Potash Co. of America

340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factor, in our opinion, was one of the reasons why Congress specifically provided for the establishment of separate professional units. To justify the exclusion of individuals otherwise qualified for inclusion in a professional unit upon the ground that they are too closely allied to the employer to be regarded as employees under the Act, we be- lieve that it must be established that the individuals in question have interests and duties not shared by the other professionally engaged employees. In the present instance, as noted above, the record does not disclose that the manufacturing engineers in question have functions and in- terests essentially different from those of the other professional en- gineers properly included within the unit sought. We therefore find,, contrary to the Employer's contentions, that they may be included in the professional unit herein found appropriatc.e We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All professional employees, including manufacturing engineers, of the Westinghouse Electric Corporation at its atomic equipment de- partment plant, Cheswick Road, Harmar Township, Pennsylvania, excluding all other employees and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 6 Cf. Westinghouse Electric Corporation, 89 NLRB 8, 30; 91 NLRB No. 40 (not reported in printed volumes of Board Decisions and Orders) ; 92 NLRB 871, 872; 107 NLRB 16, 18, where, on the record then before the Board, the Board found that the manufacturing engi- neers should be excluded. Although those cases are distinguishable on their facts from the present proceeding, they are expressly overruled to the extent that they are incon- sistent herewith Potash Company of America and International Association of Machinists, Permian Basin Lodge 1265, AFL , Petitioner Potash Company of America and International Association of Machinists, AFL,1 Petitioner Potash Company of America and United Stone and Allied Prod- ucts Workers of America, CIO, Petitioner2 Cases Nos. 33-RC- 503, 33-RC-506, and 33-RC-508. July 97, 1955 DECISION, DIRECTION OF ELECTION, AND ORDER Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a hearing was held in Case No. 33-RC-503, and a separate hearing was held in Cases Nos. 33-RC-506 and 33-RC- 1 The Petitioner in Cases Nos . 33-RC-503 and 33-RC-506 is hereinafter referred to as the IAM. 2 Hereinafter referred to as the CIO. 113 NLRB No. 34. POTASH COMPANY OF AMERICA 341! 508, before Harold L. Hudson, hearing officer.3 The hearing officer's= rulings made at the hearing are free from prejudicial error and are hereby affirmed : Upon the entire record in these cases, 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 eln- ployees of the Employer.' 3. The Employer and the Smelter Workers contend that their cur- rent contract covering the employees in question constitutes a bar to the petitions herein. The IAM, the CIO, the Operating Engineers, and the Independent contend that the contract is a premature extension of an earlier contract which expired May 31, 1955, and that neither this, contract nor the extension thereof which is currently in effect may con- stitute a bar to a present determination of representatives. The contract between the Employer and the Smelter Workers, made effective from May 1, 1953, to May 31, 1955, contains a reopening clause whereby either party may reopen for negotiation of changes in any, or all, economic matters. On August 15, 1954, the parties negotiated wage changes and extended the contract terms to May 31, 1956. The Employer contends that the premature-extension doctrine should not be applied in this case because the extended contract was executed in good faith in order to give the employees increased wages and at the same time stabilize bargaining relations, and not for the purpose of frustrating representation claims or the desires of its em- ployees to change representatives. It further points'to the fact that the 5 potash mining companies in the Carlsbad, New Mexico, area have 15 contracts with various unions which have all been extended in a similar manner to common expiration dates of May 31, 1956, and urges that this "joint bargaining" should not be disrupted by the direction of elections which might result in contracts dates which do not con- form to this pattern. We find no merit in these contentions. There is no evidence that the separate contracts of the various employers were, negotiated through multiemployer bargaining. The Board has con- sistently held that in the application of the premature-extension doc- trine, the question of good faith in the execution of an extended con- tract is not 'determinative,s nor does the fact that the contract was $ For. the purposes of this Decision , Cases :Nos. 33-RC-503 , 33-RC-500, and 33-RC-508 have been consolidated. International Union of Mine, Mill and Smelter Workers, herein called Smelter Workers, intervened in these cases on behalf of itself and Carlsbad Potash Workers Union, Local 415, on the basis of their current contract with the Employer covering the employees in, question . The CIO, Petitioner in Case No . 33-RC-508, intervened in the other cases on the basis of a cuiient showing of inte `re'st. International Union of Operating Engineers, Local 855, AFL, herein called "Operating Engineers," and Carlsbad Potash Workers Union, Independent, herein called "Independent," each intervened in Cases Nos. 33-RC-500, and 33-RC-508, on the basis of a current showing of interest. 5 American Steel Foundries, 85 NLRB 19, 20. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prematurely extended because of economic reasons affect the appli= cability of this doctrine s As the current contract of the Employer and the Smelter Workers is a premature extension of their prior agreement, and as the petitions herein were timely filed with respect to the automatic renewal date of the original agreement, we find no bar to a present determination of representatives.' 