The Youngstown Sheet and Tube Co.

National Labor Relations Board - Board Decisions

Feb 16, 1944

54 N.L.R.B. 1393 (N.L.R.B. 1944)

In the Matter of THE YOUNGSTOWN SHEET AND TUBE COMPANY and
UNITED STEELwoRIZERs OF AMERICA , C. I. O.
Case No. 13-R-2161.-Decided February 16,1944
Pope and Ballard, by Mr. C. R. Kaufman, of Chicago, Ill., Messrs.
Herman J. Sporer and Bert Smith, both of East Chicago, Ind., and
Mr. Floyd Schesler, of Youngstown, Ohio, for the Company.
Messrs. L. H. Thornton and John M. Mayerik, both of East Chicago,
Ind., and Mr. Howard TV. Vezey, of Hammond, Ind., for the Union.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by United Steelworkers of
America, C. I. 0., herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Youngstown Sheet and Tube Company, East Chicago,
Indiana, and South Chicago, Illinois, herein called the Company, the
National Labor Relations Board provided for an appropriate hearing
upon due notice before R. N. Denham, Trial Examiner. Said hearing
was held at Chicago, Illinois, on January 6 and 8,1944. The Company
and the Union appeared, participated, and were afforded full oppor-
tunity 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 prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file
briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Youngstown Sheet and Tube Company, an Ohio corporation,
is engaged in the business of manufacturing, processing, selling, and
54 N. L. R. B., No. 210.
567900-44-vo1.,54-89 1393
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributing iron , steel , and other metal products. For this purpose,
it operates several plants located in Ohio, Pennsylvania, Indiana, Illi-
nois , and at various other points in the United States, and likewise
owns and operates coal, iron, and zinc mines at various points through-
out the United States. We are concerned herein with the operations
of the Company's plants at East Chicago, Indiana, and South Chicago,
Illinois , which are linked under a common management. During the
.year 1942, the Company purchased iron, steel, and other products,
valued in excess of $48,000,000, of which more than 50 percent was
purchased outside the States in which the various plants are located.
During the same period, the Company manufactured various products,
valued at more than $122,000,000, more than 50 percent of which was
shipped to points outside the States wherein the producing plants
were located. With respect to the East Chicago or Indiana Harbor
plant, which is one of the plants involved herein, the purchases of the
Company exceeded $5,000,000 during the year 1943, of which more than
50 percent was received from points outside the State of Indiana, and
during the same period said plant sold finished products, valued in
excess of $10,000,000, of which more than 50 percent was shipped to
points outside the State of Indiana. The above-mentioned percent-
ages are also true with respect to the receipt of raw materials and the
production of finished goods at the South Chicago plant of the Com-
pany. The Company admits that it is engaged in commerce within
the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Steelworkers of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused several requests of the Union, both writ-
ten and oral, for recognition as the collective bargaining -representa-
tive of the clerical employees engaged at the South and East Chicago
plants of the Company in the absence of certification by the Board.
The Company is currently operating under a collective bargaining
agreement with the International, covering all production and mainte-
nance employees, excluding, inter alia, clerical employees, in the plants
herein involved. Evidence was adduced at the hearing which showed
that the Company and the Union excluded,-by consent, all clerical
employees from the production and maintenance unit in. which an
election was to be conducted for the purposes of choosing a collective'
bargaining representative; that following the election conducted in
THE YOUNGSTOWN SHEET AND TUBE COMPANY 1395
said unit, the Union was recognized as the collective bargaining repre-
sentative of the employees therein; and that the Union entered-into
contractual relations with the Company covering the unit set forth in
the stipulation. The Company contends that this exclusion estops
the Union from seeking to represent the clerical employees. How-
ever, the prior exclusion of certain categories of employees from a
particular bargaining unit established by agreement, or otherwise,
does not act as an estoppel against the subsequent organization of
such employees by the same labor organization as represents the pre-
viously established unit, particularly where, as here, such labor or-
ganization made no commitment not to seek the representation of
such employees.' Accordingly, we find this contention of the Com-
pany to be without merit.
