Sid Richardson Carbon Co.

SID RICHARDSON CARBON CO. 637 Sid Richardson Carbon Company and International Union of Operating Engineers, Local 279, AFL-CIO. Case 16-CA-4468 August 1, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 24, 1972, Trial Examiner. William J. Brown issued the attached Decision in this proceed- ing. Thereafter, the Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. hearing briefs were received from the General Counsel and the Company and have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and evidence establish that the Company, a corporation organized and existing under and by virtue of the laws of the State of Texas, during the 12-month period preceding issuance of the complaint herein, manu- factured, sold, and distributed at its carbon plant located some 12 miles west of Odessa, Texas, carbon black products valued in excess of $50,000 and shipped to States outside Texas and to foreign countries. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Sections 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, in accordance with the pleadings and evidence, that the Union is a labor organization within the purview of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Odessa, Texas, on January 19, 20, and 21, 1972. The underlying charge of unfair labor practices had been filed on August 26, 1971, by the above-indicated Charging Party, hereinafter sometimes referred to as the Union, and the complaint herein was issued November 30, 1971, by the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 16. It alleged, in addition to jurisdictional matter, that the above-indicated Respondent, hereinafter sometimes re- ferred to as the Company, engaged in unfair labor practices affecting commerce within the purview of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. The Company's duly filed answer admits the jurisdictional allegations of the complaint and denies the commission of the unfair labor practices alleged therein. At the hearing the parties appeared and participated, as noted above, with full opportunity to present evidence and argument on the issues. Subsequent to the close of the i Big Spring is approximately 58 miles from Odessa 2 The channel method of producing carbon black appears to involve III. THE UNFAIR LABOR PRACTICES Collective bargaining among employees of the Company in the unit here involved had its origin in a 1946 election and the subsequent certification of the International Union of Operating Engineers as representatives of production and maintenance employees of United Carbon Company at that Company's Odessa operation. The employees participating in the election did not include technical employees. Subsequently, in another election conducted by the Board in 1962, the Union was certified as representa- tive of employees of the Company, which had in the interim purchased the plant at Odessa, in a unit described as "employees of the Research and Development Labora- tory" at the Odessa plant. In March, 1963, a decertification petition was filed respecting the unit and the Union disclaimed any interest in the unit resulting in the dismissal of the petition and the consequent unrepresented status of employees in the research and development segment of the Company's operations. In 1966 the Company installed at Odessa a full-size furnace reactor comparable to the production facilities at the Company's Big Spring operation.' The Big Spring operation has at all material times been a channel plant, i.e. the carbon black is produced by the burning of natural gas on channels.2 This is contrasted to the Odessa operation which is that of a furnace or reactor type in which oil feed stocks are burned in a furnace to make the carbon black. The Odessa operation started apparently as a "pilot plant" with a single furnace which was moved from Big Spring and was supplemented by two additional furnaces by late 1967, also removed from Big Spring. In 1966 the Union filed a grievance under its agreement substantial air pollution effects. The furnace type operation, on the other hand, is relatively free of pollutants. 198 NLRB No. 95 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD covering the channel plant at Big Spring protesting the hiring of new employees to work in the research and development assignments at Odessa. The Company denied the grievance on the basis that the Odessa furnace operations were experimental only and the Union protest terminated at that stage. In 1970 the Union filed a grievance protesting the Company's use of a pilot plant employee's work in pulling black, a task traditionally that of the channel plant employees. The Company acceded to the Union's position and agreed to make no further such assignments. Early in 1971, the Company notified the Union that the channel plant was to be shut down and employees, except those of the shipping department, laid off. Thereupon the Union demanded recognition as representative of jobs remaining at the Odessa operation, viz., shipping plus research and development employees. The Company rejected the Union's request and the Union filed the charge herein. The Company continued to recognize the Union as the collective-bargaining representative of employees of the channel black unit3 and the question presented is as to whether or not it is entitled to recognition as representative of furnace plant employees remaining at the Odessa operation, i.e. shipping department employees plus em- ployees in the research and development classifications. It is claimed by General Counsel that they are an accretion to the recognized unit. The Company's refusal to accord recognition to the group rests on the factor that the Board has previously certified research and development employ- ees as a separate unit. As noted above, the Union, as early as 1966, attempted, through the grievance procedures of the existing contract, to secure recognition respecting the jobs involved in the Odessa furnace plant. The Company rejected these grievances on the ground that the Odessa furnace opera- tion was not a commercial production operation but rather a research and development pilot plant. The Union failed to take timely steps to secure compulsory arbitration of the issues involved. It appears from the testimony of Union Representative Brazel that, as early as 1966, the Company explained, in response to union inquiries concerning the Odessa furnace plant, that the Company's principal objective in its establishment was to examine possibilities of making new types of carbon black. At that time union members were doing the work at the Odessa furnace operation involved in printing bags, storing the product, and pulling the black; they were denied the tasks involved in operating the controls. The company position that the Odessa furnace was experimental only was reasserted in the 1967 bargain- ing discussions. In the 1971 negotiations, the Union again attempted to secure company recognition of employees of the furnace plant and specifically sought the inclusion in the contract of furnace employees in the existing recognized unit. The company position was that the furnace plant was experi- mental and not a production operation and therefore not a part of nor an accretion to the recognized unit. I find the evidence to preponderate in favor of the conclusion that at all material times the operations of the pilot furnace plant were oriented toward research and experimentation and that , although a carbon black product was produced and disposed of by sale, the pilot plant, in the company design, fit into research and experimentation rather than into commercial production. In this connection I credit the testimony of T. A. Ruble, the company vice president in charge of research and development, that the function of the pilot plant is essentially experimentation and that his objective is to keep production of carbon black at an • absolute minimum. It also appears from Ruble's testimony that the Company would prefer a situation in which no product resulted from the pilot plant operation . Further, it appears from the credited testimony of Production Manager Boardman that sales of the pilot plant production are made as sales of offgrade goods. The General Counsel contends that the furnace plant operations at Odessa constitute an accretion to the recognized channel black unit there . In this connection there appears to have been instances of interdepartmental borrowing of equipment on one or two occasions but otherwise evidence is wanting to show a community of interest among the two groups and it appears from a stipulation of the parties that there are substantial differences in working conditions between the technicians of the research and development group on the one hand and the production employees of the channel plant on the other. Thus it appears that technicians of the research and development department receive sick leave at the rate of 5 days each 6 months to a maximum of 60 days; production unit employees, on the other hand, receive 7 days each 6 months to a maximum of 56 days. A technician on sick leave can receive up to 80 percent, while a production and maintenance unit worker receives a maximum of 75- percent base pay; reporting hours and shift schedules differ between the two groups; technicians, unlike production workers, have no grievance and arbitration procedure; the two groups use different washroom facilities; the groups have different training programs , different purchasing agents, and different rates of pay. Under all the circumstances of this case, it cannot be concluded that the evidence preponderates in favor of the conclusion that the Company has engaged in the unfair labor practices alleged in the complaint. I recommend that the complaint herein be dismissed. On the basis of the foregoing findings of fact and upon the entire record in this case I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. The evidence does not preponderate in favor of the conclusion that the Company has engaged in the unfair labor practices alleged in the complaint. 3 The agreement covering the employees of the channel black operation recognize the Union for bargaining respecting the few remaining employees, expired on June 30, 1971. After the expiration the Company continued to all in the shipping department SID RICHARDSON CARBON CO. 639 RECOMMENDED ORDER conclusions of law, it is recommended that the complaint herein be dismissed. On the basis of the foregoing findings of fact and