Victor Chemical Works

In the Matter Of VICTOR CHEMICAL WORKS and UNITED CONSTRUCTION WORKERS, DIVISION OF DISTRICT 50, U. M. W. A. Case No. R-5791.-Decided August 26, 1943 Pope & Ballard, by Mr. B. B. Vedder, of Chicago, Ill., for the Company. Mr. Roy M. Peck, of Hammond, Ind., for the Union. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION-OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Construction Workers, Division of District 50, U. M. W. A., herein called the Union, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of Victor Chemical Works, Chicago Heights, Illi- nois, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert T. Drake, Trial Examiner. Said hearing was held on July 26, 30, and August 2, 1943, at Chicago Heights, Illinois, and on August 3, 1943, at Chicago, Illinois. The Company and the Union appeared, participated, and were afforded full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bear- ing 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 1. THE BUSINESS OF THE COMPANY Victor Chemical Works has its principal office at Chicago, Illinois, and operates, plants at Chicago Heights, Illinois, and at Nashville and Mt. Pleasant, Tennessee. The Chicago Heights plant is the only 52 N L. R. B, No. 30. 194 VICTOR CHEMJiCAL WORKS 195 plant directly involved in this proceeding. The Company is engaged in the manufacture of phosphoric acids, phosphates, and oxalic and formic acids. The Company sells and distributes its products and other chemical compounds. The Company uses raw materials consist- ing,of phosphorus, coal, lime, and caustic. During 1942, the Com- pany purchased for use at its Chicago Heights plant raw materials valued in excess of $100,000, of which more than 50 percent by value was purchased and shipped to the plant from points outside Illinois. During the same period the Company, manufactured products at this plant valued in excess of $100,000, of which more than 50 percent by value was shipped to points outside Illinois. In 1942, the Com- pany's sales from its plants exceeded $12,000,000. The Company admits that it is engaged in commerce, within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED United Construction Workers, Division of District 50, U. M. W. A., is an unaffiliated labor organization, admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 8, 1943, the Union asked the Company for recogni- tion as exclusive bargaining representative of employees at the Chi- cago Heights plant. On January 12 the Company suggested that the matter be referred to the Board, and thereafter the Union filed a petition for investigation and certification of the Company's em- ployees. On January 25 the Company and the Union entered into an agreement for a consent election among employees in a unit which the parties agreed was appropriate for the purposes of collective bargaining, and on February 11 and 12 the Regional Director con- ducted the election. The Union received a minority of votes cast and thereafter filed objections to the conduct of the election. The Regional Director sustained the Union's objections and voided the results of the election. Under the terms of the consent election agreement, the Regional Director was empowered to conduct at his discretion, a new election at a time, date, and place to be determined by him. The Regional Director did not order a new election held. The Company contends that under these circumstances the Board should not entertain the petition filed herein. We find no merit in this contention. On March 23 the Union filed charges, alleging that the Company had engaged in unfair labor practices in violation of the Act. On March 24 the Union filed the instant petition., The Union and the Company dis- i On the same day the Union filed a waiver to protest any election held as a result of the instant petition on the ground set forth in its charges filed against the Company. 549875-44-vol. 52-14 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agree with respect to the inclusion of certain employees in the bar- gaining unit. The Union seeks a resolution of this issue by the Board. Under these circumstances, we find that the consent election agree- ment and the election held pursuant thereo do not constitute a bar to an immediate investigation-and determination of representatives, pursuant to the petition filed herein.2 A statement prepared by the Regional Director and introduced into evidence at the hearing and a revised statement prepared by the Trial Examiner and read into the record at the hearing indicate that the Union represents a substantial number of employees in the unit herein found appropriate.3 We find that a question has arisen concerning the representation of employees of the Company, within the meaning of Secion 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Company and the Union agree that hourly paid production and maintenance employees of the Company at the Chicago Heights plant, including hourly paid employees in the laboratories, janitors, cooks, and truck drivers' helpers,4 but excluding salaried employees, superintendents, foremen, office and clerical employees, employees in the engineering department, and plant guards, should be included in the bargaining unit. The Company and the Union disagree with respect to the inclusion in the unit of truck drivers, assistant foremen, working foremen, and key men.5 The Union would exclude truck drivers, assistant foremen, and working foremen from the unit. The Company would include them. The Union would exclude' certain key men from the bargaining unit. The Company contends that all key men should be included in the unit or that key men, as a class, - should be excluded from the unit. The Company's