Mallinckrodt Chemical Works

In the Matter of MALLINCKR0Wr CHEMICAL WORDS,' EMPLOYER and INTERNATIONAL BROTHERHOOD OF FIREMPN, OILERS AND MAINTE- NANCE MEN, LOCAL No. 6, AFL, PETITIONER Case No.14-KC-608.-Decided June 14,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this matter was held before Glenn L. Moller, 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 [Members -Reynolds, Murdock, 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 named below claim to represent em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act z 4. The appropriate unit; the determination of representatives. The Petitioner seeks to sever a group of powerhouse employees from a plant-wide bargaining unit. There is a long history of bargaining between the Independent Union of Chemical Plant Workers, the Inter, venor herein, and the Employer covering a plant-wide unit of em- ployees. The Petitioner had previously sought to obtain certification as the bargaining representative of the Employer's powerhouse em- ployees, having filed a similar petition with the Board on September 22, 1947. On March 31, 1948, the Board issued its Decision 3 directing 1 The name of the Employer appears as amended at the hearing ' The Intervenor contends that the last contract between itself and the Employer which expired on April 1 , 1949 , and contained a 60-day automatic renewal clause is a bar to the current proceeding However, the Intervenor prevented the operation of such automatic renewal clause by giving notice to the Employer on January 25, 1949, of its desire to change said contract Furthermore , the petition herein was filed before the Mill-B date. Accordingly, we find that the said contract is not a bar to this proceeding. 3 Matter of Malltinckrodt Chemical Works, 76 N L R. B 1055. 84 N. L. R. B., No. 32. 291 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a self-determinative election among the Employer's powerhouse em- ployees, which was held on April 30, 1948. Following the election in which the Petitioner failed to obtain a majority of the valid votes cast, the Board dismissed the petition on October 15,1948 .4 The Employer and thelintervenor in urging that the petition herein be dismissed rely primarily upon the grounds: (1) that Section 9 (c) (3) of the Act prohibits an election in the proposed unit earlier than October 15, 1949, and (2)-that the Board's dismissal of the earlier peti- tion is a conclusive determination that the unit petitioned for is inap- propriate. The first contention is founded upon a construction of the language of Section 9 (c) (3) of the Labor Management Relations Act of 1947.5 This contention appears to be that the 12-month period within which a second election may not follow an earlier election for the same unit does not begin to run, from the date of balloting in the earlier election but rather from the date on which the Board finally determines the results of the balloting. In this case the election was held on April 30, 1948, but a final determination of the results was not made until October 15, 1948. We think that the proposed construction of Section 9 (c) (3) is unwarranted from the language of the Statute. The more reasonable construction of this provision is that a second ballot shall not be conducted within 12 months from the date of the earlier ballot with respect to the same unit of employees.' Furthermore,' there is nothing to the contrary in the legislative history of the Labor Manage- ment Relations Act of 1947. - There remains for consideration the contention of the Employer and the Intervenor that the dismissal of the earlier petition was a con- clusive determination that a separate unit of powerhouse employees is inappropriate. In that proceeding, however, the petition was dis- missed not upon the basis that a separate bargaining unit could not be established for powerhouse employees, but upon the basis that the results of the election showed that the Petitioner did not represent a majority of the powerhouse employees. As more than a year has now elapsed since the prior election, we shall grant the powerhouse employees an opportunity, at this time, to indicate whether'or not they desire to bargain as a separate unit.' We shall direct that an election by secret ballot be held among the employees in the two powerhouses at the Employer's St. Louis, Mis- souri, plant, including powerhouse firemen, powerhouse maintenance 4 Matter of Mallinckrodt Chemical Works, 79 N. L. R. B 1399. 6 Section 9 (c) (3) provides in part: "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid elec- tion shall have been held " 6 Matter of Cunite Foundries Corporation, 76 N. L R. B . 393 ; Matter of Orleans Mate- rials & Equipment Co., Incorporated and Steel Fabricators , Inc., 76 N. L. R. B. 351. MALLINCKRODT CHEMICAL WORKS 293 men, powerhouse operators, and powerhouse coal unloaders, but ex- cluding clerical employees, all stationary engineers, and other super- visors as defined in the Act. However, we shall make no final unit determination at this time, but shall be guided, in part, by. the desires of these employees as expressed in the election hereinafter directed. If a majority of these employees vote for the Petitioner, they will be taken to have indicated their desire to constitute a separate bargaining unit. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses 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-Series 5, as amended, among the employees in the voting group described#n 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 ex- cluding employees on strike who are not entitled to reinstatement, to determine whether they desire to be represented, for purposes of col- lective bargaining, by International Brotherhood of Firemen, Oilers and Maintenance Men, Local No. 6, AFL, or by Independent Union of Chemical Plant Workers, or by neither.