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National Labor Relations Board v. Calumet Steel Division of Borg-Warner Corporation.

June 12, 1941


Petition for Enforcement of an Order of the National Labor Relations Board.

Author: Kerner

Before EVANS, SPARKS, and KERNER, Circuit Judges.

KERNER, Circuit Judge.

This case is before us on the petition of the National Labor Relations Board for the enforcement of an order issued by it against respondent, a division of the Borg-Warner Corporation, an Illinois corporation. The principal issue turns on the validity of an election at which the Steel Workers Organizing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Local 1027, was chosen as the collective bargaining agent of the employees of the respondent's factory at Chicago Heights, Illinois.

The election was held on November 15, 1937, pursuant to a prior order of the Board. Of the 431 ballots cast, 2 were void, 9 were challenged, 180 were cast for the Chicago Heights Steel Workers Protective Association, 210 for Local 1027 and 30 for neither organization. Later, on January 12, 1938, a hearing was held which related to the challenges, and the Board decided that in determining the results of the election 6 of the 9 challenged ballots should be opened and counted and the remaining 3 discarded as improperly cast. This was done and thereafter, on May 21, 1938, the Board certified Local 1027 as the exclusive bargaining representative of the employees, finding as it did that Local 1027 had received 215 of the 426 valid ballots cast at the election. Virginian Ry. Co. v. System Federation, 4 Cir., 84 F.2d 641, 652; Association of Clerical employees v. Brotherhood of Ry. & S. S. Clerks, 7 Cir., 85 F.2d 152, 156, 109 A.L.R. 345. The respondent, however, refused to recognize Local 1027 as the collective bargaining agent on the ground that the certification was invalid. This refusal to bargain was followed by the instant complaint proceeding, in which respondent was charged with the violation of Sections 8(1) and 8(5), National Labor Relations Act, 29 U.S.C.A. ยง 158(1, 5), and which resulted after hearings in the order of April 23, 1940, now before us.

The findings in the representation proceeding as to the bargaining unit and as to the majority status of Local 1027 were reaffirmed by the Board in the complaint proceeding. Nor does the respondent really complain of the finding that the "hourly paid production and maintenance employees * * * excluding foremen, assistant foremen, watchmen, and all other supervisory employees [also the clerical employees], constitute a unit appropriate for the purposes of collective bargaining. * * *" In fact the Association and Local 1027 in the representation proceeding agreed that this unit was appropriate and respondent entered no objection to the unit. See National Labor Relations Board v. Chicago Apparatus Co., 7 Cir., 116 F.2d 753, 755. The respondent disputes the majority status of Local 1027, however, and advances the argument (1) that certain employees were improperly classified as belonging within or without the unit, and (2) that the certification was based upon a stale record.

The voting on election day was conducted under the supervision of the Board's agent and with the aid of tellers representing the Association and Local 1027. It turned out that among others two employees, Formentini and Tavoletti, were not permitted to vote "upon challenge or otherwise," the Board's agent ruling them ineligible on the ground that the former was a clerical and supervisory employee and the latter an assistant foreman. In addition the Association challenged the ballots cast by Pearson, Jahnke, Kocher, Behlke and McClendon, who were employed as heaters and constituted part of the crew operating the furnaces. Local 1027 challenged the ballots cast by Fred Miller, Siebert, Flodin and Stuebe, who in the main, with the possible exception of Miller, performed work of a clerical character.

Later, at the hearing held on January 12, 1938, evidence was introduced as to the nature of the work performed by the heaters and the "clerks" in question, but no reference was made to Formentini and Tavoletti in any regard. The evidence adduced by the Association tended to show that the heaters exercised supervisory authority over the furnace crew, and that the particular "clerks" performed work of a physical character. The evidence adduced by Local 1027 tended to show that the heaters performed the same work as their fellow crew members and at the same time exerted a limited authority over the crew in respect to the mechanical operation of the furnaces, and that the "clerks" performed clerical tasks. The Board determined that the heaters and Miller should be included in the bargaining unit and directed that their ballots be opened and counted.

The Board was faced with an obvious conflict in the evidence, and under the circumstances we are not permitted to say that its determination was erroneous.

It appears that Siebert checked orders and materials in the post-fabricating department, that Flodin was a stock clerk in the shipping department, that Steube checked and recorded weights in the shipping department and that Miller, though often engaged in some clerical task, worked mainly as a loader in the reinforcing department. We are satisfied that the different treatment accorded Miller was entirely reasonable.

It also appears that the heaters were primarily engaged in the same physical work as their fellow crew members, and that the rollers, not the heaters, decided the schedule of material to be run through the furnaces, ordered the repair of the furnaces and exercised the disciplinary power over the members of the furnace crew. The heaters testified that they did not consider themselves to be "bosses" over their fellow crew members, stated that they were eligible to membership in the labor organizations and denied that they possessed any power to hire or discharge.It is reasonable to conclude, as did the Board, that the heaters, though possessing some indicia of supervisory authority with respect to mechanical operations, were allied in interest and in the character of the work with their fellow crew members.

The respondent contends that the heaters were of a higher supervisory rank than that occupied by Formentini and Tavoletti, and that hence the Board erred in including them in the bargaining unit. In the complaint proceeding one of respondent's witnesses stated that in his opinion Formentini and Tavoletti were "lower grade" non-management supervisory employees whereas the heaters were "very definitely in the non-management supervisory class." This same witness admitted, however, that Tavoletti was an assistant roller and often took the place of the roller who was foreman of the heaters, and that his position and that of the heaters were "not in the same category." On the other hand, Formentini was a "stock shearman" in the finishing and shipping department, a position clearly unlike that of the heaters.

We believe that the inclusion of the heaters within the bargaining unit was proper. We are not as certain that the Board's exclusion of Formentini and Tavoletti from the unit is consistent with the inclusion therein of the heaters, but we are inclined to think that the rulings are not inconsistent. Obviously their respective duties form no reasonable basis for comparison, and there is the circumstance that neither the labor organizations nor the respondent deemed it material to raise the question of inconsistency at the hearing held on January 12, 1938.

Even if we assume inconsistency of rulings, our conclusion would not be the one urged by the respondent, that is, that in ruling as it did with respect to Formentini and Tavoletti the Board had "finally and irrevocably concluded itself in respect of any decision to accord the franchise" to the heaters. To us it does not follow that the improper exclusion of the one should operate to prevent the proper inclusion of the other. At the most our conclusion would be that the exclusion of ...

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