Allied Chemical & Dye Corp.

ALLIED CHEMICAL & DYE CORPORATION 63 the Petitioner' has received a majority of votes cast 'in'the election, we shall certify the Petitioner as representative " of the employees in the appropriate unit. [The Board certified United Automobile , Aircraft & Agricultural Implement Workers of America, UAW--AFL-CIO, as the designated collective-bargaining representative of the employees in the appro- priate unit which includes all production and maintenance employees and plant clerical employees at the Employer's Rockford, Illinois, plant, but excludes office clerical employees, professional employees, guards, and supervisors as defined in the Act.] Allied Chemical & Dye Corporation, Nitrogen Division and Oil, Chemical & ' Atomic Workers International Union, AFL-CIO, Petitioner. Case No. 89-1ZC-1186. March 6, 1958 DECISION AND DIRECTION OF ELECTIONS Upon a 'petition duly filed under Section 9 (c) of the National Labor Relations Act, a liearing was held before C. L. Stephens, hearing officer. 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''commeirce within the meaning of the Act. 1 On July 24, 1957, prior to the instant hearing, the Regional Director granted motions to intervene filed by (1} International Chemical Workers Union, AFL-CIO, hereinafter called Chemidal Workers, and (2 ) Pipefitters Local 195, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO, and Local 390, International Brotherhood of Electrical Workers, AFL- CIO, hereinafter referred to collectively as',the Joint Intervenor. Both motions were sup- ported by a card showing. At the hearing, the other parties objected to the Intervention of the Joint Intervenor on the ground that: (a) Local 390 was not then in compliance with the filing requirements of Section 9 (g) of the Act; (b) it did not appear whether the authorization cards supporting the intervention of the Joint Intervenor, ran to both unions jointly or to each union separately; (c) the unit sought by the Joint Intervenor was inappropriate; and (d) the-ffiotion to intervene does not show that both unions were acting jointly rather than separately. As to (a) the question raised as to Local 390's compliance is not litigable in this pro- ceeding but is a matter for administrative determination by the Board. Standard Cigar Company, 117 NLRB 852. We have administratively determined that, although it did not, until after the hearing herein, submit to the Regional Director the notice from the Department of Labor that it had complied with the filing requirements of Section 9 (g), Local 390 was; nevertheless, in compliance at all material times. As to (b),-we find no merit therein for the reasons stated in The Stickless Corporation, 115 NLRB 979, 980. As to (c), the fact that the unit sought by an intervenor is alleged to be inappropriate is no reason to bar its participation in a representation hearing. The appropriateness of such unit is a matter to be determined solely by the Board upon all the evidence As to (d), this contention appears to be based on the fact that at one point the written motion to intervene filed by Local 390 and Local 195 refers to the "intervenor," rather than "Intervenors." However, we are satisfied that the, motion read as a whole manifests an intent to intervene jo)ntly. The hearing officer referred to the Board Petitioner's motion to deny intervention to the Joint Intervenor because the unit sought by it was inappropriate. In view of our 1lndings below on the unit issue, this motion is denied. 120 NLRB No. 4. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent certain employees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. At its plant in Orange, Texas, which is the only one here involved, the Employer produces ethylene oxide, ethylene glycol, and ethanol amines from ethylene gas and air. There is no history of collective bargaining at this plant. The Petitioner seeks a plantwide unit. Chemical Workers and the Employer are in agreement with the Petitioner as to the scope of the unit, except that the Employer would exclude, while Petitioner and Chemical Workers would include, three assistant chemists in the intermediate scale unit. In the alternative, Petitioner requests that a separate election be directed for these chemists. The Employer contends that the assistant chemists should be excluded from a plantwide unit because they are technical employees. The assistant chemists, together with a chemist, conduct tests in con- nection with the development of new, experimental types of catalysts to be used in the production process. They work in a separate build- ing. Unlike the production and maintenance employees, they are salaried and enjoy the same benefits as other salaried employees. They are high school graduates who have had courses in chemistry and, after being hired, receive special training for their work. Upon the entire record we find that these assistant chemists are technical employees, and will exclude them. The Employer opposes a separate election for the 3 assistant chem- ists on the ground that it has 5 other assistant chemists and 7 chemists, who are also technical employees but are not sought by the Petitioner. All 15 chemists have common immediate supervision. The chemists and assistant chemists not sought conduct tests on•gas streams and ana- lyze samples of the