Monsanto Chemical Co.

In the Matter of MONSANTO CHEMICAL COMPANY, EMPLOYER and GALVESTON BUILDING AND CONSTRUCTION TRADES COUNCIL AND AFFILIATED UNIONS, PETITIONER Case No. 16-R-1840.-Decided September 04,1946 Mr. H. K. Eckert, of Texas City, Tex., for the Employer. Mr. B. A. Gritta, of Galveston, Tex., for the Petitioner. Mrs. Augusta Spaulding, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Galveston, Texas, on July 30, 1946, before Elmer T. Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Monsanto Chemical Company, a Delaware corporation, is engaged in manufacturing styrene for synthetic rubber at Texas City, Texas. At the Texas City plant, the only plant involved in this proceeding,' the Employer uses three principal raw materials, benzol, propane, and aluminum chloride. During the 12-month period ending June 30, 1946, the Employer purchased benzol valued at $1,125,000, of which 98 percent came to the plant from points outside Texas. All propane and aluminum chloride were purchased within the State. During the same period the Employer purchased miscellaneous equipment and supplies, valued at $900,000, of which 90 percent was purchased out- side Texas. During the same period the Employer manufactured at its plant styrene valued at $6,500,000, of which 85 percent was shipped to points outside Texas. i The plant is operated by the Employer for the Reconstruction Finance Corporation 71 N. L. R. B., No. 4. 11 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of guards at its Texas City, Texas, plant, contending (1) that guards are not employees under Section 2 (3) of the Act; (2) that guards were excluded from the unit found appro- priate for production and maintenance employees at the plant repre- sented by the Petitioner and its afliliates,2 and therefore may not be represented by the Petitioner; and (3) that guards may not properly be included in any unit appropriate for bargaining purposes or repre- sented by a labor organization for bargaining purposes. We find no merit in these contentions, which have already been passed upon by the Boards Once it is found that' plant guards are "employees," a conclusion with which our colleague agrees, we doubt whether this Board has the power to tell such employees that, under the Act as written, it would be proper for them to be represented by another labor organization but not by the Petitioner. The Act speaks of representatives of the "employees' own choosing," not of our choosing.4 We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find that guards 5 at the Employer's Texas City, Texas, plant, including the guard sergeants but excluding the guard captain and all other supervisory employees with authority to hire, promote, dis- 2 Matter of Monsanto Chemical Company, 63 N. L. R. B. 789. 3 Matter of Dravo Corporation, 52 N. L. R. B. 322; Matter of E. C. Atkins and Com- pany, 56 N. L. R. B. 1056, both decided by Board Members Reilly and Houston. On May 31, 1946, the United States Circuit Court of Appeals for the Seventh Circuit (Chicago) denied the Board's petition for enforcement of its Order in the Atkins case, holding that militarized plant protection employees were not "employees" within the meaning of Sec- tion 2 (3) of the Act On August 20, 1946, a petition for certiorari was filed in the Su- preme Court of the United States, seeking review of this holding . The present majority sees no occasion to depart from Board precedents unless and until the Supreme Court has had an opportunty to pass on the question. 4 Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66 N. L it. B. 386. 5 The Employer's guards have the usual duties of plant protection employees. They were militarized on August 21, 1942, and demilitarized on September 20, 1945. 9 The parties agree, and we find, that the guard sergeant has no supervisory authority within our customary definition. MONSANTO CHEMICAL COMPANY 13 charge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action, constitute a unit appropriate f or the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Monsanto Chemical Company, Texas City, Texas, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, 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 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, to determine whether or not they desire to be represented by Galveston Building and Construction Trades Council and Affiliated Unions, for the purposes of collective bargaining. MR. 'TAMES J. REYNOLDS, JR., dissenting : It is clear from the record that the duties of the employees constitut- ing the appropriate unit in this case are monitorial as well as custodial in nature. In addition to the usual function of protecting plant prop- erty, these individuals are required (1) to detect, prevent, and report violations of plant rules by other employees, and (2) to maintain and restore order among the employees. It is with respect to these monitorial duties that I am concerned. I believe it to be inconsistent with the purposes of the Act for this Board to take action which may result in the certification as representa- tive of employees performing monitorial duties of that union which presently represents the rank and file employees over whom the moni- torial function must be exercised. I hold to the conviction that in the administration of the Act, it is the affirmative duty of this Board to avoid encouraging the creation of relationships which are inherently unsound industrial relations practice. While I construe it to be the duty of the Board to provide the processes whereby workers may designate collective bargaining 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing in an atmosphere free of coer- cion and undue employer influence, I believe it to be the collateral duty of the Board, in effectuating the purposes of the Act, to consider with great care the impact upon labor-management relations of any collective bargaining procedure upon which we place the imprimatur of the Board. In my opinion, the certification of the Petitioner would result in the establishment of an insoluble incongruity since it serves to place the monitorial employees, entrusted with the duty of reporting the misconduct of fellow union members, in the anomalous position of having to serve conflicting loyalties. Were the duties of the employees here involved exclusively custodial in character, I would find no objec- tion to the granting of this petition. While I agree with my colleagues that these guards are employees within the meaning of the Act, and while I believe they may properly be represented by a labor organization having neither legal nor fac- tual association with the Petitioner, I do not agree that the Board lacks the authority to decline to use its processes where they would so patently effectuate results incompatible with the policies of the Act.' For the reason°stated above, I am constrained to disagree with my colleagues in granting the petition before us. ° Section 9 ( c) of the Act states , "whenever a question affecting commerce arises con- cerning the representation of employees , the Board may investigate such controversy and certify to the parties , in writing, the name or names of the representatives that have been designated or selected" ( emphasis supplied). I construe the language of this Section of the Act to be permissive rather than mandatory , hence, the Board may utilize reason- able discretion in proceeding with an investigation in any case . In N. L. R B v. Indiana & Michigan Electric Company , at at., 318 U. S 9, the Supreme Court so interpreted Section 10 of the Act, which uses the word "empowered" instead of "may," stating "The Board has wide discretion in the issue of complaints . . . It is not required by the statute to move on every charge ; it is merely enabled to do so. It may decline to be so imposed upon or to submit its processes to abuse."