The Midvale Co.

National Labor Relations Board - Board Decisions

Aug 15, 1944

57 N.L.R.B. 1359 (N.L.R.B. 1944)

In the Mattel' of THE MIDVALE COMPANY and FEDERATION OF ARCHITECTS
ENGINEERS , CHEMISTS AND TECHNICIANS , C. I. O.
Case No. -IR-1415.Decided August 15, 1944
M,r.'Fredeiick H. Knight, of Philadelphia, Pa., for, the Company.
Mr. Martin M. Cooper, of New York, City, and '111r. Theodore'Vin-
centt, of Philadelphia, Pa., for the C. I. O.
Mr. Edward Davis, of Philadelphia, Pa., for the A. F. L.
Mr. A. Sinner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Federation of Architects, Engineers,
Chemists and Technicians, C. I. 0., herein called the C. I. 0., allleg-
ing that a question affecting commerce ' had ' arisen concerning the
representation of employees of-The Midvale Company, Philadelphia,
Pennsylvania, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Geoffrey J. Cuiimff, Trial Examiner. Said hearing-was held
at Philadelphia, Pennsylvania, on June 23 and 2S, 1944. The Com-
pany, the C. I. O , and Federal Labor Union No. 18S7, A. F. L., heren'
called the A. F. L., appeared and participated. All parties were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from pi.ejudiclal
error and are hereby affirmed. All parties were afforded an oppor-
tunity'to file briefs with the Board.
Upon the entire record in the case the Board inakes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The, Midvale Company, a Delaware corporation, has its principal
office and place of business in Philadelphia, Pennsylvania, where it is
57 N. L. R. B., No 208.
1359
1360 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
engaged in the manufacture of various steel products. In addition to
its Philadelphia 'plant, which is the, only plant involved in these pro-
ceedings, the Company maintains offices in Pittsburgh, Pennsylvania,
Chicago, Illinois, New York City, Washington, D. C., San Francisco,
California, and Cleveland, Ohio. At its Philadelphia plant the
Company uses various raw materials, principally ores, of which at
least 00 percent i's obtained from', points outside the Commonwealth
of -Pennsylvania. During the last fiscal year of its operations, the
Company manufactured at its Philadelphia plant 130,140 net tons of
products leaving a value of approximately $66,280,000, of which amount
about 80 percent was shipped from the Company's Philadelphia plant
to various points in the United States.
The Company admits that it is-engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE OLGANIZATIONS INVOLVED
Federation of Architects, Engineers, Chemists and Technicians,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
Federal Labor Union No. 1887, affiliated with the American Fed-
eration of Labor, is a labor organization 'admitting to membership
employees of, the Company.
III.' THE QUESTION CONCERNING REPRESESTA'IION
The Company- has refused to grant recognition to the, C. 1. 0. as
the exclusive bargaining representative of employees of the Com-
pany until the C. I. O. has been certified by the Board in an appro-
priate unit,. '
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the C. I. O. represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the mean-
ing of 'Section 9 (c) and Section 2 (6) and (7) of the Act. -
IV. THE APPROPRIATE UNIT
The C. I. O. seeks a unit of laboratory employees comprising
employees of the chemical and the research laboratories, respec-
The Field Examiner repotted that the C I' 0 submitted 32 designation cards dated in
April 1941, from a total of approximately 55 employees in the unit claimed appropriate by
the C 1 0
THE MIDVALE COMPANY 1361
tively.'- The A. F. L. contends (1) that the employees in the pro-
posed C. I. 0. unit' should be included within a plant-wide unit com-
posed of production, maintenance, and salaried employees; (2) that
if the employees .in the proposed C. I. 0. unit are not included in such
plant-wide unit, they should be included in a separate unit of all the
Company's salaried employees. The Company agrees with the second
contention of the A. F. L. _
The contention of the A. F. L. that salaried laboratory employees
are properly a part of a plant-wide unit is inconsistent with the bar-
gaining history between the Company and the A. F. L., wherein it
appears that all salaried employees including salaried laboratory em-
ployees have been expressly omitted from the contracts between the
parties extending over a period of approximately 2 years and cover-
ing all hourly production employees. Moreover, although'the A. F. L.
