint herein be, and it hereby is, dismissed in its
entirety.
2' Insofar as this case involves an attempt by General Counsel to impale Respondent
on its own self-serving misinterpretation of its contract , a violation finding might well
serve the ends of poetic justice. However , a Trial Examiner is limited to dispensing a
more prosaic brand of justice.
Halstead & Mitchell Co. and Sheet Metal Workers' International
Association, Local Union No. 12, AFL-CIO, Petitioner. Case
No. 6-RC-3667. April 6, 1965
DECISION ON REVIEW
On December 2, 1964, the Regional Director for Region 6 issued
the attached Decision and Order in the above-entitled proceeding
dismissing the petition on the ground that the requested unit was
inappropriate.' Thereafter, the Petitioner, in accordance with Sec-
tion 102.67 of the National Labor Relations Board's Rules and Regu-
lations, Series 8 , as amended, filed with the National Labor Relations
Board a timely request for review and a brief in support thereof,
contending that the Regional Director erroneously applied the
Board's precedents in reaching his unit finding. The Employer filed
a statement in opposition thereto. The Board by telegraphic order
dated December 29, 1964, granted the request for review. A brief
on review in support of the Regional Director's determination was
filed by the Employer.
The Board has considered the entire record in this case, with
respect to the issue under review, together with the parties' briefs,
and is of the opinion that the facts clearly support the Regional
Director's determination that the unit requested herein is not appro-
priate? Accordingly, we hereby affirm his Decision and Order.
'As appears in the attached Decision and Order , the Petitioner ' s unit request is
basically confined to employees of the named Employer , referred to hereinafter as H & M,
and would exclude the employees of Halstead Metal Products , Inc., hereinafter referred
to as HMP.
21n affirming the Regional Director's finding that the requested unit is inappropriate,
we rely especially on the circumstances of this case revealing that the Employer's HMP
plant is only 1,500 to 2,000 feet away from the H & M plant , that HMP's tube mill is
located in the same plant as H & M's production facilities , and that about half the em-
ployees sought , even though on H & M's payroll , work in departments that are common
to both companies , i.e., maintenance ( which includes maintenance of tools , electrical in-
stallation and maintenance , and all welding ), construction , machine shop , and shipping
.and receiving.
151 NLRB No. 143.
HALSTEAD & MITCHELL CO. 1461
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held before Hearing
Officer Sidney Lawrence 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 Act, the Board
has delegated its powers in connection with this case to Regional
Director Henry Shore.
Upon the entire record in this case,' I find :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert juris-
diction herein.
2. The labor organization involved claims to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the repre-
sentation of certain employees of the Employer within the meaning
of Section 9(c) (1) and Section 2(6) and (7) of the Act, for the
following reasons :
The Petitioner seeks a unit of all production and maintenance
employees of Halstead & Mitchell Co., including garagemen and
truckdrivers. The Employer contends the only appropriate unit is
one encompassing the production and maintenance employees of Hal-
stead Metal Products, Inc., in addition to the employees sought by
the Petitioner. The Petitioner, in effect, seeks to represent about 210
employees employed by Halstead & Mitchell Co., herein called
H & M, to the exclusion of some 350 employees in the employ of
Halstead Metal Products, Inc., herein called HMP. There is no
bargaining history affecting the employees of either corporation.
H & M is a Pennsylvania corporation engaged in the production
and sale of water-cooled condensers. HMP, also a Pennsylvania
corporation, is a wholly owned subsidiary of H & M, except for one
qualifying share owned by each member of the board of directors,
and was created in 1954 for the express purpose of manufacturing
copper tubing for the use of H & M. Prior to 1954, H & M processed
its own copper tubing but, at the time of HMP's incorporation, trans-
ferred to the new corporation all of the equipment and machinery
utilized in the manufacture of copper tubing. All employees engaged
in such production processes were also transferred from H & M's pay-
'In the absence of objections by the Petitioner, the Employer 's motion to correct the
transcript of the record in certain respects is hereby granted.
Pursuant to the posthearing stipulation of the parties , Exhibit A attached to the
Employer 's brief is hereby received in evidence and made part of the record herein.
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll to HMP's payroll. H & M buys all of its copper tubing require-
ments from HMP and sells its scrap to HMP for reprocessing. Ten
percent of HMP's output is sold to H & M, the remainder being sold
to other customers.
The facilities of both companies are presently housed in two plants
approximately 1,500 to 2,000 feet apart in Zelienople, Pennsylvania.
Plant No. 1 houses H & M's production facilities, HMP's tube mill,
the administrative offices shared by both corporations, the engineer-
ing department, the shipping and receiving department, two truck-
loading docks (one for each corporation), and two receiving docks
(one for each corporation). Each corporation owns that portion of
the plant which each occupies, although part of the space owned
by HMP is rented to H & M. H & M's production facilities and
HMP's tube mill are separated by open passages. In plant No. 2
are located the remainder of HMP's production facilities, a truck-
loading dock, and a rail siding. In addition, H & M is presently
constructing a new wing on plant No. 2 designed to provide addi-
tional space for the machine shop and for the fabrication of ma-
chinery. At present, the machine shop is located in a smaller build-
ing between the two plants and houses the facilities for the machine
shop, tool fabrication, and maintenance welding.
