Celanese Corp. of America

In the Matter Of CELANESE CORPORATION OF AMERICA and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS In the Matter of CELANESE CORPORATION OF AMERICA and INTERNATIONAL ASSOCIATION OF MACHINISTS Cases Nos. R-187 and R-188, respectively.Decided December 29, 1939 Acetate Rayon Yarn Manufacturing Industry-Investigation of Representa- tives: petition for, dismissed where no question concerning representation has arisen in a unit which is appropriate for the purposes of collective bargain- ing-Unit Appropriate for Qollective Bargaining : unit composed of electricians, apprentices , and helpers inappropriate because petitioning union has no mem- bers ; unit composed of machinists and apprentices inappropriate : divergent views of Board members: (1) (Smith, concurring ) since there is no evidence of past history of collective bargaining on part of the machinists , no justification for weakening bargaining strength of employees as a whole by permitting craft unit to split off from successful industrial unit; (2) (Leiserson, concurring) prior contract covering engineering department and existing contract granting exclusive recognition in an industrial unit make . unit requested inappropriate ; unit requested is inappropriate because it excludes first-class helpers; (3) (Madden, dissenting ) craft unit of machinists, apprentices, and first-class help- ers is appropriate if employees involved desire it ; petitioning union should be allowed to withdraw, and petition would be dismissed, if union did not desire to represent the group thus defined. Mr. Jacob Blum, Mr. Reeves R. Hilton, and Mr. Lester M. Levin, for the Board. Mr. Matthew H. O'Brien, of New York City, for the respondent. Mr. Edward D. Bieretz, of Washington, D. C., for the I. B. E. W. Mr. F. N. Kershaw, of Baltimore, Md., Mr. Paul Hutchingsi and Mr. Tom Carroll, of Washington, D. C., for the I. A. M. Mr. Arthur P. McNulty and Mr. Joseph E. Brill, of New York City, and Mr. Isadore Katz, of Philadelphia, Pa., for the T. W. U. A. Mr. Harry Sacker, of New York City, for the Transport Workers' Union of America, amicus curiae. Mr. Lee Pressman and Mr. Anthony Wayne Smith, of Washing- ton, D. C., for the Congress of Industrial Organizations, am2cus curiae. Mr. Abraham L. Kaminstein and Mr. Edward Scheunemann, of counsel to the Board. 18 N. L. It. B., No. 104. 965 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE On May 29, 1937, and on June 1, 1937, respectively, International Association of Machinists, herein called the I. A. Al., and Inter- national Brotherhood of Electrical Workers, herein called the I. B. E. W., filed with the Regional Director for the Fifth Region (Bal- timore, Maryland) petitions alleging that questions affecting com- merce had arisen concerning the representation of employees in the engineering department of Celanese Corporation of America, Cum- berland, Maryland, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor . Relations Act, 49 Stat. 449, herein called the Act. On June 10, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Article III, Sec- tion 10 (c) (2), of National Labor Relations Board Rules and Regu- lations-Series 1, as amended, ordered that the cases be consolidated for the purposes of hearing, and acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of said Rules and Regulations, directed an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. Pursuant to notice duly served upon the Company, the I. A. M., the I. B. E. W., and Textile Workers Union of America, herein called the T. W. U. A.,' a labor organization named in the I. A. M. petition as claiming to represent the Company's employees, a, hearing was held in Cumberland, Maryland, on July 6, 1937, before Tilford E. Dudley, the Trial Examiner duly designated by the Board. The Board, the Company, and the T. W. U. A. were represented by counsel, and the I. A. M. and I. B. E. W. by officials. They all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on ob- jections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 27, 1937, the T. W. U. A. filed a brief and on July 29, 1937, the I. A. M. and I. B. E. W. filed a joint brief with the Board. ' The organization was named in the petition as United Textile Workers of America. It is referred to on other occasions throughout the proceedings as Textile Workers' Organ- izing Committee, and T . W. U. A. It is clear from the record that the above names were used in this case to refer to one and the same organization, which Is now the T. W. U. A. CELANESE- CORPORATION OF AMEIBLCA 967 On November 3, 1937, pursuant to notice, a hearing for the pur- pose of oral argument was held before the Board at Washington, D. C. All parties were represented by counsel and presented argu- ment. Counsel for Transport Workers' Union of America and the Congress of Industrial Organizations 2 appeared by counsel and par- ticipated as amici