International Nickel Co., Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1936

1 N.L.R.B. 907 (N.L.R.B. 1936)

In the Matter Of INTERNATIONAL NICKEL COMPANY, INC. and
SQuARE DEAL LODGE No. 40, AMALGAMATED ASSOCIATION OF IRON,
STEEL AND TIN WORKERS OF NORTH AMERICA
Case No. R-3O. Decided June 11, 1936
Miscellaneous Metal Products Industry-Employee Representation Plan:
form and operation-Unit A4ppropriate for Collective Bargaining: employees on
hourly, tonnage and piece work basis ; plant ; production and maintenance em-
ployees-Election O dered • question affecting commerce : confusion and unrest
among employees-controversy concerning representation of employees : major-
ity status disputed by employer ; request by substantial number in appropriate
unit ; rival organizations.
Mr. Harry L. Lodish for the Board.
Mr. Arthur E. Reyman, of Washington, D. C., for Lodge No. 40.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On November 22, 1935, Square Deal Lodge No. 40, Amalgamated
Association of Iron, Steel and Tin Workers of North America, here-
inafter referred to as Lodge No. 40, filed a petition with the Regional
Director for the Ninth Region, alleging that a question affecting com-
merce had arisen concerning the representation of employees in the
Huntington, West Virginia plant of the International Nickel Com-
pany, Inc., New York, New York, hereinafter referred to as the Com-
pany, and requesting the National Labor Relations Board to conduct
an investigation and certify representatives pursuant to Section 9 (c)
of the National Labor Relations Act, approved July 5, 1935, herein-
after referred to as the Act. On February 14, 1936, the National
Labor Relations Board; acting pursuant to Section 9 (c) of the Act
and Article III, Section 3 of National Labor Relations Board Rules
and Regulations-Series 1, authorized the Regional Director for the
Ninth Region to conduct an investigation and hearing. On February
20, 1936, the Regional Director issued a notice of a hearing to be
held at Huntington, West Virginia, on March 12, 1936. Pursuant to
the notice, a hearing was begun on March 12, 1936 at Huntington,
West Virginia before Walter Wilbur, duly designated by the Board
as Trial Examiner. The hearing was adjourned before any testi-
mony was taken when it was discovered that the Employees' Council,
an organization of employees of the Company, had not been notified
and was not represented at the hearing. Pursuant to an amended
907
908 NATIONAL LABOR RELATIONS BOARD
notice-of hearing, copies of which were duly served upon the Com-
pany, Lodge No. 40 and the Employees' Council, the hearing was
continued at Huntington, West Virginia on April 10, 1936 before
Robert M. Gates, duly designated by the Board as Trial Examiner.
The Company, Lodge No. 40 and the Employees' Council were repre-
sented by counsel and participated in the hearing.
At the hearing on March 12, 1936, counsel for the Company ob-
jected to the proceedings and took exception thereto on the grounds
that the Act is unconstitutional generally and also as applied to the
employees of the Huntington plant of the Company. No rulings on
these objections were made by the Trial Examiner. The Board
hereby overrules the objections.
At the hearing on April 10, 1936, counsel for the Employees' Coun-
cil renewed a motion to dismiss which had been served on the
National Labor Relations Board and upon other parties to the pro-
ceeding prior to the hearing. The Trial Examiner overruled the
motion to dismiss in so far as it denied the constitutionality of the
Act, which ruling is hereby affirmed, and reserved decision in so far
as it denied the applicability of the Act to the employees of the
Huntington plant of the Company. No ruling was made at the
close of hearing on this motion. The motion is hereby denied.
Much testimony and several exhibits were received in evidence
over the objections of counsel for the Company and for the Em-
ployees' Council. The Board has reviewed these rulings of the Trial
Examiner as well as his ruling in refusing to quash the petition on
the ground that the affidavit accompanying it was not legally suffi-
cient and finds that no errors were committed.
Upon the entire record now before it, including the pleadings,
transcript of the evidence and exhibits introduced, the National
Labor Relations Board makes the following :
FINDINGS OF FACT
1. The International Nickel Company, Inc., is a corporation ex-
isting under and by virtue of the laws of the State of Delaware,
having its principal office in New York, New York, and owning and
operating a rolling mill at Huntington, West Virginia, and a foundry
and research laboratory at Bayonne, New Jersey. The Huntington
plant has a teletype connection with the New York office of the
Company.
Products manufactured at the Huntington plant consist of rolled
nickel, reduced nickel, morel metal, inconel, copper-nickel and other
nickel bearing alloys. The products are produced in the form of
rods, bars, strip, sheets, tubes, wires, welding rods, forgings, reduced
nickel and anodes.
