Aluminum Co. of America

National Labor Relations Board - Board Decisions

Jun 29, 1943

50 N.L.R.B. 963 (N.L.R.B. 1943)

In the Matter of ALUMINUM COMPANY OF AMERICA and PLANT GUARDS'
LOCAL UNION No. 23390 (AFL)
Case No. R-5184.Decided Jwne 29, 1943
Mr. Paul G. Roca wall, of Pittsburgh, Pa., for the Company.
Mr. Jesse Gallagher, of Cleveland, Ohio, for the Union. -
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
. STATEMENT OF THE CASE
"Upon petition duly filed by Plant Guards ' Local Union No. 23390
(AFL), herein called the Union, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Aluminum Company of America, Newark , Ohio, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Max W. Johnstone, Trial
Examiner . Said hearing was held at Newark, Ohio, on June 2, 1943.
The Company and the Union appeared , participated , and were af-
forded full opportunity td be heard , to examine and cross -examine
witnesses , and to introduce evidence bearing on the issues . The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed . All parties were afforded opportunity
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
Aluminum. Company of America, a Pennsylvania corporation, hav-
ing its principal office and place of business at Pittsburgh, Pennsyl-
vania, is engaged in the production of aluminum and aluminum alloys.
It owns various plants in several States of the United States and oper-
ates other plants for the Defense Plant Corporation. We are here
primarily concerned with the Newark, Ohio, plant, which is now under
construction. When the plant is completed, it will be operated by
50 N. L. R. B., No. 136.
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DF6CISIONiS OF NATIO ,AL -LABOR RE,LATION'S' BOARD
the Company -for the production of aluminum alloys and materials
fabricated therefrom. Title to the Newark plant will remain in the
Defense Plant Corporation, and the plant will be operated by the
Company under a lease'arrangement in the ordinary form with the
Defense Plant Corporation. ' It is anticipated that large amounts of
materials, costing large sums of money will be produced and processed
at the Newark plant. A very large percentage of all the raw materials
which will be produced and processed at the Newark plant have collie
and will come from points outside the State of Ohio, and a very large
percentage -of the materials processed at the Newark plant will be
shipped to points outside the State of Ohio.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Plant Guards' Local Union No. 23390 is a labor organization af-
filiated with the American Federation of Labor admitting to, mem-
bership employees' of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about April 19, 1943, the Union requested the Company to
recognize it as the exclusive bargaining representative of employees
of the Company. The Company 'refused to recognize the Union
unless and until it is certified by the Board.
At the hearing, the Company contended that the guards,' employees
here involved, are employees of Defense Plant Corporation, and not
employees of the'Company. It further contended that production
operations are very limited at the present time, only 5 percent of
the total floor space now being utilized for-'_production, ,md that this
proceeding is, therefore, premature. With respect to these 'conten
tion''s; the record, indictites that although only approximately' 133
production employees are presently working, and that it is antici-
pated that at the time the plant will be in full operation, December
1943, the full complement of employees will be approximately 2,000,
the present complement of guards is not expected to increase more
than 25 to 30 percent, and ' may, in fact, decrease., The 'guards are
on-the pay roll of the Company,; have'always been paid by Company
checks, and have alivays had'deducted froln their pay old ale belie-
fit payments. In addition, the guards fill out standard"Coin'pariVI
application forri s"for employment, and the Company bonds `their:
The Company furnishes uniforin s and equipment and training ' in
conjunction ' with ' the Army.' ''The guards have never been on a De-
I For reasons appearing under Sections III and IV below , we find that the individuals
here involved are emplevoes of the. Company within the meaning,of,the Act.
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ALUMINUM COMPANY OF, AMERICA 965
fense Plant Corporation pay roll,- although the Company's pay roll
is charged to the cost of construction for which the Defense Plant
Corporation reimburses the Company. The Company maintains that
the guards are on the "construction" pay roll instead of the "pro
duction" pay roll, but this differential appears to be only a matter of
bookkeeping. The record shows that the Company intends to retain
these guards in its employ, which is further indicated by the fact
that they are put through an intensive, training course by the Corn-
pany ; most of them have finished their 6 weeks' probationary period,
and no additional qualifications or training will be necessary for
their transfer from the "construction" pay roll to the "production"
pay roll, in addition to the facts set forth above.'
We find that the guards are not employees of the Defense Plant
