McCarthy Chemical Co.

In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and OIL WORKERS INTERNATIONAL UNION. CIO, PETITIONER In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and LOCAL UNION No. 195, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, PETITIONER In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 479, AFL, PETITIONER Cases Nos. 39-RC-66, 39-RC-69, 39-RC-86, 39-RC-68, 39-RC--80, . and 39-RC-81, respectively.Decided September 20,1949 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed, a hearing in the above consoli- dated cases was held before James P. Wolf, 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 [Chairman Herzog and Members Reynolds 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. 1 Before the hearing, the Oil Workers moved to dismiss the petitions of the Pipefitters and the IBEW on the ground that a collective bargaining contract between it and the Employer is a bar to these proceedings . We find no merit in this contention . The contract between the Oil Workers and the Employer executed on July 1, 1948, provides that the contract "shall be in effect for one ( 1) year from July 1, 1948 , until July 1, 1949, and thereafter from year to year, subject to amendment or termination by said parties after July 1, 1948 [ 1949], upon sixty ( 60) days notice to the other." We find that the contract is one terminable at will after July 1, 1949 , and therefore is not a bar . Accordingly, the motion is hereby denied . Matter of Jacobsen Mfg. Co., 82 N . L. R. B. 1404. The Pipefitters also filed a "Motion to Intervene and Dismiss ," which is in fact a motion to intervene in Case No . 39-RC-69. The hearing officer properly granted this motion. 86 N. L. R. B., No. 4. 14 McCARTHY CHEMICAL COMPANY 15 2. Oil Workers International Union, CIO, the Petitioner in Cases Numbered 39-RC-66 and 39-RC-69, herein called the Oil Workers; Local Union No. 195, United Association of Journeymen and Ap- prentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL, the Petitioner in Cases Numbered 39-RC- 68 and 39-RC-86, herein called the Pipefitters ; and International Brotherhood of Electrical Workers, Local Union No. 479, AFL, the Petitioner in Cases Numbered 39-RC-80 and 39-RC-81, herein called the IBEW, are labor organizations claiming to represent employees of the Employer 2 3. Questions affecting commerce exist concerning the representa- tion of the employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate units; the determination of representatives: The unit contentions: The Oil Workers seeks to represent separate units of (1) operating, maintenance and laboratory employees, and (2) office and clerical workers. The Pipefitters desires a unit of pipe fitters, pipe-fitting welders, and helpers. 3 The IBEW urges a unit of electricians and electricians' helpers. The Employer agrees that the operating, maintenance, and labora- tory unit sought by the Oil Workers is appropriate. It takes no posi- tion with respect to the office and clerical unit sought by the Oil Workers, but would defer any election for that group until some future date, on the ground that it is planning to expand its office and clerical staff when it achieves full production in the chemical plant. Both the Employer and the Oil Workers assert that the units sought by the Pipefitters and the IBEW are inappropriate, allegedly because 2 After the hearing, District Lodge No . 31, International Association of Machinists, herein called the IAM, filed a "Motion to Intervene and Reopen the Record." It asks the Board to establish a separate unit of machinists and machinists ' helpers or, in the alternative , to reopen the record to enable it to prove the appropriateness of its proposed unit. It asserts that it was not notified and had no knowledge of the present proceedings until after the close of the hearing . In support of this motion , it submitted authorization cards signed by 8 of the 21 employees in the proposed unit. All the cards were signed before the date of the hearing. We hereby grant the motion of the IAM to the following extent : As the question of the appropriateness of the unit sought by the IAM was not raised at the hearing , it is impossi- ble to resolve this question on the basis of the present record . We shall administratively advise the Regional Director for the Sixteenth Region to conduct a further hearing for the purpose of determining the appropriateness of the unit . However, we shall not delay the present elections , but shall permit the employees in the alleged machinists craft unit to vote in the production and maintenance voting group , upon the condition that their votes be impounded . If we later determine that a machinists unit is appropriate , we shall not count the impounded ballots. If we find that the proposed unit is inappropriate, we shall direct that they be opened and counted . Cf. Matter of J. I. Case Company, $1 N. L. It. B. 651. 8 The Pipefitters also sought to Include apprentices . However, the Employer does not have any apprentices. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees proposed to be included in these units are not members of a craft. The Pipefitters and the IBEW contend that the plant- wide unit sought by the Oil Workers is inappropriate, because it in- cludes employees in the categories sought by them. The Employer's operations: The Employer operates two plants, known as the Absorption plant, and the Chemical plant, on a 40-acre plot of land. The Absorption plant processes natural gas from which it manufactures various pe- troleum products. The Chemical plant, which is not yet in full pro- duction,4 processes residual natural gases obtained from the Absorp- tion plant into various products used principally in the manufacture of plastics. Operations at both plants are integrated and coordinated under the over-all supervision of a plant manager, who is assisted by a super- intendent of operations and a superintendent of maintenance. Opera- ting employees may be interchanged between the two plants as the needs of the Employer require. There is a single maintenance de- partment which serves both plants. The maintenance department is functionally subdivided into a machinist section, a carpenter section,. an instrument men section, a pipe fitters and welders section, and an electrician section. The units sought by the Pipefitters and the IBEW involve, respectively, employees in the pipe fitters and welders section, and the electrician section of the maintenance department. Bargaining history: The Employer is the successor to Absorption Plant, Inc., which operated the Absorption plant from 1946, until January 1949. In January 1949, the Employer corporation was formed. All assets of the Absorption Plant, Inc., were transferred to the Employer-which. has operated the Absorption plant since that date. On February 10, 1948, as the result of a consent election, the Oil Workers was certi- fied as bargaining representative for all operating and maintenance employees at the Absorption plant. A contract between the Oil Workers and Absorption Plant, Inc., was executed on July 1, 1948.5 The Employer, as successor to Absorption Plant., Inc., has considered itself bound by the terms of this contract. Both contracting parties regard the contract as also covering employees in the Chemical plant. 