Freeport Sulphur Co.

In the Matter of FREEPORT SULPHUR COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL 450, AFL Case No. 16-R-1342.-Decided December 09, 1945 Vinson, Elkins, Wee'ins, and Francis, by Messrs. C. E. Bryson and Warren J. Dale, both of Houston, Tex.; Cllr. Thomas R. Vaughan, of New York City; Mr. D. T. McIver, of New Orleans, La., and Mr. E. H. McFarland, of Freeport, Tex., for the Company. Mr. W. M. Askin.s, of Houston, Tex., and Mr. L. C. Patton, of Free- port, Tex., for the Engineers. Messrs. Edward R. Moffatt, Robert D. Collins, and J. I. Dickson, all of Freeport, Tex., and Mr. Olivero Romero, of Brazoria, Tex., for the Chemical Workers. MMMr. C. A. West, of Houston, Tex., for Locals 195, 128, 130, 716, and 213. Mr. Angelo J. Fhmzara, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a petition duly filed by International Union of Operating Engineers, Local 450, AFL, herein called the Operating Engineers, alleging that a question affecting commerce had arisen concerning the representation of employees of Freeport Sulphur Company, Free- port, Texas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Lewis Moore, Trial Examiner. The hearing was held at Freeport, Texas, on June 30, 1945. Pursuant to an order issued by the Board on September 26, 1945, the record herein was reopened and a further hearing was held before Earl Saunders, Trial Examiner, at Freeport, Texas, on October 10, 1945. At the first hearing, International Chemical Workers Union, Local No. 19, A. F. of L., herein called the Chemical Workers, moved to intervene over the objection of the Operating Engineers. The Trial Examiner allowed the Chemical Workers to participate in the hearing but reserved ruling on the 65 N L. R. B., No. 5. 21 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motion for the Board. At the reopened hearing, the Trial Examiner denied the joint motion to intervene made by Pipe Fitters Local 195, AFL; Local 128, International Association of Machinists, AFL; Local 716, International Brotherhood of Electrical Workers, AFL; ,International Brotherhood of Painters, Decorators and Paper Hang- ers of America, Local 130, AFL; and Carpenters Local 213, AFL. In view of our dismissal of the petition hereinafter, we find it un- necessary to rule on the aforesaid motion of the Chemical Workers or to pass upon the propriety of the Trial Examiner's ruling on the joint motion to intervene. The Company, the Operating Engineers, ,and the Chemical Workers appeared and participated at the first hearing; only the Company and the Operating Engineers appeared and participated at the reopened hearing.' All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. All other rulings of the Trial Examiners made at the hearings are free from prejudicial error and are hereby affirmed. All parties were afforded an oppor- tunity to file briefs with the Board. After the close of the reopened hearing, the Company and - the Operating Engineers moved, without objection, that certain correc- tions be made in the transcript of testimony in this proceeding. The motion is hereby granted. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE CO31PANY Freeport Sulphur Company is engaged in the mining, shipping, and marketing of sulphur. We are here concerned with its Hoskins Mound plant near Freeport, Texas, where it conducts mining operations. During the year 1943, the Company mined and shipped from its Hos- kins Mound plant sulphur valued in excess of $1,000,000, more than 80 . percent of which represented shipments to points outside the State of Texas. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers, Local 450, affiliated with the American Federation of Labor, is a labor organization admit- ting to membership employees of the Company. I The record shows that the Chemical workers was served with notice of the reopened hearing. FREEPORT SULPHUR COMPANY 23 International Chemical Workers Union, Local No. 19, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of the Company. III. THE ALLEGED APPROPRIATE UNIT The Operating Engineers seeks a unit composed of only those opera- tion and production employees of the Company at its Hoskins Mound plant who are specifically enumerated in Board Exhibit No. 1A,2 excluding maintenance, clerical, plant protection, supervisory em- ployees, and all other employees not listed on the exhibit. The Com- pany and the Chemical Workers contend, on the other hand, that the appropriate unit consists of all production and maintenance employees as determined by the Board in a prior decision.' The Hoskins Mound plant is divided into five separate departments, riz, power plant, field, shipping, service and mechanical, and admin- istrative. The Company has classified the employees in these depart- ments into seven groups' with respect to the degree of supervisory authority they possess. The Operating Engineers'has accepted these classifications as substantially correct and it has agreed with the Company that those in Groups I through V are supervisors within the Board's customary definition' Of the remaining employees in Groups VI and VII, about 314 in number and comprising approximately 70 different industrial classifications, the Operating Engineers seeks to represent only about 120 employees Who fall within approximately 34 job titles, and work in the power plant, field, shipping, and service and mechanical departments. The proposed unit, which does not satisfy the requirements of a craft or a departmental unit, is, in our opinion, open to the serious objection that it does not comprise a clearly identifiable group of employees appropriate for the purposes of collective bargaining. 