Virginia Smelting Co.

National Labor Relations Board - Board Decisions

Feb 14, 1945

60 N.L.R.B. 616 (N.L.R.B. 1945)

I
In the Matter of VIRGINIA SMELTING COMPANY and INTERNATIONAL
CHEMICAL WORKERS UNION, LOCAL No. 55, A. F. OF L.
Case No. 5-R-1772 .-Decided February 14, 1945
Mr. A. K. Scribner, of West Norfolk, Va., for the Company.
Mr. John W. Lewis, of Baltimore, Md., for the A. F. of L.
Mr. William 0. Hart, of Richmond, Va., for District 50.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Chemical Workers Union,
Local No. 55, A. F. of L., herein called the A. F. of L., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Virginia Smelting Company, West Norfolk,
Virginia, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Sidney J. Barban, Trial Examiner. Said hearing was held at Nor-
folk, Virginia, on January 19, 1945. At the commencement of the
hearing, the Trial Examiner granted a motion of District 50, United
Mine Workers of America, Local No. 12180, herein called District 50,
to intervene. The Company, the A. F. of L., and District 50 appeared
at and participated in the hearing.' All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. During the course of the
hearing District 50 moved to dismiss the petition. The Trial Ex-
aminer reserved ruling thereon. The motions are hereby denied. The
Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were, afforded oppor-
tunity to file briefs with the Board-.
Upon the entire record in the case, the Board makes the following :
i Although United Gas, Coke & Chemical Workers of America, C I 0, was served with
Notice of Hearing, it did not appear.
60 N. L. R. B., No. 113.
616
VIRGINIA SMELTING COMPANY
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
617
Virginia Smelting Company is a Maine corporation operating a
plant at West Norfolk, Virginia, where it is engaged in the sale, manu
facture, and distribution of chemicals. About 90 percent of the raw
materials used by the Company is shipped to it from points outside the
Commonwealth of Virginia. During 1944 the Company produced
products valued in excess of $1,000,000, 90 percent of which was
shipped to points outside the Commonwealth of Virginia.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International. Chemical Workers Union, Local No. 55, is a labor
organization affiliated with the American Federation of Labor, admit-
ting to membership employees of the Company.
District 50, United Mine Workers of America, Local No. 12180, is
a labor organization, admitting to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
On January 19, 1944, District 50 and the Company entered into a
written exclusive collective bargaining contract, effective until Febru-
ary 7, 1945,, with provision for automatic renewal from year to year
thereafter in the absence of written notice to terminate given by either
party thereto not less than 30 days prior to any annual expiration
date. On November 7,1944, the A. F. of L. notified the Company that
it claimed to represent a majority of the employees involved herein and
requested recognition. The company refused to grant such recogni-
tion, stating that it was precluded from doing so by its existing con-
tract with District 50. District 50 contends that its contract is a bar
to a determination of representatives in this proceeding. Inasmuch as
the A. F. of L. made its claim upon the Company prior to January 7,
1945, the effective renewal date of the contract, we find that the con-
tract does not constitute a bar to a determination of representatives
at this time.
District 50 further contends that according to the constitution of
the A. F. of L., the latter cannot admit to membership some of the
employees herein concerned, and that the present proceeding should
therefore be dismissed. However, the A. F. of L. stated that it would
admit such employees to membership and since there is no showing
that the A. F. of L. will not award adequate representation to all em-
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees included in the unit herein found appropriate,2 we find no merit
in the contention of District 50.
A statement of a Field Examiner of the Board, introduced into evi-
dence at the hearing, indicates that the A. F. of L. represents a sub-
stantial number of employees in the unit hereinafter found to be ap-
propriate.3
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 Company and District 50 contend that all production and main-
tenance employees of the Company, excluding professional and techni-
cal employees, clerical employees, janitors, cafeteria employees, watch-
men, supervisors, assistant supervisors, the plant engineer, the store-
keeper-timekeeper, shipping foremen, and shift foremen, constitute
a unit appropriate for the purposes of collective bargaining. The only
controversy with respect to the unit concerns the shift foremen and
shipping foremen; the A. F. of L. would include them in the unit.
The Company employs 12 shift foremen and 3 shipping foremen.
Although the shift foremen and shipping foremen are paid on an hour-
ly rate, they receive from 10 to 35 cents more per hour than their sub-
ordinates. The record indicates that the shift foremen and shipping
foremen have authority to discipline their subordinates and that they
can effectively recommend discharges. During the hours between 8
p. m. and 8 a. m. the shift foremen are the highest ranking employees
in the plant. The shift foremen and shipping foremen are excluded
from the terms of the contract between the Company and District 50,
alluded to above. We conclude that the shift foremen and shipping
foremen are supervisory employees and, as such, we shall exclude them
from the unit.
We find that all production and maintenance employees of the Com-
pany, excluding professional, technical, clerical, and cafeteria em-
ployees, janitors, watchmen, supervisors, assistant supervisors, the
plant engineer,. the storekeeper-timekeeper, shift foremen, shipping
foremen, and any other 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
2 See Matter of Platzer Boat Works, 59 N. L. R. B. 292.
s The Field Examiner reported that the A . F. of L. presented 60 authorization cards
bearing the names of persons who appear on a current pay roll of the Company. There
are approximately 130 employees in the appropriate unit. District 50 did not present any
evidence of representation, but relies upon its contract as evidence of its interest in the
instant proceeding.
VIRGINIA SMELTING COMPANY 619
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 means of an election by secret ballot among
the employees 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 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Virginia Smelting
Company, West Norfolk, Virginia, 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 Fifth 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 any 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 International Chemical Workers Union,
Local No. 55, A. F. of L., or by District 50, United Mine Workers of
America, Local No. 12180, for the purposes of collective bargaining, or
by neither.