Employer's finished product to determine whether it conforms to specifications. Although their work requires a higher degree of proficiency than that of the 3 assistant chemists sought by Petitioner, it is clear that the other assistant chemists and chemists are also technical employees, and that a unit limited to 3 assistant chemists in the intermediate scale unit is not sufficiently comprehen- sive and is therefore not appropriate for purposes of collective bar- 2 Because of the alleged noncompliance of Local 390 with Section 9 (g), the Employer refused to stipulate that either the Joint Intervenor or Local 390 was a labor organiza- tion. As the record shows that Local 390 exists for the purpose of dealing with employees concerning terms and conditions of work, we find that it , as well as the Joint Intervenor, is a labor organization within the meaning of Section 2 ( 5) of the Act. Its staleps as a labor organization is not affected by its compliance with the filing requirements of Sefton 9 of the Act, and we have in any event found that it was in compliance at all material times. ALLIED CHEMICAL & DYE CORPORATION 65 gaining. Accordingly, we deny Petitioner's request for a separate election in a unit limited to the three assistant chemists 3 The Joint Intervenor seeks a unit of all maintenance mechanics, electricians, painters, and maintenance helpers employed in the main- tenance section of the instant plant. The other parties contend that this unit is inappropriate. There are 22 employees in the unit sought by the Joint Intervenor .4 In addition the Employer at the instant plant has 42 "operators" or production employees, 7 laborers, and 3 janitors. The plant operates continuously, on a 3-shift basis, 24 hours a day, 7 days a week. The operators are responsible for the operation of complex, automatic equipment, and the employees sought by the Joint Intervenor are responsible for repairing and maintaining this equipment. The duties of each of the categories sought include, inter alia, pipefitting, rigging, boilermaking, painting, reactor work, catalyst charging, insulating, truckdriving, electrical work, carpenter work, structural steel work, and sheet metal work. The requested employees have their headquarters in a separate plant area designated as the "main- tenance building," where they report for work and receive their assign- ments from the maintenance supervisor. Although about 80 percent of their work is done in the production area, they remain under the supervision of the maintenance supervisor, except that, when called to perform emergency repairs after their regular shift or on weekends, they are subject to the direction of a production supervisor 5 In addi- tion to repairs in case of breakdown, these employees do some preventive maintenance work. Because of the interdependence of the Employer's operations, a breakdown of one machine will halt the entire production process. In case of a breakdown, the operator of the machine assists the mechanic assigned to repair it by shutting it down and otherwise making it safe for the mechanic to work; and, after the mechanic completes his repairs, the operator, together with the mechanic, observes the machine while in operation to make sure that it is working properly. During periods of plant shutdowns, which occur four times a year, no produc- tion work is done, and all the operators are assigned to preventive maintenance work, including, inter alia, pipefitting, boilermaking, welding, removing and replacing vessel heads, loading and unloading catalyst, and packing valves. The record indicates that the total 8 Chapman Valve Manufacturing Companiy, 119 NLRB 935 Petitioner has made no request for, and, in any event, has not made a sufficient showing of interest for, a unit comprising all the Employer 's chemists and assistant chemists Accordingly, we do not pass upon the appropriateness of such a unit. 4 Of these, 13 are maintenance mechanics , 3 are electricians, 1 is a painter, and 5 are maintenance helpers. 5 The maintenance employees work only one shift-a day shift-but are required to answer emergency calls at night A skeleton maintenance crew, on duty during weekends, works under a production supervisor. 483142-59-vol. 120--6 66 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD time spent by operators throughout the year in maintenance work during plant shutdowns does not exceed the equivalent of 8 weeks' work.' This work is done, in part, by the operators alone, and, in part, by them in conjunction with maintenance employees. Even while the plant is in operation, all the operators perform minor main- tenance work, such as tightening packing glands and flange joints, unplugging drain lines, changing valves, connecting nitrogen cylin- ders and hoses, and installing "blinds." The record does not show what proportion of an operator's time is spent on these tasks. How- ever, there is no basis for inferring, and the Employer does not contend, that, including their maintenance work during plant shut- downs, the operators spend a major part of their time on maintenance, rather than production, work. The Employer has no apprenticeship program for its' maintenance employees. They are generally hired as-helpers and receive on-the- job training for 2 years before they advance to mechanic. The Em- ployer does not