Electro Metallurgical Co.

National Labor Relations Board - Board Decisions

Dec 22, 1943

54 N.L.R.B. 15 (N.L.R.B. 1943)

In the Matter of ELEarRo METALLURGICAL COMPANY and BROTHER-
HOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN
In the Matter of ELECTRO METTALLURGICAL COMPANY and UNITED
STEELWORKERS OF AMERICA, CIO
Cases Nos. 8-R-1f64 and 8-R-1f77, respectively.Decided Decent-
ber°L2,19.43
Mr. William C. Treanor, of New York City, and Mr. Harold
Reagan, of Ashtabula, Ohio, for the Company.
Mr. A. D. Pen/old, of Cleveland, Ohio, for the Brotherhood.
Mr. James B. Griffin, of Youngstown, Ohio, for USA.
Messrs. R. J. Jamieson and Anthony J. Lang, of Cleveland, Ohio,
for the AFL.
Mrs. Robert Silagi, of counsel to the Board.
DECISION
DIRECTION OF ELECTION .
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by Brotherhood of Locomotive Firemen
and Enginemen, herein called the Brotherhood, and by United
Steelworkers of America, CIO, herein called 'the USA, each alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Electro Metallurgical Company, Ashta-
bula, Ohio, herein called the Company, the National Relations Board
consolidated the cases and provided for an appropriate hearing upon
due notice before William O. Murdock, Trial Examiner. Said hear-
ing was held at Ashtabula, Ohio, on November 3, 1943. The Com-
pany, the Brotherhood, USA, and American Federation of Labor, l
herein called the AFL, appeared and participated. All parties were
afforded full opportunity to ,be heard, to examine and cross-examine
1 Prior to the hearing an interest in this proceeding was manifested by the International
union of Operating Engineers , A. F. of L. At the hearing, however, the American Federa-
tion of Labor moved to intervene , specifically withdrawing all craft union interests pre-
viously shown by any of its affiliates. .
54 N. L. It. B., No. 3.
15
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses, and to introduce evidence bearing on the issues. The
Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded op-
portunity 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
Electro Metallurgical Company is a West Virginia corporation
which owns and operates a number of plants throughout the country.
This proceeding is concerned solely with the plant located in Ashta-
bula, Ohio, owned by the Defense Plant Corporation but operated by
the Company. This plant commenced operations in June 1943 and
manufactures ferro alloys and calcium carbide. The raw materials
used in the Ashtabula plant are quartzite chrome ore, limestone, lime,
coal, coke, and scrap steel. The material to be used per year exceeds
$1,000,000 in value, about half of which will be received from points
outside the State of Ohio. The total value of the production for one
year will exceed $1,000,000. More than half,of the products will be
shipped from Ashtabula to points outside the State of Ohio. The
Company's entire production is destined for use in the war.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Brotherhood of Locomotive Firemen and Enginemen,, and American
Federation of Labor, are labor organizations admitting to membership
employees of the Company.
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
During August 1943, the AFL informed the Company that it repre-
sented a majority of the Company's employees and requested recogni-
tion as 'the collective bargaining agent on their behalf. During the
late summer and early autumn of 1943, both,the USA and the Brother-
hood sought recognition as the collective bargaining representative of
certain employees. The Com=pany has declined to grant recognition
to any -union until it isicertified by the -Board.
ELECTRO METALLURGICAL COMPANY 17
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the USA represents a substantial number of em-
ployees in the unit hereinafter found appropriate.2
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
O
The USA, AFL, and Company are in substantial agreement that
the appropriate unit should be comprised of all production and main-
tenance employees, but excluding foremen, superintendents, general
office, clerical, confidential, and plant-protection employees. From
this all-inclusive unit, the Brotherhood seeks to carve out a unit com-
posed of engine service men. The USA and the Company vigorously
object to splitting the industrial unit in any manner, whereas the AFL
has no objection to the establishment of a unit such as the Brother-
hood seeks. As a further objection to a unit of engine service men, the
Company alleges that the Brotherhood discriminatorily excludes from
its membership certain employees because of their race or color 3
The Company's plant is located on the outskirts of the city of Ashta-
bula, where it covers 168 acres. Within the boundaries of the plant
there are approximately 5.6 miles of railroad trackage. As of the date
of the hearing, the Company employed about 1,000 employees, 875 of
whom fall within the categories sought to be represented by the USA
2 The Field Examiner reported that the USA submitted 369 membership cards, 368 of
which bore apparently genuine original signatures ; that the names of 268 persons appear-
ing on the cards were listed on the Company 's pay roll of September 11, 1943, which con-
tained the names of 680 employees in the appropriate unit ; and that the cards were var-
iously dated between June and October 1943
International Union of Operating Engineers, apparently on behalf of the AFL , submitted
108 membership cards all of which bore apparently genuine original signatures The names
of 76 persons appearing on the cards were listed on the Company 's aforesaid pay roll The
cards were dated between June and August 1943
The Brotherhood submitted 6 application for membership cards all of which bore appar-
ently genuine original signatures All cards bore the names of persons on the Company's
September 11, 1943 , pay roll . Said pay roll contains the names of 11 persons within the
unit which the Brotherhood alleges to be appropriate . The cards were dated in July and
August 1943.
At the hearing the USA submitted further evidence purporting to show an increase in its
membership throughout the plant and in the unit claimed to be appropriate by the
Brotherhood.
3 Under the terms of its contract with the Defense Plant Corporation for the operation
of the Ashtabula plant, the Company is required to obey Executive Orders Nos 9346 and
8802 which piohibit discrimination in employment or union membership against persons
engaged in war industries because of their race , creed , color, or national origin Since the
Brotherhood , by its constitution , limits membership to white born persons, the Company
contends that it cannot be certified as the collective bargaining representative of the em-
ployees in the unit it desires. If the Brotherhood is certified , so the Company argues, and
