Monsanto Chemical Co.

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MONSANTO CHEMICAL COMPANY and ASSOCIATED GUARDS OF THE UNITED STATES, Petitioner. Case No. 39-RC-734. May 14, 1954 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Clifford W. Potter, hearing officer. The hearing officer' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. I Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. 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, for the following reasons: The Employer's Texas City, Texas , plant is alone involved in this proceeding. In 1943 the Galveston Building and Construction Trades Council, AFL, which' was the Intervenor' s original name, was certified as bargaining representative of the Employer's production and maintenance employees at this plant, excluding guards. In 1946 this labor organization filed a petition seeking to represent separately the Employer' s plant guards and on November 18, 1946, as the result of a Board- directed election,' it was certified as their bargaining repre- sentative . Thereafter , the plant guards were included by the parties in the same collective-bargaining agreement with the production and maintenance employees . In 1950 the Galveston Building and Construction Trades Council changed its name to Galveston Metal Trades Council--the present name of the Intervenor herein . The Employer continued to deal with, and recognize , the Intervenor and did not request that it obtain new certifications or amendments to the certifications due to the change of name. The Petitioner, an independent guard union , seeks a separate unit of the Employer' s guards . The Employer contends that its current contract with the Intervenor, which is effective until June 13, 1954, and which includes the guards in the bargaining unit with production and maintenance employees , is abar to this proceeding . In its brief, the Employer asserts thatthe Board's decisions in the American Dyewood' and Sonotone4 cases support its view. The Petitioner in its brief contends that the 'Galveston Metal Trades Council, herein called the Intervenor, was permitted to intervene in this proceeding upon the basis of its current contract with the Employer. 'Monsanto Chemical Company , 71 NLRB 11. SAmerican Dyewood Company, 99 NLRB 78, 4Sonotone Corporation, 100 NLRB 1127. 108 NLRB No. 121. MONSANTO CHEMICAL COMPANY 871 instant case is almost identical to, and controlled by, our recent decision in Nash Kelvinator .5 We agree with the Petitioner. In American Dyewood, the petitioner sought a production and maintenance unit excluding guards and urged that the inter- venor' s contract with the employer covering production and maintenance employees was not a bar because it included several guards . The Board held the contract a bar as the unit represented by the intervenor was otherwise appropriate, although it contained this fringe category of employees-- guards- -which the Board , if called upon to make a decision initially, could not have included. The Board' s rationale for this decision was that , as a matter of policy, the coincidental inclusion of the small group of guards in the broad overall unit did not warrant disruption of the stable bargaining relationship which had been established by the employer and the intervenor for the production and maintenance employees . Similarly, in the Sonotone case , where the Board had certified a unit of production and maintenance employees including guard-watchmen whom the parties had stipulated were not guards, the Board held that the contract barred a petition for the production and maintenance employees , despite the. fact that it was later determined that the guard-watchmen were guards. These cases differ substantially from the instant one. Thus, here , as in Nash Kelvinator, the Petitioner is seeking the very category of fringe employees which should not have been included in the otherwise appropriate overall unit and holding the contract not a bar as to the guards will not disturb the existing bargaining relationship between thq Employer and Intervenor with respect to the broad unit of production and maintenance employees . Moreover , while Section 9 (b) (3) of the Act merely forbids the Board itself from establishing as appropriate a unit containing guards as well as other employ- ees, in our opinion , finding the contract no bar here gives recognition to the basic intent of Congress in enacting the section, that is , that guards should not be included in the same unit with other employees . Indeed, it was for this reason that in the Sonotone case, the Board sua sponte amended the certifica- tion involved therein to exclude the guard-watchmen, when the evidence introduced into the record showed these employees were , in fact, guards. In view of the foregoing , we find that the Intervenor' s contract with the Employer is no bar to this pro- ceeding. 4. We find that all guards at the Employer's Texas City, Texas , plant, including guard sergeants , 6 but excluding all other employees , the chief of plant guards , and all supervisors as defined in the Act, constitute a unit appropriate for the purposes 5 Nash Kelvinator Corporation, 107 NLRB 644. 6 The parties stipulated that guard sergeants are not supervisors within the meaning of the Act. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of collective bargaining within the meaning of Section 9 (b) (3) of the Act. [Text of Direction of Election omitted from publication.] Member Murdock dissenting: For reasons of both policy and precedent, I am constrained to disagree with my colleagues' direction of an election in this case. The majority opinion directs an election among guards who are now included in abroader unit covered by a collective- bargaining contract which has not expired. Because the Board's previous decisions and its well-known policy of encouraging stability of bargaining relationships are in conflict with this determination of the majority, I would, instead, dismiss the petition on the ground that the contract between the Employer and the Intervenor is a bar to the instant petition. The petition requests an election in a unit of the Employer's guards. The majority opinion grants this election despite its admissions that the Employer and the Intervenor have an unexpired collective-bargaining