The International Nickel Co., Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1939

17 N.L.R.B. 458 (N.L.R.B. 1939)

In the Matter of THE INTERNATIONAL NICKEL COMPANY, INC. and
SQUARE DEAL LODGE No. 40, AMALGAMATED ASSOCIATION OF IRON,
STEEL AND TIN WORKERS OF NORTH AMERICA, THROUGH STEEL
WORKERS ORGANIZING COMMITTEE
Case No. R-640
SECOND SUPPLEMENTAL DECISION AND CERTIFI-
CATION OF REPRESENTATIVES
November 9, 19.39
On February 9, 1939, the National Labor Relations Board, herein
called the Board, issued a Supplemental Decision and Second Direc-
tion of Election 1 in the above-entitled case. On February 13, 1939,
the Company petitioned the Board to modify the Supplemental De-
cision and Second Direction of Election so as to provide that the list
of employees eligible to vote in the election should be those employed
by the Company during the pay-roll period immediately preceding
issuance of the Second Direction of Election. On February 15', 1939,
the Board issued ,in order denying this petition. Thereafter, ex-
ceptions to the Supplemental Decision and Second Direction of
Election were filed by the Lodge. These exceptions alleged that the
Board had erred in not directing a run-off election to determine
whether or not the employees desired to be represented by the Lodge,
and requested an amendment to the Second Direction of Election to
so direct. On February 25, 1939, the Board issued an order overrul-
ing and denying the. exceptions and request of the Lodge, and amend-
ing its. Second Direction of Election by striking therefrom the words
"within twenty (20) days from the date of this Direction," and sub-
stituting therefor the words "within fifty (50) clays from the date of
this Direction."
Pursuant to the Second- Direction of Election, as amended, an elec-
tion by secret ballot was conducted on March 16, 1939, atIuntington,
West Virginia,' under the direction and supervision of the Regional
Director for the Ninth Region (Cincinnati, Ohio). On April 3, 1939,
the Regional Director, acting pursuant to Article III, Section 9, of
National Labor Relations Board Rules and Regulations-Series 1,
1 11 N. L. R. B. 97.
17 N. L. R. B., No. 35.
458
THE INTERNATIONAL NICKEL COMPANY, INC. 459
as amended, issued and duly served upon the parties an Intermediate
Report on the election.
As to the results of the secret ballot, the Regional Director reported
as follows :
Number of alleged eligible voters----------------------------- 805
Number of ballots placed in ballot box------------------------ 767
Number of unchallenged ballots for Square Deal Lodge No. 40__ 374
Number of unchallenged ballots for Nickel Alloy Employees
Association, Inc------------------------------------------- 273
Number of unchallenged ballots for neither------------------ 49
Number of challenged ballots-------------------------------- 66
Number of blank ballots------------------------------------ 2
Number of disputed ballots--------------------------------- 3
Among the 66 persons whose right to vote was challenged, 21 were
challenged by the agents of the Board in charge of the election.
Thirteen of these voters were not on the list of eligible voters sub-
mitted by the Company. At a prior election, held May 24, 1938, these
men were eligible -to vote, but the Company now alleged that their
positions no longer existed because of the introduction of labor-saving
machinery. The Regional Director held that these men had been
permanently laid off by the Company and that, therefore, their votes
should be deducted from the total number of votes cast. He further
held that eight men who appeared at the polls and were challenged
by the Board's agents were ineligible under the terms of the Board's
Supplemental Decision and Direction of Election.2 Deducting the
ballots of these 21 ineligible voters from the 767 ballots cast, and in
addition, deducting the 3 disputed ballots, which were void because
marked in such a manner as to be capable of identification, and the
2 blank ballots, the Regional Director found that the corrected total
number of ballots cast was 741, and recommended that the Lodge be
certified by the Board as exclusive representative.
On April 6, 1939, objections to the Intermediate Report on the
ballot were filed both by the Nickel Alloy Employees Association and
by the Company. On April 18, 1939, the Company filed -an- ampli-
fication of its objections. These objections to the Intermediate Report
on the conduct of the ballot were overruled by the Regional Director
on dune 19, 1939, whereupon the Company filed a motion for a re-
port on the objections, which motion was granted by the Board on
August 5, 1939. On August 12, 1939, the Regional Director, acting
pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 2, accordingly issued and duly served
upon the parties his Report on Objections. The objections alleged,
in substance, that (1) the Lodge received the votes of less than a
majority of the total number of employees in the plant and less than
2 11 N. L. R. B. 97.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a majority of the eligible voters, (2) two of the disputed ballots
clearly designated a choice and should have been counted for the
organization so designated, (3) the disputed and blank ballots should
have been counted in determining the total number of votes cast, (4)
all the challenged ballots should have been considered by the Regional
Director, (5) the votes of Lucien P. Nicholas, Harry Patterson, W. L.
Thornton, J. M. Carr, Charles W. Eastham, N. N. Patton, Creath
Peyton and John F. Sayre should have been counted, (6) the Board's
Supplemental Decision and Second Direction of Election of Febru-
ary 6, 1939, erred in redefining the appropriate unit so as to exclude
assistant foremen, subforemen, substitute foremen, leadmen, annealers,
rollers, melters, picklers, hammermen, mill clerks and inspectors
without notice that such redefinition was contemplated and without
a hearing on the propriety of such redefinition, (7) 27 employees have
been permanently laid off and a "large number" of new men employed
between the date for determining eligibility to participate in the
election set by the Board and the date of the election, (8) the failure
of the Board to clarify the question of whether the character of work
performed after the eligibility date affected eligibility to vote caused
confusion among the employees and impeded a fair election, (9) lack
of clarity in the Board's Supplemental Decision and Second Direction
of Election as to the eligibility of certain rollers and annealers re-
sulted in confusion among the employees deterring employees from
voting and impeding a fair election.