curiae. On November 8, 1937, the T. W. U. A. filed a further brief with the Board, and the I. A. M. and I. B. E. W. a further joint brief. The following organizations filed briefs as amici curiae: International Union, United Automobile Workers of America, International Longshoremen and Warehousemen's Union, International Woodworkers of America, United Cannery, Agricul- tural, Packing and Allied Workers of America, District #2, Con- gress of Industrial Organizations, and Federation of Flat Glass Workers of America. On September 16, 1939, the Board issued an order reopening the record, directing a further hearing, and authorizing the Regional Director to conduct it. Pursuant to notice,. a hearing was held at Cumberland, Maryland, on November 16, 1939, before Guy Van Schaick, the Trial Examiner duly designated by the Board. The Board, the Company, the I. A. M., and the T. W. U. A. were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 29 and December 4, 1939, respectively, the T. W. U. A. and the I. A. M. filed further briefs with the Board. On November 29, 1939, pursuant to notice, a hearing for the pur- pose of oral argument was held before the Board at Washington, D. C. The I. A. M. and the T. W. U. A. were represented by counsel and presented argument. Upon the argument, the briefs, and the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Celanese Corporation of America is a Delaware corporation with principal offices in New York City. It is the largest domestic manu- facturer of acetate rayon yarns. The Company employs approxi- mately 9,138 persons in its plant near Cumberland, Maryland. Peter Cooper, chief accountant of the Company, testified at the 1937 hearing 2 Then called Committee for Industrial Organization. 283029-41-vol. 18-62 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "practically all" of the raw materials used at the Cumberland, Maryland, plant came from without Maryland, and that "all the fin- ished products but a small percentage" are shipped from Maryland to Nation-wide and foreign markets. Counsel for the Company stated at the 1939 hearing that there had been no material change in the character of the business with regard to interstate commerce since 1937, and that goods valued at more than $1,000,000 have been shipped from Maryland to other States in 1937 and in each year since. II. THE ORGANIZATIONS INVOLVED International Association of Machinists is a labor organization affiliated with the American Federation of Labor. It admits to mem- bership certain employees of the Company. International Brotherhood of Electrical Workers is a labor organi- zation affiliated with the American Federation of Labor. It admits to membership certain employees of the Company. Textile Workers Union of America is a labor organization, affili- ated with the Congress of Industrial Organizations. It admits to membership all non-supervisory employees of the Company. III. THE APPROPRIATE UNIT A. The petition of the I. B. E. TV. The petition of the I. B. E. W. seeks a unit composed of "journey- men electricians, helpers and apprentices employed on construction and maintenance electrical work in the plant." The I. B. E. W. claimed substantial membership among the electricians at the 1937 hearing, although Robert Thwaites, financial secretary of the I. B. E. W., testified that he could not say definitely that there was any expressed sentiment for separate representation on the part of the electrical workers. On August 4, 1939, the I. B. E. W. informed the Board's attorney by letter, which was introduced in evidence at the 1939 hearing, that it no longer had any members among the employees of the Company. It was not represented and took no part in the 1939 hearing. Sylvester Butts, former treasurer of the I. B. E. W., testified at the 1939 hearing that there was no local group of electrical workers who wanted separate bargaining rights. Consequently, we find that the bargaining unit sought by the I. B. E. W. is not appropriate for the purposes of collective bargaining. B. The petition of the I. A. M. The I. A. M. petition, as amended at the second hearing, seeks a unit composed of journeymen machinists and apprentices. The CELANESE CORPORATION OF AMFJRZCA 969 T. W. U. A. intervened and contends that all the employees in the plant, exclusive of supervisory employees, constitute a single appro- priate unit, and that the unit proposed by the I. A. M. is not suitable for the purposes of collective bargaining. For the reasons set forth in the separate opinions below, we find that the bargaining unit sought by the I. A. M. is not appropriate for the purposes of collective bargaining. IV. THE QUESTION CONCERNING REPRESENTATION Since the bargaining units sought to be established by the petitions are inappropriate for the purposes of collective bargaining, we find that no question has been raised concerning the representation of employees of