admits salaried employees to membership and has on request bar-
gained for individual salaried employees with respect to grievances
and other working condltions,3 the A. F. L. has never been recog-
nized by the Company as the bargaining representative for the salaried
employees generally, and has never entered into any agreement on
behalf of such employees of the Company. In contrast therewith,
the evidence in the record to the effect that the laboratory employees
as a group perform 'similar duties of a technical nature; 4 that they
are largely segregated from the other plant employees; and that they
are under the general supervision of a separate superintendent having
substantial independent authority including the right to hire and dis-
charge,' indicates that the laboratory employees constitute a clearly
identifiable group having common interests. While the laboratory
employees have on occasion been included in production and mainte-
nance units when it appeared that no labor organization desired to rep-
resent them as a separate group,,' the right of laboratory employees
2 The laboratory employees consist largely of salaried employees in the categories of
research assistants , pyrometrists , assistant pyiometrists, pyrometrists ' helpers, chemical
operators , and chemists ' assistants . The first four classifications are attached to the
research laboratory while the last two groups represent employees in the chemical labora-
tory Research assistants , whose earnings approximate those of chemical operators, are
engaged in original research and the devising of new methods for improvement of the Com-
pany 's product . Pyrometrists are electrical instrument men who maintain and repair
pyrometers used in measuung temperatures Chemical operators make standard analyses
with respect to raw materials and finished products . Chemists ' assistants are learners in
training for positions as chemical operators.
3 The A. F L has continued to bargain for certain salaried employees who formerly were
hourly employees and members of the A. F. L. but whose status has been changed to that
of salaried employees . There is, however , no evidence that the A.-F. L. has made any
substantial progress in the organization of the salaried laboratory employees.
4 While it is true that the employees mentioned are not of a particularly high degree of
skill, it appears , nevertheless , that in order to hold their positions they require a certain
amount of high school chemistry or its equivalent which can be obtained by practical
experience in laboratory work.
° See Matter of Lowe Brothers Co, 32 N. L. R. B. 369 ; Matter of Mathieson Alkali
Works, 38 N. L. R. B. 1084; Matter of Pittsburgh Plate Glass Company, 53 N. L. R. B.
1181.
601248-45-vol. 57-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to separate representation apart from production and maintenance em-
ployees generally, has been recognized in numerous instances-.6 We
are of the opinion that the laboratory employees herein concerned
may properly 'be separated from the production -and maintenance
group for the purposes of collective bargaining.
There remains' for consideration the further contention of the
A: F. L. to the effect that the laboratory employees should be in-
cluded in an over-all unit of salaried employees. While the record
discloses that salaried employees, including salaried laboratory em-
ployees, have certaiii common privileges and working conditions, there
is nothing in the record to indicate that a question of representation
has arisen with respect to the salaried employees as a group.' More-
over, it is undisputed that laboratory employees perform work which
is substantially different from that of stenographers and, similar cler-
ical employees comprising the greater part of the remaining salaried
employees. , We find that the, laboratory employees as a group may
properly constitute a separate unit apart from the other salaried
employees, appropriate for the purposes of collective bargaining.8
Aside from the main issue with respect to the appropriate unit,
there exists a dispute as to the inclusion or exclusion of specific groups
of employees within the unit of laboratory employees hereinabove
referred to; i. e., shift foremen, hourly paid employees of the labora-
tory division, and clerk typists.
Slti f t foremen. While all parties are agreeable to the inclusion of
shift foremen, the. evidence, discloses that these individuals are in
charge of the work of their respective shifts'; that they have authority
to discipline employees for the infraction of company rules; that not-
withstanding the fact that it is, not a part of their duties to make'rec-
ommendations of wage increases for employees who work under them,',
shift foremen do, on occasion, make such iecommendations which are
given consideration by the chief chemist. The evidence further shows
that in the absence of the chief chemist and the superintendent, shift
foremen are expected to take whatever action they deem fit under the
circumstances; that the shift foreman on the night shift in the chemi-
cal laboratory has no other person in authority over him and is gen-
erally responsible for doing whatever is necessary to maintain -pro-
6 See Matter of California Spray'Chemical Corporation, 54 N L. R B. 1366; Matter
of United States Rubber Company, Synthetic Rubber Division, 56 N L. R. B ' 1328.
