Martin-Marietta Corp.

944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL offer to William C. Paul and Robert C. Gray immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay he suffered as a result of the dis- crimination against them. WE WILL NOT, by threatening to close any terminal or by discharging any employee, or in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to join Teamster Local Union No. 135, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , or any other labor organi- zation, or to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection , or to refrain from any or all such activities.. MORRISON MOTOR FREIGHT, INC., 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. Employees may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone Number, Melrose 2-551 , if they have any questions concerning this notice or compliance with its provisions. Dewey Portland Cement Company, Division of Martin-Marietta Corporation 1 and United Cement, Lime and Gypsum Workers International Union, AFL-CIO, Petitioner. Case No. 16-RC- 2899. June 27, 1962 SUPPLEMENTAL 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 Paul F . Cleveland, hearing officer.2 The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 1 The name of the Employer was amended at the hearing on January 24, 1962.. This case was originally styled as "Dewey Portland Cement Company, Division of American- Marietta Company." 2 The initial hearing in this case was held on May 17, 1961 . On November 1, 1961, the Board Issued a Decision and Direction of Election ( not printed in Board volumes ), finding, inter alia, that laboratory technicians , console room technicians, the instrumentation engineer, and the instrumentation technician were technical employees , or supervisors, and therefore excluding them from the appropriate unit. Thereafter, the Petitioner moved the Board to reconsider this decision , contending that such employees should be included in the appropriate unit. Also, subsequent to the Issuance of this decision, the Board handed down its decision in The Sheffield Corporation, 134 NLRB 1101. In light of the Sheffield decision the Board granted Petitioner 's motion for reconsideration , ordered that the record be reopened, and that a further hearing be held for the purpose of adduc- ing additional evidence with respect to the Job categories in dispute. The Board's Decision and Direction of Election of November 1, 1961 , is hereby vacated. 137 NLRB No. 107. DEWEY PORTLAND CEMENT COMPANY, ETC. 945 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 organization involved claims 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. The Petitioner requests an election in a unit of production and maintenance employees at the Employer's plant near Tulsa, Oklahoma. The parties agree to the composition of the unit except as disclosed herein. There is no bargaining history. A. Employer's operations The Employer, Dewey Portland Cement Company, Division of Martin-Marietta Corporation, is engaged in the manufacture and sale of portland cement. The Tulsa plant, which is the only plant in- volved herein, commenced operations in April 1961. It appears from the record to be a highly automated plant with a centralized control of operations. The entire plant layout is as follows: a quarry; lime- stone crushing, shale crushing, and shale drying departments; a stor- age hall; a grinding mill building; raw mix blending and storage silos; a packing-bulk shipping department; shops and storeroom; a general office; an incoming electric substation; and a console-labora- tory building. The principal feature of the round-the-clock operations at the Tulsa plant involves the instrumentation concept, which has been devised to provide continuous automatic control of all principal equipment and process variables. To achieve this result, all operating controls, with the exception of those for the packing-bulk shipment department, are located in a group of control consoles in one central control room in the console-laboratory building. The plant laboratory is also con- tained in the same building as the console room, so that all quality con- trol requirements can be immediately effected at the central control room. B. Job categories in dispute There are five employee categories that are in dispute here, namely laboratory technicians, console room technicians, instrumentation en- gineer, instrumentation technician, and staff utility man. The first named category includes the chemical analyst and physical analyst (or tester), plus four employees designated as laboratory technicians. All the disputed employees work in the console-laboratory building in close proximity to one another. 649856-63-vol. 137-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer contends that the employees in all disputed categories are at least technical employees, that all of them should be excluded from the production and maintenance unit under the She ffield Corpora- tion standards,' that the chemical analyst and instrumentation en- gineer are professional employees, that the latter is also a supervisor, and that the console room technicians are supervisors. The Petitioner contends that the employees in the disputed categories are not techni- cal employees; but even assuming that the Board finds them to be technical employees, there are many similar interests between them and production and maintenance employees, and they should be in- cluded in the unit. C. Laboratory employees The laboratory staff is comprised of a plant chemist, a chemical analyst, a physical analyst, four laboratory technicians, and a new category, staff utility man. They are employed by the Employer on a monthly salary basis similar to staff employees, rather than on the hourly paid basis of the acknowledged production and maintenance employees. The plant chemist is the head of the laboratory depart- ment, and has the authority to hire and fire the laboratory people.' The record indicates that the line of progression in the plant is from production employee, to laboratory, to console room, to shift