the Company. On the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSION OF LAW No question concerning the representation of employees of Cela- nese Corporation of America in a unit appropriate for the purposes of collective bargaining has arisen, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the foregoing findings of fact and conclusion of law, the National Labor Relations Board hereby orders that the peti- tions for investigation filed by International Association of Machin- ists and International Brotherhood of Electrical Workers be, and they hereby are, dismissed. Separate concurring opinion of MR. EDWIN S. SMITH : The Company employs approximately 8,600 non-supervisory em- ployees in its Cumberland plant. Of these, 1,458 are employed in the engineering department which performs all the mechanical work nec- essary in installing, repairing, and maintaining machinery and equipment. The work of the engineering department is closely related to pro- duction, and the employees are assigned to subdivisions of the engi- neering department which correspond to the production departments of the plant. There are, in addition to other craftsmen, approxi- mately 203 journeymen machinists, 2 or 3 machinist apprentices, 58 first-class helpers, and 350 helpers employed in the engineering department. The T. W. U. A. began organizing the employees of the Company in August 1936. By October, the T. W. U. A. claimed to have en- 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rolled 3,000 members and began negotiations with the Company. In November the T. W. U. A. called a strike which closed the plant. A settlement was reached by the end of November and on December 2, 1936, the T. W. U. A. signed an agreement with the Company which recognized the T. W. U. A. as collective bargaining representative of all employees who were or might become members of the T. W. U. A. The agreement set forth a method of adjusting grievances, provided for seniority, and resulted in wage increases to employees in the engi- neering department as well as to other employees. At that time the T. W. U. A. claimed to represent 11,000 of the 11,800 persons then employed by the Company. The I. A. M. and I. B. E. W. were organized shortly after the execu- tion of the agreement between the Company and the T. W. U. A. On May 6, 1937, the I. A. M. and the I. B. E. W. attempted to enter into negotiations with the Company concerning employees of the engineer- ing department. One conference was held, which was apparently treated by the Company as a conference concerning grievances only. On May 20, 1937, the Company informed the I. A. M. and I. B. E. W. that because of its contract with the T. W. U. A. it would not bargain with the I. A. M. or I. B. E. W. unless ordered to do so by the Board. On June 1, 1937, 115 machinists and electricians struck. The strike lasted 5 days and resulted in some inconvenience to the Company, but did not close the plant. The Company continued to bargain with the T. W. U. A., and to apply any agreements reached to all non-supervisory employees. On October 22, 1937, the Company signed a contract with the T. W. U. A. recognizing it as sole bargaining agency for all non-supervisory employees. On August 4, 1939, following an impasse in negotiations for a new contract, the T. W. U. A. struck and again caused the plant to close. The I. A. M. informed the Company that it was not on strike but that its members were not working because they "respected the picket lines of other organizations." On September 5, 1939, the Company and the T. W. U. A. settled the strike and entered into another contract which again recognized the T. W. U. A. as sole bargaining agency for all non-supervisory employees and which resulted in general pay in- creases for, among others, the machinists and other employees in the engineering departments The record thus discloses successful collective bargaining between the Company and the T. W. U. A. in a unit comprising non-supervisory 3 It should be noted that both this contract and its predecessor were entered into at a time when the petition for certification of representatives as a separate unit , filed by the I. A. M., was pending before the Board. Under these circumstances I do not consider that the recognition of the T. W. U. A. in either the contract of October 22, 1937, or of August 4, 1939, as sole bargaining agent strengthens the claim of the T. W. U. A. to an industrial unit, which I find appropriate on other grounds. CELANESE CORPORATION OF AMERICA 971 employees from December 1936 to the present time. The employees in the engineering department have been represented on the bargaining committees of the T. W. U. A. and have participated in the benefits achieved by the T. W. U. A. through collective bargaining. There is, on the other hand, no history of collective bargaining with the Company on a craft basis. The I. A. M. was not