Phoenix Iron Co.

National Labor Relations Board - Board Decisions

Feb 17, 1942

38 N.L.R.B. 1320 (N.L.R.B. 1942)

In the Matter of PHOENIX IRON COMPANY and STEEL WORKERS ORGAN-
IZING COMMITTEE, AFFILIATED WITH THE C. I. O.
Case No. R-3449.-Decided February 17, 1942
Jurisdiction : structural steel manufacturing industry
Investigation and Certification of Representatives : existence of question: re-
fusal to recognize either of two competing unions until certified by the Board ;
contract, definite term of which is about to expire, no bar to; election necessary
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding supervisory employees, confidential clerical and office work-
ers, and policemen ; watchmen, janitors, charwomen, chemists, draftsmen,
observers, melters, and other clerical and office employees, who work in close
contact with production and maintenance employees and have been included
with them in bargaining contracts for over four years, included, notwithstanding
desire of the petitioner for their exclusion.
Mr. Edrwin A. Lucas, of Philadelphia, Pa., for the Company.
Mr. Edmund H. Szlapka, of Phoenixville, Pa., for the Association.
Mr. Darlington Hoopes, of Reading, Pa., for the S. W. O. C.
Mr. Max E. Halpern, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 12, 1941, Steel Workers Organizing Committee, affili-
ated with the C. I. 0., herein called the S. W. O. C., filed with-the
Regional Director for the Fourth Region (Philadelphia, Pennsyl
vania) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the Phoenix
Iron Company, Phoenixville, Pennsylvania, herein called the Com-
pany, and requesting an investigation and certification of represen-
tatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On January 3, 1942, the
National Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of the
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
38 N. L. R. B., No. 235.
1320
PHOENIX IRON COMPANY 1321
Director to conduct it, and to provide for an appropriate hearing upon
due notice.
On January 3, 1942, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the S. W. O. C.,
and upon the Employees Association of Phoenix Iron Company,
herein called the Association, referred to in the petition as a labor
organization claiming to represent certain of the employees of the
Company. Pursuant to notice, a hearing was held on January 10,
1942, at Phoenixville, Pennsylvania, before Robert H. Kleeb, the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany, the S. W. O. C., and the Association were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing, the Trial Examiner made various rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
All of the parties filed briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Phoenix Iron Company, a Pennsylvania corporation, operates its
plant in Phoenixville, Pennsylvania, where it is engaged in the manu-
facture of structural steel shapes and in the fabrication and erection
of steel structures. The raw materials purchased by the Company
for use in the manufacture of its products consist of oil, coal, pig iron,
scrap, ore dolomite, ferro manganese, ferro silicon, lime, Spiegel, fluor
spar, oxygen, acetylene, fire brick, and magnesite, a substantial portion
of which is purchased from points outside the State of Pennsylvania
and shipped to the Company's plant. In the year 1940, the Company
manufactured and sold products valued in excess of $6,000,000, of
which approximately 70 percent was shipped to points outside the
State of Pennsylvania. During the same period the Company em-
ployed about 1,200 employees.
The Company admits that it is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization affili-
ated with the Congress of Industrial Organizations, and admits to
membership employees of the Company.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Association of Phoenix Iron Company is an unaffiliated
labor organization, and admits to membership employees of the Com-
pany.
III. THE QUESTION CONCERNING REPRESENTATION
On December 31, 1937, the Company and the Association entered
into an exclusive bargaining contract covering "the employees of the
Phoenix Iron Company's plant," for a period of 1 year, renewable
from year to year unless terminated on 30 days' notice. On February
15, 1941, after negotiations, the contract was revised and renewed and
the current contract expires on February 15, 1942, although it is also
renewable from year to year unless terminated on 30 days' notice.
. Prior to December 12, 1941, the S. W. O. C. requested the Company
to recognize it as the exclusive bargaining representative for certain
of the Company's employees. The Company questioned S. W. O. -C.'s
claim of a majority and at the hearing took, the position that unless
S. W. O. C.'s claim should be substantiated, the contractual relation-
ship between the Company and the Association should continue. The
Company, therefore, requested that it be advised as to which of the
unions it is to bargain with. The Association contended that the exist-
ence of the contract for more than 4 years constituted a bar to a
present determination of representatives. In view of its impending
expiration, we find the contract is not a bar.
The statement of the Regional Director introduced in evidence at
the hearing shows that the S. W. O. C. has made a substantial show-
ing of membership among the Company's employees in the unit
hereinafter found to be appropriate J
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with- the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
'The Regional Directors statement shows that 654 application-membership and lA age-
deduction authority cards were submitted by the S . W. O. C , of which 6 appeared to be
duplicates , dated between February 8, and May 16 , 1941 , except 23 which are undated; that
644 bear apparently genuine signatures and 4 bear printed signatures ; that 547 cards
bear the signatures or printed names of persons whose names appear on the Company's
pay-roll lists of December 14, 1941 ; that 97 cards bear signatures or printed 'names of
persons whose names do not appear on these pay-roll lists ; that these pay-roll lists contain
1,292 names of which 1 , 149 are names of employees who appear to be within the unit
alleged to be appropriate by the S. W. 0 C
PHOENIX IRON COMPANY
