Kaiser Company, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1943

53 N.L.R.B. 880 (N.L.R.B. 1943)

In the Matter Of KAISER COMPANY, INC. IRON AND STEEL DIVISION and
UNITED STEELWORKERS OF AMERICA, CIO
In the Matter of KAISER COMPANY, INC. IRON AND STEEL DIVISION and
SAN BERNARDINO METAL TRADES COUNCIL AND ITS AFFILIATED UNIONS
THERETO, A. F. OF L.
Cases Nos. 01-R-1954 (R-5533) and 21-R-42058 respectively.-
Decided November 24, 1943
Messrs. Thomas T. Inch, and Walter R. Farrell, both of Oakland,
Calif., for the Company.
Katz, Gallagher & Margolis, by Messrs. Charles J. Katz and Milton
S. Tyre, both of Los Angeles, Calif., and Mr. Philip Curran, of Pitts-
burgh, Pa., for the CIO.
Messrs. David Sokol and John C. Stevenson, both of Los Angeles,
Calif., and Mr. Earl Wilson, of San Bernardino, Calif., for the Metal
Trades Council.
Mr. Glenn L. Moller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petitions duly filed by United Steelworkers of America, CIO,
herein called the CIO, Brotherhood of Railroad Trainmen, herein
called the Railroad Trainmen, and by International Union of Oper-
ating Engineers , herein called the Operating Engineers, alleging that'
questions affecting commerce had arisen concerning the representation
of employees of, Kaiser Company, Inc., Iron and Steel Division,
Fontana, California, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Maurice J. Nicoson, Trial Examiner. Said hearing was held
at Fontana, California, on June 15, 16, and 17, 1943. The Company,
the petitioning unions, International Brotherhood of Boilermakers,
Iron Shipbuilders, Welders & Helpers of America, Local No . 92, herein
called the Boilermakers, International Bridge, Structural Iron and
Steel Workers of the United States of America, Local #433, herein
53 N. L. R. B., No. 165.
880 ,
KAISER COMPANY, INC. 881
called the Bridge and Iron Workers, and San Bernardino Metal
Trades Council, for itself and for its affiliated unions,' herein called the
Metal Trades Council, appeared, participated, and were afforded full-
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. Toward the conclusion
of the hearing the Operating Engineers moved for permission to with=
draw its petition and join with the Metal Trades Council. The Trial
Examiner referred the said motion to the Board for ruling. After
the aforesaid hearing, the Railroad Trainmen requested of the Board
leave to withdraw its petition, without prejudice. Both motions are
hereby granted.
Thereafter, on August 13, 1943, the Board issued its Decision and
Order, dismissing the petition of the CIO "without prejudice to its
renewal at such time as a substantial number of employees is employed
by the Company in all departments and categories and a, substantial
showing of representation among such employees can be made by the
petitioning union." Thereafter, on August 28, 1943, pursuant to a
motion by the CIO to set aside the Board's order dismissing the CIO
petition and to reopen the record for the taking of additional evidence
pertaining to the progress of construction of the plant and other rele-
vant matters pertaining to the expansion of said plant, the Board is-
sued an order reopening the record for the purpose of taking addi-
tional evidence, but withheld ruling upon that part of the motion
which requested that the Board set aside its order of dismissal. For
the reasons appearing hereinafter, the aforesaid motion to set aside the
Board's order of dismissal is granted. The Board's Decision and Order
of August 13, 1943, in Case No. R-5533, is hereby set aside.
Shortly after the hearing of June 15 and 17, 1943, San Bernardino
Metal Trades Council, American Federation of Labor, filed a petition
for investigation and certification of representatives in Case No. 21-R-
2058, alleging that a question affecting commerce had arisen concern
ing the representation of employees of the Company at its Moss Clay
Pit located at Temesal Canyon, California. Thereafter, pursuant to
the aforesaid order of the Board reopening the record in Case No. R-
5533, and pursuant to an order of the Board consolidating the afore-
said cases, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Daniel J. Harrington, Trial
Examiner . Said hearing was held at Los Angeles and at Fontana,'
California, on September 24, 1943. The Company, the CIO, and the
Metal Trades Council appeared, participated, and were afforded full
1 The Boilermakers , Bridge and Iron Workers , and the Metal Trades Council each filed a
petition for leave to intervene , which motions were granted by the Trial Examiner at the
hearing. Before the hearing was concluded , the Boilermakers and the Bridge and Iron
Workers requested leave to withdraw from the proceedings in favor of the Metal Trades
Council. The Metal Trades Council then requested leave to amend its petition to intervene
accordingly . All of these requests were granted by the Trial Examiner, without objection.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. All parties were
afforded opportunity to file briefs with the Board.
