Monsanto Chemical Co.

In the Matter of MONSANTO CHEMICAL COMPANY, CLINTON LABORA- TORIES, OAI,, RIDGE, TENNESSEE,1 EMPLOYER, and INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AMERICAN FEDERATION OF LABOR, PETITIONER Case No. 10-R-2231.-Decided March 16, 1948 Messrs. Russell R. Kramer and Porter Greenwood, both of Knox- ville, Tenn., and Mr. Prescott Sandidge, of Oak Ridge, Tenn., for the Employer. Mr. Kenneth L. Scott, of Knoxville, Tenn., for the Petitioner. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Oak Ridge, Tennessee, on April 1, 1947, before Charles M. Paschal, Jr., hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record iii 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 generally in the business of purchasing, manufacturing, processing, and selling of industrial chemical products. This proceeding,is con- cerned solely with the Government-owned plant at Oak Ridge, Ten- nessee, known as the Clinton Laboratories, at which the Employer processes certain materials pursuant to a cost reimbursement contract with the United States Government.2 I The Employer's name appears as amended at the hearing. 2 The contract was originally executed by the Manhattan District , USED, of the United States Aimy, which was later succeeded by the Atomic Energy Commission as the contract- ing party 76 N. L R. B., No. 109. 767 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All raw materials used by the Employer are furnished by the Gov- ernment and received by the Employer at Oak Ridge, Tennessee. A substantial quantity of supplies and equipment of "a very substantial value" are received by the Employer as "agent" for the Government. A substantial quantity of all these materials is shipped to the Employer from points outside the State of Tennessee; the remainder is delivered to the Employer by the Government, at Oak Ridge, Tennessee. Title to such materials never vests in the Employer although some supplies and equipment are ordered in the name of the Employer. The Employer produces isotopes, described as radioactive elements which are the by-products of the main product of the Oak Ridge operations. Title to these isotopes is in the Government. Upon ap- proval of the Government, these isotopes are sold and delivered by the Employer to universities, hospitals, and similar institutions for experimental purposes. The proceeds from these sales go to the Government. Isotope deliveries comprise between 0.10 percent and 1.00 percent of the total dollar volume of the Employer's operations. Since August 1946, isotope deliveries averaged approximately $6,000 a month, of which in excess of 50 percent was shipped to points outside the State of Tennessee. The Atomic Energy Commission through an anithorized repre- sentative indicated on the record that the disclosure thereon of facts relating to the operations of the Employer in interstate com- merce would violate security regulations. However, the Board has in its possession additional facts indicating the extent of the interstate commerce operations at Oak Ridge, including those of the Employer, contained in a report prepared by a special Board representative after a complete study. The Board takes notice of these facts, which are accessible only to the Members of the Board and its specially desig- nated representatives, and on the basis thereof finds that the Em- ployer's operations at Oak Ridge affect commerce within the meaning of the Act.' Moreover, the record facts indicated above are themselves sufficient to establish that the Employer's operations involve a substantial in- flow and outflow of materials from and to points outside the State of Tennessee. A work stoppage of the Employer's laboratory would therefore have a direct and adverse effect upon this flow of materials in commerce. The Employer contends, however, that this flow of goods, because title thereto is in the Government, is an administrative act and not "commerce" within the meaning of the Act. The contention is without merit. The movement of goods across State lines constitutes interstate commerce whether title to such goods is vested in the Gjov- 8 See Matter of Carbide and Carbon Chemical Corporation, 73 N. L. R. B. 134. MONSANTO CHEMICAL COMPANY 769 ernment or in private owners .4 The Employer's status here is that of a Government contractor and not that of an agent of the Government so as to entitle it the immunity of the Government under the Act.5 On the basis of the foregoing and all the facts before us,, we find that the Employer's operations affect commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor claiming to represent employees of the Employer. M. THE QUESTION 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 employees involved herein are em- ployees of the Government and, therefore, not employees within the meaning of the Act. We find the contention to be without merit. The record shows that those employees are not part of the Civil Service but are hired directly by the Employer; that the Employer is responsible for the direction of their work; and that the Employer, among other things, determines their rates of pay and working conditions, controls their tenure of employment, and pays them by its own checks albeit the funds used for this purpose are provided by the Government. While it appears that the Employer's authority in virtually all respects is subject to the review and approval of the Government, which may be attributed to obvious security reasons and the nature of the cost reim- bursable contract, there clearly remains with the Employer an exten- sive area of effective control over the labor policies of the Oak Ridge laboratory and over the basic subjects of collective bargaining with these employees.s Consequently, we are of the opinion that there is sufficient evidence of the existence of an employer-employee relation- ship in this case.? ° Matter of Reynolds Corporation, 74 N. L. R. B. 1622 ; Matter of Carbide and Carbon Chemical Corporation, 73 N. L. R. B. 134; Matter of Lone Star Defense Corporation, 63 N. L. R. B . 579 ; Matter of Carl Norden, Inc., 62 N. L. R. B. 828, 837. 5 Penn Dairies V. Pennsylvania Milk Control Commission , 318 U. S. 262 ; Alabama v. King & Boozer, 314 U S. 1. "It is noted that the contract between the Employer and the Atomic Trades and Labor Council, AFL, covering the Employer's production and maintenance employees , contains provisions for seniority, grievance procedure , wages , hours, job bidding, and maintenance of membership r See N . L. R. B. v. Hearst Publications, Inc., 322 U. S 111 ; see also Matter of Reynolds Corporation, 74 N. L R B. 1622, Matter of Carbide and Carbon Chemical Corporation, 73 N. L R B 134. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT In accordance with the stipulation of the parties, eve find that all firemen and fire protection inspectors of the Employer at its" plant at Oak Ridge, Tennessee, excluding officers and all supervisors, con- stitute a unit appropriate for 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,. Clinton Laboratories, Oak Ridge, Tennessee, an election by secret bal- lot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervi- sion of the Regional Director for the Tenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, among the employees in the unit found ap- propriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including the employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, 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, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by International Association of Firefighters, American Federation of Labor, for the purposes of collective bargaining. CHAIRMAN IIERZOG took no part in the consideration of the above Decision and Direction of Election. B We have carefully considered the duties of the employees in the appropriate unit herein and conclude that they are not "guards" within the meaning of Section 9 (b) (3) of the Act.