DECISIONS AND ORDERS 909
The Company is a wholly owned subsidiary of the International
Nickel Company of Canada, Limited, which produces approximately.
80 per cent of the nickel produced in the world. The International
Nickel Company of Canada, Limited, by itself and through its sub-
sidiaries, carries on extensive mining operations in Canada and
Wales; extensive manufacturing operations in the United States,
Canada, Wales, England and Scotland; and markets its products
throughout the world. The International Nickel Company of
Canada, Limited, also has the sole right for a long period of years
to prospect for, mine and treat nickel-bearing ore which may be
found in a defined territory in Finland.
The Company has a registered trade-mark which is printed on a
tag attached to goods shipped from the Huntington plant and states
in its application for registration "that said trade-nark is used by
said Company in commerce among the several States of the United
States and between the United States and foreign nations or Indian
tribes; . . ." It advertises its products in the Saturday Evening
Post, Time, and various trade and technical magazines having
national circulation.
Approximately 1,137 persons who are engaged in production are
employed at the Huntington plant.
2. The principal raw materials used in the Huntington plant are
matte and nickel which are purchased under an inter-company con-
tract between the Company and the International Nickel Company
of Canada, Limited, whereby the latter purchases all of the Com-
pany's requirements of such material. All orders are placed by the
New York office of the Company and shipments are made from
Canada to the Huntington plant. In 1935, 22,630,000 pounds of
matte and nickel were ordered for the Huntington plant.
In addition to matte and nickel the following materials, at a cost
of and from the places indicated, were used in the Huntington plant
in the year 1935:
Material Secured from- Approximate
cost
Alloying agents------------------------- New York------------------------------------- $50,000,
Magnesium----------------------------- Michigan-------------------------------------
Ohio--- ----------------------------------------
Pennsylvania-------------------------------
8,000,
Soda ash--------------------- --------- Virginia-----------------------------------------
Michigan---------------------------------------
New York------------------------------------
9,000}
Heavy acids--------------------------- (Ohio--------------------------------------------Kentucky--------------------------------------
(Georgia------------------------------------ ----
10,000,}
Charcoal-------------------------------- Louisiana ------------------
Flonda---------------------------------------
45,000,}
Nitrate of Soda------------------------- Virginia----------------------------------------- 5,000
Natural Gas--------------------------- '.Vest Virginia ---------------------------------- 300, 000•
Fluorspar------------------------------- nlinois------------------------------------------ 3.50&
'910 NATIONAL LABOR RELATIONS BOARD
Miscellaneous maintenance supplies are the only materials which
are purchased by the management of the Huntington plant directly,
all other materials being purchased by the New York office of the
Company.
All raw materials are received at Huntington by rail, the plant
having a siding served by the Chesapeake & Ohio Railroad. An
average of four men are employed constantly to unload these raw
materials.
3. The products manufactured by the Company are sold either
direct to manufacturers or to jobbers for resale to manufacturers.
In either case the goods manufactured at the Huntington plant are
required to be subjected to further manufacture before products for
public consumption are produced. All sales are made by the New
York office of the Company which issues shipping instructions to the
Huntington plant. Shipments are made directly from the Hunt-
ington plant to the purchaser.
Outgoing shipments are carried by the Chesapeake & Ohio Rail-
road, by independent carriers by truck, and by means of Company
trucks which carry products to steamship and other railroad termini
within the State of West Virginia.
In 1935, 23,250,000 pounds of finished products were shipped from
the Huntington plant, 90 per cent going outside the State of West
Virginia. Of this 90 per cent, 10 per cent went to foreign countries,
the balance into 38 States of the United States.
Whitehead Metal Products Company of New York, Inc., which
is an affiliate of both the Company and of the International Nickel
Company of Canada, Limited, purchases products of the Company,
Whitehead Metal Products Company of New York, Inc., maintains
several sales offices and warehouses throughout the Eastern States
and operates five retail stores. The testimony of the Vice-President
of the Company was that these retail stores do not sell products in
the form produced at the Huntington plant but rather products
manufactured by Whitehead Metal Products Company of New York,
Inc., and by other manufacturers which are manufactured in part
from products produced at the Huntington plant. The inference is
logical that the sales offices resell products as manufactured by the
Company and that the Whitehead Metal Products Company of New
York, Inc., is in effect a sales agent of the Company.
