Kentucky Synthetic Rubber Corp.

KENTUCKY SYNTHETIC RUBBER CORPORATION 453 4 By entering into, being a party to, and participating in the enforcement of an agreement, arrangement, or "understanding," which required the Respondent Company to discriminate in favor of its members, thereby attempting to cause the Respondent Company to discriminate against employees and prospective -employees and to encourage membership in the Respondent Unions in violation of Section 8 (a) (3) of the Act, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) and 8 (b) (2) of the Act. 5. By discriminating with respect to the hire and tenure of employment of Stewait Leroy Lightfoot, and thereby encouraging membership in Respondent Unions, the Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and 8 (a) (1) of the Act. 6. By interfering with, restraining, and coercing the employees in the exer- cise of the rights guaranteed in Section 7 of the Act, Respondent Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. By causing the Respondent Company to discriminate in regard to the hire and tenure of employment of Stewart Leroy Lightfoot in violation of Section 8 (a) (3) of the Act, the Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 8. By restraining and coercing employees of Respondent Company in the exer- cise of the rights guaranteed by Section 7 of the Act, Respondent Unions have engaged in and are engaging in unfair labor practices within the meaning of Sec- tion 8 (b) (1) (A) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] KENTUCKY SYNTHETIC RUBBER CORPORATION and DTSTILLERY , RECTI- FYING AND WINE WORKERS' INTERNATIONAL UNION OF AMERICA, AFL; PIPE FITTERS LOCAL UNION # 522, UNITED ASSOCIATION OF JOURNEYMAN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL ; GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION #89, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL; UNITED RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA , CIO; LODGE #681, INTERNATIONAL ASSOCIATION OF MACHINISTS ; PAINTERS LOCAL # 118, PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA , AFL; AND FALLS CITIES CARPENTERS DISTRICT COUNCIL, THE UNITED BROTHER- HOOD OF CARPENTERS AND JOINERS OF AMERICA , AFL, PETITIONERS. Cases Nos. 9-RC-1120, 9-RC-1121, 9-RC-1131, 9-RC-1167, 9-RC- 1170,9-RC-1173, and 9-RC-1186. July 33, 1951 Decision, Order, and Direction of Elections Upon separate petitions duly filed, a consolidated hearing was held before Joseph A. Butler, hearing officer. The hearing officer's rulings 95 NLRB No. 55. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made at the hearing are free from prejudicial error and are hereby affirmed. . Pursuant to the provision 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]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce with the meaning of the Act. 2. The labor organizations involved 1 claim to represent certain 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. 4. The appropriate unit : Contentions of the Parties . Five of the seven Petitioners involved herein, namely, the Pipe Fitters, the Machinists, the Painters, the Carpenters, and the Team- sters seek to represent respectively craft units of the type which the Board has customarily found entitled to separate representation. The remaining Petitioners, namely, the Rubber Workers and the Distillery Workers who are in agreement, seek to represent a residual production and maintenance unit, excluding therefrom the craft units sought by the Pipe Fitters, the Machinists, the Painters, and the Carpenters, together with the craft units presently represented by the International Brotherhood of Electrical Workers, herein called the Electrical Workers 2 The intervening Chemical Workers, al- though in general agreement with the Rubber Workers and the Distillery Workers,' seeks a unit which is broader than that sought by either of the other unions. The three unions seeking production and maintenance units all agree in opposing the unit sought by the Teamsters. There is also disagreement among the parties as to the composition of the units sought by the Painters, Machinists, and 'The various labor organizations comprising the Petitioners are hereinafter referred to as Distillery Workers, Pipe Fitters, Teamsters, Rubber Workers, Machinists, Painters, and Carpenters, respectidely. The Intervenor, Affiliated Chemical Workers of Kentucky, intervened on the petitions of the Rubber Workers and Pipe Fitters, and is hereinafter referred to as the Chemical Workers. Y After the plant began operating, consent elections were held with reference to units composed of electricians and their helpers, and instrument mechanics and their helpers. The International Brotherhood of Electrical workers was certified as the bargaining agent for these units. 