4. In Case No. 33-RC-503 the IAM seeks an election among "all servicemen and servicemen's helpers (employees engaged in the instal- lation, maintenance, and repair of conveyor belt equipment)" in order to represent these employees as part of an existing unit of mine me- chanics and their helpers and apprentices, which it currently repre- sents. The servicemen and their helpers are currently represented by the Smelter Workers in a unit described as "all mine department, mill department, storage and loading department, labor department, refin- ing department and laboratory department employees, excluding main- tenance employees. . . ." In Case No. 33-RC-506 the Ip_M seeks to represent this unit, currently represented by the Smelter Workers, excluding the servicemen and their helpers. In Case No. 33-RC-508 the CIO seeks to represent the unit currently represented by the Smelter Workers, including the servicemen. All parties, except the IAM, con- tend that the unit requested by the CIO is the only appropriate unit. The Employer is engaged in mining and refining potash near Carls- bad, New Mexico. As indicated in the unit request of the IAM, the servicemen and their helpers are engaged primarily in working on conveyor belt equipment. The classification of serviceman was created in the early summer of 1953, at about the same time the Employer began to use a new type of mining machine which it had developed, known as the PCA Continuous Miner. This machine cuts ore directly from the face of a deposit and places it on conveyor belts which run to other areas. As the machine moves against the face of the ore, addi- tional sections of conveyor belt must be added to maintain connection with the machine. . The Employer has 23 servicemen and helpers, 14 of whom are as- signed to work in connection with the Continuous Miners, and 9 of whom are temporarily employed in installing a new conveyor line-in, another section of the mine. A crew of 10 men, including a "face boss," who is a supervisor, 2 men to operate the mining machine, a mechanic, an electrician, and 3 servicemen and 2 servicemen's helpers, is assigned to each of the 3 PCA Continuous Miners currently in operation. Worthington Corporation (Holyoke Works ), 109 NLRB 1306 7 Ibid_ POTASH COMPANY OF AMERICA 343 The Employer's records of daily work reports made by the service- men and their helpers indicate that 58 percent of their total working time is spent in servicing conveyor belts. Much of this time is spent in adjusting the alignment of the belts, which includes loosening bolts which hold the brackets of the rollers on which the belt moves, and hammering the,-rollers into position. When required, they add sec- tions to the conveyor assembly, which involves bolting a new section to the line, and clamping an additional piece into the belt so that it will fit over the new section. An additional 18 percent of their time is spent shoveling ore which falls off the belt and hauling supplies to the area. The servicemen also operate the mining machine as relief for the operator, and assist the operator in greasing and oiling the machine and in replacing broken or dull cutting bits., The tools used by the servicemen are a hammer, wrench, and screwdriver. When mechanical repairs to the conveyor system or the machine are neces- sary, mine mechanics are called to perform them. The work of the mine servicemen engaged in installing a new conveyor belt in another area is substantially similar to the work of adding sections to con- veyor belts described above. The IAM contends that when the classifications of serviceman and serviceman's helper were created, those employees should have been placed in its unit of mine mechanics, and that as the servicemen were placed in the unit of production employees represented by the Smelter Workers without an election at that time, a self-determination elec- tion should now be conducted to afford them a choice as to unit place- ment on the basis of the Board's decision in Zia Company, 108 NLRB 1134. We find no merit in this contention as the employees here in- volved constitute merely accretions to the existing bargaining unit. Moreover, it is clear that the servicemen and their helpers, whose work is necessarily confined to the production departments, and who are under production supervision, do not have interests in common with the mine mechanics, and do not themselves qualify for separate repre- sentation on any basis, as they do not possess any appreciable degree of skill or training. We therefore find that the units requested by the IAM in Cases Nos. 33-RC-503 and 33-RC-506 are inappropriate, and we shall dismiss the petitions in those cases. In accord with the contentions of the remaining parties, we find that the following employees of the Employer, currently represented by the Smelter Workers, and sought in the petition filed in Case No. 33-RC-508, constitute an appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act: All mine department, mill department, storage and loading depart- ment, labor department, refining department, and laboratory depart- 379288-66-vol. 113-23 344 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD ment employees, including servicemen and their helpers, but exclud- ing maintenance-employees , guards, professional employees, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] [The Board dismissed the petitions in Cases Nos. 33-RC-503 and 33-RC-506. ] Essex Wire Corporation , a Michigan corporation , d/b/a Essex Wire Corporation of California and Ann Hamilton Essex Wire Corporation, a Michigan corporation, d/b/a Essex Wire Corporation of California and Loraine L. Evans. Cases Nos. 21-CA-19,01 and g21-CA-4035. July 28, 1955 DECISION AND ORDER On February 15, 1955, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled consolidated proceeding, finding that the Respondent had engaged in and was engaging in cer- tain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the,copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other un- fair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support-thereof.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent that they are consistent herewith. . ' 1. `The Trial Examiner found, and we agree, that the Respondent violated Section 8 (a) (1) of the Act by demanding that 'an employee surrender the executed union membership cards he had in his posses- sion, by prohibiting rival union activity during employee rest periods, and-by requiring the removal of buttons denoting adherence to the rival 'The Respondent also iequested oral aigument before the Board This request is de- nied because, in oui opinion, the record, including the exceptions and briefs, adequately piesents the issues and the positions of the parties. 113 NLRB No. 41. -