Electro Metallurgical Co.

National Labor Relations Board - Board Decisions

Jul 21, 1944

57 N.L.R.B. 518 (N.L.R.B. 1944)

In the Mattel' of ELECTRo METALLURGICAL COMPANY (NIAGARA WORKS)
and DISTRICT 50, UNITED MINE WORKERS OF AMERICA
In the Matter of ELEOTRo METALLURGICAL COMPANY and BROTHER-'
HOOD OF RAILROAD TRAINMEN _
In the Matter of ELFcTRO METALLURGICAL COMPANY and BROTHER-
HOOD OF LOCOâlOTIvE FIREMEN & ENGINEMEN
Cases Nos. 3-R-773, 3-R-818 and 3-R-8,00 respectively.-Decided
July 21, 1944
Messrs. Clarence L. Sager, and William C. Treanor, both, of New
York City, for the Company.
Mr. Stanley Denlinger, of Akron, Ohio, and Air. Rinaldo Cappellini,
of Niagara Falls, N. Y., for District 50.
Mr. Gavin Mitchell, of Niagara Falls, N. Y., and Mr.Char_les_ A.
Doyle, of Niagara Falls, N. Y., for the C. 1. 0.
Messrs.' Harold C. Heirs and Russell B. _Day, both of Cleveland,
Ohio, for the B. R. T. and the Firemen.
Mr. David'V. Easton, of counsel to the Board.
DECISION
DIRECTION' OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by District 50, United Mine Workers of
,America;, herein called District 50, alleging that a question affecting
commerce had arisen concerning the representation of employes of
Electro Metallurgical Company (Niagara Works), Niagara Falls,
New York, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Peter J. Crotty, Trial Examiner. Said hearing was held at Niagara
Falls, New York, on May 22, 1944. The Company, District 50, and
Local 250, United Gas, Coke and Chemical Workers, C. I. 0., herein
called the C. I. 0., appeared, participated and were afforded full
opportunity to be heard„to examine and cross-examine witnesses, and
57 N. L. R. •B., No. 93.
518
ELECTRO METALLURGICAL COMPANY 519'
to introduce evidence bearing on the issues. During the hearing, the
parties, executed- an "Agreement for a Consent Election," 1 and the
hearing was adjourned indefinitely. Thereafter, a first amended peti-
tion was duly filed by Brotherhood of Railroad Trainmen, herein
called the B. R. T. and a petition was duly filed by Brotherhood of
Locomotive Firemen and Enginemen, herein called the Firemen, each
alleging that a question affecting commerce had arisen concerning the
representation of employees of the Company. The Board consolidated
all the cases and provided for a further hearing upon due notice before
Peter J. Crotty, Trial Examiner. Said hearing was held at Niagara
Falls, New York, on' June 15, 1944. The Company, District 50, the
C. I. 0., the B. R. T.,2 and the Firemen 3 appeared, participated, and,
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues..
At this hearing both District 50 and the Company moved upon vari-
ous grounds to dismiss the petitions filed by the B. R. T. and the Fire-
men; the Trial Examiner referred these motions to the Board. For
the particular reasons.hereinafter set forth, the motions are hereby
granted' The rulings of -the- Trial Examiner'made at both hearings.
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
1. THE BUSINESS OF THE COMPANY
Electro Metallurgical Company (Niagara Works), a West Virginia
corporation authorized to conduct business in the State of New York,.
is engaged in the manufacture of calcium carbide and ferro-alloys.
During the period between January 1, 1943, and December 31, 1943,.
the Company used raw materials at its Niagara Works valued in ex-
cess of $500,000, of which more than 90 percent represents shipments
to the Company from, points--outside the State of New York. During-
the same period, the Company manufactured finished products at
its Niagara Works valued in excess of $500,000, of which more than
75 percent represents shipments made to points outside the State of'
New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
I This agreement was approved by the Regional Director on May 23, 1944.
8 The record discloses that Lodge 639 is the local organization more particularly-
Involved herein.
O The record discloses that Lodge 362 is the local organization more particularly-
Involved herein.
.520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor-organiza-
-tiori admitting to membership employees of the Company.
Local 250, United Gas, Coke and Chemical Workers, is a labor
organization affiliated with the Congress of Industrial Organizations,,
admitting to membership -employees of the-Company.
Local 639, Brotherhood of Railroad Trainmen, and Lodge 362,
Brotherhood of Locomotive Firemela_and Enginemen, are labor or-
ganizations admitting to membership. employees of the Company. -
III. THE QUESTION CONCERNING REPRESENTATION
The. Company refuses to recognize any labor organization as the
,collective bargaining representative of its employees, in the absence
of certification by the Board.
Statements of a Board Field Examiner, introduced into evidence
Ilt the, hearing, indicate that District 50 represents -a -substantial
number of employees in the unit hereinafter found' appropriate.'
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, District 50, and the C. I. O. agree that all hourly
paid production and maintenance employees of the Company, in-
cluding'watchmen, hourly paid research laboratory and development
- laboratory workers, but excluding all office and clerical ' and medical
service employees, militarized plant-production employees, and super-
visory employees with authority to hire;'promote,^discharge,•discipline,
,or otherwise'effect changes in the status of employees, or effectively
recommend such action, constitute-an appropriate unit.5 The B. R. T.
seeks a unit composed of conductors, switchmen, and brakemen, an(
the Firemen seeks a unit consisting of railroad engineers, firemen,
and hostlers; the employees sought by these two organizations are
4 The statements of the Field Examiner may be summarized by the following chart :
Type of unit
Prod.and,maint. unit______________________
B R. T. unit-------------------------------
Firemen's unit______________________________
No em-
ployees
in unit
2.366
21
17
Representation showing in units
District 50
• 1 894
C I O.
1 215
B. R. T
------s 12
Firemen
214-
Spot checks were made of these designations against the Company's pay roll of March 4, 1944.
2 Names appearing upon these designations also appeared upon the Company's pay roll of March 4,
1944.
° This is the unit which was agreed upon in the "Agreement for Consent Election."
ELECTRO METALLURGICAL COMPANY ,521.'
employed on the railway ow ned and operated by the Company's
Niagara Works.6'