A statement of the Regional Director introduced into evidence at
the hearing, indicates that the Union represents a substantial num-
ber of employees in the unit hereinafter designated as appropriate.2
We find that a question affecting commerce has 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 Union seeks to represent a unit comprised of all clerical em-
ployees of the East Chicago (Indiana Harbor) and South Chicago
plants of the Company, including draftsmen, but excluding all em-
ployees listed on Appendix "A" attached hereto, all employees on the
staffs of the management and general superintendent, all employees
of the industrial relations, safety, employment, insurance, and plant-
protection departments, industrial and time-study engineers, telephone
operators, confidential, administrative, professional and technical em-
ployees, salaried pay-roll clerks, clerical employees covered by the
agreement between the Company and the Union, dated August 13,1942,
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action. The Company, in
opposing the formation of this unit, contends that (1) clerical em-
ployees are so closely associated with management that they should not
constitute a unit for the purposes of collective bargaining, and (2) in
any event, such employees should not be represented by the same labor
' Cf. Matter of Packard Motor Car Company, 47 N. L. R. B. 932; Matter of Briggs Manu-
facturing Company, 49 N. L. R. B 57.
2 The Regional Director reported that the Union submitted 282 designations bearing
apparently genuine original signatures and purporting to bear the names of persons em-
ployed by the Company. The Company refused to submit a pay roll, thus precluding a
check of the foregoing designations . However , it is estimated that there are approximately
300 persons within the unit hereinafter found appropriate.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization which represents the production and maintenance em-
ployees.3 However, in the event these contentions are found to be
invalid, the Company concedes the propriety of the proposed unit.
We have frequently held that clerical employees, although generally
excluded from units of production and maintenance employees, may
constitute separate units, and that in such event, they may be repre-
sented by whatever bargaining agency they choose4 Accordingly,
we find no merit in the afore-mentioned contentions of the Company.
As noted above, the Company concedes that the general composition
of the unit sought herein is appropriate and, the parties are agreed
upon the exclusion of those classifications of employees listed on Ap-
pendix "A" • attached hereto; it disagrees, however, with the Union
with respect to the status of certain specific categories, i. e., superin-
tendents, confidential clerks, stenographers and secretaries, and traffic
clerks, listed in Appendix "B" attached hereto; it contends that these
employees should also be excluded from the afore-mentioned unit on
the ground that they are confidential employees closely aligned with
management, whereas the Union desires their inclusion therein.
The record indicates that superintendents' clerks are essentially as-
sistants to the superintendents whom they serve; that they have access
to many of the confidential communications passing between the
superintendent and his superiors; that they handle minor grievances
pertaining chiefly to errors in pay; and that they are advised of con-
templated changes in production schedules, which information is of
a confidential nature. In many instances, they perform minor ad-
ministrative duties which would otherwise fall upon the superintend-
ent. From the foregoing, it appears that the duties and interests of
these employees align them more closely with management than with
the rank and file employees. Accordingly, we shall exclude them
from the unit.'
The traffic clerk attached to the transportation department performs
functions similar to those performed by the superintendents' clerks,
and for reasons previously stated, we shall exclude him also.
The superintendents' secretaries and stenographers handle the dicta-
tion, correspondence, and files of the superintendents. Since the latter
exercise almost autonomous jurisdiction over their respective depart-
ments, these secretaries and stenographers have access to matters re-
lating to policy concerning production, industrial relations, and other
matters of a confidential nature which are contained in the memo-
3 As previously noted, the Company also contends that the Union Is estopped from repre=
venting such employees . This contention was discussed in Section III, above , and found
to be without merit.
4 Matter of Olive Farm Equipment Company, 53 N. L. R. B. 1078 , and cases cited therein ;
Matter o f Potash Company of America, 53 N. L. R. B. 441, and cases cited therein.
5 Cf. Matter of New York Telephone Company, 53 N. L. R. B. 307.
THE YOUNGSTOWN SHEET AND TUBE COMPANY 1397
randa between the superintendents and their superiors. We are of
the opinion that these employees fall within our customary definition
of confidential employees, and we shall, therefore, exclude them.6
Accordingly, we find that all clerical employees of the East Chicago
(Indiana Harbor) and South Chicago plants of the Company, in-
cluding draftsmen, but excluding all employees listed on Appendix
"A" attached hereto, all employees on the staffs of the manager and
general superintendents, all employees of the industrial relations,
safety, employment, insurance, and plant-protection departments, in-
dustrial and time-study engineers, telephone operators, confidential,
administrative, professional, and technical employees, salaried pay-
roll clerks, superintendents' confidential clerks, secretaries and sten-
ographers listed on Appendix "B" attached hereto, clerical employees
covered by the agreement between the Company and the Union dated
August 13, 1942, 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 mean-
ing of Section 9 (b) of the Act..