With respect to the first objection, the Board has repeatedly re-
jected an interpretation of Section 9 (a) of the Act such as the Com-
pany here urges, requiring a labor organization to obtain a majority
of those eligible to vote as a prerequisite to exclusive recognition, and
has held that Section 9 (a) entitles a labor organization to such
recognition if it receives a majority of the votes cast at an election
within an appropriate unit.3
As to the second and third objections, the disputed ballots were
not cast in the manner required by the rules of the election, although
the election rules were prominently printed upon each ballot. These
ballots were capable of identification and should not be counted.
Neither should blank, spoiled, or void ballots be counted in determin-
ing the total number of votes cast in the election 4
As to the fourth objection, no purpose would have been served had
the Regional Director considered all the challenges in addition to
8 See, for example, Matter of R. C. A. Manufacturing Company, Inc. and United Electrical
d• Radio Workers of America, 2 N. L. R. B. 168. See Virginian Ry. Co. v. System Federa-
tion, 300 U. S. 515.
4 Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel and
Tin Workers, 4 N. L. R. B. 55; Matter of Calumet Steel Division of Borg-Warner Corpo-
ration and Steel Workers Organizing Committee, 7 N. L. R. B. 340.
THE INTERNATIONAL NICKEL COMPANY, INC. 461
those made by the agents of the Board, since the challenges made by
the parties could not possibly affect the election results.
As to the fifth objection, the challenges in question require that
we construe the language of the Supplemental Decision and Second
Direction of Election. We think it clear from a consideration of
that Decision that Lucien P. Nicholas, Harry Patterson, W. L. Thorn-
ton, J. N. Carr, and John F. Sayre were within excluded categories
of employees and were ineligible to vote. On the other hand, Charles
W. Eastham, N. N. Patton, and Creath -Peyton were eligible and
their votes should have been counted. As the Regional Director noted,
however, the ballots of these individuals cannot affect the outcome of
the election.
With respect to the sixth objection, the Board stated in its Supple-
mental Decision,"
However, in order to avoid any similar confusion at the new
election, it becomes necessary to clarify and redefine the appro-
priate unit for collective bargaining, the members of which will
be eligible to participate in the new election.
In clarifying and redefining the unit the Board made no change in
the unit which it had previously determined to be appropriate.6 Con-
fusion having arisen as to the meaning of the term "others in a super-
visory position," as used in the Board's first Direction of Election,
the Board was merely stating the exact meaning of that term. In
addition, it should be pointed out that the Company, as .evidenced by
the testimony of its officials and the statements of its counsel, from
the first point in the controversy took the position that all leadmen
should be treated in the same manner as to eligibility and considered
the primary problem one of the eligibility of a class of employees,
rather than a series of individual cases.7
The substance of the seventh objection has previously been con-
sidered by the Board. On February 13, 1939, the Company petitioned
the Board to modify its Supplemental Decision and Second Direction
of Election so as to provide that eligibility to participate in the elec-
tion would be determined by a more recent pay-roll date. This mo-
tion, after due consideration, was denied by the Board.
With regard to the eighth and ninth objections, it is sufficient to
note that the Company did not, between the date of the issuance of
the Board's Supplemental Decision and Second Direction of Election
5 11 N. L. It. B. 97, at 99.
7 N. L. R. B. 46.
7 Thus. in a Memorandum Brief, filed for the use of the Trial Examiner by the Company,
counsel stated :
The major point at issue is the eligibility of those employees who were challenged
on the ground that they are "leadmen,"
and proceeded to a general discussion of the eligibility of "leadmen" as a group.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the date of the election, make any objection to that decision on
the ground of lack of clarity, nor did the Company ever take any
formal steps aimed at the clarification of that Decision. We are
satisfied that there was no lack of clarity in these respects. impeding
a fair election.
The Board has fully considered the Objections filed by the Associa-
tion and the Objections and amplified Objections filed by the Com-
pany, and the Regional Director's Report thereon. The Board finds
that the Objections raise no substantial and material issues with
respect to the conduct of the ballot. They are hereby overruled.
CERTIFICATION OF REPRESENTATIVES
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, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series 2,
IT IS HEREBY CERTIFIED that Square Deal Lodge No. 40, Amalga-
mated Association of Iron, Steel and Tin Workers of North America,
through Steel Workers Organizing Committee, has been designated
and selected by a majority of the production, maintenance, service,
and transportation employees of the International Nickel Company,
Inc., Huntington, West Virginia, who are paid on an hourly, piece,
or tonnage basis, except inspectors, mill clerks, policemen, timekeep-
ers, hospital employees, officials and others in a supervisory position,
foremen, assistant foremen, subforemen, substitute foremen, leadmen,
stenographers, secretaries, and other clerical employees, as their rep-
resentative for the purposes of collective bargaining, and that pur-
suant to the provisions of Section 9 (a) of the National Labor Rela-
tions Act, Square Deal Lodge No. 40, Amalgamated Association of
Iron, Steel and Tin Workers of North America, through Steel Work-
ers Organizing Committee, is the exclusive representative of all such
employees for the purposes of collective bargaining in respect to rates
of,.pay, wages, hours of employment, and other conditions of employ-
ment.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Second Supplemental Decision and Certification of Represent-
atives.