The Dayton Steel Foundry Co.

National Labor Relations Board - Board Decisions

Sep 19, 1949

85 N.L.R.B. 1499 (N.L.R.B. 1949)

In the Matter of THE DAYTON STEEL FOUNDRY COMPANY, EMPLOYER
and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L.,
PETITIONER
Case No. 9-RC-/96.Decided September 19, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before William A:
McGowan, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Houston and Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. The Employer and International Molders and Foundry Workers
Union of North America, Local 160, A. F. L., herein called the Inter-
venor, maintain that a collective bargaining agreement executed by
them on March 25, 1947, and amended on March 2, 1949, is a bar to
this proceeding. The petition herein was filed on April 29, 1949;
hence, the contract would constitute a bar, were it not for certain
provisions contained in Article I of the basic contract. The provisions
are as follows :
The Employees having designated the Union and its duly au-
thorized representatives as their sole bargaining agent for all
employees in the Foundry Department, and the Employer recog-
nizing the Union as the sole bargaining agent, the Employer
agrees not to retain in his employ any Molder, Coremaker, Ap-
prentice, Maintenance or Millwright or Pattern Repair employee
or other Foundry Employee, excepting supervisors, foremen,
watchmen, firemen, and office help, who is not a member in good
standing in the .Union.
85 N. L . R. B., No. 232.
1499
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Should the Employer require additional help in the Foundry
Department and the Union be unable to furnish such help, the
Employer shall have the right to hire such help in the open
market, said help so hired shall have 30 days in which to affiliate
with the Union, as a condition of employment.
These provisions go beyond the limited form of union-security agree-
ment permitted by Section 8 (a) (3) of the amended Act and are
therefore unlawful, without regard to' whether a union-shop authori-
zation election has been conducted under Section 9 (e) (1) of the Act.'
The contract therefore cannot operate to bar a present determination
of representatives?
A question affecting commerce exists concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. International Brotherhood of Electrical Workers, A. F. I.., herein
called the Petitioner, seeks to sever a unit of all electricians employed
at the Employer's Dayton, Ohio, foundry, excluding all other em-
ployees. The Employer and the Intervenor argue that the requested
employees do not constitute an appropriate unit because (1) they are
included in a unit of production and maintenance employees currently
represented by the Intervenor, and (2) because of the integration of
their work with that of other maintenance employees.
The Employer's plant consists of two main buildings, the foundry
and the machine shop. The International Association of Machinists
has represented the production workers in the machine shop since 1935.
The Intervenor has represented the foundry production and mainte-
nance employees since 1941.
There were three electricians working at the Employer's foundry
at the time of the hearing.3 They are part of the Employer's mainte-
nance department which also includes millwrights, carpenters, and
oilers. All maintenance department employees work under the over-
all supervision of the assistant factory manager. The electricians
work under the immediate supervision of an electrical foreman, who
also supervises the operators of electric cranes.4. The electricians are
engaged in electrical construction, repair, and maintenance work.
They do no production work. They work in an electrical shop which
1 The Intervenor was authorized on March 4, 1948, as the result of an election held on
February 24, 1948, to execute a union-security agreement.
2 Matter of Nicholson Transit Company, 85 N. L. R. B. 692 ; Matter of Morley Manu-
facturing Company, 83 N. L. R. B . 404; Matter of Hawley i Hoops, Inc., 83 N. L. R. B.'371.
1 The maintenance employees and laborers are the only employees who work in both the
foundry and the machine shop.
The electrical foreman is responsible to the assistant , factory manager, who also gives
instructions to the electricians.
THE DAYTON STEEL FOUNDRY COMPANY 1501
is separately located, and also throughout the plant 5 Most of their
work in the plant is on trouble-shooting assignments. They use the
customary tools and equipment of their craft. Most of the Employer's
machinery is electrically powered. There is no formal apprenticeship
program; only experienced electricians are hired by the Employer e
The work of each craft in the maintenance department is separate
and distinct, and for the most part the employees in each group con-
fine their activities to work which comes within their classification.
During emergency break-downs, however, the electricians work to-
gether with the millwrights. In such cases, they may assist the mill-
wrights in the latter's work in order to get the machinery back in
operation. When extra crane operators are needed, the electricians
are assigned to operate the electric cranes. Only a small portion of
their time is spent on this work.7
Working conditions for all employees are substantially the same.
Seniority is determined on a departmental basis under the Intervenor's
contract.
The Board has on numerous occasions found that electricians may
constitute an appropriate unit, notwithstanding a history of collective
bargaining on a broader basis.s In the present case, there is nothing
in the record to indicate that the employees sought herein differ sub-
stantially from the usual group of electricians to which the Board
has customarily accorded the opportunity of separate representations.
The electricians' duties are not so integrated with those of other main-
tenance employees as to preclude their severance from a plant-wide
unit. We do not believe that the interchange of duties revealed in
the record is sufficient to destroy the identity and craft.status of these,
employees.
We find that the employees requested by the Petitioner may, if they
so desire, constitute a separate appropriate unit. However, we shall
not make any unit determination at this time, but shall first ascertain
5 Other employees rarely use the electrical shop. An electrician testified that about
50 percent of their time is spent working in the electrical shop, and about 50 percent
working throughout the plant . The assistant factory manager testified that the majority
of the electrician' s time is spent in the plant on emergency break-downs or urgent repairs.
0 One electrician has worked for the Employer for almost 5 years, and two for about
4 years.
' Because of their electrical knowledge , the electricians are better equipped to operate
the cranes than are the other employees. One former employee testified that he spent
only about an hour a week operating the cranes , and another testified that he never oper-
ated the cranes . The assistant factory manager testified that there are two relief crane
operators , one of whom does nothing but relief work on the cranes. The other relief opera-
tor is an oiler , who spends a minor portion of his time helping with electrical work.
5 Matter of United Aircraft Corporation, Chance Vought Aircraft Division, 85 N. L. R. B.
183; Matter of National Carbide Corporation, 85 N. L. R. B. 103; Matter of Aluminum
Ore Company, 85 N. L. R. B. 121 ; Matter of Indiana Limestone Company, Inc., 83
N. L. it. B . 1124 ; Matter of Aluminum Company of America, 83 N. L. it. B. 398.
1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the desires of these employees as expressed in the election which we
shall direct be conducted among all electricians employed at the Em-
ployer's Dayton, Ohio, plant, excluding all other employees and super-
visors.9 If a majority vote for the Petitioner, they will be taken to
have indicated their desire to constitute a separate appropriate unit.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit described in paragraph numbered 4, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction of Election, including employees who did not work during
said pay-roll period because they were ill or on vacation or temporarily
laid off, 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, and also excluding employees on strike who
are not entitled to reinstatement, to determine whether they desire to
be represented, for purposes of collective bargaining, by Interna-
tional Brotherhood of Electrical Workers, A. F. L., or by Interna-
tional Molders and Foundry Workers Union of North America, Local
160, A. F. L., or by neither.
9 The electrical foreman has authority to hire and discharge employees . He will be
excluded from the unit as a supervisor.
10 Any participant in the election herein directed may, upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.