Corporation, but are employees of the Company within the meaning
of Section (2) of the Act. -
A statement of a Field Examiner of the Board introduced in evi-
dence at the hearing indicates that the Union 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 parties stipulated that the appropriate unit should comprise all
patrolmen'and sergeants in the plant-protection department, exclud-
ing all others such as the Chief, the lieutenants, the fingerprint expert,
etc., subject to the Company's contentions enumerated above, and its
further contention that guards act in the interests of the Company
and are not employees within the meaning of the Act.
The cliief, duties of the plant-protection employees are to guard the
plant, to check persons in and out of the plant, and `to enforce the
Company's rules. '
The War'Department has recently issued a directive order. making
plant-protection employees at plants producing war materials civilian
auXiliaries to the military police. The directive order, however,
specifically 'preserves the essential employment relationship. The
employer's right to discharge for cause remains, and hiring, compensa-
tion foi services performed, ind'general Working conditions remain
matters to'be adjusted between employer and'employees.
The duties of the Company's guards in the plant-protection depai't-
ment,•at the plant here, ;involved are similar to,those of the ,plant-
'The Field Examiner reported that the'Union submitted 39 designations , dated between
March 20 and April 20. 1943, 37 beaiing apparently genuine s'gaatuies of persons whose
names appeal on the Company's pay roll as of May 8, 1943. There are approximately 43
employees in the unit.
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966 DEiCf'SIONbS OF NAMIONAL LABOR R'ELAT'IONS BOARD
protection employees at the Company's Maspeth, Long Island plant.3
In that case we found, as we have frequently found in other like cases,
that plant guards, hired' and paid by the employer are employees
within the meaning of the&Act and may designate a representative
for purposes of collective bargaining, even though they are auxiliaries
'to the military police.
The Company asserts that in times of industrial strife these em-
ployees must necessarily be-aligned with management because of their
duties and therefore they are more appropriately akin to management
than to the regular production employees. While their duties are of
a special nature, it is clear that plant-protection employees are clothed
with no supervisory authority over their fellow employees. We find
nothing in their duties which impels the conclusion that their relation-
ship to management is so close that they. cannot be represented in a
separate unit for collective bargaining. The Company further asserts
that these employees have the power to recommend discharges. The
alleged power to recommend discharge is not the customary, authority
exercised by foremen or other supervisory `employees. ' While dis-
charges may result from a report of a plant guard, it flows from the
facts reported by him rather than from the exercise of any discre-
tionary,authority vested in him. , We Rccdrdingly re'ject`th'e,i• iguinent
that plant-protection employees are too closely identified with man-
agement to be permitted to constitute a unit for the purposes of
t
collective bargaining.'
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The parties stipulated at the hearing that sergeants spend at least
50 percent of their time in patrolmen's work. Nothing appears in
the record to indicate' what their duties consist of. the remaining 50
percent of their time, and, whether-.'as in the, case , ins>olving• ,the
Maspeth plant they may supervise a "tour of duty," and have author-
ity to hire and discharge. There the Board found that the sergeants
were-supervisory employees and excluded them from the unit. If the'
sergeants here involved have supervisory duties similar to those in
the Maspeth plant, we conclude that they should be excluded from the
unit.
We find that all-guards (patrolmen) in the plant-protection depart.
ment of the. Company, at,the .Newark, Ohio, plant,. excluding the
,Chief, the lieutenants, .the,fingerprint ; expert,'-and =all wsupervisory
guards, constitute a unit appropriate for the purposes of collective
bargaining within-the meaning of Section 9 (b) of the Act. _ . .
3 See Matter of Aluminum Company o f America, 50 N L. R. B. 233.
4 See Matter of Jones & Laughlin Steel Co., Otis Works, 49 N. L. R. B . 390, and cases
cited therein. - , N
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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 -
employees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion, subject to the limitations and additions set forth therein.
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 2, as amended, it is
hereby ^
DIREcrED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Aluminum Com-
pany of America, Newark, 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, Section 10, 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 tem-
porarily 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, to
determine whether or not they desire to be represented by Plant
Guards' Local Union No. 23390 (AFL) for the purposes of collective
bargaining. I i