contract covering the terms and conditions of employment of these individuals and that Section 9 (b) (3) "merely forbids the Board," not the parties, from establishing a unit ,including both guards and nonguard personnel. The reasons for the majority action are set fprth in the opinion as being, first, the fact that the guards "should not have been included" in the broader unit originally, and, secondly, because finding that the contract is not a bar "gives recognition to the basic intent of Congress" in the enactment of Section 9 (b) (3). Both these contentions have previously been rejected by the Board in cas es which have not, to my knowledge, been overruled. The Intervenor herein was certified, prior to the 1947 amend- ments to the Act, as the representative of both the Employer's guards and its production and maintenance employees. Those certifications, though separate for the guards and the remainder of the employees, were entirely valid, as was the merger of the two certified units thereafter. The statement of the majority, accordingly, that the guards "should not have been included" originally is without legal substance. There is nothing in the Act, as indeed my colleagues admit, that prohibited such action by the Employer and the Intervenor. Since certification as representative of these employees, the Intervenor has bargained continuously for both guards and production and maintenance employees to the present date. Its current contract has not expired. The question is, accordingly, whether this stable relationship should now be disrupted merely because the Board, if now presented with an initial request by the Intervenor to represent both guards and production and maintenance employees, would not grant such a merger. The MONSANTO CHEMICAL COMPANY 873 Board disposed of this precise question in American Dyewood Company,' where it stated: Section (9 ( b) (3)] of the amended Act merely for- bids the Board itself to establish as appropriate a unit containing guards as well as other employees. It does not impose upon the Board a duty to police every contract voluntarily established by the parties, to determine whether they have covered the working conditions of indi- vidual employees whom the Board, if called upon to make a decision, would exclude. The Board' s contract bar rule is based upon broad policy considerations . It aims to stabi- lize the relationship between employers and their em- ployees ' bargaining representatives for the duration of a reasonable contract term. The Intervenor and the Employer are bargaining on the basis of such a contract . To disrupt that relationship , it seems to us, should require something more than a finding that several employees should not have been included in an otherwise clearly appropriate unit. We specifically do not find that guards may be appropriately included in a production and maintenance unit. Contrary to our dissenting colleague 's position, we do not believe that we are indirectly making any such decision. We simply are not persuaded , as a matter of overall policy, that the existence of coverage here warrants disturbing stability by making inapplicable the Board's normal contract bar doctrine. In the Sonotone decision 8 which followed, the Board again rejected the contention that contract stability should be disrupted solely because the "certification was of a unionwhich included certain employees who, had their status been litigated, would have been excluded by the Board." In that case , however, the Board amended its certification to exclude guards because it issued after a time when this agency could legally certify a union as representative of both guards and production em- ployees . Such is clearly not the situation herein for the Board's certification of the Intervenor as representative of these guards was entirely valid when made. In recognition of the contrary precedent in American Dye- wood and Sonotone , the majority opinion here seeks to distin- guish those decisions on the ground that they did not involve a union petitioning for a unit of guards . While it is true that the Nash Kelvinator case ,' cited by my colleagues in this regard, found a contract not a bar on that ground, it is clear that that case , as well as the majority opinion herein, is in direct 7 99 NLRB 78. SSonotone Corporation, 100 NLRB 1127. 9107 NLRB 644. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conflict with the previous decisions rather than distinguishable from them . The mere fact that the Petitioner is seeking a unit of guards rather than a production and maintenance unit does not touch the essential problem as stated in American Dyewood of whether or not the Board is to disrupt the numerous collec- tive -bargaining contracts voluntarily established by unions and management in an effort "to determine whether they have covered the working conditions of individual employees whom the Board, if called upon to make a decision, would exclude." The Act does not call uponthis agency to do so , as the majority admits, and I find no congressional intent in Section 9 (b) ((3) or elsewhere for the policing and disruption of such voluntary arrangements as arrived at herein. For these • reasons, I would overrule the Nash Kelvinator decision as inconsistent and in conflict with tae precedent set forth in American Dyewood and Sonotone Cor poration. In accord with the ruling of the latter named decisions, would further dismiss the petition filed herein on the ground that it is barred by the current contract between the Employer and the Intervenor. Member Beeson took no part in the consideration of the above Decision and Direction of Election. ROADWAY EXPRESS, INC . and JESS E . CAWTHORN and WALTER C. BUXTON INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 823, AFL and JESS E. CAWTHORN and WALTER C. BUXTON and RALPH E. HAYES . Cases Nos . 16-CA-662, 16-CA- 663, 16-CB-49, 16-CB -50, and 16-CB - 51. May 18, 1954. DECISION AND ORDER On January 11, 1954 , Trial Examiner C . W. Wittemore issued his Intermediate Report in these consolidated cases , finding that the Respondents had both engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto . Thereafter, the Respondent Company and the Respondent Union filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was 108 NLRB No. 123.