Dow Chemical Co.

DOW CHEMICAL COMPANY 17 Dow Chemical Company, Rocky Flats Division and International Brotherhood of Electrical Workers, Local 1823, AFL-CIO, Petitioner,' and Pipefitters Local 208, AFL-CIO, Petitioner,2 and Painters and Drywall Finishers, Local No. 79, Petitioner,3 and Sheet Metal Workers International Associa- tion, Local No. 9, AFL-CIO, Petitioner,4 and Carpenters District Council of Denver and Vicinity and its affiliated local unions of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Petitioner.5 Cases 27-RC-4069, 27-RC-4072, 27-RC-4074, 27-RC-4077, and 27-RC-4078 March 1, 1973 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Clinton Elges. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, these cases were transferred to the Board for decision. Thereafter, the Employer, the Intervenors,6 and the Petitioners7 filed briefs which have been duly considered. 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 reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings 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 and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. It was stipulated, and we find, that each of the Petitioners and District 508 are labor organizations within the meaning of Section 2(5) of the Act. The status of the DMTC as a labor organization is in I Herein called the Electrical Workers. 2 Herein called the Pipe Fitters. 3 Herein called the Painters. 4 Herein called the Sheet Metal Workers. 5 Herein called the Carpenters. 6 International Union of District 50, herein called District 50, and the Denver Metal Trades Council, herein called DMTC. The five Petitioners submitted one brief. s On November 8, 1972, District 50 filed a motion herein asking that it be referred to in all formal documents as "United Steelworkers of America, AFL-CIO and its Local 15440." In our view of this case, we find it unnecessary to pass on this motion. 9 The Electrical Workers seeks a unit of "all linemen , electricians, dispute. But in view of our determination herein that its petition, and all others, herein should be dismissed in any event, we find it unnecessary to pass upon the merits of contentions challenging DMTC's status as a labor organization within the meaning of the Act. 3. For the reasons set forth below, we find that the several petitions before us raise no question concerning the representation of the employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 1. THE POSITIONS OF THE PARTIES The Employer is engaged at the location here material as a prime contractor for the Atomic Energy Commission. Its operation involves the design and production of weapons for the national defense. At this location, the Employer employs 2074 production and maintenance employees, all of whom have been represented on a plantwide basis since the plant's inception in 1953. Until 1964, that unit was repre- sented by the DMTC. Thereafter, as the result of a Board-conducted election, District 50 was certified as the bargaining representative of the overall unit. The five Petitioners herein each filed timely petitions before the expiration date of the then current collective-bargaining agreement between the Employer and District 50. Each seeks to sever from the established production and maintenance unit one of five different groups of craftsmen.9 The employees described by the five petitions encompass, as a whole, approximately 348 employees, all of whom are employed in the maintenance department.'° The Employer and District 50 oppose each of these petitions on the grounds set forth in Mallinckrodt Chemical Works, Uranium Division, 162 NLRB 387. DMTC intervened in this case during the hear- ing.I' It requests the establishment of a unit composed of all employees in the maintenance department in the event the Board dismisses the five petitions herein filed. Its proposed unit includes, in addition to the 348 employees sought by the Petitioners, an additional 140 employees classified as machinists, tool grinders, and glass blowers. The Employer and District 50 oppose considera- tion of DMTC's request on its merits, contending electrician technicians, and apprentices"; the Pipe Fitters seeks a unit of "all pipe fitters and pipe fitting apprentices in the pipe shop department"; the Painters seeks a unit of "all painter and sign writers"; the Sheet Metal Workers seeks a unit of "all journeymen sheet metal employees , and all apprentices related to the above group of employees, in the small sheet metal department"; and the Carpenters seeks a unit of "all carpenters." 10 Because the Employer's operation is in a constant state of flux, some of the figures quoted herein were subject to slight variation even during the course of the 5-month period over which the hearing was conducted. 11 The hearing herein opened on October 12, 1971, and was concluded on February 11, 1972. DMTC intervened on February 4, 1972, 7 days before the hearing was closed. 