3 The unit sought by the Chemical workers differs from that sought by the Rubber Workers and the Distillery Workers In. that it would include the groups sought by the Pipe Fitters, Carpenters, and Painters, in the proposed production and maintenance unit. As an alternative position, the Chemical workers seeks a place on the ballot In the event that a separate election Is directed for the Pipe Fitters' group. KENTUCKY SYNTHETIC RUBBER CORPORATION 455 Carpenters, and as to the propriety of including senior technicians ,.and shipping and receiving supervisors in the production and main- tenance unit. Apart from the recently certified units represented by the Electrical Workers, there is no history of collective bargain- ing by the Employer concerning the employees involved herein. The Proposed Units of Pipe Fitters and Machinists Although all parties agree that the proposed units of pipe fitters and machinists are of the type to which the Board has customarily accorded separate representation, the Chemical Workers seeks to in- clude pipe fitters in the production and maintenance units. In addi- tion, the Carpenters contends that certain employees claimed by the Machinists do millwright work 4 and should be included in the pro- posed Carpenters' unit which includes the classifications of millwright and millwright helpers.5 The Employer classifies as machinists A or B, some 17 employees who are engaged for the most part in the day-to-day repair and main- tenance of operating machinery. Some of these employees operate lathes and shavers, others weld, and others fabricate parts. However, the largest portion of the group do day-to-day repair and mainte- nance. All machinists work under the same foreman and substantially all repairs are made on the spot without the machinery being moved. The machinists here in question do not recondition or relocate ma- chinery, and, except in rare instances, do not install new machinery. While the representative of the Carpenters stated that some of the ,employees classified as machinists were members of the Carpenters, he offered no proof in support of his assertion that these men per- formed millwright duties, and the Employer's evidence clearly es- tablishes that all machinists, including those claimed by the Car- penters as millwrights, perform the same duties without distinction. Accordingly, we find that all machinists A and B are properly in- cluded in the unit sought by the Machinists. In the absence of any labor organization seeking to represent the machinists in an over-all unit, we shall find that this group constitutes an appropriate unit. We find that the machinists, machinist welders, machinery repair- men, their apprentices and helpers of the Employer at its Louisville, Kentucky, plant, excluding supervisors and all other employees, con- stitute an appropriate unit for the purposes of collective bargaining. 4 Millwrights are carpenters who have learned the additional skills required for the installation of machinery . They are to be distinguished from machine repairmen who repair, but do not . Install , machinery. The National Supply Company , 90 NLRB 65 International Harvester Company, 73 NLRB 971 . At present the Employer has no employee classification of millwright or millwright helper. " The Carpenters have no interest in these employees if they are performing the duties of machinists rather than those of millwrights. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We further find that the maintenance pipe fitters and their helpers of the Employer at its Louisville, Kentucky, plant, excluding super- visors and all other employees, may constitute an appropriate unit for the purposes of collective bargaining. The Proposed Carpenters' Unit The Carpenters' petition, as amended, seeks a unit composed of alF carpenters, carpenters' apprentices, millwrights, and millwright welders and their apprentices. Apart from the issue between the Car- penters and Machinists discussed above in connection with the Ma- chinists' group, the only issue with respect to the proposed Carpen- ters' unit is raised by the Employer's contention that this unit will shortly be reduced in numbers to a point where the unit may no longer- be considered appropriate. The Employer and the Chemical Work- ers contend that these employees should be placed in the production, and maintenance group. The record discloses that at the time the Employer took over the operation of the plant in the fall of 1950, it employed approximately 9 or 10 carpenters to perform special work required in connection with the setting up of the plant. It is antici- pated that, within a month or 6 weeks from April 18, 1951, the date, of the representation hearing, the number of carpenters will be re- duced to 2 and that. this number will remain the normal complement of carpenters to be employed by the Employer. We cannot agree with the Employer's contention that these facts make the unit inappropriate. The Board has held that mere reduc- tion in the number of employees in a unit does not necessarily affect the validity thereof .6 This is true when the reduction will leave a unit of at least two employees, as it well settled that two employees may constitute an appropriate unit.' Accordingly, we find that the carpenters and carpenters' apprentices employed by the Employer at its Louisville, Kentucky, plant, may constitute an appropriate unit for the purposes of collective bargaining. The Proposed Painters' Unit The Painters claims a unit composed of all maintenance painters. At the opening of the plant, the Employer employed 9 or 10 painters on a temporary basis to do special work in connection with the re- sumption of operations. At the time of the representation hearing the painters were still in the employ of the Employer. It was antici- e There is no contention by the Employer or the Chemical Workers that the carpenters are not a craft. 