The American Roller Mill Co.

National Labor Relations Board - Board Decisions

Apr 28, 1947

73 N.L.R.B. 617 (N.L.R.B. 1947)

In the Matter of THE AMERICAN ROLLING MILL COMPANY, EMPLOYER
and UNITED STEELWORKERS OF AMERICA, AFFILIATED WITH THE
C. I. 0., PETITIONER
In the Matter of THE AMERICAN ROLLING MILL COMPANY, EMPLOYER
and BRICKLAYERS, MASONS AND PLASTERERS INTERNATIONAL UNION,
LOCAL 57, A. F. OF L., PETITIONER
Cases Nos. 9-R-2W and 9-R-455, respectively.Decided April
.8, 1947
Frost c6 Jacobs, by Messrs. Cornelius J. Petzhold and Charles A.
Atwood, of Cincinnati, Ohio, for the Employer.
Mr. Julius Holzberg, of Cincinnati, Ohio, for the Steelworkers.
Mr. John W. Jockel, of Cleveland, Ohio, for the Bricklayers.
Mr. Henderson Estes, of Middletown, Ohio, for the Independent.
Mr. Gerald P. Leicht, of counsel to the Board:
DECISION
DIRECTION OF ELECTION -
AND ,
ORDER
Upon separate petitions duly filed, a consolidated hearing in these
cases was held at Middletown, Ohio, on December 16, 17 and 18, 1946,
before William O. Murdock, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby, affirmed.
Upon the entire record in the case,l the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. TIIE BUSINESS OF THE EMPLOYER
The American Rolling Mill Company, an Ohio corporation, is en-
gaged in the business of producing iron and steel and manufacturing
3 On January 6, 1947, the Employer moved that the record be corrected in certain minor
respects . On January 7, 1947, the Board served upon the parties notice that the motion
would'be granted unless sufficient cause for denial were-shown by January 17, 1947. No
objections to the granting of the motion having been filed, the record is.corrected as re-
quested by the Employer.
73 N. L.R B, No. 119.
617
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-iron and steel products. It operates several plants, including a steel
mill and fabrication plant in Middletown, Ohio, which alone are in-
volved in this proceeding. The Middletown plants annually use raw
materials valued in excess of $5,000,000, of which approximately 75
percent is shipped to the plants from points outside the State of.Ohio.
These plants 'annually manufacture products having i value in excess
of $10,000,000, of which approximately 75 percent is shipped to points
outside the State of Ohio.
The Employer admits and we find that- it' is engiged in commerce
within the meaning of the National Labor Relations Act.
II.-THE ORGANIZATIONS INVOLVED
The Petitioner, United Steelworkers of America, herein called the
Steelworkers, is a labor organization affiliated with the Congiess of
Industrial Qrganizations, claiming to represent employees of the
Employer. .
The Petitioner, Bricklayers, Masons -and Plasterers International
Union, Local 57, herein called the Bricklayers, is a labor organization
affiliated with the American Federation of Labor, claiming to repre-
sent employees of the Employer.
Armco. Employees Independent Federation, Incorporated, herein
called the Independent, is an unaffiliated labor organization, claiming
to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize either the Steelworkers or the_
Bricklayers)as the exclusive bargaining representative of employees
of the Employer in the absence of Board certification.
On June 6, 1944, the Independent was certified as the bargaining
representative of employees of the Employer in the same basic unit
which is here sought by the Steelworkers in Case No. 9-R-92443; this
unit included the employees here sought by the Bricklayers in Case No.
9-R-2455.2 The Employer and the Independent entered into a 2-year
collective bargaining agreement on December 7, 1944, which provided
that the agreement should be ' automatically extended from year to
year, unless notice of termination were given by either party 30 days
prior to any anniversary date. The Steelworkers and the Bricklayers
filed their respective original'petitions prior to the 1946 effective date
of the automatic renewal clause of the contract. The contract is there-
fore not a bar to the instant proceedings and none of the parties so
contends.