The Trial Examiners' rulings made at the hearings are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. IHE BUSINESS OF THE COMPANY
Kaiser Company, Inc., a Nevada corporation, has its principal office
at Oakland, California. The Company's activities are divided into
four administrative divisions, only one of which, its Iron and Steel
Division, is involved in this proceeding. The Iron and Steel Division
operates a plant 4 miles west of Fontana, California, where it is en-
gaged in the manufacture, production, and sale of steel, pig iron, coke,
and coke byproducts. The Fontana plant is still under construction
and, when completed, will be a completely integrated iron and steel
plant. During the year 1942, in addition to material and equipment
for construction of the plant, the Company purchased raw materials
valued at more than $3,000,000 for use in pig iron and steel production
at the said plant. Thirty-five percent of said materials was shipped
to the plant from points outside the State of California. During the
same period the Company shipped to points outside the State of Cali-
fornia in excess of 4,000 tons of pig iron. In conjunction with the
Fontana plant, the Company operates a clay mine or pit, called the
Moss Clay Pit, located about 40 or 50 miles from the plant, where the
Company obtains its flux clay for use in the blast furnace at the steel
mill. All of the output of the clay pit is used at the steel mill.
The Company admits and we find that it is engaged in interstate
commerce within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
San Bernardino Metal Trades Council, affiliated with the American
Federation of Labor, is a labor organization admitting to membership,
through its affiliated unions, employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that prior to the filing of its petition, the CIO•
had requested recognition as the exclusive bargaining representative of
all production and maintenance employees at the Company's Fontana
KAISER COMPANY, INC. 883
plant, excluding supervisory employees and several other categories
hereinafter discussed. The Company refused this request on the ground
that there was not yet a representative body of employees working at
the plant. Although the evidence at the first hearing indicated that the
Company's contention was well founded, the evidence at the September
hearing indicates that the situation has changed substantially. For
the reasons appearing hereinafter under Section V, we find that the
contention of the Company no longer has merit.
Statements of a Field Examiner for the Board, introduced into evi-
dence at the hearing, indicate that the CIO and the Metal Trades Coun-
cil each represents a substantial number of employees in the appropriate
unit.'
We find that questions, affecting commerce have 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 CIO contends that the appropriate unit should consist of all
production and maintenance employees at the Company's Fontana
plant, including the shop clerical employees and the employees at the
Moss Clay Pit, but excluding the executives, office and clerical em-
ployees, administrative employees, plant-protection employees (guards
and firemen), full-time first-aid and safety employees, foremen, assist-
ant foremen, supervisory employees above the rank of foremen, watch-
men other than crossing watchmen and flagmen, all employees covered
by a contract between the Building and Construction Trades Depart-
ment of the American Federation of Labor, herein called the Building
Trades Council and the Company, agricultural employees, and time-
keepers. The Metal Trades Council agrees that the unit sought by the
CIO is appropriate, with the following exceptions : it contends that
the employees of the Moss Clay Pit constitute a separate appropriate
unit and that the appropriate unit at the steel mill should include time-
keepers, agricultural employees, and also all men now being carried
2 The Field Examiner's report, introduced into evidence at the first hearing, indicates
that the Metal Trades Council had submitted 217 authorization cards bearing apparently
genuine signatures of persons whose names appear on the production and maintenance pay
roll of the Company for the pay -roll period ending ` May 11, 1943 , which contained the
names of 716 employees in the appropriate unit.
The Field Examiner's reports which were introduced into evidence at the September
hearing indicate that the CIO had submitted 496 application-for-membership cards bearing
apparently genuine signatures of persons whose names appear on the Company 's produc-
tion and maintenance pay roll for the period ending September 11, 1943, which pay roll
contained the names of 1,241 persons in the unit alleged by the CIO to be appropriate.
