Potash Co. of America

In the Matter Of POTASH COMPANY OF AMERICA, EMPLOYER and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Cases Nos. 33-RC-21,33-RC-22,33-RC-23, 33-RC--4, and 33-RC-46 SECOND SUPPLEMENTAL DECISION AND ORDER AMENDING CERTIFICATION OF REPRESENTATIVES January 19, 1950 On December 2, 1948, the National Labor Relations Board, herein called the Board,' issued a Decision and Direction of Election in this proceeding.2 On December 17, 1948, the Petitioner won the election in voting group No. 4 8 by a vote of 22 to 20 with no challenged ballots. On December 31, 1948, the Board issued its Supplemental Decision and Certification of Representatives, wherein the Petitioner was cer- tified as the exclusive bargaining representative 4 of a voting group consisting of all machinists, machinists' helpers and apprentices, re- finery mechanics and refinery mechanics' helpers, outside maintenance mechanics and their helpers. On August 29, 1949, the Employer filed a motion for clarification of the Supplemental Decision and Certification of Representatives to the extent that the classification of layout men, their helpers and apprentices be included in the Board's designation of voting group No. 4. This motion was based upon the following grounds : (1) That in its original request for recognition as bargaining agent for the employees involved,' the Petitioner among the other things requested a unit consisting of machinists, mechanics and their helpers, including 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Reynolds and Murdock]. 80 NLRB 1035. 3 One of four separate voting groups established by the Board in the original Decision and Direction of Election, supra. 4 Petitioner was also certified as the exclusive bargaining representative in voting group No. 3, consisting of all welders and welders ' helpers of the Employer. 5 This was in letter form and not made part of the record in the original proceeding. X88 NLRB No. 73. 234 POTASH COMPANY OF AMERICA 235 layout men; 6 (2) that at a preelection conference it was agreed by all parties 7 that the one layout man should vote as a member of voting group No. 4; (3) that it was the intention of the parties that layout men were to be included in the general classification of ma- chinists or mechanics in voting group No. 4; (4) that the duties of layout men 8 were similar to those of the employees in voting group No. 4; and (5) that notwithstanding the above, the Intervenor has insisted that it is the exclusive bargaining representative for the clas- sification of layout men. On September 13, 1949, the Intervenor filed its opposition to the motion for clarification upon the grounds : (1) That it was the certified representative of the residual group; (2) that neither the petition nor the Board's Direction of Election included the classification of layout men; (3) that because it was not in compliance with the Act it was excluded from the ballot, and the preelection conferences, and was not permitted observers at the election; (4) that by the above facts it had been prejudiced, and the motion for clarification sought to circumvent the Intervenor's rights in the premises, and to enlarge a unit already certified; and (5) that the motion should be denied, or in the alternative, a rehearing held on the issues. On September 15, 1949, the Board issued its order reopening the record and remanding the proceedings to the Regional Director for further hearing. Pursuant thereto, a hearing was held on September 28, 1949, before Charles Y. Latimer, hearing officer. All parties ap- peared and participated in the hearing.9 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the IAM moved that the petition in Case No. 33- RC-2410 be amended to include "Layout men, their helpers and ap- ° However layout men were not included in any of the petitions subsequently filed. There were present at the conference representatives of management, the Petitioner, and the Board . The Intervenor, Local 415 of the International Union of Mine , Mill and Smelter Workers , CIO, was not in compliance at the time , and therefore did not attend ; although since 1945, it was certified as the representative of a plant -wide unit , excluding electricians, but including the two groups subsequently lost to the TAM in the instant proceedings. ° The duties of layout men were not defined in the record. e At the hearing and in its brief, the Intervenor attacks the validity of the election results upon the grounds: (1) That a blacksmith improperly voted with the other black- smiths in group No . 