202 NLRB No. 6 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the petition should be dismissed as untimely filed. II. THE FACTS AND CONSIDERATIONS BEARING ON THE ISSUES RAISED A. The Petitioner's Proposals In passing upon respective unit proposals of the Petitioners, we are guided by the principles set forth in Mallinckrodt Chemical Works, supra. The record herein, and the consolidated brief submitted for all five Petitioners, indicate that the relevant factors are, in essential respects, similar for all of the proposed craft groups. In these circumstances, we shall, wherever possible, set forth these factors in terms applicable to all of the groups for whom severance is sought herein. As noted above, the employees in the Petitioners' proposed units form but a part of the Employer's maintenance department. That department's major function is to service approximately 50 production buildings in the Employer's vast complex. The maintenance department carries out its mission by performing pure maintenance (troubleshooting and breakdown maintenance); preventive maintenance (conducting a schedule of inspections, lubrications and adjustment of production machinery); fabrica- tion (building repair equipment and new production equipment); and betterment work (installation of improved equipment). Pure maintenance accounts for a majority of the maintenance department's work. The maintenance department is headed by a general superintendent of maintenance. Under him are 8 building maintenance superintendents and 43 crew foremen. Maintenance work orders normally originate with the general superintendent of mainte- nance or his foremen. Due to the close functional relationship between the two departments, however, production superintendents and foremen also have some voice in determining maintenance employee work assignments. Because the plant's vast size would otherwise render difficult the efficient procurement of needed maintenance manpower throughout the production areas, the maintenance department is organized on geographical principles. Under this system, the production buildings are divided into eight clusters, or complexes. Each building maintenance superin- tendent has charge of one complex of production buildings. Under him are the foremen and crews that are permanently assigned to his complex. Each complex is serviced by those maintenance crews that are permanently assigned to it. The craftsmen sought herein, together with other maintenance department employees, are assigned to 43 crews that work out of maintenance shops in 8 production buildings. Because the maintenance department is organized on geographical principles, there is no single craft shop, department, or superintendent. Nor is there one overall maintenance shop on the premises. Instead, each of the major complexes contains the maintenance shop that is used by the crews assigned to the complex. Because some members of each craft are assigned to each complex, the maintenance shops are similar and house a variety of craftsmen. Thus, the maintenance shop in Building 778 is used jointly by sheet metal workers, machinists, pipefitters, and electricians. The shop in Building 883 serves as home base for the electricians, pipefitters, and machinists assigned to maintain that production area. These shops, and others throughout the plant, are not partitioned, and maintenance department employees with different craft backgrounds, including the craftsmen sought by the Petitioners herein, work side by side. Almost half of the 43 maintenance crews are composed of members of diverse crafts. These "mixed crews" are supervised by maintenance department foremen whose craft backgrounds differ from that of some craftsmen under them. One such "mixed crew" is headed by a painter who supervises pipefitters, sheet metal workers, carpenters, painters, an electrician, an instrument man, and a machinists. Crew assignments are not really permanent, as changes in workload and individual requests give rise to frequent transfers of craftsmen from crew to crew. All hourly paid production and maintenance employees, including the craftsmen herein, receive the same vacation, holiday, and fringe benefits, insurance coverage, and lunch and coffee breaks. Production and maintenance employees work the same hours and, with the exception of the employees attached to the maintenance department's central fabrication shop, the two groups share lockers, shower, and cafeteria facilities and report to work in the same buildings. In addition, all employees are covered by one plantwide seniority system for purposes of job bidding, layoffs, and recall. Approximately 25 percent of the maintenance complement transferred into that department from production. Of the craftsmen the Petitioners seek to sever, 14 percent transferred to their present jobs from production classifications. From 1959 to the time of the hearing, 105 of the 192 enrollees in the maintenance craft apprenticeship programs came from production classifications. Another 23 entered the programs from other maintenance classifications. Maintenance employees have also transferred into production classifications and, on occasion, large DOW CHEMICAL COMPANY 19 groups of craftsmen have been "loaned" on a long- term basis to the production department. Examination of the record herein, in light of the relevant factors discussed in Mallinckrodt, leads us to conclude that it will not effectuate the policies of the Act to permit the Petitioners to "carve out" the units they seek. On the basis of the record before us, it is apparent that there is a high degree of integration between the Employer's production process and the work of the employees in the groups sought to be severed.12 All production facilities are maintained by the mainte- nance department, and the craftsmen in question spend most of their time working in production areas. Especially in the performance of their pure and preventative maintenance functions, when pro- duction machinery must often be shut down, mainte- nance craftsmen work in close association with production employees in production areas of the plant. This close association continues through many stages of the maintenance craftsmen's work, for production supervisors often initiate maintenance work by calling for maintenance men; production supervisors must often approve work permits so that maintenance men can enter their areas; production employees must stand by and monitor radiation levels to allow work in potentially dangerous plant areas; and still other production employees must