foreman. (1) Chemical analyst: Although the present incumbent of this position is a college graduate, the Employer requires only a high school education. The duties of the chemical analyst consist of performing daily analyses of the chemical content of cement and its raw materials. His findings are submitted to the plant chemist who supervises him closely and who makes the final determination of product quality. In the course of his work the chemical analyst uses some independent judgment and initiative. His working conditions are the same as those for the other laboratory employees. Upon viewing the record as a whole, we do not agree with the Employer that this employee is a professional within the meaning of Section 2(12) of the Act. How- ever, we do find that the chemical analyst is a technical employee within the definition as laid down by the Board in the Litton case .6 3In that case, the Board having once found that certain employees were technical em- ployees determined that even so they would not automatically be excluded from a produc- tion and maintenance unit but would look to certain additional criteria in determining whether or not they should be excluded . The criteria were: "desires of the parties , history of bargaining, similarity of skills and job functions , common supervision , contact and/or interchange with other employees, similarity of working conditions, type of industry, organization of plant, whether the technical employees work in separately situated and separately controlled areas , and whether any union seeks to represent technical employees separately." 4 There is no dispute as to this employee . The Petitioner has conceded that the plant chemist is a supervisor and should be excluded from the unit , and we so find 5 Litton Industries of Maryland, Incorporated, 125 NLRB 722 , at 724-725 . Even though this decision was overruled concerning the automatic removal from a production and maintenance unit of technical employees, the decision still remains in effect as defining the nature of the work of a technical employee DEWEY PORTLAND CEMENT COMPANY, ETC. 947 (2) Physical analyst: This man is a high school graduate with more than 6 years' experience in laboratory work at another cement plant. He was hired originally as a laboratory technician, but has since ad- vanced to his present position. While he spends most of his time in the laboratory, his duties consist primarily of running routine tests- to improve the quality of the cement, and reporting his findings to the plant chemist. Although he sometimes works without any super- vision in making important tests, he does not devise such tests, but follows directions developed by the chief chemist. In the absence of any showing that this employee uses independent judgment and that his job requires the exercise of specialized training usually acquired in colleges or technical schools, we find that he is not a technical employee,' and therefore shall include him in the unit. (3) Laboratory technicians: There are presently four such employ- ees at the Tulsa plant and they work under the plant chemist. Al- though none of them has a college degree-a high school education is required by the Employer-all have had some college training. The record shows that these employees were put through a 4- to 6-week training period by the plant chemist before they assumed their duties. Their principal function is to conduct round-the-clock tests on the quality of the cement mix, and in so doing they have occasion every hour to go out into the production area to pick up samples from auto- matic samplers. They report the results of their findings to the plant chemist for further action, and, although they are not always closely supervised by him, the facts and the entire record show that the tests which they perform are highly repetitive and routine. Since the job classification requires no special training or educational background, and because the time needed to learn their duties is very short, thus emphasizing the simplicity of their functions, we find that the labora- tory technicians are not technical employees, but rather they are production and maintenance workers, and we include them in the unit.z (4) Staff utility man: This employee was initially hired as a laborer, but was brought into the laboratory to act as a relief man for labora- tory technicians and console room technicians. He is a high school graduate with no previous laboratory experience, and has had no formal technical schooling other than to undergo a comparatively short on-the-job training program as conducted by the Employer. In view of the nature of his duties, he necessarily works most of the time in the laboratory or console room. However, these duties appear to be routine in nature. Therefore, we find that this employee is not a technical, and we shall include him in the unit.' e Litton Industries of Maryland, Incorporated, supra. 7 Augusta Chemical Co., 124 NLRB 1021; see also United States Gypsum Company, 118 NLRB 20, at 31. 8 Litton Industries of Maryland, Incorporated, supra. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Instrumentation personnel The job of the instrumentation engineer and instrumentation tech- nician is to handle the electrical wiring of the console room and its equipment. Both perform basically the same job though the tech- nician works under the supervision of the engineer. They work in the instrumentation repair room, which is adjacent to, but separate from, the console room. (1) Instrumentation engineer: This employee is a college graduate with a degree in electrical engineering and considerable experience at another cement plant in instrumentation maintenance. He is in com- plete charge of his two-man department and is fully responsible for the maintenance of all electronic equipment in the console room. The instrumentation engineer has the power to hire and fire or to effec- tively recommend same, and has exercised that authority in the past. We find that he is a supervisor within the meaning of Section 2(11) of the Act, and shall exclude him from