gets the closed -shop agreement which is universal in the railroad industry , the Company
will be prevented from hiring Negroes as engine service men, or upgrading them, thus
compelling the Company to discriminate against such employees in violation of the
President 's order.
567000-44-vol 14--.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the AFL. The Brotherhood's proposed unit totals only 11 men
who hold jobs as railroad engineers, firemen, and hostlers. The engine
service men are part of the Company's traffic and raw materials de-
partment which includes a group of 69 employees in many classifica-
tions, e. g., conductors, switchmen, locomotive crane operators, ma-
chine operators, truck drivers, laborers, dispatchers, and strawbosses,
in addition to the engineers, firemen, and hostlers.
The plant is a highly integrated enterprise, no one department of
which could operate without the close and constant assistance of all
others. In this set-up, the traffic and raw materials department occu-
pies a strategic position. It acts as an intermediary between the New
York Central Railroad which delivers the raw materials to and re-
moves the finished products from the plant, and the actual production
processes. Railroad cars containing the heavy, bulky raw materials
are delivered to the plant where they are taken over-by the traffic and
raw materials department and moved to the furnaces wherein are pro-
duced the ferro alloys. Transportation of the raw materials and the
finished products is accomplished by means of locomotives and cranes.
All switching of locomotives and freight cars is done within the plant
itself and no employees of the traffic and raw materials department
move freight trains on the tracks of the interstate carrier.
The plant is managed through the office of a single general superin-
tendent. There is a single "supervisor of service" who oversees em-
ployment and general relations of all employees. Wage rates and
conditions of employment are centrally determined. The traffic and
raw materials department is supervised by a department head who
also has jurisdiction over the engine service men. There is no separate
supervision for the employees whom the Brotherhood seeks to repre-
sent. Wage rates, working conditions and training for engine service
jobs are the same or comparable to those for jobs held by other skilled
workers in the traffic and raw materials department, and throughout
the plant generally.
The Company elicited evidence that its railroad switching equip-
ment, although standard, is not as complicated, nor does it maintain
an elaborate signal system such as is used by interstate carriers. Thus,
there is no block system on the tracks within the plant and a switch-
man precedes the locomotives at all times. The Company likewise
asserts that it trains its own employees and upgrades them. Hostlers,
it claims, are trained in 6 to 8 weeks and firemen and engineers in `but
a few weeks more. This is substantiated by the evidence that only 3 of
the 11 engine service men have had any previous railroad" experience,
and the experience of one of the 3 was acquired 20 years ago. The re-
maining 8 engine service men have apparently been recruited from
other jobs in the plant or have been hired as unskilled employees, and
I
ELECTRO METALLURGICAL COMPANY . 19
have been trained on the job. In the event of a slackening of produc-
tion compelling a reduction in the number of engine service men, the
Company intends to transfer them back to their old or other jobs.
Since the Ashtabula plant has been in existence for only half a year
it has no history of collective bargaining; however, the Company oper-
ates 13 similar plants located throughout the United States and, ac-
cording to the undisputed testimony of the Company's supervisor of
industrial relations, every union contract in those plants was negoti-
ated on the basis of an industrial unit.' Where, as here, there is ,no
history of collective bargaining, the form which collective bargaining
has taken in other plants of an employer is regarded by the Board as
a significant factor in determining the appropriate unit.' Moreover,
the history of collective bargaining throughout the steel industry gen-
erally affords ample precedent for the finding that an industrial unit
is appropriate.6 We note further that the engine service men are ant
integral part of a department which is more intimately related to pro-
duction of ferro alloys than to railway transportation.' Under all
these circumstances we shall retain the traditional bargaining unit in
this industry and shall therefore include the engine service men in the
comprehensive unit. In view of our determination to dismiss the peti-
tion of the Brotherhood on the grounds indicated above, we find no
occasion to rule on the issue of the alleged discrimination.8 ,
We find that all production and maintenance employees of the Com-
pany, including engine service men, but excluding general office, cleri-
cal, confidential, and plant-protection employees, foremen, superin-
tendents, 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
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-
4 See Matter of Electro Metallurgical Company et al, 45 N. L. R. B 335 , 339; Matter of
Electro Metallurgical Company , 51 N. L. R. B 37
6 See National Labor Relations Board , Third Annual Report , p 161 ; also Matter of
Bridgeport Brass Ordnance Plant , 45 N. L R . B. 84, and Matter of National 'Lead Company
( Titanium Division ), 35 N. L . R. B 1075.
6 See Matter of Tennessee Coal, Iron and Railroad Company , 39 N L R B 617 , citing
voluminous economic data ; Matter of Laclede Steel Company, 49 N L R. ,B 1116; Matter
of American Steel Foundries , 51 N. L R. B 1024.
' See Matter of Tennessee Coal, Iron and Railroad Company , Open Hearth Dept. of
Ensley Works, 39 N L. R. B 626.
8 See, however, Matter of U S Bedding Company, 52 N L R B. 382, and Matter of
Bethlehem-Alameda Shipyai d, Inc., et al., 53 N. L R. B. 999
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
roll period immediately preceding the date of the Direction of Elec-
tion 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, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Electro Metal-
lurgical Company, Ashtabula, Ohio, 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 Eighth 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 they desire to be represented by
United Steelworkers of America, affiliated with the Congress of In-
dustrial Organizations, or by the American Federation of Labor,
for the purposes of collective bargaining, or by neither.
ORDER
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives
of employees of Electro Metallurgical Company, Ashtabula, Ohio,
filed by Brotherhood of Locomotive Firemen and Enginemen, be, and
it hereby is, dismissed.