sign for maintenance work performed on their machines. Some jobs, such as changing the K-Coil and changing filters, require that maintenance craftsmen and production employees work together as a team. The maintenance craftsmen spend only a small amount of time working in their shop areas. The craftsmen's shared community of interest with production employees is evidenced by their common working conditions and benefits, supra. The crafts- men in the five units sought by Petitioners also have a close community of interest among themselves, as craftsmen of diverse backgrounds operate out of the same shops, often in mixed teams under common supervision. Further, the frequency of transfers among crews renders it probable that an individual craftsmen will work on more than one crew, including a mixed craft crew, at some time during his employment. As noted above, the employees described by the petition herein have been represented as part of a 12 In the view that we take of this case, it is unnecessary to pass upon the Employer's contention that a work stoppage by any of the craftsmen herein would result in a total production stoppage. 13 Five of the Employer's other plants have representation on the basis of an overall production and maintenance unit . In another of its plants, the employees are represented by a variety of unions. It appears from the record, however, that the plant in question is actually a collection of several plants producing different chemical products, rather than an integrated plant such as the facility herein. single production and maintenance unit since the plant's inception in 1953. With minor exceptions, this pattern of representation is characteristic of the Employer's other plants 13 and of the remaining prime Atomic Energy Commission contractors in the ALOO weapons complex. l4 We find no substantial evidence that the craftsmen here involved have sought to maintain a separate identity for bargaining purposes. During this 19-year period of bargaining on the basis of an overall production and maintenance unit, it is undisputed that during both the tenure of the DMTC and District 50, craftsmen have actively participated in the conduct of the overall unit's representation functions as union officers, stewards, and members of grievance committees. On this record, we cannot agree with the Petition- ers' strenuous contentions that the craftsmen have received less than adequate representation from their current collective-bargaining representative, District 50. As noted, supra, maintenance employees, includ- ing members of the crafts here involved, have actively participated in the representation process as District 50 officers, executive board members, shop stewards, and as subcommitteemen on apprentice- ship committees. During District 50's tenure, that Union afforded all employees equal opportunities to air their problems in grievance proceedings and miscellaneous plant problems meetings. The record indicates that employee members of the groups here sought to be severed have in fact utilized these opportunities. No adverse inference as to the adequacy of District 50's representation of craftsmen is compelled by International Union of District 50, 187 NLRB 968, where we found that, in early 1969, a member of District 50's negotiating team violated the Act by telling two craftsmen that they would receive better treatment on their grievances if they joined District 50. The unlawful statements in that case involved but 2 out of 487 maintenance department employees. Furthermore, there is no allegation that District 50 has failed to comply with our remedial order. Nor does the record support Petitioners' allegations that District 50 delayed arbitrating the grievance of maintenance employee Ryan and failed to assist maintenance employee Shockley in pressing his case. Instead, the record indicates that District 50 repre- 14 One of the five other prime Atomic Energy Commission contractors working in the ALOO weapons complex , Mason and Hanger-Silas Mason Company. has representation on the basis of more than one union. That company. however, had a history of bargaining with more than one union and, in a recent craft severance case , unlike the Employer herein, Mason took the position that an additional craft unit would not adversely affect labor stability at its plant . See Mason and Hanger-Silas Mason Company, 180 NLRB 63. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented Ryan at his step two grievance proceeding and that, thereafter, Ryan himself acquiesced in a proposal that processing of his case be delayed pending arbitration of three other grievances which had plantwide significance. The record also indicates that Shockley received union aid and representation on his unsuccessful grievance, and that District 50's president personally offered to continue to press Shockley's case after his grievance was denied at the second step of the grievance proceeding. Nor do we believe that either discontinuance of the joint job evaluation program and use of the jurisdic- tional manual following District 50's incumbency, or District 50's establishment of a new seniority system, substantiates Petitioners' position that District 50 has failed to give adequate representation to the employ- ees here sought. The record does not indicate that the craftsmen have suffered due to these alterations. Indeed, during the tenure of District 50, the craftsmen herein have received steady wage increases in amounts which continued to be larger than those of the average bargaining unit employee. Further, the craftsmen herein receive wages and fringe benefits that are comparable to, if not greater than, those earned by similar craftsmen in the area, many of whom work at premium