American Cyanamid & Chemical Corp.

In the Matter of AMERICAN CYANAMID & CHEMICAL CORPOR,\TION and OIL WORKERS INTERNATIONAL UNION, CIO Case No. 16-R-1328.-Decided June 26, 1945 Mr. W. L. Spaulding, of Fort Worth , Tex., for the Company. Mr. W. F. Noell and Mrs. Mabel M . Wier, of Fort Worth, Tex., for the CIO. Messrs. F. H . Zalin and A. F. Cadeua, of San Antonio , Tex, and Mr. I-f. F. Walker, of Fort Worth , Tex., for the Federal. Mr. J. W. Null, of San Antonio , Tex., and Mr. R. F: Paschal, of Fort Worth, Tex., for the IBEW. Mr. Sidney Grossman, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon a petition duly filed by the Oil Workers International Union, CIO, herein called the CIO, alleging that a question affecting commerce had arisen concerning the representation of employees of American Cyana- mid & Chemical Corporation, Fort Worth, Texas, herein called the Com- pany, the National Labor Relations Board provided for an appropriate hearing upon due notice before Glenn L. Moller, Trial Examiner. Said hearing was held at Fort Worth, Texas, on May 23, 1945. The Company, the CIO, the Chemical Workers Local Union No. 23498 (Federal Labor Union), AFL, herein called the Federal, and the International Brother- hood of Electrical Workers, Local 116, AFL, herein called the IBEW, appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence hearing on the issues. At the hearing.. the Trial Examiner reserved ruling upon Federal's motion to dismiss the petition on the ground that its contract with the Company constitutes a bar to this proceeding. For the reasons set forth in Section III, 'infra, the motion is denied. The Trial Examiner's rulings made at the hearing are free from prejudicial error 62 N I. R. B., No. 116. 925 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. The Company's request for oral argument is hereby denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY American Cyanamid & Chemical Corporation, a Delaware corporation with principal offices in New York City, conducts business as a subsidiary of American Cyanamid Company at two plants within the State of Texas, located at Corpus Christi and Fort Worth, respectively. We are here con- cerned with its Fort Worth plant where the Company is engaged in producing a synthetic cracking catalyst for use by oil refineries in the manufacture of high octane gasoline. The Company annually purchases raw materials valued in excess. of $100,000, of which in excess of 25 per- cent is secured from sources outside the State of Texas. Its annual produc- tion is in excess of $150,000 in value, of which 75 percent is shipped to points outside the State of'Texas. We find that the Company is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Oil Workers International Union, affiliated with the Congress of Indus- trial Organizations, is a labor organization admitting to membership employees of the Company. Chemical Workers Local Union No. 23498 (Federal Labor Union), and International Brotherhood of Electrical Workers, Local 116, both affiliated with the American Federation of Labor, are labor organizations admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On April 20, 1945, the CIO addressed a letter to the Company request- ing therein recognition as the exclusive bargaining representative of the Company's employees. In its response, dated April 26, 1945, the Company referred to the Board's prior certification of Federal as the exclusive bar- gaining representative of its employees and refused to extend recognition to the CIO. Federal urges the existence of its contract with the Company as a bar to this proceeding. On May 25, 1944, after a consent election held under Board auspices, which Federal won, Federal entered into a 1-year contract with the Com- pany as bargaining representative of the Company's production and main- tenance employees. Prior to the expiration of the contract, Federal notified the Company of a desire to incorporate certain changes therein and, ADIERICAN CYANAMID & CHEMICAL CORPORATION 927 although discussion relating to the proposed changes ensued, negotiations were suspended pending the determination of this proceeding. In contend- ing that the 1944 contract is a bar, Federal relies upon a provision therein which recites, in substance, that the agreement shall remain in full force and effect pending discussions relating to the renewal or modification thereof. However, the initial 1-year contract period has expired and we are of the opinion that the provision for an extension is one of indefinite duration, and hence does not constitute a bar to a present determination of representatives.' A statement of a Board agent, introduced into evidence at the hearing, indicates that the CIO and the IBEW represent a substantial number of employees in the unit each alleges to be appropriate? We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The CIO seeks a unit consisting of all employees at the Company's Fort Worth, Texas, plant, including the truck driver, but excluding guards, clerical employees; the timekeeper, the chief chemist, the assistant chief chemist, the chemical engineer-draftsman, and all supervisory employees The Federal generally concurs with the composition of the