2Included therein are the following industrial classifications hag sewing machine opera- tor, blacksmith hammer operator , relay station bleed-water operator , pump operator, box- car loader operator, boxcar loader operator assistant, conveyor operator, diesel-brown hoist oiler, dragline operator , hoist operator, dredge leverman , dragline relief operator, hoist relief operator , hoist fireman, derrick man , dredge mechanic, dredge roustabout , dredge slush operator, driller, first fireman, second fireman, generator and compressor operator, high pressure pump operator , dredge high pressure pump operator , limehouse operator, pilot plant operator, fig helper , sulphur well operator helper , sulphur n ell operator , tractor operator ( heavy ), tractor operator (light), truck winchman , water filter plant operator, and weighbagger operator 3See Matter of Freeport Sulphur Company, 57 N L R B 1756 No election was held among the Company's employees in the unit therein found appropriate because the peti- tioner withdrew its petition , subsequent to the issuance of the Board's Decision and Direction of Election . There has not been any collective bargaining predicated upon that unit finding 4 Company Exhibits 1A and III. 6 Since the Chemical Workers did not appear at the reopened hearing at which time the exhibits bearing the classifications were submitted , its position on this matter is not known. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Aside from the exclusion of all craftsmen in order to avoid jurisdic- tional disputes with other similarly affiliated unions, the Operating Engineers would exclude from its proposed unit certain employees who perform comparable and interrelated tasks and have interests in common with the group sought. Thus, for example, it would exclude the greater operator in the service and mechanical department, but would include all other persons operating machines 6 in that and other departments; it would omit from the unit the meter mechanic and the auto mechanics in the power plant and service and mechanical departments, respectively, but would include in the unit the dredge mechanic in the field department; similarly, it seeks to exclude the limehouse operator helper in the service and mechanical department, but wishes to include the limehouse operator himself; nor does there appear to be any justification for its desire to exclude vat builders, the sulphur samplers, the winchman, the breakman, the powderman, and second-hand warehousemen whose work and interests are allied with those of operation and production employees. In addition, the Oper- ating Engineers desires to exclude the office clerk, the warehouse clerk, the warehouse clerk relief, and the warehouse clerk relief, junior, all of whom work in the administrative department and are, in our opinion, production clericals, a category of employees customarily included in a production and maintenance unit unless the parties agree to their exclusion.7 Moreover, the record reveals that the Company's operations at its Hoskins Mound plant are well integrated, that common hours of work prevail, that employee benefits are uniformly and commonly admin- istered, and that there is considerable employee interchange among virtually all the employee categories with the exception of the crafts- men. In this latter connection, it appears that, from August 16 to August 31, 1945, the Company assigned 107 of the 314 employees in Groups VI and VII to one or more different jobs, and during such temporary assignment at least 46 of these employees worked at jobs both within and without the proposed unit. During this same period, of the approximately 94 helpers in Groups VI and VII, most of whom the Operating Engineers would exclude, the Company shifted 41 helpers to other job classifications principally in the unit sought. Accordingly, under all the circumstances, we are persuaded that the proposed unit of the operating Engineers constitutes a hetero- ° These include the operators of the generator and compressor , high pressure pump , boiler feed pump, dredge high pressure pump, dredge slush pump, pilot plant, sulphur well, relay station bleed-water. tractor (heavy), tractor (light), bag sewing marline, boxcar loader, convevor, hoist , weighbagger, blacksmith hammer, draglme, water filter plant, and limehouse 7 See Matter of Rockford Sari Products Co, 62 N L R B 1430 C) FREEPORT SULPHUR COMPANY 25 geneous group incapable of precise definition, and that it is, there- fore, inappropriate for the purposes of collective bargaining. IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION Since, as we have held in Section III, above, the bargaining unit sought by the Operating Engineers is inappropriate for the purposes of collective bargaining, we find that no question affecting commerce has arisen concerning the representation of employees of the Company within the meaning of Section 9 (c) of the National Labor Relations Act. We shall, therefore, dismiss the petition. ORDER Upon the basis of the above findings of fact and the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of Freeport Sulphur Company, Freeport, Texas, filed by International Union of Operating Engineers, Local 450, affiliated with the American Federation of Labor, be, and it hereby is, dismissed. t