2, when the fact he had been performing layout work since 1945 ; (2) that because of the similarity of their duties the aforesaid blacksmith and the one layout man should have voted in the same group; ( 3) and that inasmuch as the vote In group No. 4 was 22 for TAM and 20 against, . had both men above "known that they were entitled to vote in group 4, that these votes would have affected the results of the election." We find that this contention has no merit on its face . The record is clear that the layout man did vote in group 4, as a result of the preelection conference. Thus the vote of the blacksmith could have in no way affected the ultimate results of the election. "The original petition included only "all machinists , machinists' helpers and appren- tices.... . 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prentices." This motion was granted by the hearing officer over the ,objection of the Intervenor, who contends: (1) That the question of Jurisdiction of layout men is not properly before the Board, as the original petition did not include them ; and (2) that a contract between the Intervenor and the Employer dated July 16, 1948, but retroactive to June 1, 1948, is a bar to the subsequent inclusion of layout men by way of amendment to the petition. The record shows that on July 16, 1948, the Intervenor and Em- ployer entered into a collective bargaining agreement containing a defeasance clause 11 which made part of the contract inoperative as to these employees sought in the pending petitions filed by the IAM, or amendments 12 thereto, in the event that a union obtained a Board certification. The Intervenor argues that the defeasance clause operates only as to those employees included in petitions filed prior to July 16, 1948, :and that its current 2-year contract which was executed prior to the amendment of the petition for the machinists group now bars any enlargement of the group originally sought by the petition. We do not agree. The defeasance clause contemplates the possibility that the contract between the Intervenor and the Employer will be inop- ,erative as to those employees sought in all of the IAM's petitions, or the amendments thereto. Under those circumstances, a contract which contemplates such contingencies cannot operate as a bar 13 . The Petitioner contends that the appropriate unit as described in the original petition includes within the definition of machinists, the layout men, their helpers and apprentices. The Employer agrees with this contention. The Intervenor, however, takes the position that layout men, their helpers and apprentices, are excluded from the unit. The record indicates that .the duties of layout men are closely in- tegrated with those of the machinists and mechanics in the Employer's machine shop, and that in order to qualify as a layout man in the first instance, it is necessary to have had almost the same experience as a machinist. Likewise, although there are no layout apprentices or helpers currently on the Employer's payroll, there are A and B mechanic helpers who assist them. The layout. men, as is the case "The pertinent parts of this clause reads as follows : . . in the event that the National Labor ,Relations Board should thereafter certify another union as the bargaining representative of any of the employees covered by such agreement pursuant to such petitions , or any of them , or amendments thereto, such agreement should thereupon cease to be effective as to such employees . [ Emphasis Supplied,] is This included all the employees sought by the IAM. 13 Willys Overland Motors, Inc., 35 NLRB 549 ; Libby, McNeill h Libby, 64* NLRB 30 ; and W. E. Caldwell Company, 81 NLRB 1131. POTASH COMPANY OF AMERICA 237 of the machinists, work about 90 percent of their time in the machine shop, receive the same amount of pay, and are under the same general supervision of the shop foreman. Testimony by the Employer's shop foreman indicates that although layout men need not be "particu- larly" skilled in the operation of a lathe, their work requires that they be skilled in the operation of machine tools pertaining to sheet metal and fabrication work. It is our view from the record as a whole, including the fact that the layout men in the Employer's plant have duties which are closely allied to those of the machinists, coupled with their generally similar experience, working condition, and supervision, that layout men are properly included in the unit of machinists and mechanics found ap- propriate herein. As it appears that the results of the election will not be affected thereby, we shall amend our certification with respect to the unit represented by the IAM by specifically including layout Inen, their helpers and apprentices, in Unit No. 4. ORDER IT IS HEREBY ORDERED that the Supplemental Decision and Certifica- tion of Representatives be, and it hereby is, amended specifically to include Unit No. 4 therein referred to all layout men, their helpers and apprentices located at the Employer's plant, Carlsbad, New Mexico.14 14 This amendment is not to be construed as a new certification or as an extension of the certification issued December 31, 1948.