construction rates for less than the entire year and receive a smaller package of fringe benefits. Although the craftsmen possess to some extent a separate identity by reason of their skills, they also share a close community of interest with other employees in the existing production and mainte- nance unit, both because of their long and uninter- rupted association in that unit and because their work is functionally integrated with other work performed in that unit. As noted above, due to the geographic form of plant organization, each craft group also shares a close community of interest with the other craftsmen in the maintenance department. For all of the above reasons and in the absence of other compelling considerations of overriding force, we do not believe it would effectuate the purposes of the Act to permit disruption of the historically established pattern of bargaining and the stable bargaining relationship developed thereunder over a period of approximately 20 years. In our opinion, the interests to be served by maintaining the established bargaining unit far outweigh any interests that may be served by affording the craftsmen herein an 15 By letter dated December 26, 1972, DMTC advised the Board and the other parties to this proceeding that , in the event the Board found that an overall unit was appropriate and determined that an election should be conducted among all such employees, it would accept such unit determina- tion and would request that its name appear on the ballot It further stated that it believed the showing of interest it heretofore made would be sufficient to support that request Thereafter, both the Employer and the Intervenor filed letter statements with the Board in opposition to DMTC's opportunity to change their mode of representation. Accordingly, finding as we do that the units requested are not now appropriate, we shall dismiss the petitions. B. DMTC's Request Having found that the units requested by the Petitioners are inappropriate for severance, it be- comes appropriate to consider DMTC's request for severance of a unit composed of all maintenance department employees. We shall not grant this request. No compelling reason has been shown for departing from the established policy of refusing to sever heterogeneous, multicraft maintenance depart- ment units, such as that sought here. See General Foods Corp., 166 NLRB 1032; Moloney Electric Company, 169 NLRB 464. Accordingly, it is not necessary for us to reach the question as to whether DMTC's unit request was timely made.i5 ORDER It is hereby ordered that the petitions herein be, and they hereby are , dismissed. MEMBER FANNING, dissenting: Dismissal of this spirited craft severance attempt warrants expression of opinion from a perspective other than that of the majority . The hearing was prolonged, offering opportunity for in-depth consid- eration of the Employer's use of skilled craftsmen in its maintenance function . Five unions seek to represent some 350 employees . In effect these Unions represented these same employees for 11 years before 1964, pursuant to Board certifications to the Denver Metal Trades Council of which the Unions were members. Then, International Union of District 50 was certified , and it has since affiliated with the Steelworkers. In the wake of this severance dismissal, craftsmen will continue to be represented by an' industrial type union, regardless of craft skills and functions on the job. As I view it, my colleagues have dealt an additional blow to craft severance by their application of Mallmckrodt criteria in broad , conclusionary terms.16 They concede that the employees sought are skilled craftsmen. Indeed it would be difficult to take a contrary position , inasmuch as Dow-approved ap- prenticeship systems have long existed for electri- cians, for pipefitters , and for sheet metal workers. request We find no warrant for DMTC's request as set out in its letter dated December 26, 1972 No petition has been filed by any labor organization which raises a question concerning representation in the overall unit, and, in any event, we have administratively determined that the showing of interest made by DMTC is not sufficient to support an election in such overall unit Is ,Mallmckrodt Chemical Works, 162 NLRB 387, 397 DOW CHEMICAL COMPANY 21 Carpenters, though not apprenticed at Dow, are hired with a minimum of 6 years' experience, after tests, if they were not formally apprenticed else- where. They must have an ability to do their own layout work, which is often the test of a lead carpenter. For painters Dow provides a written examination in lieu of formal apprenticeship, and 6 years' experience is required for hire, 4 of which must be in brush work. These five groups of skilled employees constitute two-thirds of the maintenance employees at the Rocky Flats Division of Dow. This facility is vast, so much so that it requires a grid of streets and these all have names. For maintenance purposes its 50 buildings are administered on a cluster basis. There are eight of these clusters, each with its own maintenance shop. Forty-three crews operate out of these eight major shops. Some of the crews are made up of various crafts, from which my colleagues conclude that craftsmen are being used in geographic groups, without craft supervision in the customary sense, or separate craft shops. They say that the number of mixed maintenance crews is "almost half" of the 43 crews. Thus, more than half of the 43-perhaps 25 or more-are straight craft crews with their own craft supervision. This is a facet of the case, a perspective that should be kept in mind in deciding whether these admitted craftsmen are a distinct and homogeneous group performing the functions of their craft