Kaiser Aluminum & Chemical Corp.

National Labor Relations Board - Board Decisions

Dec 6, 1957

119 N.L.R.B. 695 (N.L.R.B. 1957)

KAISER ALUMINUM & CHEMICAL CORPORATION 695
It will be recalled that Harrison was discharged while on strike. It has been the
Board's practice to award- back pay to employees discharged while on strike from
the date of their unconditional application for reinstatement, on the theory that it
cannot be said that their loss of pay was caused by the employer's conduct until they
indicate willingness to return to work.43. The General Counsel did not produce any
evidence that Harrison had indicated his willingness to abandon the strike and re-
turn to work. However, the Respondenfs answer states: "Respondent avers that
during the month of April 1956, Charles Leo Harrison did request reemployment with
Respondent, but was informed that, due to the seasonal nature of Respondent's busi-
ness, there was no work available during that period. Since that time the said
Charles Leo Harrison has never requested to be reemployed by Respondent." It is
accordingly found that, on April 16, 1956,44 Harrison indicated his willingness to re-
turn to work, but his request for reinstatement was not granted. It will accordingly
be recommended that the Respondent-make Harrison whole for any loss of earnings
he may have suffered because of the discrimination against him, by paying to him a
sum of money equal to the amount he normally would have earned from April 16,
1956, when he indicated his willingness to return to work, to the date of the offer of
reinstatement, less his net earnings during the said period. Mercer and Martin stand
on a different footing. Unlike Harrison, they were not on strike at the time of their
discharges. It will therefore be recommended that the Respondent make Mercer
and Martin whole for any loss of earnings they may have suffered because of the
discrimination against them, by paying to each of them a sum of money equal to the
amount he normally would have earned from the date of his discriminatory dis-
charge, February 10, 1956, and February 11, 1956, respectively, to the date of the
offer of reinstatement, less his net earnings during the said period.
The back pay provided for herein shall be computed on a quarterly basis in the
manner established by the Board; earnings in one particular quarter shall have no ef-
fect on the back-pay liability for any other period. It will also be recommended
that the Respondent preserve and make available to the Board, upon request, pay-
roll and other records which facilitate the checking of the amount of back pay due.
It will further be recommended that the Respondent post appropriate notices. Final-
ly it will be recommended that the complaint be dismissed, insofar as it alleges un-
fair labor practices which were not adequately proved.
[Recommended Order omitted from publication.]
43 Happ Brothers Co., Inc., supra, pp. 1518-19; Brookville Glove Company, 114 NLRB
213, enfd. 234 F. 2d 400 (C A. 3) ; Ford Radio & Mica Corporation, 115 NLRB 1046; and
Texas Natural Gasolane Corporation, supra.
" A mean date is adopted Columbia Pictures Corporation at as., 82 NLRB 568, 574,
footnote 24.
Kaiser Aluminum & Chemical Corporation and Aluminum Work-
ers International ' Union, AFL-CIO and United Steelworkers
of America , AFL-CIO and Local Union 968, International
Brotherhood of Electrical Workers, AFL-CIO and United
Association of Journeymen and Apprentices of the Plumbing
& Pipefitting Industry of the United States and Canada,
AFI.-C,IO, Petitioners . Cases Nos. 9-RC-3103, 9-KC-3104; 9-BCr-
3111, and_ 9-RC-3112. December 6,1957
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before William C.
Humphrey, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.'
i Requests for oral argument and for leave to file briefs amicus are hereby denied, as the
record and briefs, in our opinion , adequately present the issues and positions of the parties.
119 NLRB No. 98.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations 2 involved claim to represent certain
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.
4. In Case No. 9-RC-3103, the Aluminum Workers filed a petition
for a unit of all production and maintenance employees at the
Employer's Ravenswood, West Virginia, plant, with the usual exclu-
sions. In Case No. 9-RC-3104, the Steelworkers filed a petition
in substantially the same unit described by the Aluminum Workers.
In Case No. 9-RC-3111, IBEW, Local 968, filed a petition for a unit
of all electricians, instrument electricians, and electrician helpers, at
the above plant, excluding all other employees. In Case No.
