Carbide and Carbon Chemical Corp.

In the Matter of CARBIDE. AND CARBON CHEMICAL CORPORATION, Eivi- PLOYER and AMERICAN FEDERATION OF LABOR, INTERNATIONAL FIRE FIGH 'ERs ASSOCIATION , PETITIONER Case No. 18-R-1649 .-Decided March 13, 1947 Mr. William C. Treanor , of New York City , and Mr. Thomas E. Lane , of Oak Ridge , Tenn., for the Employer. Mr. Kenneth, Scott, of Oak Ridge, Tenn ., for the Petitioner. Mr. C. W. Danzenbwi g and Miss Esther Demeo, of Oak Ridge , Tenn for the Intervenor. Mr. Henri W. de Kozinian, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Oak Ridge, Tennessee, on January 21, 1947, before Al. A. Prowell, 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 Carbide and Carbon Chemical Corporation is a New York corpo- ration which, pursuant to its contract with the United States Govern- ment, processes certain materials at a plant in Oak Ridge, Tennessee, which is owned by the Government. In connection with a prior pro- ceeding,involving the Employer, a report was prepared by a special representative of the Board, setting out certain facts concerning opera- tions of the Employer, these facts having been provided by the Em- ployer by direction of the War Department. This report is accessible only to Board members and its specially designated representatives. The Board takes notice of these facts, which for reasons of national security it is not free to divulge, and on the basis thereof finds that the operations of the Employer affect commerce within the meaning of the National Labor Relations Act. 73 N L. R. B, No. 21. 134 CARBIDE AND CARBON CHEMICAL CORPORATION . 135 Nor do we find merit in the Employer's argument that it is not engaged in commerce within the meaning of the Act because it is a Government contractor processing materials at a plant owned by the Government. We have repeatedly held that the operations of Govern- ment contractors affect commerce even though the products they manufacture are transported in commerce by the Government., And Government contractors are not agents of the Government so as to share the. Government's -immunity.' We find, contrary to the Employer's contention, that its operations affect commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. United Chemical Workers of America, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Or- ganizations, claiming to represent employees of the Employer. III. THE QULSTION CONCERNING REPRESENTATION The Employer- refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The Employer contends that the petition should be dismissed on the ground that the employees whom the Petitioner seeks to represent are employees of the Government and not employees within the meaning of the Act because (1) the Employer is operating pursuant to a "cost plus fixed fee" contract with the Government, which also has title to the plant and all the materials processed there by the Em- ployer, and (2) the employees whom the Petitioner seeks to represent are militarized. We have considered similar contentions in the past and found them to be without merit. The Employer exercises con- siderable control over the employees whom the Petitioner seeks to represent, in that it hires them, determines their rates of pay and working conditions, and discharges them. While the Employer's authority in these respects may be subjected to review by the Govern- ment in some cases, the Employer admits that its recomendations as to and control over these employees is effective. These factors are sufficient to establish an employer-employee relationship,3 and we have ' Matter of Lone Star Defense Corporation, 63 N L. R. B 579 ; Matter of Carl L. -Norden, Inc, 62 N. L. R. B. 82S, Matter of Brown Shipbuilding Company, Inc., 57 N. L. R. B 326. See Timberlake v. Day & Zimmerman, 49 P. Supp 28 ( D C S D Iowa) 2 Penn Dairies v Pennsylvania Milk Control Commission , 318 U . S 262: Alabama v. King & Boozer, 314 U S 1. ' See N L R B . v Hearst Publications, Incorporated, 322 U. S 111. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so held in previous cases.4 Nor does the fact that these employees are militarized affect our conclusion. Where an employer exercises suffi- cient control over its employees to establish 71,n employer-employee relationship, as is the case here, we have held that the-fact that such employees are militarized cannot serve to deprive them of their rights under the Act to be represented, if they so desire, for the purposes of collective bargaining with the employer.5 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 The Petitioner seeks a unit of all firemen and firefighters, excluding lieutenants, captains, and supervisory employees.' The Intervenor contends that the unit sought by the Petitioner is inappropriate, urging that firemen and guards should be placed in one unit. The Employer, while contending that neither firemen nor guards are employees within the meaning of the Act, takes no position on the question of lvllether firemen and guards should be separated.' Foi' the reasons stated in Section III, above, we have found that the Employer's militarized em- ployees are employees within the meaning of the Act. While both firemen and guards are militarized, it appears that their duties differ. Firemen are charged with the enforcement of the fire safety rules, and their principal responsibility is to extinguish any fires that may occur. Guards, on the other hand, are primarily charged with the protection of the plant from injury from sources other than fire and the enforcement of rules promulgated by the Employer and the Government for the operation of the plant. Ih previously finding appropriate a unit of firemen at another plant in Oak Ridge, Tennes- see,8 Ave recognized that firemen are sufficiently distinguishable from other employees so as to entitle them to bargain separately.' More- 4Matter of Sinclair Rubber, Inc, 62 N. L R . B 1153; Matter of Brown Shtipbusldenq Company, Inc, 57 N L R B 326 See cases cited in fn 2, supra. See also United States v. Driscoll, 96 U S 421. s Hatter of B F Goodrich Company, 62 N L R B 206, Matter of Rohm d Haas Company, 60 N. L R . B 554 , the Employer relies on N. L. R B. v. Jones & Laughlin Steel Corpora- tion, 154 F ( 2d) 932 (C. C A 6), and N. L. R B v. E. C. Atkins & Co, 155 F. ( 2d) 507 (C C A 7) Since the Supieme Court has granted certiorari in both cases, we see no rea- son to depart from Board precedents unless and until the Supreme Court directs us to do so. 6 At the heating the Petitioner amended its petition to exclude lieutenants and captains, the Employer having objected to their inclusion on the ground that they were supervisory employees , We find no merit in the Employer 's contention that the exclusion of firemen and guards from a unit pieviously found app_opriate at the plant operated by the Employer in Oak Ridge, Tennessee , precludes the direction of an election in this proceeding , inasmuch as the exclusion of employees from one unit does not prevent them from being represented in an appropriate unit. 8 Matter of Roane-Anderson Company, 71 N. L. R. B. 266. n See also Matter of Wilmington Welding & Boiler Works, Ltd., 64 N. L R. B. 924. 4 CARBIDE AND CARBON CHEMICAL CORPORATION 137 over, the Intervenor, which is the only party urging the merger of firemen and guards in a single unit, has not, according to our agent's administrative report, made any showing of representation among the guards. Accordingly, .we find that all firemen and firefighters at the plant operated by the Employer in Oak Ridge, Tennessee, excluding lieuten- ants, captains, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, consti- tute a unit appropriate for the purposes of collective bargaining within the mewling of Section.9 (b) of the Act. DIRECTION OF ELECTION 10 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Carbide and Carbon Chemical Corporation, Oak Ridge, Tennessee, 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 Tenth 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 em- ployees 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 they desire to be represented by American Feder- ation of Labor, International Fire Fighters Association, or by United Chemical Workers of America, CIO, for the purposes of collective bargaining, or by neither. OIA1RMA\ H1,RZOG took no part in the consideration of the above Decision and Direction of Election. 10 Any participant in the election herein may , upon its prompt request to, and approval thereof by, the Regional Director, have its name iemoved fioni the ballot.