4 The Chemical plant is being operated on an experimental basis at the present time. When certain technical problems are solved, commercial operation of the plant will be commenced. Although the Employer is unable to say when it will begin to produce commercially, it has installed all machinery necessary for commercial production and has recruited a full complement of employees. These employees will perform the same duties in the commercial operation of the Chemical plant as they now perform during the experi- mental phase. " It is this contract which we have held not to be a bar. McCARTHY CHEMICAL COMPANY 17 The proposed production and maintenance unit: As previously stated, the Oil Workers desires a unit of production and maintenance employees at both the Absorption and Chemical plants. None of the other parties objects to this unit, except that the Pipefitters and the IBEW would exclude pipe fitters and elec- tricians. The unit proposed by the Oil Workers is a conventional one and may be appropriate, depending on the outcome of the elections directed hereinafter. The proposed pipe fitters unit: The 18 pipe fitters, pipe-fitting welders and helpers whom the Pipe- fitters would establish as a separate unit, constitute the pipe fitters and welders section of maintenance department. Under the supervision of the foreman in charge of this section, these employees perform skilled pipe fitting and welding maintenance work on pipes, boilers, and valve heads. They are not interchanged with other employees in either the operations or the maintenance department and are the only employees performing pipe fitters work. Before being hired, they are required to demonstrate a high degree of skill as pipe fitters and welders. We find that these employees comprise a craft group and may, if they so desire, constitute a separate appropriate unit.6 The proposed electricians unit: The electricians, whom the IBEW would represent in a separate unit, comprise the electricians section of the maintenance department. They are supervised by an electrician foreman, have a shop of their own, and spend all their time performing electrical maintenance work on high voltage lines and plant equipment. They do not interchange with other employees. All of the present electricians have served apprenticeships with other employers and, in addition, have from 5 to 10 years' experience as maintenance electricians. We find that the electricians are a craft group and may, if they so desire, constitute a separate appropriate unit.? As the electricians and pipe fitters may either constitute separate units or be included in a production and maintenance unit, we shall make no unit determinations for any of these three groups of em- ployees, until we have first ascertained the desires of the pipe fitters and electricians, as expressed in the elections directed hereinafter. If a majority of the employees in the pipe fitters voting group vote for Pipefitters, or a majority of the employees in the electricians voting group vote for the IBEW, the members of that group will be taken to have indicated their desire to constitute a separate appropriate, unit. 'Matter of Alamo Refining Company , 82 N. L . R. B. 1227; Matter of Procter and Gamble Manufacturing Company, 78 N. L. R. B: 1054. 7 Matter of Aluminum Company of America, 83 N. L. R. B. 398. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proposed office and clerical unit: The office and clerical unit urged by the Oil Workers consists of stenographers, file clerks, bookkeepers, and pay-roll clerks. The office staff is located in a separate section of Absorption plant. The Em- ployer does not argue that the proposed unit is inappropriate, but contends that no election should be held until the Chemical plant is in full production, at which time it expects to increase its office staff. However, the Employer was unable to state when full scale production will occur, or the extent to which the office staff will be enlarged by the expansion. Under these circumstances, we do not believe that an election for the present employees in this group should be postponed.,, Accordingly, we find that all office and clerical employees of the Employer at its Winnie, Texas, plants, excluding supervisors as de- fined in Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act.9 We shall direct elections by secret ballot among the following groups of employees at the Employer's Winnie, Texas, plants, excluding from each ' group guards, professional employees, and supervisors as de- fined in the Act. (1) All operating maintenance and laboratory employees, excluding maintenance pipe fitters, pipe-fitting welders and their helpers, and maintenance electricians and their helpers. (2) All maintenance pipe fitters, pipe-fitting welders and helpers. (3) All maintenance electricians and helpers. (4) All office and clerical employees. As previously indicated, we shall make no unit determination as to the employees in voting groups (1), (2), and (3) until after the elections. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, elections 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, among the employees in the voting groups described in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Elections, including employees who did not work during said pay-roll period because they were ill or on vacation or 8 Matter of J. I. Case Company, 80 N. L. R. B. 217. 9 The record discloses that Judy Turner, the secretary to the plant manager , is not a confidential employee . We shall Include her In the unit. McCARTHY CHEMICAL COMPANY 19' temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the elections, and also excluding employees on strike who are not entitled to reinstatement, to determine : (a) Whether or not employees in voting groups (1) and (4) desire to be represented, for purposes of collective bargaining, by Oil Work- ers International Union, CIO. (b) Whether employees in voting group (2) desire to. be repre- sented, for purposes of collective bargaining, by Oil Workers Interna- tional Union CIO, or by Local Union No. 195, United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Indus- try of the United States and Canada, AFL, or by neither; and (c) Whether employees in voting group (3) desire to be repre- sented, for purposes of collective bargaining, by Oil Workers Interna- tional Union, CIO, or by International Brotherhood of Electrical Workers, Local No. 479, AFL, or by neither.