With reference to the Moss Clay Pit, the Field Examiner reported that the Metal Trades
Council submitted five authorization cards bearing apparently genuine signatures of persons
whose names appear on the Company 's pay roll for the period ending September 11, 1943,
which contained the names of eight persons in the unit alleged by the Metal Trades Council
to be appropriate. The CIO submitted one authorization card bearing the apparently
genuine signature of a person whose name appears on the same pay roll and who is in the
unit alleged by the Metal Trades Council to be appropriate.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the construction pay roll but devoting any portion of their time to
production or maintenance work. The Company takes no position as
to the inclusion, or exclusion of employees on the construction pay roll,
timekeepers, shop clerical and agricultural employees, but indicated
that it would prefer that the employees at the Moss Clay Pit should be
included in the production and maintenance unit at the steel mill.
Shop clerical employees. These employees work in the various de-
partments throughout the plant. They keep records of tools, produc-
tion charts, materials, and perform other clerical duties pertaining to
the departments in which they work. Both the CIO and the Metal
Trades Council wish to include them in the appropriate unit while the
Company took no position with respect to them. They are in constant
contact with the production and maintenance employees. We see no
reason for departing from the desires of the unions in this regard. The
shop clerical employees will be included in the unit .s
Timekeepers. The CIO seeks to exclude timekeepers'while the Metal
Trades Council would include them. The timekeepers work through-
out the plant keeping the time of both construction and production
employees. The timekeepers have in the past been considered by the
Company as part of the clerical and office workers in arranging vaca-
tions and holidays, although this is not a fixed policy of the Company.
However, their hours of work are different from those of the office and
clerical employees and a few have shifted to production or maintenance
work. Most of their time is spent among the production, maintenance,
and construction employees and their activities have nothing to do with
fixing rates of compensation of other employees. There appears to be
no sound basis for treating timekeepers in a different manner than the
shop clerical employees. We shall include timekeepers in the appro-
priate unit.'
Agricultural employees. The CIO seeks to exclude while the, Metal
Trades Council would include the agricultural employees. There are
about 20 persons employed in this category. They are engaged in the
care and husbandry of groves of walnuts and oranges, vineyards, hay-
fields, and various vegetable crops. In addition, they do whatever
landscaping is necessary around the administration and cafeteria build-
ings at the plant. The functions of these employees are too far
removed from the production of steel to justify their inclusion in a unit
composed primarily of steelworkers. We shall exclude the agricul-
tural employees from the appropriate unit.
Construction, workers. In March 1942, the Company entered into a
closed-shop contract with the Building Trades Council covering
all employees who were to be employed by the Company in the con-
* Matter of Western Cartridge Company, 46 N. L. R. B. 948.
* Matter of Alum inum Company of America, 44 N. L. R. S. 490.
KAISER COMPANY, INC. 885
struction of the steel mill. By the terms of this. contract the Com-
pany agreed to employ in the construction of the plant only employees
furnished by, or who were members of the Building Trades Council
and its affiliated unions. Because of the urgent need for the Com-
pany's products, production was begun as soon as possible, before the
plant was completed. As a result, the Company has had and, since
construction of the plant is still in progress, still has in its' employ
both construction and production employees. The construction em-
ployees receives a higher wage rate than the production employees;
are under entirely separate supervision; are carried on a separate
pay roll; wear different identification badges; and have somewhat
different working conditions. When a construction employee wishes
to transfer to the production pay roll, he must resign and be rehired
as a new employee. Virtually all of the maintenance work at the plant
has been and until the plant is completed, will continue to be done by
men working on the construction pay roll. Their wages for the time
spent on maintenance or production work are charged to the produc-
tion pay roll, but they receive the construction wage rates regardless
of the kind of work they are doing. Some of the employees on the
construction pay roll spend all or most of their time on maintenance
work, but the proportion of time which any particular employee
may spend doing maintenance work varies from week to week. Thus
a construction employee may spend 1 week entirely on production or
maintenance work and the following week may do nothing but con-
struction work.
The Metal Trades Council seeks to include in the production and
maintenance unit all employees on the construction pay roll who spend
any part of their time on production or maintenance work, while
the CIO would exclude all such employees. We agree with the posi-
tion of the CIO. The construction workers are already represented
by the Building Trades Council and have received all the benefits of the
Building Trades Council's contract with the Company even when
doing production or maintenance work. When the construction of the
plant is completed, the construction workers are as likely, perhaps
more likely, to leave the Company's employ and move to other con-
struction jobs in order to continue to obtain the higher wage rate,
than to seek,reemployment on the production an°d maintenance pay
roll. Every subject of collective bargaining which may concern them
is currently being handled on their behalf by the Building Trades
Council pursuant to its contract with the Company. In view of these
facts, we shall exclude from the unit all persons carried on the Com-
pany's construction pay roll and who are presently covered by the
Company's contract with the, Building Trades Council.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
)Noss Clay Pit. The Metal Trades Council alleges that all pro-,
duction and maintenance employees at the Moss Clay Pit constitute a
separate appropriate unit. There are four or five employees at the pit
who are engaged in the actual mining of clay. One of them, the shovel
operator, acts as foreman and is in complete charge of the operations
in the absence of the superintendent. The latter divides his time
about equally between the pit and the steel mill. The shovel operator
has authority to order the discharge of other employees at the pit
and his action in this respect is not questioned by the superintendent.