1 The application for registration under the Securities Exchange Act of 1934 filed May
16, 1935 by the International Nickel Company of Canada, Limited, states that the regis-
trant owns 90 per cent of the voting power in Whitehead Metal Products Company of New
York, Inc Dr. John F. Thompson, Executive Vice-President of the Company , sets forth in
a statement introduced at the hearing that Inteinational Nickel Company , Inc, owns 100
per cent of the preferred stock and 60 per cent of the common stock of Whitehead Metal
Products Company of New York, Inc.
DECISIONS AND ORDERS 911
The Company also consigns stock to jobbers located in the follow-
ing cities : Atlanta, Georgia ,; Chicago, Illinois ; Cincinnati and Cleve-
land, Ohio; Denver, Colorado ; Detroit, Michigan ; Houston , Texas;
Los Angeles and San Francisco , California ; Milwaukee , Wisconsin;
Minneapolis , Minnesota ; Pittsburgh, Pennsylvania ; St. Louis, Mis-
souri; and Seattle, Washington.
Tube billets are sent from the Huntington plant to an independent
contractor at Beaver Falls, Pennsylvania , where the billets are
pierced and then returned to the Huntington plant for further proc-
essing. Sales of such finished products constitute approximately two
per cent of the total shipments of finished products of the Hunt-
ington plant.
Small amounts of the products produced at the Huntington plant
are sent to the warehouses at the Bayonne, New Jersey plant of the
Company for storage.
4. All of the aforesaid constitutes a continuous flow of trade, traf-
fic and commerce among the several States and with foreign nations.
5. The Employees' Council is a body elected by the employees of
the Company in accordance with an Employees ' Repregenthton Plan
which was put into effect in the Huntington plant in 1933. Under
this plan all employees of the Company except ' ,executives, foremen
and others having power to hire or discharge , or holding purely
supervisory positions , are eligible to vote for representatives who
form the Employees ' Council . To be eligible to serve as a repre-
sentative , a person must be an American citizen 21 years of age or
over and have been in the employment of the ' Company for at least
one year of continuous service. The plant is divided into 12 depart-
ments and one representative is elected in each department for every
75 employees or fraction thereof. The purposes of the plan are
stated to be to promote cooperation and more effective communica-
tion and contact between the Company and its employees , to give
employees a voice in regard to the conditions under which they
work and 'to facilitate organized expression of employees ' views. The
plan has been in effect and actively operating since its adoption.
Representatives elected in each year have met with the management
of the Company and have presented individual grievances and wage
disputes to the management . Some adjustments have been made
through these requests . Although formerly the plan contemplated
an equal number of representatives selected by the management to
form the Council and contained other features of Company domina-
tion and control , in July, 1935 , the plan was so amended as to elimi-
nate these provisions.
Lodge No. 40 did not allege , nor attempt to prove, that the Em-
ployees' Council is not entitled to a place on the ballot in the event
that an election is directed.
912 NATIONAL LABOR RELATIONS BOARD
6. Lodge No. 40 is a labor organization which is a local of Amal-
gamated Iron, Steel and Tin Workers of North America, affiliated
with the American Federation of Labor. It was organized in Octo-
ber, 1933, its membership being limited to employees in the Hunting-
ton plant of the Company. The Financial Secretary of Lodge No.
40 testified that approximately 625 employees of the Company were
members of Lodge No. 40 at the time of the hearing. This number,
if accurate, constitutes a majority of the employees of the Company
at the Huntington plant.
7. Lodge No. 40 has made many attempts to secure recognition
from, the Company as the collective bargaining agent of the Com-
pany's employees. Having been unsuccessful in securing such recog-
nition, Lodge No. 40 filed a petition with the old National Labor
Relations Board on October 17, 1934, requesting an election to deter-
mine the desire of a majority of the employees. A 'hearing was
held and in a decision rendered April 11, 1935 the Board ordered
an election by secret ballot. The election was never held because
the Supreme Court's decision holding the National Industrial Re-
covery Act unconstitutional was rendered prior to a decision by
the Circuit Court of Appeals to which the Company had appealed
the order for the election.