9-RC-3112, the Pipefitters filed a petition for a unit of all main-
tenance employees at this plant, including pipefitters, plumbers, pipe
instrument mechanics, welders, refrigeration mechanics, and helpers,
but excluding the electricians, production employees, and other
normally excluded categories.
At the hearing, the Pipefitters, with the approval of the IBEW,
moved to amend their petitions to make them a joint petition for an
overall maintenance unit. In addition, the following alternate posi-
tions were adopted : The IBEW's secondary unit request is that stated
in its original petition; alternatively, it would have an election in an
electricians' unit plus rectifier operators, or in a separate unit of
rectifier operators and related categories. The Pipefitters, in the
alternative, seeks a unit of all pipefitters, plumbers, pipe instrument
mechanics, welders, refrigeration mechanics, and helpers; and as a
second alternative, a unit on a craft basis of any one or more of the
above classifications.
The Ravenswood Works is the only operation of the Employer in-
volved in this proceeding. There are about 500 employees, of which
about 150 are engaged in maintenance work and the remainder in
production.
In lieu of testimony, all the parties to this consolidated proceeding
entered into a stipulation of facts. The stipulation, in substance, states
that: The aluminum and rolling processes at the Ravenswood Works
are substantially the same as such processes in the aluminum industry
a Aluminum Workers International Union , AFL-CIO. herein called Aluminum Workers ;
United Steelworkers of America, AFT CIO, herein called Steelworkers ; Local Union 968,
International Brotherhood of Electrical Workers, AFL-CIO, herein called IBEW, and
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting In-
dustry of the United States and Canada, AFL-CIO, herein called Pipefitters.
KAISER ALUMINUM & CHEMICAL CORPORATION 697
generally; 3 the aluminum and rolling facilities at the Ravenswood
Works are substantially the same as those at Meade and Trentwood,
except that those at Ravenswood are immediately contiguous to each
other with a common fence and a common site; 4 there is a single man-
agement and administration of the reduction and rolling operations
at the Ravenswood Works; the facts as to the operations, policies, and
procedures, including the labor job titles and their respective duties,
functions, experience and skill requirements, progression, and super-
vision, are substantially the same at Ravenswood Works as at the
Meade and Trentwood Works; the labor job titles in the maintenance
division are as specifically listed in the record, with the understanding
that job titles similarly described in other divisions are not involved;
there has been no previous bargaining history at the Ravenswood
Works for the employees here involved; the Ravenswood Works is
producing aluminum plate, sheet, and industrial foil; and the Em-
ployer's other reduction and rolling mill plants are organized and
bargained for on an industrial basis.
The Employer, the Aluminum Workers, and the Steelworkers con-
tend that the Board should find the only appropriate unit to be an
industrial unit of all production and maintenance employees, and that
the petitions of the IBEW and the Pipefitters be dismissed, and their
several alternate positions rejected. They contend further that even
if it is assumed that craft units or a maintenance department unit
might on a proper showing be found appropriate, such a showing has
not been made in the present case.
The IBEW and the Pipefitters contend that self-determination elec-
tions should be permitted in the basic aluminum industry where there
is no history of collective bargaining at the plant in question on an
industrial-unit basis, and that a self-determination election should be
granted for the employees in the maintenance department unit or in
craft units as alternatively requested by the IBEW and the Pipefitters.
The Pipefitters also contends that the Board should abandon the Na-
tional Tube doctrine.
From the stipulation of facts it is clear that the Employer is engaged
in the basic aluminum industry. Indeed, there is no contention to the
contrary. In Perinanente Metals Corporation, supra, the Board held,
on the basis of a thorough study of all the pertinent facts and consid-
erations, and "because of the history of collective bargaining in the
industry on a predominantly industrial pattern," that in conformity
with the decision reached in the National Tube Company case 5 with
respect to the basic steel industry, "collective bargaining on other than
an industrial basis will not assure employees in the aluminum industry
3 See findings made by the Board in Permanente Metals Corporation, 89 NLRB 804, and
Reynolds Metals Company, 85 NLRB 110.