We find that in Case No. 9-R-2443 a question affecting commerce
has arisen concerning the representation of employees of the Em-
2 llMatter of The American Rolling Mill Company, 56 N L R B 609
THE AMERICAN ROLLING MILL COMPANY 619
ployer, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
For reasons hereinafter stated we make no finding at this time with
respect to the alleged question concerning"representation in Case No.,
9-R-2455.
IV. THE APPROPRIATE UNIT
A. The contentions of the parties
In Case No. 9-R-2443, the Steelworkers seeks a unit of all production
and maintenance employees in the Fabricating Division, and the Mid-
dletown Division (steel mill) of the Employer, including weighmen,
recorders,-scrap yard men, and river pump men, but excluding mill
clerks,-junior mill clerks, schedule clerks, order dispatchers, salaried
fuel men, salaried inspectors, all janitors (except plant janitors), sal-
aried motor testers, salaried meter repair men, all wood and metal pat-
tern makers, pattern maker apprentices, plant-protection employees,
weighmasters, tiniekeepers, premium checkers, employees in the first
aid and medical departments, salaried -employees in the metallurgical
department, all employees in the home office, all employees in the main
office of each.Division, all salaried employees not directly connected
with production and maintenance, occasional, irregl.ilar, and substi-
tute foremen, all co-op student employees, all part-time employees not
regularly scheduled, all part-time employees who work less than 20
hours per week, foremen, assistant foremen, chief mill clerks, and all
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 meaning of Section
9 (b) of the Act.
In Case No. 9-R-2455, the Bricklayers seeks a unit of all bricklayers
and apprentices in the Middletown plant of the Employer, excludin g
foremen and group leaders and all other supervisory employees.
At the hearing, the Steelworkers took no position with respect to
the unit sought by the Bricklayers. Subsequent to the hearing, how-
ever, the Steelworkers notified the Board that it opposed the unit
sought by the Bricklayers in view of the "integrated character of steel
production" and the history of collective bargaining in this case, and
desired their inclusion in the unit-it-is seeking. The Employer and the
Independent contend that their contract covering production and main-
tenance employees establishes a history of collective bargaining on a
plant-wide basis and that therefore the unit sought by the Bricklayers
is inappropriate. - -
. With respect to the unit sought by the Steelworkers, the Employer
and the Independent are in disagreement with the Steelworkers as to.
620 DECISIONS OF NATIOI\TAL, LABOR' RELATIONS BOARD
the exclusion of certain categories of employees which are discussed
in detail in subsection D, infra. In taking such a position they contend
that the unit previously established by the Board 3 and which was
embraced,by their contract is determinative, there being no change in
circumstances warranting any modification of the unit at this time.
B. The history of collective bargaining
In 1943, the Pattern Makers League of North America petitioned
for a unit of all wood and metal pattern makers and their apprentices,
employed in the Fabricating Division of the Employer at Middletown.
During the same year, the Independent petitioned for a unit of produc-
tion and maintenance employees, excluding, among others, the em-
ployees sought by the Pattern Makers. The two cases were consoli-
dated for hearing, and the Steelworkers, as an intervening party, con-
tended that certain categories of employees sought by the Independent
should be excluded .4 On March 2, 1944, the Board issued its Decision
and Direction of Elections,5 directing that separate elections be con-
ducted among the employees sought by the P. M. L. and the Inde-
pendent, respectively. The Board included in the production and
maintenance unit sought by the Independent the categories of em-
ployees, noted in footnote 4, above, whom the Steelworkers sought to
exclude.
A description of the Employer's plants and operations is described
in considerable detail in that Decision. The record in the instant case
indicates that the operations today are substantially as previously
found.
Pursuant to the Direction, elections were conducted. among the
pattern makers on March 31, 1944, and among the production and
maintenance employees on March 30 and 31, 1944. The P. M. L.
received a majority vote in the, pattern makers unit and on April 12,
1944, was certified as .the collective bargaining representative of the
pattern makers.