unit proposed by the CIO.' The IBEW seeks a unit confined to the Company's elec- tricians. While neither the CIO nor the Federal opposes the separation of the electricians from the production and maintenance unit, the Company urges the appropriateness of a plant-wide unit, including the electricians The Company's plant consists of several buildings situated within a compact area. It employs four electricians as part of its- maintenance department which is housed in a separate building under the supervision of the mechanical superintendent and assistant mechanical superintendent The electricians perform functions usually associated with their craft Although they were included in Federal's contract with the Company as part of the plant-wide unit, all have retained their membership in the i See Matter of Great Bear Logging Company, 59 N. L R. B. 701; Matter of American Chain !r Cable Company, Inc, 59 N. L R B 644; Matter of The Trailer Company of 4merica, 51 N L R 13 1106. 2 The Field Examiner reported that the CIO submitted 53 application membership cards, of which 52 represented the names of persons appearing on the company pay roll of April 21, 1945, and that, of the cards submitted, 51 bore dates in 1945 and 1 was undated, in an alleged appropriate unit consisting of 109 employees. He further reported that the IBEW submitted four authorization cards, all of which represented the names of persons appearing upon the pay roll above referred to, and that the four cards bore dates in May 1945, in an alleged appropriate unit consisting of four employees. The Federal relied upon its contract with the Company as evidence of its representation interest in the unit it alleges to be appropriate B The Federal's contract with the Company (,oveied all production and maintenance employees of the Company, excluding (1) temporary employees, (2) supervisor), technical , and clerical employ- ees, and (3) guards and watchmen 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IBEW, with which they had been affiliated prior to their employment with the Company, and, as the evidence reveals, have not been effectively assimi- lated in the broader unit. There is no interchange between these employees and other employees in the plant. We have often stated that electricians possess skills characteristic of a recognized craft and therefore may bargain separately apart from other employees in the plant.' Moreover, as indicated above, Federal, with the concurrence of the CIO, does not oppose the severance of these employees from the production and maintenance unit. We are of the opinion, therefore, that the inclusion of the electricians in the previous contractual bargaining unit does not now preclude their establishment as a separate unit.` On the other hand, they may also function as part of the residual production and maintenance unit. Under these cir- cumstances, we shall make no present determination of the appropriateness of a unit of electricians, but shall reserve such finding pending the results of the election hereinafter directed among such employees. Upon the results of such election shall depend, in part, our determination of the appro- priate unit. We shall consider the propriety of the inclusion or exclusion of certain categories concerning which the parties are in dispute : Chemists and assistant chemists: The CIO would include the chemists and assistant chemists in the unit, while the Federal would include only the assistant chemists therein. The Company opposes the inclusion of these employees since it regards them as technical employees. Chemists are re- quired to possess a college degree or equivalent laboratory experience. They conduct tests to determine whether raw material and products conform to specifications and engage in independent analytical and research work. While assistant chemists require less experience and have less responsi- bility, their work is substantially similar in character to that of the chem- ists. Unlike production employees, both groups are not required to punch time clocks, are renumerated for justifiable absences, and receive a 2-week vacation. Since the duties performed by the chemists and assistant chemists are of a professional and technical character, we shall exclude them from the unit. Store-room clerk: The CIO and the Federal would include, and the Company would exclude this employee. The storeroom clerk works in the warehouse under the supervision of the office manager. He maintains an inventory of supplies and distributes equipment and supplies to the pro- duction employees. He does not possess any supervisory authority. Clerical employees generally were excluded under Federal's contract with the 4 See Matter of Illinois Division, Bender Aviation Corporahon,-54 N L R It 1051, Matter of Douglas Aircraft Company, Inc , 54 N L R B 67 See Matter of Wells Aucoaft Parts Company , 61 N L R B 1331 , Matter of Johns -blanvdle Products Company, 60 N L R B 293, Matter- of Clarkshrrrq Pahlishing Comparrv, 59 N L R. B. 96, Matter of Phelps Dodge Corporation , Urated Verde Branch , 56 N L. R B 1560 AMERICAN CYANAMID & CHEMICAL CORPORATION 929 Company, and it appears that the store -room clerk was excluded from the contract unit as falling