The M. W. Kellogg Co.

THE M. W. KELLOGG COMPANY 51 membership in a labor organization as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Josephine Haynes, Mary Engdahl Hemphill , and Bette Moore immediate and full reinstatement to their former or substantially equivalent po- sitions, without prejudice to any seniority or other rights and privileges previ- ously enjoyed and make them whole for any loss of pay they may have suffered as a result of our discrimination against them. All our employees are free to become or remain , or to refrain from becoming or remaining, members in good standing of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the National Labor Relations Act. BRADY AVIATION CORPORATION, Employer. Dated---------------- By---------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE M. W. KELLOGG COMPANY and INTERNATIONAL CHEMICAL WORK- ERS UNION7 AFL, PETITIONER. Case No. 2-RC-6562. September 24,1954 Decision and Direction of Election Upon a petition filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hearing offi- cer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 em- ployees of the Employer. 3. Local Union No. 461, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, was allowed to intervene at the hearing because of its contract representation of hourly paid production and maintenance employees of the Employer. In its brief it contends that the Petitioner is not the real party in interest in this proceeding, but instead that an unidentified local group exists to represent the salaried employees sought by the Petitioner, which group is not in compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act. At the hearing counsel for the Intervenor asked the Petitioner's or- ganizer, who signed the petition in this case, this question : "There is a local union in this particular operation now, is there not?" To which this answer was given : "There is no local union yet established." Immediately the Intervenor launched upon a series of questions to elicit information about "a local," that is, its number, its officers, its date of organization, and whether it had collected dues and initiation 110 NLRB No. 9. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fees, to all of which the hearing officer sustained objections. There- upon, in making what it termed an offer of proof, the Intervenor failed to specify what it would prove if allowed to do so, other than : "there is a local union in existence" and "there is no proof, as I under- stand it, the local union has qualified so that it would be permitted to be a petitioner." In the absence of affirmative evidence that a noncom- plying local is actually in existence, or an offer of proof sufficiently specific to raise a substantial doubt concerning the nonexistence of such a local, we think the Petitioner's denial that such a local is in existence must be taken at face value. On this record the formation of a local to represent the employees sought by the petitioning Interna- tional organization appears too conjectural and premature to warrant consideration. See Grand Central Aircraft Co., Inc., 106 NLRB 358; Tin Processing Corporation, 80 NLRB 1369. Accordingly, the Inter- venor's request in its brief to dismiss the petition on this ground is denied.' 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. 4. The Petitioner seeks a unit of the Employer's salaried production employees engaged in the manufacture of its plastic product known as Kel-F. The existing bargaining unit recognized by contract is one of hourly paid production and maintenance employees engaged in the Employer's more extensive mechanical manufacturing operations, which include the fabrication of powerhouses, refineries, heat ex- changers, and other steel products. These mechanical manufacturing employees have been represented by the Intervenor or its predecessor since 1941. The total employee complement of the Employer at its Jersey City, New Jersey, plant, is approximately 1,600, including 849 hourly paid mechanical production and maintenance employees. The salaried chemical or plastic production employees here sought by the Petitioner number 120. They comprise the unrepresented production employees and include employees classified as chemical plant operators 1, 2, and 3 and plastic finishing operators 1, 2, and 3, plus catalyst workers en- gaged in connection with the Kel-F process (three employees who ap- pear to be classified as chemical plant operators), and shipping and re- ceiving employees so engaged. Maintenance employees assigned to Kel-F and janitors are not sought by the Petitioner. Apparently only two shipping and receiving employees are employed for the Kel-F de- partment-a clerk and a truckdriver, the latter only occasionally going outside the plant. 