on a nonrepetitive basis within the meaning of criterion no. 1 of Mallinckrodt. In this connection it is interesting to note that when the Employer announced its February 27, 1969, Maintenance Department Organizational Changes it spoke of keeping the multicraft foreman assignments ". . . to a minimum. Where there is [sic ] enough men of one craft to support a foreman, one is assigned from that craft." The central shop in 334 Building was another exception, with the craft superintendent in full charge, over the central shop foreman. The change was described as one in the management and supervision of maintenance department activities, not intended to change work assignments or proce- dures. At thef time of hearing, separate craft crews with their own supervision actually predominated. Based on the existence of mixed craft crews-which do not predominate-is it wise to conclude that skilled crafts, including many craftsmen who ac- quired their skills through apprenticeship at this very facility, are not sufficiently distinct and homogene- ous for craft severance? Is it wise to glibly conclude that there is a high degree of integration in the Employer's production processes on a record which fails to state what those processes are because of security? Actually, in this area of integrated pro- duction processes, my colleagues speak only of integration between "the process" and "the work of the employees sought." They then proceed to rely upon craftsmen doing work in production areas at times, upon production supervisors being involved by initiating maintenance work and approving access permits for craftsmen, and they conclude that facet of their final conclusion by referring to the small amount of craft employee time spent in shops. This seems to belie a list of responsibilities of "the craft superintendent in his assigned craft," which are itemized from a. to m., the first being as follows: a. Direct all craft effort in the Central Fabrica- tion Shops according to established job priorities and schedules. Moving to the criterion of the history of represent- ation at the plant where severance is sought, my colleagues do not mention the type of bargaining which necessarily existed during the first 11 years of the plant's existence. Even though the unit was plantwide, the bargaining representative was the Denver Metal Trades Council, and the membership of Petitioners in that group insured considerable opportunity for craft-oriented bargaining. Since 1964 this has not been true, and the plantwide unit has not been productive of stability in bargaining. In 1970 there was a long strike, despite which production was maintained. Bargaining in the industry, another criterion under Mallinckrodt, does not rule out craft units. In this case "the industry" is made up of the six prime Atomic Energy Commission contractors for weapons productions. Dow-Rocky Flats Division is one of the six. Mason & Hanger-Silas Mason Company is another. In December 1969, the Board (180 NLRB 467) granted a severance election to journeyman machinists and tool and die men of the latter employer, noting that they were the only apprenticed trade in the plant and that bargaining had been on the basis of "separate representation of skilled employees as well as the separate representation of employees in two production and maintenance units." Carpenters, pipefitters, electricians, power- house engineers and stationary firemen, iron work- ers, boilermakers, painters, sheet metal workers, and truckdrivers and certain service personnel all had separate units. Mason & Hanger-Silas Mason Com- pany did not oppose the severance, apparently having learned to live under bargaining conditions allowing freedom to their employees. Then there is the criterion which concerns mainte- nance of separate identity by the craft sought while it is not bargained for separately. My colleagues say that there is no substantial evidence of an attempt to maintain such identity here. This totally ignores a series of craft petitions filed in the spring of 1968-by the Pipefitters, the Carpenters, the Sheet 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Metal Workers, the Painters, the Operating Engi- neers, and the Machinists-which were dismissed because of a pending 8(a)(5) charge . 17 At the next contract opportunity, the instant craft severance petitions were filed . Of considerable significance is the fact that since 1964 these craft unions continued to retain much of their membership among the employees, and more recently, craftsmen who did join District 50 now show a tendency to withdraw from it. Finally, my colleagues say that they cannot agree that these craft employees had less than adequate representation by District 50, and they see no adverse inference "compelled" by the Board's deci- sion in Dow Chemical, 187 NLRB No. 130, though it involves an 8(b)(1)(A) violation by District 50. For responsible representatives of District 50 to tell craftsmen that they would receive better treatment on their grievances if they joined District 50 reflects an understandable human trait but hardly establishes a picture of full and fair representation for all members of the plantwide unit. The conclusion seems inescapable that mixed craft crews will at times be required at a complex facility such as this, where apparently 50 separate buildings must be serviced by skilled craftsmen and work taken to the craft shops whenever necessary . Should that fact be allowed to cloud the entire issue and, in effect, be used as a reason for denying severance in an industry where bargaining for crafts does exist? I think not. I would direct the elections sought. 17 Case 27-CA-2318, where it appears that no exceptions were filed to the Trial Examiner's Decision