Bzura Chemical Co., Inc.

BZURA CHEMICAL COMPANY, INC. 929 Bzura Chemical Company, Inc. and United Glass and Ceramic Workers of North America, AFL-CIO-CLC, Petitioner Bzura Chemical Company, Inc. and Local 68, International Union of Operating Engineers, AFL-CIO, Petitioner. Cases Nos. 4-RC-4147 and 4-RC-4286. December 13, 1960 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act a hearing was held in Case No. 4-RC-4147 before Alfred Vitarelli, hearing officer, and a reopened hearing (after con- solidation) before William Draper Lewis, Jr., hearing officer. The hearing officers' rulings made at the hearings are free from preju- dicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) and (7) of the Act. The petitions herein cover employees of the employer at its Fields- boro. New Jersey, plant which was nearing completion at the time of the reopened hearing in September 1960. Construction was started in March 1959. This plant will make citric acid in crystal form, using twelve 30,000-ton fermenters. At Keyport, New Jersey, 40 miles away, the Employer manufactures the same product on a pilot plant basis. It intends to continue its Keyport operation for testing pur- poses and possibly for the manufacture of other chemicals. The Key- port employees have been covered by a 2-year contract executed in February 1959 with Federal Labor Union, Local 22026.1 This Union intervened at the original hearing and claimed to represent both Fieldsboro and Keyport employees, based upon a November 1959 amendment to its said contract. However, over the Employer's ob- jection, it later withdrew its request to represent the Fieldsboro em- 1 This contract followed certification of the Intervenor in separate consent elections in- volving units of production and maintenance employees with 19 eligible voters and of research department employees with 4 eligible voters. See Cases Nos 22-RC-347 and 22-RC-363. 129 NLRB No. 110. 586439-61-vol 129-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and did not appear at the reopened hearing conducted after consolidation of the Operating Engineers' petition. We note that a wage reopening amendment to its contract, dated February 4, 1960, refers only to Keyport employees. As the record shows the Fieldsboro plant was incomplete and without employee complement in November 1959 when the parties to the Keyport contract sought to include future Fieldsboro employees, we find it is no bar to the petition herein. See General Extrusion, Company, Inc., et al., 121 NLRB 1165, 1167-1168. 4. Petitioner Glass Workers seeks to represent the Fieldsboro em- ployees in a unit of maintenance, production, and shipping employees. Petitioner Operating Engineers seeks a unit of powerhouse employees. The Employer, although contending at the original hearing that a unit including both Keyport and Fieldsboro employees was appro- priate, contends that an all-employee unit at Fieldsboro is appropriate, but that a separate powerhouse unit at Fieldsboro is inappropriate. However, it would postpone the election on the ground that the Fields- boro plant is not in actual production, that employees are still being trained for production work and that many employees now, employed during test operations will not qualify, hence that the employee com- plement is not sufficiently stable to justify an election. At the original hearing, which consisted of two sessions in March and May 1960, the Employer testified that 2 of the 12 fermenters at Fieldsboro were in use on an experimental basis with the product being dumped or stockpiled, and that upon completion-then scheduled for some time in August-the plant would be automatic in operation, with only 12 or 15 employees needed. Testimony at the reopened hearing in September indicates that production as such is scheduled for December and the plant now consists of 3 buildings, one with a locker room, office, maintenance room and spare part storage; a second housing the 2 boilers, air compressor, water purifier, the dryer, the filter presses, the bagging equipment, control panels, and storage for extra pumps; and a third, the fermentation building, housing 12 fermenters and 2 "C tanks." Albert Bzura, Employer's vice president and secretary-treasurer, also testified that within a matter of days, 4 fermenters of the 12 would be running. At that time no firewall had been installed in the building with the boilers although the four boiler employees contemplated had been hired. The remaining pipe- work needed for completion was being done by a outside contractor. It also appears from Mr. Bzura's testimony that the plant requires a larger operating complement than originally estimated, that is, 23 to 25 employees to cover it on a 3-shift basis,2 and that "15, 20" of these were already employed. Whether these include the four power- 2 Asked about his earlier testimony, Mr. Bzura said : "Whatever we thought before, we have revised it several times since then Now that we have all of the equipment in place, and we're just finishing the building, we have a very good idea what we need." BZURA CHEMICAL COMPANY, INC. 931 house employees hired in June does not appear, and the Employer supplied no payroll or list of