organized until after the T. W. U. A. and the Company had entered into an agreement covering the employees in the engineering department. For the reasons which are stated in my dissenting opinion in Matter of Allis-Chalmers Manufacturing Company 4 and in my concurring opinions in Matter of American Can Co.,5 and Matter of Milton Brad- ley Co.,e I see no justification in the present case for weakening the bargaining strength of the employees as a whole by permitting the machinists and apprentices to split off from the main bargaining unit. Separate concurring opinion of MR. WILLIAM M. LEISERSON : The Company's employees, including those in the engineering de- partment, have been covered by a collective agreement .between the Company and the T. W. U. A. since December 1936. Since October 1937 the agreement has provided for recognition of the T. W. U. A. as exclusive representative of a unit consisting of all the Company's non-supervisory employees. The I. A. M. desires to split off from the unit thus established by agreement journeymen machinists and apprentices, although there are machine workers and helpers whom it admits to membership and who are commonly included in the machinists crafts whom it would exclude from its proposed unit. The Chairman in his dissenting opinion recognizes that the I. A. M. is requesting an inappropriate unit by excluding the first-class helpers and he therefore would take these out of the larger unit and transfer them to the unit proposed by the I. A. M. although it has not asked for them. Under these circumstances and for the reasons stated in my concurring opinions in Matter of American Can Company 7 and Matter of Milton Bradley Company,8 I am of the opinion that the unit sought by the I. A. M. is inappropriate. CHAIRMAN MADDEN, dissenting in, part : The I. A. M. requests that a separate bargaining unit be established of journeymen machinists and apprentices. There are somewhat over 200 employees in the foregoing classifications. In addition there are about 60 first-class helpers who assist the journeymen machinists *Matter of Allis-Chalmers Manwfaeturing Company and International Union, United 5 Matter of American Can Co. and Engineers Local No. 30, 13 N. L. R. B. 1252. °Matter of Milton Bradley Co. and International Printing Pressmen and Assistants' Union of N. A., 15 N. L. R. B. 938. T Matter of American Can Co. and Engineers Local No. 30, 13. N. L. R. B. 1252. 8 Matter of Milton Bradley Co. and International Printing Pressmen and Assistants' Union of N. A., 15 N. L. R. B. 938. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to a limited extent perform the same functions. Also in the engineering department there are about 200 machine fixers and re- pairmen, sometimes known as specialists, and about 350 helpers who assist in all phases of the work performed by the engineering department. I am of the opinion that the journeymen machinists, apprentices, and first-class helpers may properly be considered a separate bargain- ing unit. Although the specialists and helpers are eligible for mem- bership in the I. A. M., that organization desires to confine the bar- gaining unit to the narrower limits of skilled machinists. The Board has previously recognized such a unit as appropriate 0 and I believe it should do so in this case. The contract between the Company and the T. W. U. A., recog- nizing the latter as exclusive bargaining agent for all the non-super- visory employees, was entered into after the proceedings in this case were instituted. I do not see, therefore, how that contract, or its successor, can be given any weight in the determination of the issue raised by the I. A. M. petition. In view of the foregoing, and for the reasons stated in my dis- senting opinions in Matter of American Can Company 10 and Matter of Milton Bradley Company," I would give the journeymen machin- ists, apprentices, and first-class helpers the opportunity to determine by secret ballot whether they wish to bargain collectively through the I. A. M. as a separate unit or whether they wish to merge with the other employees in an industrial unit. Since the craft group as thus defined, including the first-class helpers as well as the journey- men machinists and apprentices, is broader than the unit requested by the I. A. M., I would permit the I. A. M. to withdraw from the election, if it so desired, upon notice to the Board within 5 days after issuance of the Direction of Election. If the I. A. M. did so with- draw, I would then dismiss its petition, since it is the only party seeking.a determination of representatives. 9 Matter of American Hardware Corporation and United Electrical and Radio Workers of America, 4 N. L. R. B. 412. 10 Matter of American Can Co. and Engineers Local No. 30, ].3 N. L. R. B. 1252. 11 Matter of Milton Bradley Co . and International Printing Pressmen and Assistants' Union of N. A., 15 N. L. R. B. 938.