On July 15, 1935, Lodge No. 40 notified A. S. Shoffstall, General
Manager of the Company, that a committee of Lodge No. 40 desired
to meet with the management to establish certain relations with
then as guaranteed by the Act. Shoffstall replied that he would
meet the committee on July 20, 1935. At this meeting the committee
stated that since the membership of Lodge No. 40 constituted a
majority of the employees, Lodge No. 40 was entitled to recognition
,as the exclusive bargaining agency, and that the committee wished
to enter into an agreement with the Company for the purpose of
improving working conditions. On August 5, 1935, Shoffstall re-
plied to the request by asking the committee to submit a memoran-
dum outlining the conditions which the committee felt to be unsatis-
factory. On August 7, 1935, the committee replied, asking Shoffstall
to answer directly the question of whether he would meet and bar-
,gain collectively with the committee of Lodge No. 40 and also asking
for permission to use the Company's bulletin boards for posting of
notices and like purposes. On August 21, 1935, Shoffstall replied
to this letter by questioning the good faith of the committee because
-of its failure to list specific conditions it wished to consider, and0
further stating : " . . . we are prepared, as we wrote you, to
meet your committee in an effort to consider and adjust possible
differences or grievances affecting employees for whom you may be
acting. However, until such time as you may have specific matters
DECISIONS AND ORDERS 913
to present regarding work relations, we feel that further meetings
or correspondence with you will not prove mutually helpful. We
again call to your attention the fact that there is a duly elected
Employees' Council in this Plant and that matters of mutual inter-
est to the management and the employees are being considered and
settled in an orderly way through the medium of this Council." The
right to use the bulletin boards was refused on the basis that no
need for such use existed in an organization which contemplated the
attendance of members at Lodge meetings.
On September 11, 1935, the committee wrote Shoffstall requesting
a meeting to present specific matters concerning working conditions.
At the meeting held September 30, 1935, pursuant to this request,
the committee presented a list of specific grievances and suggested
changes in conditions of employment. On November 13, 1935, Shoff-
stall replied, treating each suggestion in detail and giving reasons
why the Company felt no one of them could be accepted.
8. A question concerning the representation of the employees in
the Huntington plant of the Company has arisen in that Local No.
40 insists that it is the, exclusive representative of the employees,
while the Company has taken the positiop that the Employees' Coun-
cil is also entitled to represent the employees. Whether a majority
of the employees wish to be represented by Lodge No. 40 or by the
Employees' Representation Plan can best be determined by the hold-
ing of an election by secret ballot.
9. The question concerning representation which has arisen in the
Huntington plant of the Company has created discontent, unrest and
bitterness, and tends to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
10. At the hearing John A. Rowe, corresponding representative of
Lodge No. 40, testified that Lodge No. 40 had passed a resolution to
request that the appropriate unit be determined to be "all production,
maintenance, service and transportation employees on an hourly,
piece or tonnage basis in and about said plant, except policemen,
timekeepers, hospital employees, officials and others in a supervisory
position, stenographers, secretaries and the clerks in the main office."
The Company does not deny this to be a proper unit. We find that
the employees in the Huntington plant of the Company engaged in
production, maintenance, service and transportation who are paid on
an hourly, piece or tonnage basis, except policemen, timekeepers, hos-
pital employees, officials and others in a supervisory position, stenog-
raphers, secretaries and the clerks in the main office, constitute a unit
appropriate for the purposes of collective bargaining.
11. At the hearing, Lodge No. 40 requested that the payroll which
should be taken to determine the eligibility of employees to vote in
914 NATIONAL LABOR RELATIONS BOARD
the election should be the payroll as of the date of the first hearing.
The Company made no objection to this date.
CONCLUSIONS OF LAW
1. The employees in the Huntington plant of the Company engaged
in production, maintenance, service and transportation who are paid
on an hourly, piece or tonnage basis, except policemen, timekeepers,
hospital employees, officials and others in a supervisory position, ste-
nographers, secretaries and the clerks in the main office, constitute a
unit appropriate for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment and other conditions of
employment, within the meaning of Section 9 (b) of the National
Labor Relations Act.
2. A question affecting commerce has arisen concerning the repre-
sentation of employees in the Huntington plant of the Company,
within the meaning of Section 9 (c) and Section 2, subdivisions (6)
and (7) 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 Rela-
tions Act and pursuant to Article III, Section 8 of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED, as part of the investigation authorized by the Board,
that an election by secret ballot shall be conducted within twenty
(20) days from the date of this Direction of Election under the
direction and supervision of Ralph A. Lind, Regional Director for
the Ninth Region, acting in this matter as the agent of the National
Labor Relations Board and subject to Article III, Section 9 of said
Rules and Regulations-Series 1, as amended, among the employees
in the Huntington plant of the Company on the payroll of the Com-
pany as of March 12, 1936, engaged in production, maintenance,
service and transportation, who are paid on an hourly, piece or ton-
nage basis, except policemen, timekeepers, hospital employees, offi-
cials and others in a supervisory position, stenographers, secretaries,
the clerks in the main office, and those employees who have resigned
or have been discharged for good cause between March 12, 1936 and
.the date of election, to determine whether or not they desire to be
represented by Square Deal Lodge No. 40, Amalgamated Association
of Iron, Steel and Tin Workers of North America or by the Employ-
ees' Representation Plan.