require that its maintenance employees have journey- man skill ' in any particular craft, but insists that they be proficient in the work of more than one craft. Employees may transfer from the production to the maintenance group without loss of seniority and there have been two such transfers since the plant was established in 1954. "All the Employer's hourly paid employees, whether production or maintenance, receive the same fringe benefits, and use the same plant facilities. The Employer contends that the unit sought is inappropriate be- cause (1) it is not a valid departmental or craft unit, (2) the Joint Intervenor is not the traditional representative of such unit, (3) the interests of the employees sought are not sufficiently different from those of the production employees to warrant establishing the former as a separate unit, and (4) the unit sought is not appropriate as a maintenance department unit because, inter alia, it excludes the laborers and janitors. We find no merit in the Employer's contention that the unit sought is inappropriate because the Joint Intervenor is not the traditional representative of the various categories of employees in the unit. That -requirement is not applicable here as this is not a severance case.' However, we find, in agreement with the Employer, that the unit sought may not be appropriate as a craft unit. The employees sought, through on-the-job training, acquire a specialized competence to perform the maintenance work peculiar to the Employer's opera- 6 The record shows only the time spent by 8 operators on maintenance work during 2 shutdowns in the first 6 months of 1957 Only 1 emplovee spent as much as 164 hours The rest varied from 84 to 135 hours This experience is admittedly typical of all 42 operators. _ ' Union Carbide Chemicals Company, Division of Union Carbide Corporation ( Torrance Plant ), 118 NLRB 954. ALLIED CHEMICAL & DYE CORPORATION 67 tions; they are not, however, required to develop or exercise the full range of skills of any one craft. Accordingly, we find that they are specialists rather than craftsmen. There remains to be considered whether the unit sought may be appropriate on a departmental basis. The Joint Intervenor contends that the unit sought comprises all the employees in a separate admin- istrative division of the Employer's operations designated as the "Maintenance Section." However, we note that such unit does not include the seven laborers who, although nominally assigned to a different "section," 8 have the same immediate supervision as the employees sought 9 and perform unskilled maintenance work. They maintain the plant grounds, clean plant equipment, patch roads, dig ditches, wash, and change tires on, the Employer's trucks, and during, plant shutdowns they assist in the maintenance work on the produc- tion equipment done by the other employees. In addition to the laborers, we note that the Petitioner would exclude the three janitors, who do cleanup work throughout the plant and other areas. Although they have different immediate supervision,10 they are grouped with the laborers for seniority purposes, share the same facilities, and their work is related to plant maintenance:, While the requested unit is not extensive enough, we do not agree with the Employer's further contention that the Board may nat,,in accord with its usual policy,, find that, as there has been no bargaining, on a broader basis,here, a, comprehensive maintenance department unit, including the laborers and janitors, may be appropriate. , The Employer opposes,such a unit on the ground that it would not contain any craftsmen and that it is, precluded by the high degree of integration of its operations, and by the extent to which its production employees engage in maintenance work. In finding that all maintenance employees in a plant may constitute an appropriate unit, absent past bargaining on a broader basis, the Board has consistently rejected similar contentions.il No reason appears fora different result here. Accordingly, we find that all the Employer's maintenance employees, including laborers and janitors, may, if they so desire, con- stitute a separate appropriate unit for purposes of collective bargain- 8 This is the "Laborers and Janitors Section." The Employer testified that it regards both this section and the "Maintenance Section" as constituting its maintenance "depart- ment " There is no interchange between the two sections. 9 The line of supervision runs from the plant superintendent to the plant engineer, to the maintenance supervisor and the maintenance foreman The last two directly supervise the employees sought together with the laborers. 10 The three janitors are supervised by the supervisor of plant protection , who also supervises the Employer's guards. However, this factor alone does not warrant their exclusion from a unit of maintenance employees. National Gypsum Co., 116 NLRB 1005, 1010. n National Gypsum Co ., supra, at 1008 ; Heublein, Inc., 119 NLRB 1337 ; Olin Mathieson Chemical Corporation, 117 NLRB 1441, 1443; Shoreland Freezers, Inc., 108 NLRB 723, 727; Mississippi River Chemical Co., 119 NLRB 1371. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing within the meaning of Section 9 (b) of the Act. As the Joint Intervenor has made a sufficient showing of interest for such a unit, we shall direct a separate election therein.12 We find also that the pro- duction and maintenance unit requested by the Petitioner, excluding, however, the assistant chemists discussed above, is also appropriate. Finally, we find that, if the maintenance employees desire separate representation, as determined in the election directed for such employees, a unit of production employees alone may also be appro- priate. We shall direct elections in the following voting groups of employees at the Employer's plant in Orange, Texas, excluding from each voting group the employees in the other voting group, all salaried employees, office clerical employees, professional employees, instru- ment and laboratory employees, the assistant chemists in the inter- mediate scale unit, guards, watchmen, stores employees, cafeteria employees, and all supervisors as defined in the Act : (1) All hourly paid production employees, including the chauffeur. (2) All maintenance mechanics, electricians, painters, maintenance helpers, laborers, and janitors. If a majority of the employees in voting group (2) select the Joint Intervenor as their representative, they will be taken to have indi- cated their desire to constitute a separate bargaining unit, and the Regional Director conducting the election is instructed to issue a certi- fication of representatives to the Joint Intervenor for such unit, which the Board, under these circumstances, finds to be appropriate for the purposes of collective bargaining. And in that event, should a major- ity of the employees in voting group (1) select Petitioner or Chemical Workers as their representative, the Regional Director is instructed to issue a certification of representatives to such labor organization for a unit of production employees, which the Board, in these circum- stances, finds to be appropriate for the purposes of collective bargain- ing. On the other hand, if a majority in voting group (2) does not select the Joint Intervenor, the ballots of the employees in that voting group will be pooled with those of the employees in the other group.13 If Petitioner or Chemical Workers achieves a majority of the votes 12 Should the Joint Intervenor not desire to participate in such an election , it may so notify the 'Regional Director within 10 days from the date of this decision , in which case no separate election will be held in voting group ( 2) below, but only a single election for both voting groups. 13 If the ballots are pooled , they are to be tallied in the following manner : Votes for the Joint Intervenor shall be counted as valid votes , but neither for nor against the other unions All other votes are to be accorded their face value, whether for Petitioner or Chemical Workers , or for no union . Although Chemical Workers stated at the hearing that it did not wish to appear on the ballot in an election for the maintenance employees, we are , nevertheless , placing it on such ballot in view of the provision herein for the pooling of votes in case a majority in the maintenance group does not select the Joint Intervenor. MACY'S SAN FRANCISCO 69 in the pooled group, the Regional Director is instructed to issue a certification of representatives to such labor organization for a unit of production and maintenance employees, which the Board, in such circumstances, finds to be an appropriate unit for the purposes of collective bargaining. 5. The hearing officer rejected an offer of proof made by the Employer to support its contention that the Joint Intervenor, if cer- tified, would not represent the employees in its unit jointly but that each of the two constituent unions would separately represent particu- lar categories of employees. In its brief the Employer renews this contention and urges it as a ground for excluding the Joint Inter- venor from this proceeding. We find no merit in this contention. The two unions involved are seeking joint certification for the same unit of employees. In so doing, they are impliedly representing to the Board that if certified they will jointly represent all the employees in the unit; and, if they are certified, the Employer may insist that they do in fact bargain jointly for all the employees in the unit. Accordingly, we find that the rejection of the Employer's offer of proof was, in any event, not prejudicial and we will place the Joint Intervenor on the ballot. Vanadium Corporation of America, 117 NLRB 1390, 1391; The Sticklers Corporation, supra. [Text of Direction of Elections omitted from publication.] Macy's San Francisco and Seligman & Latz, Inc., jointly and Barbers' & Beauticians' Union, Local 148, AFL-CIO, Peti- tioner. Case No. 00-RC-3377. March 7, 1958 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 Shirley N. Bingham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1. Macy's San Francisco, the Employer named in the petition, is engaged in commerce within the meaning of the National Labor Re- lations Act. At the hearing intervention was allowed on behalf of two other entities who claim to be the employer of the employees in question, that is, Seligman & Latz, Inc., a New York corporation which is the parent company for a nationwide chain of beauty salons operating as leased departments in various department stores, in- cluding Macy's San Francisco; and the San Francisco Retailers' 120 NLRB No. 7.