1 Tennessee Valley Broadcasting Company , 73 NLRB 1509 ; National TAcoriee Compaz<g, 85 NLRB 140. KENTUCKY SYNTHETIC RUBBER CORPORATION 457 pated that within a month or 6 weeks thereafter, the number of painters employed would be reduced to 2 and that thereafter the normal complement of painters at the plant would be only 2. All parties agree the painters are a craft group of the type usually found appropriate for the purposes of collective bargaining. However, the Chemical Workers and the Employer take the position that a unit of only 2 painters is not appropriate and that the 2 painters should there- fore be included in the production and maintenance unit. This con- tention is rejected for the reasons stated above with respect to the carpenters. Accordingly, we find that' all maintenance painters of the Employer at its Louisville, Kentucky, plant, may constitute an appropriate unit. The Proposed Teamsters' Unit The Teamsters seeks a unit composed of car loaders and service truck operators. The Employer and the three unions seeking to rep- resent the production and maintenance unit take the position that these employees should be included in the production and maintenance group. The employees classified by the Employer as car loaders are in substance general laborers who work in the receiving department unloading incoming shipments to the plant, and who work in the shipping department loading outgoing rubber shipments onto trucks and railroad cars. They have no special skill, work in the same gen- eral area, and are under the same general conditions as are employees engaged directly in production operations. Car loaders work under production supervision on night shifts. On the day shift, however, they work under the traffic manager or, in his absence, under the day production foreman. On occasions, these employees are interchange- able with production employees and are assigned to production jobs. The service truck operators, claimed by the Teamsters Union, oper- ate four lift trucks which are used primarily to lift large pallets upon which bags of finished rubber have been stacked. Thereafter, the service truck operators transport these pallets to a temporary storage room until control tests have been run on samples of the packaged rubber, after which they truck the pallets to a railroad car or truck dock, where the car loaders load the bags into the railroad cars or trucks. Service truck operators also perform services in connection with the Employer's production operation by transporting supplies to the production building. The record discloses that the job requires no special skill and no driver's license. On the night shift, the job is under the supervision of a production foreman. On the day shift, the job is under the supervision of the traffic manager or, in his absence, under that of the day production foreman. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As neither the car loaders nor the service truck operators constitute employees of the type to which the Board traditionally accords the right of separate representation,8 we find that the car loaders and service truck operators do not constitute an appropriate unit and should properly be included in the production and maintenance unit. Because the unit claimed by the Teamsters is inappropriate, its peti- tion will be dismissed. However, we shall accord the Teamsters the status of an intervenor and shall allow it a place on the ballot for the production and maintenance group. The Proposed Production and Maintenance Unit Apart from the 'question of including in the production and main- tenance unit the various groups discussed above, the parties are in disagreement as to whether employees employed in the laboratory, and classified as senior technicians, should be excluded as professional employees.9 The Distillery Workers and the Chemical Workers con- tend that the senior technicians are not professional and therefore fall within the terms of the production and maintenance unit. The Rub- ber Workers, in agreement with the Employer, contends that the senior technicians are professional employees. The Employer requires as a condition of employment that senior technicians hold a college degree in chemistry, and.have a background of analytical chemistry. In the opinion of the Employer, these are essential requirements for the job of senior technicians, if the individ- ual senior technician is to perform properly all of the duties now assigned to such employees. Senior technicians perform many dif- ferent kinds of analytical tests. They are free to, and in fact, exer- cise independent judgment with respect to the actual time of gather- ing the material to be tested. They plan their own tests and makt mathematical computations in connection with them. They work in a separate building from the production workers. They perform no production duties, are not interchanged with production and main- tenance employees, and have separate supervision. Although the contention is made that the senior technicians are professional em- ployees it is unnecessary for us to decide this issue as the Board has See Arnold Hoffman h Co., Incorporated, 91 NLRB I.M. ° The employees employed in the laboratory are classified as junior technicians , senior technicians, junior chemists , and senior chemists . All the parties agree that junior technicians are not professional employees and that the junior and senior chemists are professional employees . However, the Employer in its supplemental brief states that "the junior technicians have advised the Company that in their opinion their interests are not the same as those of