The following departments are common to, and service, both corpo-
rations, the cost of their services being allocated to each corporation
on a time-cost basis : maintenance, construction, machine shop, ship-
ping and receiving, trucking, industrial engineering, accounting, pur-
chasing, personnel, and plant protection. There are approximately
25 to 30 employees in maintenance, about 30 in construction, 25 to 30
in the machine shop, 8 to 9 in shipping and receiving, 25 to 30 truck-
drivers and garagemen, and 2 guards. The record does not indicate
the employee complement in the remaining departments. Normally,
the employees in maintenance, construction, machine shop, and ship-
ping and receiving are carried on H & M's payroll. The employees
in accounting and industrial engineering are paid by H & M or
HMP, depending on whether most of their regular work is per-
formed for one or the other corporation. H & M has only one truck-
driver on its payroll, the other truckdrivers and garagemen being on
HMP's payroll. It is clear, however, that regardless of whose pay-
roll they are on, the employees employed in each of the departments
discussed above devote substantial portions of their time performing
work for both corporations. In addition, H & M performs produc-
tion services for HMP, such as sheet metal fabrication work, or
cutting and degreasing copper billets prior to their being processed
by HMP.
HALSTEAD & MITCHELL CO. 1463
The record reveals a total of approximately 24 employee transfers
from H & M to HMP between January 1 and September 14, 1964,
and 19 transfers from HMP to H & M during the same period.
Although the extent to which such intercompany transfers may have
been temporary or permanent in nature is not clear from the record,
there is evidence to indicate that employees have transferred from
one corporation to the other for short periods of time. In addition,
intercompany or intracompany transfers may result from employees
successfully bidding on jobs posted by the personnel department.
Employees from both corporations can bid on such jobs and are
selected on the basis of their ability and overall seniority. During
the 8-month period prior to September 1, 1964, some 12 jobs were
open for bidding resulting in 6 intercompany transfers, 3 of which
are reflected in the 19 above-noted transfers from HMP to H & M.
The record further shows that during a sample weekly period
(from August 24 to 29, 1964) there were 53 instances when H & M
production or service department employees performed work for
HMP and 17 instances when IMP employees performed work for
H & M. Although the employees involved in each instance may or
may not have been working in the facilities specifically owned by the
corporation using their services, such corporation would nonetheless
be charged for their time.
The personnel office interviews applicants and maintains an active
file of their employment applications. As the need arises, employees
are hired by the personnel office and are placed on the payroll of
whichever corporation requires additional personnel. Departmental
seniority is determinative for purposes of short term layoffs, such as
1 week to 10 days. Although layoffs of longer duration do not
appear to have actually occurred, employees have been informed by
the Employer that they would be selected for such layoffs on the
basis of their companywide seniority. Seniority for purposes of
vacations, holidays, retirement pensions, and insurance is computed
on the basis of length of service since the date of original hire.
Whenever feasible, employees have been given an opportunity to
transfer from one corporation to the other, thereby avoiding the
necessity of being laid off. Thus, in the early part of 1964, and
because of overhiring at HMP, employees were offered to transfer
to H & M where they were needed, until such time as jobs became
available at HMP and the employees chose to return to said corpora-
tion. Of the employees transferred at that time, substantially all of
them have since chosen to remain with H & M rather than returning
to HMP. Again 3 or 4 years ago, some 20 employees, who would
otherwise have been laid off, transferred from H & M to HMP with
the understanding they could return to H & M when conditions per-
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted. Of approximately 20 employees involved, 3 or 4 have since
chosen to go back to H & M, the balance elected to remain with HMP.
While separate payrolls are maintained and different colored
badges distinguish the employees of one corporation from the other,
employees of both corporations work substantially the same hours,
receive the same shift differential payments, enjoy identical vacation,
holiday, and bonus benefits, are covered by the same insurance and
pension programs, participate in the same educational and recrea-
tional programs, and share common parking and locker room
facilities.
H & M operates either a one- or two-shift operation, while HMP
utilizes three shifts. When working on the second or third shifts,
the employees of both corporations are under common supervision.
Moreover, supervisors of the construction, maintenance welding and
tooling, shipping, and trucking departments frequently have employ-
ees of both corporations working under their immediate supervision.
In view of common ownership and control, centralized manage-
ment and common labor relations policy, I find that H & M and
HMP constitute a single employer within the meaning of Section
2(2) of the Act.2
Moreover, on the basis of the entire record in this case, including
the centralization of administrative and service functions, substantial
intercompany transfers , the considerable amount of work employees
of one corporation regularly perform for the other corporation, and
the fact that employees of both corporations share common plant
facilities, have similar working conditions, and enjoy identical fringe
benefits, I find that the operations of H & M are so physically inter-
meshed and functionally integrated with those of HMP, and that
the employees of the two corporations have such a substantial com-
munity of interest as to negate the identity of a separate unit of
H & M employees. Accordingly, I find that a unit limited to the
employees of H & M is not appropriate, and I shall dismiss the peti-
tion herein 3
[The Board dismissed the petition.]
2 Cedar Rapids Block Company , Inc, et al., 143 NLRB 986; see also Schnell Tool
Die Corporation, at al., 144 NLRB 385, 386-388.
a Mid-West Abrasive Company, Inc ., et al., 145 NLRB 1665; Texas Instruments, In-
corporated, 145 NLRB 274; Overton Markets , Inc., et al., 142 NLRB 615; cf. The Black
and Decker Manufacturing Company, 147 NLRB 825 I note that the Petitioner seeks
the inclusion of all drivers and garagemen , although it is clear that all but one such
employees are on HMP's payroll. Furthermore , in its brief , the Petitioner states it does
not seek to represent electricians even though , contrary to its assertion, the record would
indicate that electricians are part of the maintenance department and are carried on
H & M's payroll . While Petitioner's position in the above respects would thus appear
somewhat inconsistent with its request for a unit of all H & M employees , including
drivers and garagemen , any such inconsistency need not be resolved at this time in view
of my finding herein rejecting a unit of H & M employees and the fact that the Peti-
tioner indicated no desire to proceed to an election in a unit different from that requested.