V. THE APPROPRIATE UNIT
1323
At the hearing the parties agreed that tlie'appropriate unit should
include production and maintenance employees and that supervisory
employees and policemen should be excluded. The parties disagreed
as to whether the clerical and office employees, watchmen, janitors,
charwomen, chemists, draftsmen, observers, melters, and certain lead-
ers should be excluded. The S. W. O. C. contended that the em-
ployees in dispute should be excluded for the reason that they were.
not production and maintenance employees. The Company and the
Association contended that all these employees should be included
in the unit as established by the contract, except that the Company
agreed that one non-working leader be excluded. It appears that
these employees are not eligible for membership in the S. W. O.- C.
but are eligible for membership in the Association, and that they
work for the most part in close contact with the production and
maintenance employees.
In 1937, the Company and the Association entered into an exclu-
sive bargaining agreement covering "the employees of the Phoenix
Iron Company's plant." No definition of the term "employees" is
to be found in the contract. In practice, all of the Company's em-
ployees except supervisory employees and policemen were covered
by the contract. The unit so established' by the contract appears to
have been the basis of bargaining relations between the Company
and the Association.
Since the employees whose exclusion from the appropriate unit
is sought in this proceeding have been included in exclusive bar-
gaining contracts for a period of over 4 years, we will not exclude
them, unless they are clearly supervisory or a part of management.
We conclude, therefore, that watchmen,2 janitors, charwomen, chem-
ists, draftsmen, observers, and melters should be included within
the appropriate unit. However, it appears that among the clerical
and office employees there are secretaries and clerks to management
representatives whose duties include the handling of confidential em-
ployee relations. We shall exclude such confidential office. and
clerical employees.
The parties agree that working leaders should be included in' the
unit. However, the S. W. O. C. contends that Lombardi, Gausch,
and Devlin should be excluded as.non-working leaders. Lombardi,
leader of a pick and shovel gang of 6 to, 20 laborers, does no manual
labor, has the same discretion as a foreman in the hiring, firing, and
disciplining of his men and the Company agreed with the S. W. O. C.
2 Employees classified as watchmen serve principally as gatekeepers The duty of guard-
ing the premises and-property of the Company devolves upon the policemen who are excluded
from the unit herein found appropriate.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to his exclusion. Gausch is a yard and punches leader who cus-
tomarily does no manual labor and directs the work of the men
under him. Devlin, a painter leader, directs the painting work and
does no painting himself and according to the Company's general
manager, is "a checker, that is a foreman." We shall exclude the
foregoing as non-working leaders.
Accordingly, we find that all production and maintenance em-
ployees of the Company, including watchmen, janitors, charwomen,
chemists, draftsmen, observers, melters, working leaders, and clerical
and office employees except confidential clerical and office employees,
but excluding supervisory and confidential clerical and office em-
ployees, policemen and non-working leaders, constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
will effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by, and we shall accordingly direct, an
election by secret ballot. The parties made no requests as to the
use of a particular pay roll to determine eligibility, and no reason
is disclosed in the record for not using a current pay roll. In accord-
ance with our usual practice, we shall direct that the employees
eligible to vote shall be those employed within the appropriate unit
during the pay-roll period immediately preceding the Direction of
Election subject to the limitations and additions set forth in the
Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Phoenix Iron Company, Phoenixville,
Pennsylvania, within the meaning of Section 9 (c) and Section 2
(6) and (7) of the National Labor Relations Act.
2. All production and maintenance employees of the Company,
including watchmen, janitors, charwomen, chemists, draftsmen, ob-
servers, melters, working leaders, and clerical and office employees
except confidential clerical and office employees, but excluding super=
visory and confidential clerical and office employees, policemen and
non-working leaders, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the National Labor Relations Act.
PHOENIX IRON COMPANY
DIRECTION OF ELECTION
1325
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, 49 Stat . 449, and pursuant to Article III, Section 8,
of National Labor Relations Board Rules and Regulations-Series
2, as amended , it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Phoenix Iron Company , Phoenixville , 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 supervision 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, Section 9, of said Rules
and Regulations , among all production and maintenance employees
of the Company , including watchmen, janitors , charwomen , chemists,
draftsmen , observers , melters, ' working leaders, and clerical and'
office employees except confidential clerical and office employees of
the Company employed at Phoenixville , Pennsylvania , during the
pay-roll period immediately preceding the date of the. Direction of
Election , including employees who did not work during such pay-roll
period because they were ill or on vacation or in the active military
service or training of the United States, or temporarily laid off, but
excluding supervisory and confidential clerical and office employees,
policemen and non-working leaders, and employees who have since
quit or been discharged for cause , to determine whether or not they
desire to be represented by Steel Workers Organizing Committee,
affiliated with the Congress of Industrial Organizations , or by Em-
ployees Association of Phoenix Iron Company , for the purposes of
collective bargaining, or by neither.