the employees within the production and maintenance unit, and that they desire to be placed in a special laboratory unit. " As the record does not show that the interests of the junior technicians are sufficiently different from those of the employees in the production and maintenance unit, and as it does not reveal any other cogent reason for exclusion, we shall include them in the production and maintenance unit. KENTUCKY SYNTHETIC RUBBER CORPORATION 459 held that highly skilled technical employees, whose work and inter- ests differ from those of the production and maintenance employees, should be excluded from a production and maintenance unit.10 We find that senior technicians constitute a group of highly skilled technical employees; accordingly, they will be excluded from the production and maintenance group 11 The Distillery Workers seeks the inclusion of the shipping, and re- ceiving supervisors in the production and maintenance group. As basis for its request, the Distillery Workers contends that the shipping supervisor checks bales into the freight cars and fills out bills of lading; that the receiving supervisor checks incoming material; and that. neither of these employees has the authority of a supervisor within the meaning of the Act. The Employer contends that these individuals are supervisors and should be excluded from the produc- tion and maintenance group. The record shows that the shipping supervisor directs 8 to 10 em- ployees and the receiving supervisor directs 4 or 5 and they have the authority to hire and discharge employees. Accordingly, we find that they are supervisors within the meaning of the Act and therefore will be excluded from the voting group of production and mainte- nance employees. In view of the foregoing, we shall direct separate elections among the employees of the Employer at its Louisville, Kentucky, plant, in the unit of machinists found appropriate above, and in the following voting groups, excluding from each voting group all professional employees, guards, and supervisors within the meaning of the Act : 1. All carpenters and carpenters' apprentices, excluding all other employees. . 2. All maintenance pipe fitters and their helpers, excluding all other employees. 3. All maintenance painters, excluding all other employees. 4. All production and maintenance employees, including car load- ers and service truck operators, but excluding office and clerical em- ployees, the shipping supervisor, the receiving supervisor, senior tech- nicians, all the employees listed in voting groups 1, 2, and 3, the unit of'machinists found appropriate above, and the employees in the units presently represented by the International Brotherhood of Electrical Workers: If, a majority of the employees. in voting groups 1, 2, and 3, vote for the respective Petitioners for these groups, they will be taken to have indicated their desire to constitute separate, bargaining units. 10 S. B . Whistler and Bons, Inc., 92 NLRB No. 197. 11 S. B. Whistler and Sona, Inc., supra. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order IT IS HEREBY ORDERED that the petition in Case No. 9-RC-1131 be, and it hereby is, dismissed. [Text of Direction of Elections omitted from publication in this volume.] R. J. GouLD WELDING AND ERECTING COMPANY, INC. and INTERNA- TIONAL ASSOCIATION OF MACHINISTS , LODGE 570, PETITIONER. Case No. 10-RC-963. July 03, 1951 Decision and Direction of Election Upon a petition duly filed, a hearing was held before Frank E. Hamilton, Jr., 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 Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The Employer, a Florida corporation with its principal offices at Tampa, is engaged in general machine repairs, welding, and steel erection. During the year 1950 the Employer purchased materials and supplies valued in excess of $53,000, of which all were made within the State. During the same period it made sales and performed services for which it received in excess of $309,000, of which $57,524 was received by it from the Pure Oil Company, $17,865 from the In- ternational Minerals and Chemical Corporation, $3,513 from the U. S. Phosphoric Products (Division of Tennessee) Corporation, $3,453 from the Continental Can Co., $2,400 from Lykes Bros., Inc., and $1,600 from Bruce's Juices, Inc. All of these companies are in com- merce,2 and the Board has asserted jurisdiction over most of them.. ' At the hearing the Employer moved to dismiss the petition on the grounds : ( 1) That the Board lacks jurisdiction over it, and ( 2) that the unit requested by the Petitioner is inappropriate. For reasons given in paragraphs numbered 1 and 4 below, this motion is hereby denied. 2 All of them sell and ship directly to points outside the State materials and merchandise valued in excess of $25,000 annually. 8 The Board has asserted jurisdiction over the Pure Oil Company , the International Minerals and Chemical Corporation , the Continental Can Company, and Lykes Bros., Inc. The hearing officer referred to the Board the question of admissibility in evidence of several letters which the Regional Director solicited and received from other Employer purchasers, indicating their status in commerce and the amounts paid for sales and services to the Employer . As the record , apart from these letters, amply justifies the assertion of jurisdiction in this case , we find it unnecessary to resolve this issue. 95 NLRB No. 54..