The Tally of Ballots cast in the election among the production- and
maintenance employees:disclosed that the challenged ballots cast were
sufficient in number to affect the outcome of the election. On May 5,
1944, the Regional Director issued his Report on Challenged Ballots,
recommending the overruling of certain of the challenges and the sus-
taining of others, On May 17, 1944, the Board issued its Supple-
mental Decision and Direction, affirming' the recommendations of the
Regional Director and directing him to open and count ballots as to
which the challenges were overruled. On May 26, 1944, the Regional
8 See Matter of The American Rolling Mill Company, 55 N. L. R. B. 231.
Mill - clerks, junior mill clerks , schedule clerks, order , dispatchers , salaried fuel men,
salaried inspectors, janitors, salaried motor tests, and salaried meter repair men.
55 N L. R B. 231 , Supra.
THE AMERICAN ROLLING MILL COMPANY 621
Director issued his Revised Tally of Ballots, which showed that a
majority of the valid votes had been cast for the Independent. As al-
ready noted, on June 6, 1944, the Board certified the Independent as
collective bargaining representative of the production and main-
tenance employees. Also as noted, the Employer and the Independent
entered into a 2-year contract covering the employees for whom the
Independent was certified as bargaining representative.
C. The unit sought by the Bricklayers
Except for fringe issues, there is no dispute as to the appropriateness
of a production and maintenance unit, apart from the issue raised by
the Bricklayers as to the separation of the bricklayers and appren-
tices from the larger unit. The Bricklayers' petition for a separate
unit of approximately 23 bricklayers and apprentices requires fur-
ther deliberation by the Board, inasmuch as it involves the general
problem of craft versus industrial unit in the steel industry.6 But the
fringe issues are relatively simple and their prompt resolution will
fix the contours of the basic production and maintenance unit, per-
mitting an immediate election to be held among approximately 4,000
employees. Therefore, we shall not pass upon the Bricklayers' peti-
tion at this time, but shall proceed to dispose of the Steelworkers'
petition, thus severing the two cases and avoiding further delay for
the overwhelming majority of employees. Although we make no
determination now of whether to include the bricklayers and appren-
tices in the production and maintenance unit, as hereinafter provided
in Section V they shall be allowed to vote in the election we are direct-
ing among the employees in the production and maintenance unit.
However, the Regional Director shall segregate and impound their
ballots until we have acted upon the Bricklayers' petition and deter-
mined whether or not they are to be included in the production and
maintenance unit or permitted a separate election.
We turn now to a consideration of the fringe issues raised by the
Steelworkers' petition in Case No. 9-R-2443.
D. The disputed categories. in the production and maintenance unit
Mill clerks, junior mill clerks, schedule clerks, order dispatchers, Sala-
Pied fuel ,men, salaried inspectors, salaried motor testers, and salaried
meter repair men
The Steelworkers, as in the prior case, is seeking to exclude these
classifications of employees from the unit. The Employer and the-
Independent oppose such exclusions. The Board, in its prior Do-
See, e g (Matter of Tennessee Coal , It on and Railway Company , 39 N L R , B 617
Matter of Geneva Steel company, 57 N L R B 50
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cision, considered each of these categories and included them. In the
election directed by the Board in the prior case, the Steelworkers' chal'
lenged the ballots of employees in a number of these categories.' -The
Regional Director, in his Report on Challenged Ballots, recommended
the overruling of these challenges, which recommendation was affirmed'
by the Board, and the challenged ballots of these employees were
opened and counted.
Although the record-indicates that there have been, additional em-
ployees employed in several of these ' categories, there appears to be
no substantial change in the duties, relationship, and functions of
the employees in the categories. We shall, accordingly, include then.
Janitors
Contrary to the desires of the Employer and the Independent, the
Steelworkers seeks to remove all janitors, except plant janitors, from
the unit. There are, apparently three types- of janitors employed by
the Employer in Middletown : general office janitors, main, office jan-
itors, and plant janitors. The general offices for all the Employer's
plants are located at Middletown, Ohio. Nohe of the parties con`-
tends for the inclusion of the general office janitors and they were-not
included in the unit in the prior case or in the contract between the
Employer- and- the Independent. Accordingly, we shall exclude
them. - The main office janitors of the East Works Divisions and the
Fabricating Division were included in the unit the Board estab-
lished in its prior Decision. Because there appears to be no substantial
change in their duties; relationship, and functions, we shall include
them. None of the parties contends for the exclusion of plant janitors.