operations at its Chicago Heights plant are di- vided into two main divisions, the production, maintenance, and service departments and the laboratories. The first named division 2 Cf Matter of United Carbon Company , Inc , 7 N L R B 598 '3 The Union submitted 317 authorization cards, all of which bear apparently genuine signatures Of these cards, 230 bear the names of employees on the pay roll of March 28, 1943, which listed 621 employees within the bargaining unit proposed by the Union. Of these 230 cards, 19 are undated , 3 are dated in January , 3 in March , 1 in July , 1 in August, 8 in October, 111 in November, and 67 on December 1942; and 15 were dated in January and 2 in February 1943 During the course of the hearing , the Trial Examiner checked the cards submitted by the Union against the pay roll of July 18 , 1943, and found that 196 cards submitted by the union bore names of employees on the pay roll of July 18, 1943, which listed 620 employees in the unit proposed by the Union There are approximately 650 employees in the appropriate bargaining unit 4 Truck drivers' helpers are yard employees who load and unload trucks, 5 Employees in these disputed categories were included in the unit in the consent election agreement, noted above. VICTOR CHEMICAL WORKS 197 is under the general supervision of a plant superintendent. - The production department is divided into four, administrative units, Plants A, B, C, and the Shipping Department, each of which has an administrative head. The maintenance or mechanical depart- ment is under a mechanical superintendent. It includes the pipe, carpenter, electric, machinery, and lead shops, wherein skilled work- ers and helpers perform the craft work which the shop names re- spectively indicate, a power plant, a truck department, and a yard department. The lead shop includes one lead burner and two helpers; all other shops include a foreman, craftsmen, and helpers. A foreman is in charge of the yard; the power plant in charge of a chief engineer. The service department includes the stores, the engineering department, and the offices. The laboratories are under the supervision of the chief chemist and his assistants. The great majority of employees in the laboratories are non-professional em- ployees who have routine duties under trained supervision. In the several departments, shops, and subdivisions of the Company's plant are foremen, assistant and working foremen, and certain responsible and skilled employees called key men. Truck drivers: The Union would exclude the three truck drivers from the bargaining unit. The Company would include them. Truck drivers are not restricted to activities within the Company's plant or yard. They constitute a fringe group. The Union does not wish to represent any of them. Under these circumstances, we shall exclude them from the bargaining units Assistant foremen: The Company lists seven employees as assistant foremen. Three of them, Irvin Umland, L. Schellenberg, and Elwyn Duncan, are assistant foremen on different shifts in Plant C, one of the three production units of the Company's operations. An assist- ant superintendent of the plant is in charge of, Plant C. Four sal- aried foremen serve under him. Assistant foremen spend about 50 percent of their time actively working and the remainder of their time directing 7 or 8 employees. These' employees are operators of power-driven machines. In Plant C there are in all 94 production employees. Milton Weber is assistant foreman in the yard and spends about 50 percent of his time working and the remainder of his time directing gangs, of 4 or more men in general yard work. There are approximately 55 yard employees under the direction of the yard foreman and Weber. Ross Smith works in the Aluminum Formate Department and has two regular helpers. He assists in training new employees and keeps records. Leslie Nelson, in charge 'The record is not entirely clear as to the relative status of three truck drivers, one of whom the Company calls a key man, and the Union a foreman Since we are excluding truck drivers from the bargaining unit, it is immaterial that we make any further determina- tion with respect to the relative status of the three truck drivers. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Drying Department, has 3 or 4 regular assistants. He re- ports production to the Oxalic Department and keeps time records so that proper charges may be made to customers and proper credit for time worked may be awarded to employees. The Union contends that Smith and Nelson are properly classed as "key men," a category more particularly discussed below. Both Smith and Nelson have some prestige among employees in the plant. The Company classes them as assistant foremen, and we shall so consider them. Foremen are salaried employees. Assistant foremen are hourly paid and enjoy the vacation and other privileges of hourly paid production and maintenance workers. They do not have the authority to hire or discharge employees under their supervision. They may recommend discharge. According to the Company, all employees have the priv- ilege of recommending discharge. The Company admits that the weight given to such recommendations depends upon the employment status of the recommending employee. Since the name "assistant foreman" connotes a superior rank among production workers and since it appears that these 4 employees have a substantially higher rank than employees with whom they work, we shall exclude all assistant foremen from the bargaining unit. ' Clifford Trenary spends approximately 90 percent of his time in first-aid work for injured employees. During the remainder of his time he assists the assistant personnel manager in hiring