employees. The 23 to 25 estimate in- cludes 3 supervisors (1 for each shift) and 4 assistant foremen, who the parties stipulated are supervisors. The record also indicates that there are no separate classifications for production employees. An employee currently assigned to shipping and receiving work testified that raw materials for the product were being delivered. Another employee testified that he had recently been advised that he, and other employees retained when the outside pipefitting con- tract was engaged, would be employed permanently for maintenance work. Concerning the appropriateness of a powerhouse unit, the chief operating engineer testified that there are currently employed three other licensed engineers plus a "fireman in charge" who is licensed. They work in the boilerroom, which contains two steam boilers, an air compressor and a water purifier. According to the witness, the boilerroom "meets the requirements of a well-established boiler room." Its operation is continuous, with one man on each of the three shifts. Although the Employer contends that it does not hire a boilerman "just as a.boilerman," it admits that these employees are not trained for production work and have no duties in connection with the dryer, the bagging equipment, or the filter equipment housed in the same building. As the boilerroom employees are separately supervised, do not interchange with other employees, and are responsible for supply- ing the plant with its operating power, we find that they may con- stitute an appropriate departmental unit of powerhouse employees if they so desire.3 The production and maintenance employees, with or without the powerhouse group, also may constitute an appropriate unit. Accordingly we shall direct separate elections in the following vot- ing groups of employees at the Employer's Fieldsboro, New Jersey, plant: (1) All production and maintenance employees, including ship- ping and receiving employees, but excluding powerhouse em- ployees and all supervisors as defined in the Act.4 (2) All powerhouse employees, excluding supervisors as defined in the Act and all other employees. If a majority of the employees in voting group 2 selects the Operat- ing Engineers, they will be taken to have indicated their desire to constitute a separate unit, and the Regional Director conducting the elections directed herein is hereby instructed to issue a certification of representatives to that Union for such unit, which the Board in such 3 See Container Corporation of America, 121 NLRB 249, 255 4 The parties stipulated that the mechanical engineer in charge of maintenance is a supervisor, as well as the three shift supervisors and the four assistant foremen. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances finds appropriate for purposes of collective bargaining. However, if a majority of the employees in voting group 2 does not vote for the Operating Engineers, those employees will appropriately be included with the employees in voting group 1 and their votes will be pooled with those of that group.-' If the employees in voting group 1 or the pooled group, as the case may be, select a bargaining representative, the Regional Director is instructed to issue a certifica- tion of representatives to the labor organization selected by the ma- jority of the employees, which the Board, in such circumstances, finds to be a unit appropriate for purposes of collective bargaining. 5. As indicated above, the Employer contends that an immediate election at this plant is not warranted because of the alleged instability of the work force. Inasmuch as the record shows that at least half of the expected complement was employed at the time of the reopened hearing, utilizing the skills of, or in training to utilize the skills of, the full employee complement, we see no reason to depart from our usual rule in directing an election. We believe that the eligible work- ing force will be a substantial and representative segment of the em- ployees to be employed in the unit or units.-' [Text of Direction of Elections omitted from publication.] 6 If the votes are pooled , they are to be tallied in the following manner : The votes for the labor organization seeking a separate unit in voting group 2 shall be counted as valid votes, but neither for nor against the labor organization seeking to represent a production .and maintenance unit. All other votes are to be accorded their face value, whether for representation by the union seeking the more comprehensive group or for no union 6 See The American Brass Company, 120 NLRB 1276, 1281. Buffalo Courier-Express , Inc. and American Newspaper Guild, Local 26, AFL-CIO,' Petitioner. Case No. 3-RC-2337. Decem- ber 14, 1960 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 William Naimark, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to Section 3(b) of the Act, the Board has delegated its powers herein to a three-member panel [Members Jenkins, Fanning, and Kimball]. 1 The Petitioner's name appears as shown in the petition although the Petitioner sought at the hearing to have it changed to read "Buffalo Newspaper Guild, Local 26." The Employer objected to such change. 129 NLRB No. 112.