V. 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 7
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 Relations
Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Youngstown
Sheet and Tube Company, East Chicago, Indiana, and South Chicago,
Illinois, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this Direc-
See Matter of Potash Company of America, supra ; Matter of Babcock & Wilcox Co.,
52 N. L R. B. 900.
1 The record indicates that in the event the Union is chosen as the representative of the
employees in the unit set forth in Section IV, above, it will represent such employees
through its Local No. 3127 . We shall, therefore , designate the Union on the ballot as
"Local No. 3127 , United Steelworkers of America , affiliated with the Congress of Industrial
Organizations."
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, under the direction and supervision of the Regional Director for
the Thirteenth 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 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 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 or not they desire
to be represented by Local No. 3127, United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining.
Appendix A
Accounting Department____ Works Accountant
Assistant Works Accountant -
Assistant to Works Accountant
Chief Cost Accountant
Chief Inventory Accountant
Salary Pay Roll Clerks
Stationary Foreman
Chief Stenographer & Secretary
Chief Clerks
Ass't, Gen'l Chief Clerk
Cashier
Storekeepers
G. O. Audit Clerks
General Chief Clerk
Scale Inspector Foreman
Order & Schedule Depart-
ment ------------ _------- Chief Schedule Clerk
Chief Billing Clerk
M. M. Schedule Chief Clerk
Pipe Schedule Chief Clerk
Superintendent
Chief Shipper
Chief Manifest Clerk
Rolling Mill Shipper
Merchant Mill Shipper
Schedule Clerk M. M.
Tube Mill Shipper
THE YOUNGSTOWN SHEET AND TUBE COMPANY 1399
Schedule & Shipping Tin Mill
Shipper-Tin Mill-
Assistant Shipper-Tin Mill
H. S. Chief Schedule Clerk
H. S. Provider (Chief)
H.,S. Shipper
H. S. Assistant Shipper
Engineering Department ___ Chief Clerk
Draftsmen (Squad Leaders)
Steam Engineering--------- Chief Clerk
Electrical Department------ Chief Clerk
Mechanical Department____ Chief Clerk
Restaurant ---------------- Chief Clerk
Open Hearth______________ Material Clerk (Manager)
Metallurgical Department__ Metallurgical Engineer
Ass't Metallurgical Engineer
Alloy Metallurgical Engineer
Plant Metallurgist
Metallurgist
Alloy Metallurgist
Metallurgical Investigator
'Alloy Laboratory Foreman
Metallurgical Laboratory Foreman
Alloy Assistant Metallurgist
Metallographist
Claim Superior
Metallurgical Provider
Tin Side__________________ Strip & Tin Mill Metallurgist
Mill Metallurgist
Cold Strip & Hot Strip Metallurgist
Metallurgical Laboratory Foreman
Tin Mill Metallurgical Lab. Foreman
Metallurgical Laboratory Foreman
Specification Metallurgist
Appendix B '
Order & Schedule Department--------- Stenographer-Conf.
Engineering Department_______________ Supt's. (Steno. and Sec'y.)
Electrical Department ------------------ Supt. Sec'y.
Coke Plant-Indiana Harbor___________ Supt. Clerk
Coke Plant-South Chicago____________ Supt. Clerk
Blast Fee.-Indiana Harbor____________ Supt. Clerk
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blast Fce.-South Chicago_____________ Supt. Clerk
Open Hearth__________________________ Supt. Clerk
Rolling Mill___________________________ Supt. Secretary
Merchant Mill_________________________ Supt. Clerk
Inspection Department_________________ Supt. Secretary
Bessemer Department__________________ Supt. Clerk
Metallurgical Department -------------- Supt. Clerk
Stenographer (Sec'y.)
Transportation Department ------------ Traffic Clerk