employees and in general utility work for the Personnel Department. He enjoys a unique position at the plant.. The Union would exclude him from the unit. The Company lists Trenary as assistant foreman. Trenary's work clearly distinguishes him from other employees bearing this title. We believe that he should be excluded from the unit. Since Trenary spends the greater part of his time `as first-aid man, we shall exclude him as such from the bargaining unit. Working foremen: The Company employs 2 working foremen, Ralph DeBolt and Kenneth Sawyer, both in Plant B, a production unit of the Company's operations. Plant B is in charge of an assistant superintendent, and 5 foremen work on shifts as his assistants. Sawyer and DeBolt work on different shifts, and have equal authority and re- sponsibilities. There are approximately 131 production employees in Plant B. Sawyer and DeBolt spend an appreciable part of their time in production work and each directs the work of approximately 12 machine operators. They are hourly paid employees. Working fore- men have no authority to hire or discharge employees under them. They may recommend discharge. Their status is 'clearly superior to employees to whom they convey orders and whose work they direct. Since the Company designates DeBolt and Sawyer as working foremen and their title connotes supervisory rank among employees with whom they work, we shall exclude them from the bargaining unit. VICTOR CHEMICAL WORKS 199 Key, Men: Key men are experienced employees who work in the several production and maintenance departments, shops, and labora- tories of the Company's plant. They are hourly paid employees. They are capable of training new employees in operating the machines used in the several production processes. Some key men operate machines; others do not. The operation of machines is effected by pressing a switch or adjusting a valve. Less experienced employees are directed to rely on the judgment of key men in decisions relatiig to the treat- ment of the product in their machines. Key men relieve operators for short periods, they make minor adjustments on machines,, and they observe the product. Key men spend 60 to 90 percent of their time in some type of manual production work. They spend the remaining part of their time in instructing or directing one to six helpers, or less experienced workers. The Company lists 187 employees as key men. Of these, the Union would exclude 23 from the bargaining unit and would include the remaining employees. The Company contends that all key men should be included in the unit as production employees and further contends that, if the Board excludes any key men from the unit, all such em- ployee should be excluded as a class. We do not agree with the Com- pany's contention that the classification of employees on its pay roll is necessarily indicative or controlling of the status of employees whose inclusion in the unit may be in dispute. We consider the ranking of an employee by the Company a factor, but not a decisive one, in de- termining his relative status in the plant. So far as the record in the instant case discloses, the relationship be- tween key men and employees with whom they work is the relation between a skilled worker and his helpers or between an instructor and an inexperienced employee, whom he may be teaching. So far as the record discloses, a key man does not make recommendations concerning the discipline of employees under him in any other way than a skilled -craftsman recommends disciplinary action for an insubordinate helper assigned to work with him. The Union has extended its organiza- tional efforts among key men of the Company. Its authorization cards indicate that it includes as members employees in the group which it would include and employees in the group which it would exclude from the unit. Since all key men are production and maintenance em- ployees,-they are as such within the classifications whom the parties agree,to include. For these reasons, we shall make no finding with respect to key men as a separate employment category. We shall ex- clude from the unit "supervisory" employees, defining this term accord- ing to our practice as employees who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action. In adopting this formula, we do not intend to designate as "supervisory" experienced employees who, as such, may effectively report insubordinate helpers to his foreman for discipline. 200 DECISIONS OF NAT'IONTAL LABOR RELATIONS BOARD We find that all hourly paid production and maintenance employees of the Company at the Chicago Heights plant, including hourly paid employees in the'laboratories, janitors, cooks, and truck drivers' help- ers, but excluding office and clerical employees, employees of the en- gineering department, plant guards, the first-aid men, truck drivers, all salaried employees, superintendents, foremen, assistant foremen, work- ing foremen, and all other supervisory employees who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 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 employees of the Company in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Victor Chemical Works, Chicago Heights, Illinois, 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 Thirteenth 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 orlon vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding employees who have since quit or been discharged for cause, to deter- mine whether or not they desire to be represented by United Construc- tion Workers, Division of District 50, U. M. W. A., for the purposes of collective bargaining. CHAIRMAN MILLIs took no part in the consideration of the above Decision and Direction of Election. f