1 Should the Petitioner win the election, and should it then appear that there is a non- complying local formed and in the picture, no certification would of course issue without compliance by such a local, Lane-Wells Company, 77 NLRB 1051, 79 NLRB 252. THE M. W. KELLOGG COMPANY 53 The Employer's chemical manufacturing division comprises 3 ac- tivities : The 14-year-old catalyst operation which consists of the prepa- ration of catalysts for petroleum use as well as for the Kel-F opera- tion, the 7-year-old Kel-F operation, and also, apparently, a 2-year- old operation known as "Telomer" involving development of a process for the manufacture of inert compounds. The Employer contends that the Kel-F operation is not yet completely out of the experimental stage and for that reason it has denied the Intervenor's requests to reclassify these plastic production employees as hourly paid workers and bar- gain for them on that basis, apparently as an addition to the existing bargaining unit. However, there is no question on this record that the plastic product involved is being sold in substantial quantities and that, at most, no more than 30 additional employees are contemplated for the operation even assuming a favorable raw material situation. In addition, the Employer contends that a unit of plastic production em- ployees is inappropriate, indicative only of the extent to which the Petitioner has organized, and that its entire Jersey City facility is "one integrated plant" for which only a plantwide production and main- tenance unit is appropriate. In the latter connection it stresses these factors : That certain plastic containers for use by Kel-F are manufac- tured in the mechanical manufacturing operations of the plant, that similar tools and equipment are used by all production employees, and that it has common hiring practices and benefits for all of its employees. It appears that the Kel-F operation is a small part of the Employ- er's Jersey City operation, located principally in buildings 11, 23, and 32 of the plant. Kel-F has its own executive offices, and a vice-presi- dent in charge of research and development is manager of the chemical manufacturing division in active charge of the Kel-F department. A regular maintenance crew of 8 or 9 keeps the Kel-F processing ma- chinery in working order. In addition, 13 men from the plant's main- tenance and construction department are also assigned there, and addi- tional maintenance men may be sent in when necessary. All mainte- nance employees are covered by the current bargaining contract be- tween the Employer and the Intervenor. The Kel-F janitors, whom the Petitioner does not seek, are maintenance employees paid a salary and apparently for that reason have not been represented by the Intervenor. Two chemical operators and one plastic finisher testified for the Peti- tioner, describing in detail the Kel-F manufacturing operation and their duties as employees in connection with it. This testimony in- dicates that the operation is distinct and apart from the Employer's mechancal manufacturing operation and that trained employees are not interchangeable between the two. Corroborative of this was the earlier testimony of the Employer's Kel-F production manager that no interchange of production employees occurs as between the me- 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD chanical and the plastic operation, although a number of original plant employees have been taken on permanently in the Kel-F operation; also, that within the Kel-F department, operators and finishers are not interchangeable unless trained in both classifications. In addition, the Employer's general maintenance manager testified that although Kel-F production employees do use wrenches and other tools used by mainte- nance men, for example, in the uncoring of plastic "bombs," and on occasion do help with maintenance work being done in the Kel-F build- ings, that maintenance men as such are not qualified to carry out the normal duties of the plastic production employees. On this record we find that the Employer's plastic production em- ployees constitute a residual group of production employees who are unrepresented, with distinct on-the-job training and experience and a common special interest in collective bargaining.2 Accordingly, we find that the production employees engaged in the manufacture, ship- ping, and receiving of plastics at the Employer's Jersey City plant, including the catalyst workers making catalyst for use by the plastic workers and the janitors,' but excluding executives, clerical employees, maintenance employees, the experimental molder,4 foremen, and su- pervisors as defined in the Act, may, if they so desire, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. However, we shall make no final unit determination at this time; if in the election herein directed a majority of the employees vote for the Petitioner, the Regional Director is instructed to issue a certifica- tion of representatives for the unit of plastic production employees herein described, which in these circumstances we find to be appro- priate for purposes of collective bargaining. If, on the other hand, a majority vote for the Intervenor, which has requested no election in the mechanical production and maintenance unit presently repre- sented, the employees will be taken to have indicated their desire to be included in the unit now represented by the Intervenor and the Regional Director is instructed to issue a certification of results of election to that effect. If a majority vote for no union, the Regional Director is instructed to issue a certification of results of election to that effect. [Text of Direction of Election omitted from publication.] MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Election. 8 See Central Mereed4ta, Inc., 100 NLRB 1168, 1169; Houston Lighting & Power Com- pany, 100 NLRB 76, 77 ; Ware Laboratories, Inc., 98 NLRB 1141, 1143; Walgreen Co. of New York, Inc , 106 NLRB 1221. 8 As the janitors are unrepresented, we shall include them in this residual group even though they are not production employees. `The experimental molder works in close touch with sales personnel , as well as acting in a supervisory capacity to chemical operators assigned to him.