The A. F L. has submitted a considerable number of cards in support of its alternative
contention that the appropriate unit should include all salaried employees However,
the, A F. L has filed no petition for,a-unit of salaried employees and merely states in
its, motion to intervene that it represents approximately 6,500 employees of the Company
and also represents a majority of the employees in the unit concerning which the C I O.
has filed a petition There is no evidence that the A F. L has demanded 'or been refused
recognition by the Company as bargaining representative for the salaried employees as a
group
8 See footnote 6, supra.
THE MIDVALE COMPANY 1363
duction in the laboratory; and that shift foremen rotate from one shift
to another with the result that every third week each shift foreman is
in charge of the night shift. Upon all the evidence we are of the
opinion and find that the shift foremen in question exercise substan-
tial supervisory authority and are supervisory 'employees' within the
meaning of our usual definition. Accordingly, we shall exclude shift
foremen from the unit hereinafter found appropriate.
Hourly paid employees of the laboratory division. The hourly paid
employees in the-laboratory division comprise three laboratory help-
ers, two drillmen, one handyman, and one sampler. Of the three lab-
'oratory helpers attached to the research laboratory, one has charge of
the dark room and the mixing of photographic solutions. The other
two are women who, in addition to performing routine laboratory work,
go into the plant to take temperatures and-also help the photographer.
The drillmen, attached to the chemical laboratory, assist in the prep-
aration of samples for analysis by the chemical operators. The handy-
man in the, research section does janitor work and also helps in put-
ting in and taking out of acid, slabs of metal used for testing purposes.
The sampler procures samples of raw materials or finished products
from various places in the plant for subsequent analysis by the chemi-
cal operators. While the A. F. L. opposes the inclusion of hourly paid
employees of the laboratory division upon the ground that such em-
ployees are at present included under the contract between the Coin'
pany and the A. F. L. covering hourly production and incentive em-
ployees, the objection is of diminishing importance due to the fact
that the contract will shortly expire, leaving the employees in ques-
tion full liberty of 'action to participate in the selection of a bargain-
ing representative. In view of the similarity of duties and in spite
of the unskilled nature of their work, we are of the opinion that, the
interests,of the hourly paid employees of the laboratory division are
'more closely related to those of the more skilled laboratory employees
than to those of any other group of employees. We shall, therefore,
include the hourly paid employees of the laboratory division within
the unit hereinafter found appropriate.0
. Clerk typists. The employees in this category, while .attached to
the laboratory division, perform the usual duties of such employees,
including the keeping of files and records. There is, however, nothing
to indicate that they are charged with the duty of filing various data',
with respect to experiments conducted by the, technical staff or that
their work is so closely related to the actual performance of the lab-
oratory work that the work of one cannot be separated from that of,
the other. Under the circumstances, we find that the employees
See Matter of United States Rubber Company, Synthetic Division, 56 N L R B 1328.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to as clerk typists are little more than record or file clerks
without technical,or laboratory duties such as distinguish the- em-
ployees in the laboratory unit. We shall, accordingly, exclude them
from the unit hereinafter found appropriate.
We find that employees in the Company's laboratory division, in-
cluding employees in the classifications of research assistants; pyrome-
trists, pyrometrists' helpers, assistant pyrometrists, chemical opera-
tors, chemists' assistants, laboratory helpers, drillmen, handyman, and
sampler, but excluding the superintendent, the assistant superinten-
dent, the chief chemist, the,'secretary to the superintendent, the
clerk typists, the shift foremen, and all 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.
W. THE 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 Rela-
tions 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 repre-
sentatives for the purposes of collective bargaining with The Midvale
Company, Philadelphia, Pennsylvania, 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 supervi-
sion of the Regional Director for the Fourth 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 Regulations,
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
THE MIDVALE COMPANY ' - 1365
polls, but excluding those employees 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 they desire to be
represented by Federation of Architects, Engineers, Chemists and
Technicians, affiliated with the Congress of Industrial Organizations,
or by Federal Labor Union No. 1887, affiliated with the American
Federation of Labor, for the purposes of collective bargaining, 'or by
neither.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.