Hi-Alloy Castings Co.

National Labor Relations Board - Board Decisions

Feb 7, 1945

60 N.L.R.B. 488 (N.L.R.B. 1945)

In the Matter of HI-ALLOY CASTINGS COMPANY and UNITED STEEL-
WORKERS OF AMERICA, C. I. O.
Case No. 6-R-1066.-Decided February 7, 1945
Messrs. R. Charles Stie f el, Jr-., and H. Davis, of Ellwood City, Pa.,
for the Company.
Mr. Philip M. Curran, of Pittsburgh, Pa., and Mr. Ben Phillips, of
Ellwood City, Pa., for the Union.
Miss Ruth E. Blie fiield, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Steelworkers of
America, C. I. 0., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Hi-Alloy Castings Company, Ellwood City, Pennsylvania,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Allen Sin-
sheimer, Jr., Trial Examiner. Said hearing was held at Ellwood City,
Pennsylvania, on December 15, 1944. The Company and the Union
appeared and participated. All parties were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner's rul-
ings 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,
1. THE BUSINESS OF THE COMPANY
Hi-Alloy Castings Company is engaged in the manufacture of steel
castings in its plant at Ellwood City, Pennsylvania. During the 3
months preceding the hearing, the sale of steel castings amounted to
.over $66,000, over 75 percent of which was shipped to points outside the
60 N. L. R. B., No. 92.
488
HI-ALLOY CASTINGS COMPANY 489
Commonwealth of Pennsylvania. During the same 3-month period,
the Company purchased raw materials valued in excess of $20,000,
approximately 75 percent of which was received-from points outside
the Commonwealth of Pennsylvania. The Company was located from
August 1941 to September 1944 at New Brighton, Pennsylvania, and
moved to its present location in September 1944.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
About November 1, 1944, the Union advised the Company by letter
that it represented a majority of its employees, and requested a meet-
ing. The Company, however, has refused to grant recognition to
the Union as the exclusive bargaining representative of its employees
until the Union has been certified by the Board in an appropriate unit.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.,
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. Union petitioned for a unit of all production and maintenance
workers, including watchmen and laboratory technicians,' but ex-
cluding clerical employees and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action. The
1 The Field Examiner reported that the Union submitted 24 authorization cards, all of
which bore the names of persons listed on the Company ' s pay roll , which contained the
names of 35 employees in the appropriate unit ; and that 13 cards were dated September
1944, 8 were dated October 1944, and 3 cards were undated.
The Company stated that it did not consider that the request by the Union emanated
from its employees , but that it deems the Union to be a third party to the proceedings It
contended that since none of the employees in the Company had appeared before it for the
purpose of requesting collective bargaining , the Union could not be considered to represent
its employees . These contentions are without merit. The question of whether or not the
employees of the Company ' desire to be represented by the Union will be decided by the
votes of the employees themselves in the election held by the Board. The Union has evi-
denced its interest in the proceedings by means of the authorization cards, apparently
signed by the employees of the Company , and submitted by the Union to the Board.
2 The Union amended its petition at the hearing to include the laboratory technicians
inasmuch as it appears that these employees perform routine analyses
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company contended that the unit should include all employees of the
Company, including foremen and clerical employees.
The Company employs one regular and one part-time employee en-
gaged in clerical work in its office. These employees perform the usual
duties incident to their position. The Board has repeatedly stated
that, inasmuch as the interests and working conditions of office clerical
employees are so dissimilar from those of production and mainte-
nance workers, they shall not, as a general rule, be included in a unit
of production and maintenance employees.3 In accordance with this
policy, we shall exclude the clerical workers from the unit. The fore-
melr, and melter, who are supervisory employees, shall be excluded in
accordance with 'our customary practice.
We find that all production and maintenance employees, including
watchmen and laboratory technicians,- but excluding foremen, the
melter, and all.or any other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Company stated at the hearing that since it moved to its press
ent location on September 12, 1944, the number of its employees has
been steadily decreasing, due to the great turn-over in its employment.
It stated that the War Manpower Commission has set the quota of its
employees at 55, but that it has olrly approximately 35 employees at
the present time, and this number is constantly fluctuating. A request
has been made by the Company of the War Manpower Commission to
be permitted to hire a total of 85 workers as its full complement of
employees, but it does not know when, or if, its quota will be in-
creased. The Company argues that since it is now producing at
approximately one-third its full capacity no election should-be held
until full capacity is reached. We find no merit in this contention.
We have often held that, where an employer has in his employ 50
percent of the expected full complement of employees, we will not
deny these employees the present opportunity to bargain collectively.'
There is now in the employ of the Company over 50 percent of the
number of employees allowed to it by the present War Manpower Com-
mission decision, and the probability of a substantial increase in the
8 See Matter of Atlantic Basin Iron Works , 5 N. L. R B. 402; p. 184 of Third Annual
Report ; Matter of Indianapolis Power and Light Company, 51 N. L. R. B. 670. -
4 See Matter- of Pullman Stands-rd Car Manufacturing Co., 49 N. L. R. B. 542 ; Matter of