under that category . While the record does not disclose that the store -room clerk has interests or duties which would of necessity prevent his inclusion in the present bargaining unit, in the absence of any compelling circumstances warranting a departure therefrom, we shall adhere to our usual practice and not disturb the contract unit estab- lished as the result of collective bargaining between the Company and the Federal ; we shall, therefore , exclude the store-room clerk Assistant draftsman-machine shop clerk. The CIO and Federal would include the assistant draftsman -machine shop clerk who works in the mechanical superintendent's office in the maintenance building. The Com- pany would exclude him as a clerical employee. The evidence reveals that as part of his duties he keeps the time of the maintenance employees and spends the balance of his time in making simple sketches and mechanical drawings. Like other clerical employees , he is not required to punch a time clock, although he may do so , receives a longer vacation than production employees , and is not subject to any restrictions for excusable absences. The record discloses that the Company did not have such job classification at the time it entered into its contract with Federal . In view of the com- bined timekeeping and technical duties of the assistant draftsman -machine shop clerk , we shall exclude him from the unit. At the time of the hearing , the Company contemplated hiring students for the summer vacation period as unskilled laboratory employees. Since these students occupy a temporary status and will terminate their employ- ment with the Company at the end of the summer season , we find that they are ineligible to vote? As hereinbefore indicated, we shall make no final determination with respect to the appropriate unit or units pending the outcome of the elec- tions hereinafter directed. We shall direct that separate elections by secret ballot be held among the employees in each of the voting groups set forth below, who were employed during the pay-roll period immediately preced- ing the date of the Direction of Elections herein, excluding superintend- ents, assistant superintendents , supervisors . assistant supervisors , and all other supervisory employees with authority to hire , promote, discharge, discipline, or otherwise effect changes in the status of employees , or effec- tively recommend such action , subject to the limitations and additions set forth in the Direction . If the employees in the first voting group select the IBEW as their bargaining representative , they shall constitute a separate appropriate unit : otherwise , they shall remain part of the production and maintenance unit: 1. All employees of the Company classified as electricians. 0 See Matter of Petersen & Lytl, 60 N L R 13 1070 7 See Matter of Jasper Cabinet Company, 61 N L R. B 961 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. All remaining production and maintenances employees, including the truck driver, but excluding guards, clerical employees, the store-room clerk, the timekeeper, the assistant draftsman-machine shop clerk, chem- ists, assistant chemists, the chief chemist, the assistant chief chemist, the chemical engineer-draftsman, and temporary employees. Upon the results of the elections in the afore-mentioned groups will depend, in part, our determination of the appropriate unit or units. DIRECTION OF ELECTIONS 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 3, as amended, it is hereby DIRECTED. that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with American Cyanamid & Chemical Corporation, Fort Worth, Texas, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Elections, under the supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tions 10 and 11, of said Rules and Regulations, among the groups of employees described below who were employed by the Company at its Fort Worth, Texas, plant, 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 temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but exclud- ing any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elections 8 1. The employees in the first voting group described in Section IV, above, to determine whether or not they desire to be represented by the International Brotherhood of Electrical Workers, Local 116, AFL, for the purposes of collective bargaining. 2. The employees in the second voting group described in Section IV, above, to determine whether they desire to be represented by Oil Workers International Union, CIO, or by Chemical Workers Local Union No. 23498 (Federal Labor Union), AFL, for the purposes of collective bargaining, or by neither . CHAIRMAN MILLIS took no part in the consideration of the above Deci- sion and Direction of Elections. s Included as falling within the category of a maintenance employee, in accordance with the agreement of the parties , is the chemical helper in the laboratory who performs janitorial duties 9 The requests of the Federal and the IBEW to be designated on the ballots otherwise than here- inafter set forth are hereby referred to the Regional Director to whom the Board has delegated discretionary authority in matters relating to the conduct of the election