We shall, accordingly, also include them..
Part-time employees not regularly scheduled
The record indicates that there are "probably a few employees" em-
ployed in this category. There is no controversy, however, between
the parties with respect to these employees. - All agree to their ex- -
clusion. We shall, accordingly, exclude them.
Part-time employees regularly scheduled- who work less thane, 20
hours per, wee/c
The Steelworkers seeks, to exclude these employees, numbering
approximately 35, from the unit. The Employer and the Independ-
ent, however, would include them. The Steelworkers also contended
in the prior case that part-time employees should not be eligible to
N1111 clerks , junior mill clerks, schedule clerks, order dispatchers , salaried inspectors
Also referred to as the Middletown Division ( steel mill)
THE AMERICAN ROLLING MILL COMPANY 623
vote. The Board, however, in its Decision, found that they had a
substantial interest in the selection of a collective bargaining repre-
sentative and were thus eligible to vote. Part-time employees were
aaso'challenged by the Steelworkers at the prior election on the ground
that they were working less than 24 hours. The Regional Director,
however, recommended that the challenged ballots of these employees,
some of whom n`orked as little as 8 hours per week, should be opened
and counted. This recommendation was affirmed by the Board and
the challenged ballots were opened and counted. The record does not
show that there is any substantial change in the duties, relationship,
and functions of these part-time employees, and we shall, accordingly
include them. _
Co-op Student Employees
The Steelworkers would exclude Co-ops, whereas the Employer and
the Independent would include them. , The Employer employs eight
persons in this category. They are all engineering students attending
the University of Cincinnati. The prior Board Decision did not treat
with Co-ops, as none were employed by the Employer during the war
period. Co-ops were, however, employed both before and after the
war. The present Co-ops are "'ex-G. L's." They work in pairs, al=
ternately attending school and working for 7-week periods, during the
entire university course.9 It, therefore, appears that Co-ops are not
steady employees and that their employment is merely incidental to
their education. We accordingly find that they do not have a strong
community of interest with the other production and maintenance em-
ployees, and we shall exclude them.
Occasional, irregular and substitute foremen
These approximately 100 employees, whom the Steelworkers would
exclude, and the Employer and the Independent include, were re-
ferred to in the record as "spellmen." They consist of regular produc-
tion and maintenance employees who regularly "act for," "spell," or
"float out" turn foremen, in their absence. It appears that the prac-
tice of spelling supervisors has existed for many years. However, this
practice has increased recently due to the practice of placing all super-
visors on a salary basis and changing them from a 48-hour to a 40-hour
week. The spellmen are usually the most skilled production and
maintenance employees in their section and have, what was character-
ized by witnesses for the Employer, "a job knowledge." Although
they have a good chance for promotion to the position of foreman in
9 They work in the galvanizing maintenance , cold strip maintenance , metalluigical and
open hearth furnace departments of the East Works Division . The record reveals that if
they are employed at all on a permanent full-time basis upon completion of their studies,
11 will be ina technical or supervisory capacity.
73992G-47-vol. 73-41 -
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the event of a vacancy, they are not necessarily the ones so selected, and
they are so advised. While spelling they make decisions only frolic
an operational or mechanical standpoint, their principal function be-
ing to direct the working force. Also while spelling they are paid the
hourly rate formerly, received by, turn foremen, which "can be" higher
than their regular rate as production and maintenance employees.