4 See findings made by the Board in Permanente Metals Corporation, supra.
6 National Tube Company, 76 NLRB 1199.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the best opportunity to exercise the rights guaranteed by the Act."
Accordingly, the Board found that the craft units sought by several
petitioners were inappropriate, and that "the principles enunciated in
the National Tube Company case are applicable in view of the contin-
uous process and integrated operations here shown to obtain in the
aluminum industry."
In American Potash & Chemical Corporation, 107 NLRB 1418, the
Board reexamined the National Tube doctrine, and concluded not to
extend henceforth the practice of denying severance on the ground
of the degree of integration of an industry's production processes.
However, the Board did "not deem it wise or feasible to upset a
pattern of bargaining already firmly established" in industries to
which the Board had already applied National Tube and where
plantwide bargaining prevails. The specific industries to which the
Board thus made reference in the American Potash decision were
basic steel,6 basic aluminum ,7 lumber,8 and wet milling.9
The IBEW and the Pipefitters contend, however, that the Board
did not intend in American Potash to apply the National Tube doc-
trine to plants which had no previous bargaining history such as the
Ravenswood Works in the case now before us. We do not agree.
The language used by the Board in American Potash must be read in
the frame of reference of the Board's policy in existence at the time
that decision issued. Thus, in the Weyerhaeuser case,10 the lead case
in which the National Tube doctrine was first applied to the lumber
industry, the plant in question was a new plant without a prior bar-
gaining history. Nonetheless, the Board held :
In view of the comprehensive and consistent history of industrial
bargaining, the extensive integration of all production and main-
tenance work, and the fact that the industry has tended to develop
specialists rather than workmen in the craft tradition, we believe
that separate craft representation is not appropriate for em-
ployees in the lumber industry.
In Corn Products Refining Company, 87 NLRB 187, the Board like-
wise applied the National Tube doctrine despite the fact that the
plant in question was a new plant without a prior history of col-
lective bargaining, stating :
In earlier cases, involving other domestic plants of the Em-
ployer, the Board has held that only plant-wide production and
maintenance units were appropriate because of the community
of employee interests arising from the functional integration of
G National Tube Company , supra.
a Permanente Metals Corporation , supra.
8 Weyerhaeuser Timber Company , 87 NLRB 1076.
8 Corn Products Refining Company, 80 NLRB 362.
10 ,Supra.
THE CROSS COMPANY 1 1. 699
the "wet-milling" process, and because the industry generally
appears to have followed the pattern of bargaining in plant-wide
units.
After thorough and careful consideration of the contentions of the
parties, we conclude that the same compelling reasons that exist for
applying the National Tube doctrine in the industries referred to in^
the American Potash decision involving plants with a prior industrial
bargaining history hold true with respect to new plants in those in'
dustries. We shall, therefore, grant the petitions of the Aluminum
Workers and the Steelworkers and dismiss the petitions of the IBEW
and the Pipefitters. Accordingly, we find appropriate a unit of pro=
duction and maintenance employees.
We find that all production and maintenance employees. bf the
Employer at its Ravenswood Works, Ravenswood, West Virginia, in-
cluding plant clerical employees, routine analysts, spectographic an=
alyst, and laboratory assistants, but excluding professional laboratory
employees, administrative personnel employees, office clerical em=
ployees, guards, and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
[The Board dismissed the petitions filed in Cases Nos. 9-RC-3111
and 9-RC-3112.]
[Text of Direction of Election omitted from publication.]
The Cross Company and William A. Ziolkowski . Case No. 7-CA-
1401. December 9,1957
DECISION AND ORDER
On December 31, 1956, Trial Examiner Charles W. Schneider issued
his Intermediate Report in this proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in con-
nection with this case to a three-member panel [Members Rodgers,
Bean, and Jenkins].'
'The Respondent 's request for oral argument before the Board is hereby denied as the
record , the exceptions , and the brief adequately present the issues and positions of the
parties.
119 NLRB No.. 97.