The Raw Materials and Traffic Department of the Company, of
which the railway -employees form a part,7 is under the immediate
supervision of the general yard master. The department is re-
sponsible for the receiving and unloading of all raw materialsi the
delivery to various points in the plant for processing, the loading of
the finished products, and their delivery to the railroads servicing
the Niagara Works.8 These movements of material within the plant
are made upon the intraplant railway previously referred to, which
is comprised of approximately 15 miles of track. Besides the rail-
way employees, the department includes employees classified as ma-
terial handlers, laborers, raw material crusher attendants, belt men,
oilers, shredding machine operators, Larry car operators, various
types of crane operators, and repair crews, all of whom are directly
'concerned with the transportation of materials within the plant.
Each of these classifications bears a close functional relationship to
the others in the department as well as to employees working in the
various production departments.
The railway employees are primarily concerned with operating the
tracks and rolling stock of the intraplant railway. On occasions
caused by the fact that the Company does not possess sufficient siding
space, some of these employees may have to leave the confines of the
plant and place cars on the connecting lines between the railroads serv-
icing the plant and the plant itself. There is some evidence which
indicates that,' under certain circumstances, these employees may
perform some switching operations on the main line of one of'the serv-
icing railroads. However, the major portion of the duties of the rail-
way employees is performed within the plant itself. The railway
employees are not necessarily persons who have had prior experience
with railroads, and a majority of them have been trained by the Com-
pany in order to perform their present duties. The Company's policy
has been- to make interdepartmental transfers during slack periods
without regard to classification. Since, as previously indicated, the
majority of the railway employees were originally hired for positions
other than those -which they now occupy, they are equally affected by
this policy of the Company.
Although there has been no collective bargaining history covering
the employees at the Niagara Works, the Company, is presently bar-'
gaining collectively-with respect to employees in eight of its plants.'
9 These employees are hereinafter referred to collectively as the railway employees.
7 The department has about ,116 employees . The railway employees comprise approxi-
mately 32 percent of this number. '
8 There are two railroads which service the Company . , Each owns connecting lines
linking the plant 'with its main lines.
522 DECISIONS OF 'NATIONAL-LABOR RELATIONS BOARD
In each of these plants the employees are represented on the basis of
an industrial unit. In discussing a similar, situation involving an-
,other plant of the Company,° we stated :
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'i-ri 'de-
termining the appropriate unit. Moreover, the history of collec-
tive bargaining throughout the steel industry generally, affords
ample precedent for the finding that an industrial unit is ap-
propriate. We note further that the engine service men are an
integral part of a department which is more intimately related
to the production of ferro alloys than to railroad transportation.
Under the, circumstances we shall retain the traditional bargain-
ing unit in this' industry and shall include the engine service men
in the comprehensive unit."
For the same reasons we are, of,the.opinion,.that.separate units, of rail-
..way'employees of, the Niagara Works are not appropriate for the
purposes of collective bargaining. Accordingly, we shall dismiss the
petitions filed by the B. R. T. and the Firemen.
We find that all hourly paid production and maintenance employees
of the Company, including watchmen, hourly paid research labora-
tory workers and development laboratory workers, but excluding all
office and clerical and medical service employees, militarized plant-
-protection employees, and supervisory employees with authority to
-hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining
within the ineaning 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 Direc-
tion.
Since the units sought by the R. R. T. and the Firemen have not
3been found to be appropriate, and these organizations claim no interest
in the appropriate unit, we shall not place their names upon the ballot;-,
on the other hand, inasmuch as we are conducting an election, and
a Matter of Electra Metallurg ical Company, 54 N. L. R. B. 15, and cases cited therein.
In that proceeding, involving the Ashtabula plant, the Firemen sought to establish, as in
this case , a unit of engine service employees.
10 See also Matter of Geneva Steel Company, 57 N. L R. B 50, and cases cited therein.
ELECTRO METALLURGICAL COMPANY 523
the C. 1. 0. has submitted some evidence of representation in the appro-
priate unit, we shall accord it a place thereon.
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
DrRECrED that, as part - of the investigation to ascertain representa-
tives for'the purposes of collective bargaining with Electro Metallur-
gical Company (Niagara Works), Niagara Falls, New York, 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 Third
Region, acting in this matter as agent for the National Labor Rela-
tions Board , and subject to Article III, Sections 10 and 11 , of said
Rules and Regulations , among the employees in the unit found appro-,
priate 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 District 50, United Mine Workers of America, or by
Local 250, United Gas, Coke and Chemical Workers, affiliated with
the Congress of Industrial Organizations , for the purposes of col-
lective bargaining , 'or by neither.
ORDER
On the basis of the foregoing findings of fact, the National Labor
Relations Board hereby orders that the petitions for investigation
and certification of representatives, of employees of Electro Metal-
lurgical Company (Niagara Works), Niagara Falls, New York, filed
by Brotherhood of Railroad Trainmen, and by Brotherhood of Loco-
motive Firemen & Enginemen in Cases Nos. 3-R-818 and 3-R-820, re-
spectively, be, and they hereby are, dismissed. ,
[See infra, 57 N. L. R. B. 1764 for Supplemental and Amended Deci-
sion and Direction of Elections.] . - . ,