the unit .9 (2) Instrumentation technician: This man is a high school gradu- ate and has had some experience in instrumentation maintenance at another cement plant.1° He works under the engineer's general super- vision, performs essentially the same kind of work, and handles all such work in the absence of the engineer. Although classified as "technician" and performing work that calls for the exercise of some independent judgement, the individual in this classification is not re- quired to exercise, nor does he possess, that degree of specialized train- ing which would, under the Board's definition, constitute him a technical employee. Rather, his work is more like that of a highly skilled maintenance employee than that of a technical employee. We find, therefore, that the instrumentation technician is a production and maintenance employee and shall include him in the appropriate unit.ll E. Console room technicians There are four of these employees and they work round-the-clock shifts in the console room. Two have college degrees, while two are high school graduates. Two of them have had prior training as con- sole room technicians in another cement plant. These men received from 4 to 5 weeks of intensive training from the Employer before assuming their duties, and then received additional training while on the job for several months thereafter. The main function of the con- 0 The Yale & Towne Manufacturing Company, 135 NLRB 926 In view of our finding herein, we find it unnecessary to rule upon the alleged professional or technical status of this employee. 10 Incumbent worked as an electrician at the Ideal Cement Company plant in Tijeras, New Mexico, which has a console control room basically similar to the one in the Tulsa plant The testimony reveals that he was in the bargaining unit at the New Mexico plant. 21 The Ryan Aeronautical Co., 132 NLRB 1160. DEWEY PORTLAND CEMENT COMPANY, ETC. 949 sole room technician is to monitor all operating panels of the console and to take corrective action when trouble is indicated in some stage of the plant operation. Quite often he works without direct supervision and must use his own independent judgment as to what corrective measures to take. He can observe and control the crusher and kiln by means of closed circuit television; can visually operate the automatic control board; and can start or stop all plant operations with the ex- ception of those in the packinghouse and shipping department. The record indicates that the position of the console room technician at this plant is one that is unique in the cement industry. He actually does the work which is normally performed by a kilnburner, finish operator, raw grinder, crusher operator, and blending tank operator in the conventional type of cement plant. It is clear that the console room technicians are technical employees within the Litton definition.12 We find no merit, however, in the Employer's contention that the console room technicians are supervisors and should be so excluded. While they have on rare occasions filled in for the shift foreman, these men do not possess the authority to hire or fire, and merely give direc- tions to other employees in an advisory rather than supervisory capacity. We find that these employees are not supervisors within the meaning of Section 2 (11) of the Act. F. Placement of technicals In The Sheffield Corporation,13 the Board decided that the mere fact of a disagreement among the parties concerning the unit should not alone determine the question of including technicals in a production and maintenance unit. In the face of a disagreement, the Board will examine carefully the record concerning the duties, interests, and working conditions of technical employees and of other employees with whom they are sought to be represented, and include them in a unit of production and maintenance employees if their work interests indicate the feasibility of such inclusion. On the basis of the entire record, we find that the interests of the technicals appear to be closely allied with those of the production and maintenance employees, and we shall include them in the unit. Accordingly, we find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9 (b) of the Act : All production and maintenance employees at the Employer's Tulsa, Oklahoma, plant, including quarry truckdrivers and yard truck- drivers, chemical analyst, physical analyst, laboratory technicians, staff utility man, instrumentation technician, and console room tech- 22 Litton Indu8triea of Maryland, Incorporated, supra. 13 134 NLRB 1101. See also footnote 3, eupra. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nicians; but excluding office clerical employees, machine shop foreman, oiling supervisor, electrical foreman, instrumentation engineer, guards, watchmen, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above Sup- plemental Decision and Direction of Election. Metke Ford Motors, Inc., and Bel -Air Chevrolet Co., Inc. and Automobile Drivers and Demonstrators Local Union No. 882, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Case No. 19-CA-2332. June 28, 1962 DECISION AND ORDER On April 27,1962, Trial Examiner John H. Dorsey issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner for the reasons stated below. In reaching our conclusion that Respondent did not violate the Act as charged, we rely solely upon the fact that Respondent's withdrawal from the multiemployer bargaining unit was acquiesced in by the Union, and such conduct on the part of the Union had the effect of an implied consent to the withdrawal constituting a waiver of any un- timeliness or inadequacy of notice. The Union's acquiescence in, and consequent agreement to, Respondent's withdrawal is demonstrated by its conduct throughout the negotiations culminating in the collective-bargaining agreement reached. Thus, although Respond- ent, by reason of its prior inclusion in the associationwide unit and through membership in, and authorization of, MADA, participated in bargaining with the Union in said unit on April 3 and 4, 1961, for 137 NLRB No. 113.