Hicks Hayward Mfg. Co., 58 N. L. R. B. 1557.
HI-ALLOY CASTINGS COMPANY - 491
near future is very slight. We therefore see no reason to postpone a
determination of representatives.
The Company requests advice as to whether it can discuss the ques-
tion of unionism with its employees without fear of having the Union
file an unfair labor practice charge against it, and states that it should
be permitted to obtain cards from its employees indicating that they
do not desire to be represented by a union. We cannot, of course,
preclude the Union from filing charges of unfair labor practices, but
if the Company's request is construed as seeking a determination of
a declaratory nature as to what conduct would be regarded as viola-
tive of the Act, it is sufficient to say that we do not deem it appropriate
to prejudge such questions, or instruct an employer at this stage of a
representation proceeding as to what it can or cannot do without fear
of its conduct being deemed an unfair labor practice or interference
with the conduct of an election. We are constrained to observe, how-
ever, that the election which we are directing will determine whether
or not the employees desire representation by the Union, and that
polling or questioning employees regarding their union affiliation or
soliciting them to repudiate a union have been found, in certain cir-
cumstances, to be violative of the Act.5
The Company contends that it employs some part-time high school
students and certain adult employees who do not work with suffi-
cient regularity to entitle them to vote. It proposes, because there is
so much irregularity, that only those employees who have worked at
least 30 hours per week since the inception of their employment with
the Company, or in the 4 weeks preceding the election, whichever is
the lesser, should be entitled to vote G The Union has agreed to the
use of this yardstick for determining the employees eligible to vote in
the election.
As to the high school students, it appears that there are 10 or 12
who work for the Company part time, but do not work on a regular
schedule. The Company's witness testified that these employees
themselves determine the number of hours per week they desire to
work, and "come and go as they please." The majority of the high
school students work less than, and a few work more than, 15 hours
per week. The record does not indicate whether or not these employees
receive the same rates of pay as the regular employees, or whether or
not they are entitled to the same benefits. In our opinion those high
Shell Oil Company v. N. L. R. B., 128 F. (2d) 206 (C. C. A. 5), enf'g Matter of Shell
Oil Company, Inc., 34 N . L. R. B. 866; N. L. R. B. v. Alco Feed Ma118, 133 F . ( 2d) 419
(C. C. A. 5), enf'g as mod. 41 N. L . R. B. 1278; N. L .' R. B. v. New Era Die Co., Inc., 118 F.
(2d) 500 (C. C. A. 3), enf'g as mpd. 19 N. L. R. B. 227.
6 The Company does not have a fixed policy on absenteeism and from the record it
appears there is also no fixed method of identifying regular employees , from the pay roll
or otherwise.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
school students, or any other part-time employees, who average as,
much as 15 hours per week, have a sufficient interest in conditions of
employment at the plant to be entitled to participate in the election.
In accordance with our usual policy,' we shall provide in our Direction
of Election herein that "regular part-time employees" shall be eligible
to vote in the election and we hereby define such an employee as one
who has worked an average of 15 hours or more per week during the
4 weeks next preceding the date of the pay roll used to determine
eligibility herein or since the inception of his employment, whichever
period is the shorter.
It is also contended by the Company that there is-a group of adult
employees working for it who do not work regularly but only when
they "feel like it," and are therefore temporary or irregular em-
ployees, in the sense that they come and go as they please. There is
no showing, however, that these adult employees are hired on a tem-
porary basis, but rather it is evident from the great need of the Com-
pany for additional personnel and its statement that it would hire
anyone who requested employment, that all employees are hired with
the expectancy of permanent employment. There appears no need
therefore for a formula for defining "regular" or "permanent" em-
ployees in this case, and we shall accordingly follow our usual practice
and consider eligible to vote all those full-time employees or regular
part-time employees as above defined who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein.
We shall direct that the question concerning representation which
has arisen be resolved, by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the election, including regular part-
time employees as above defined, subject to the limitations and addi-
tions set forth in the Direction.
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 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended; it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining-with Hi-Alloy Cast-
ings Company, Ellwood City, Pennsylvania, an election by secret bal-
lot shall be conducted as early as possible, but not later than thirty
See Matter of Awrey Bakeries, 44 N L . R. B. 801 ; Matter of Kaplan Brothers, 46
N. L. R. B. 1057 ; Matter of New Britain Machine Co ., 48 N. L . R. B. 263.
HI-ALLOY CASTINGS COMPANY 493
(30) days from the date of this Direction , under the direction and
supervision of the Regional Director for the Sixth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, and the determination in Section V, above, among the employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during the said
pay-roll period because they were ill or on vacation or temporarily
laid off , and including employees in the armed forces of the United
States who present themselves in person at the polls , but excluding any
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election , to determine
whether or not they desire to be represented by United Steelworkers
of America , C. I. 0., for the purposes of collective bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.