The following factors distinguish spellmen from supervisory em-
-ployees: (1) working schedules are made up only by turn foremen;
(2) they are not required to make recommendations as to the status
of employees, as are the turn foremen, whose recommendations are
given weight; (3) while they are required to report infractions of
rules, this requirement is made of all production and maintenance em-
ployees; (4) their opinion is not sought in the preparation of "labor
audits," whereas the opinion of turn foremen is so sought; (5) they
have no part in the handling of grievances as do the turn foremen; (6)
the question of retention under the seniority clause in the contract be-
tween the Employer and the Independent was not taken upwith spell-
men but was taken up with turn foremen; (7) they do not receive
supervisory passes as do'the turn foremen; (8) they do not attend
school, as do the turn foremen, where supervisors are trained in man-
agement policies b0
On the entire record, we are of the, opinion that spellmen are not
supervisors within the Board's customary definition of that term, and
we shall, therefore, include them in the unit.
We find that all production and maintenance employees of the
Fabricating Division and Middletown Division (steel mill) of the
Employer in Middletown, Ohio, including,weighmen, recorders, scrap
yard inen, river pump men, mill clerks, junior mill clerks, schedule
clerks, order dispatchers, salaried fuel men, salaried inspectors,
salaried motor testers, salaried meter repair meli, main office and
plant janitors, regularly scheduled part-time employees, and oc-
casional, irregular, and substitute foremen, but excluding all wood and
metal pattern makers, pattern maker apprentices, plant protection
employees, weighmasters, timekeepers, premium checkers, employees
in the first-aid and medical departments, salaried employees in the
metallurgical department, all employees in the home office, all em-
ployees in the main office of each Division except janitors, all salaried
employees not directly connected with production and maintenance,
general office janitors, Co-op' student employees, part-time employees
not regularly scheduled, foremen, assistant foremen, chief mill clerks
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
10 At the Ashland, Kentucky, plant of the Employer, where the Steeln-oi kers is the collec-
tivo bargaining agent for production and maintenance employees, such employees are in the
contract unit '
THE AMERICAN ROLLING MILL COMPANY 625
ployees, or effectively-recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
Whether or not the bricklayers and apprentices will be included
in the production and maintenance unit is yet to be, determined, as
stated hereinabove.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen in Case No. 9-R-2443 be resolved by an election by secret
ballot, subject to the limitations and additions set forth in the Direc-
tion. -
Bricklayers and apprentices shall be permitted to vote in the elec-
tion, but the Regional Director shall segregate- and impound their
ballots pending disposition of the petition in Case No. 9-R-2455.
Whether or not such ballots are to be counted, assuming that they may
affect the results of the election, shall be determined by our later
decision in Case No. 9-R-2455 as to whether bricklayers and appren-
tices are properly a part of the production and maintenance unit, or,
on the other hand, are entitled to a separate election. It is -clearly
to be understood that the omission of the name of the Bricklayers-
Union from the ballot in the larger unit is not in any sense a pre-
judgment of the right of that organization to be placed on the ballot
in any separate election that might possibly be found appropriate
later in Case No. 9-R-2455. Should such an election be directed, the
name of the Bricklayers' Union will be placed on the ballot therein.
DIRECTION OF ELECTION 11
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with, The American Rolling Mill
Company, Middletown, Ohio, an election by secret ballot shall be con-
ducted 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 Ninth Region, acting in this matter as
agent for the Natonal Labor Relations Board, and subject to Sections
203.55 and 203.56, of National Labor Relations Board, Rules and
Regulations-Series 4, among the employees in-the unit found appro-
priate in Section IV, above (as well as bricklayers and apprentices),
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tempo-
"Any participant in the election herein may, upon its prompt request to, and approval
thereof by,-the Regional Director, have its name removed from the ballot.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but exclud-
ing 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 Steel-
workers of America, C. I. 0., or by Armco Employees Independent
Federation, Incorporated, for the purposes of collective bargaining,
or by neither.
ORDER
IT IS HEREBY ORDERED that Case No. 9-R-2443, instituted by the
United Steelworkers of America, affiliated with the C. I. 0., and Case
No. 9-R-2455,-instituted by the Bricklayers, Masons and Plasterers In'-'
ternational Union, Local' 57, A. F. of L., be, and they hereby are,
severed.