The remaining three or four regular employees include an oiler, a
mechanic, and jackhammer operators. The afore-mentioned employees
constitute the entire regular crew at the pit. At the present time
there are five or six temporary employees who are engaged in road
maintenance work and in stripping the topsoil from the clay deposits.
When the work of the temporary employees is completed, the Com-
pany plans to offer them jobs at the steel mill or, if they do not accept
the Company's offer, to discharge them. The pay roll for the em-
ployeesat the pit is kept at the steel mill and the wages of the em-
ployees are the same as those of employees on the production and
maintenance pay roll at the mill. Most of the equipment used at the
pit comes from the mill and when a piece of machinery, such as a
bulldozer, is not needed at the pit, it is returned to the mill. Not only
is there an interchange of equipment, but there is also some inter-
change of personnel. In addition, the Company indicated that the clay
pit may soon be abandoned.
The small number of employees involved at the clay pit, the inter-
change of equipment and personnel, the close functional relation
of the pit to the steel mill, and the uncertain future of the pit indi-
cate that a separate unit of the employees at the clay pit would be
inappropriate. The employees at the clay pit will be included in
the appropriate unit at the mill. The shovel operator, however, since
he is clearly a supervisory employee, will be excluded from the unit.
We find that all production and maintenance employees of the
Company at its plant at Fontana, California, and at the Moss Clay
Pit, including shop clerical employees and timekeepers, but excluding
executives, office and clerical employees, administrative employees,
agricultural employees, plant-protection employees (guards and fire-
men), full-time first-aid and safety employees, watchmen other than
crossing watchmen and flagmen, foremen, and any other supervisory
employees with authority to hire, promote, discipline, discharge, or
otherwise effect changes in the status of employees, or effectively to
recommend such action, and also excluding all employees presently
covered by a contract between the Company and the Building and
Construction Trades Department of the American Federation of
KAISER COMPANY, INC. 887
Labor and carried on a separate construction pay roll, 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 evidence at the first hearing revealed that the Company's
foundry and rolling mill, integral and necessary departments of the
plant, which would employ approximately one-third of the plant's total
personnel, were not yet completed and would not be in operation for
several months. At the September hearing, however, it appeared that
the foundry was completed, in operation, and had over half of its an-
ticipated total personnel. It was also brought out at the September
hearing that the rolling mill referred to at the earlier hearing con-
sisted of three mills, a plate mill, a merchant mill, and a structural
mill. The plate mill is now completed and in operation. At the time
of the September hearing, there were employed in the plate mill 283
of the anticipated total of 320 employees. The merchant mill will not
be ready for operation until approximately April 30, 1944, and the
structural mill will not be ready for operation until approximately
July 31, 1944. These two mills, personnel for which will not be re-
cruited until approximately 30 days before they are ready to go into
operation, will together employ a total of 415 employees, most of
whom will be doing the same general type of work as is now being done
at the plate mill. The evidence at the September hearing indicated
that there are presently employed approximately 64 percent of the
total anticipated personnel at the plant. We are satisfied that a rep-
resentative group of employes is now employed in all categories and
that we should therefore proceed with an immediate determination
of representatives.
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 date of the Direction of Election
herein, subject to the limitations and additions 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 Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Kaiser Company,
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., Iron and Steel Division, Fontana, California, an election by
secret ballot shall be conducted as early as possible, but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Twenty-first 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 Regu-
lations, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period im-
mediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or tempororily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or been
discharged for cause and who have not been rehired or reinstated prior
to the election, to determine whether they desire to be represented by
United Steelworkers of America, affiliated with the Congress of In-
dustrial Organizations, or by San Bernardino Metal Trades Council
and its Affiliated Unions, affiliated with the- American Federation of
Labor, for the purposes of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.