American Cyanamid Co.

In the Matter of AMERICAN CYANAMID Co. and UNITED PHOSPHATE WORKERS' UNION No. 22036, A. F. L. Case No. R-1666.-Decided January 0, 1940 Phosphate Rock Mining Industry-Investigation of Representatives: contro- versy concerning representation of employees : employer refuses to recognize union until certification by the Board-Unit Appropriate for Collective Bargain- ing: all employees of Company at Brewster, Florida, including employees in mines, plant, related service departments, and company town, but excluding managerial and supervisory employees and employees in office, commissary, doctor's office, and storeroom ; Company Town : sufficient common interest between workers in mines and plant and workers engaged in town management to warrant inclusion in same unit-Employee Status: retention of : employees dismissed or laid off because of business conditions who have not obtained regular and substantially equivalent employment-Representatives: eligibility to participate in choice: dismissed or laid-off employees-Election Ordered: eli- gibility determined by pay roll of December 1 to 15, 1939. Mr. C. Paul Barker, for the Board. Mr. G. R. Martin, of New York City, for the Company. Mr. J. L. Rhodes, of Jacksonville, Fla., and Mr. George L. Googe, of Atlanta, Ga., for the Union. Mr. Louis S. Penfceld, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 6, 1939, United Phosphate Workers' Union No. 22036, herein called the Union, filed with the Regional Director for the Fifteenth Region (New Orleans, Louisiana) a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of American Cyanamid Company, Brewster, Flor- ida, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On December 16, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the. Act and Article III, Section 3, of National Labor Relations Board Rules and Regula- 19 N. L. R. B., No. 103. 1026 AMERICAN CYANAMID COMPANY 1027 tions-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. In connection with said order, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Union.' Pursuant to the notice a hearing was held on December 20, 1939, at Brewster, Florida, before William B. Barton, the Trial Examiner duly designated by the Board. The Board and the Company appeared and were represented by counsel. The Union appeared by its representative. All of said parties participated in the hearing. Full opportunity to be heard, to examine and to 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 various rulings. At the close of the hearing he granted a motion of the Board that the pleadings be conformed to the proof. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On December 27, 1939, the Union requested leave to present oral argument on the record before the Board, which request was granted on January 4, 1940. Pursuant to notice duly served upon the Com- pany and upon the Union, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on January 11, 1940. The Company and the Union appeared, presented oral argument, and otherwise participated in the hearing. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THU BUSINESS OF THE COMPANY American Cyanamid Company is a Maine corporation with its prin- cipal office in New York City. It wholly owns and controls a number of subsidiary companies. The Company owns and operates manu- facturing plants at Warners and Bound Brook, New Jersey; and a plant, phosphate-rock mines, and property in connection therewith, at Brewster, Florida. Its subsidiary companies operate plants and mines located in approximately 24 States of the United States. The Company and its subsidiaries produce, sell, and distribute many prod ucts, including chemicals for the paint and varnish industry and for general industrial and other use, fertilizers, insecticides, serums, anti- toxins, and other biological products, gypsum products, plastics, Sol- 1 Counsel for the Company and for the Union stated at the hearing for the record that the Company and the Union , respectively , had received due notice of the hearing and were prepared to proceed to hearing. 1028 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD vents, blasting powders and other supplies for mining, and adhesives for the plywood industry. This proceeding is concerned only with employees of the Company employed at, and in connection with, its business and operations at Brewster, Florida. The Company is there engaged in the mining and processing of phosphate rock which it regularly sells and distributes, and which to .the extent of more than 90 per cent of the dollar value of all such products there produced, it regularly ships from Brewster in interstate commerce into and through States of the United States, other than Florida, and into foreign countries. In 1938, a typical year, products so produced were valued in excess of $1,000,000. In the year 1938, and prior thereto, the Company used in connection with operations at its mines and plant at Brewster, a small amount of raw materials which was shipped to Brewster from.outside of the State of Florida. The operations of the Company at Brewster center about its phos- phate-rock mines, known as the Oak Ridge and the Old Colony Mines. The Company maintains a flotation plant at the Old Colony mine. Brewster proper is what is commonly termed a "company town" and is the residence of substantially all the Company's employees. All the land on which the town is situated, together with a drying plant, analytical laboratory, electric repair shop, garage, mine office, com- missary, filling station, dwelling houses, and storage space there located, are the property of the Company. The phosphate rock is mined hydraulically at the mines, washed, and then shipped by com- mon carrier to Brewster where it is dried at the drying plant for delivery to point of use. The Company employs approximately 300 persons in connection with its business and operations at Brewster. The Company does not dispute that it is engaged in interstate commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Phosphate Mine Workers' Union No. 22036 is a Federal labor union affiliated with the American Federation of Labor. It admits to membership employees of the Company engaged in various operations at the mines, plant, and related enterprises of the Company at Brewster, Florida, excluding managerial and supervisory- em- ployees, and employees in the office, commissary, doctor's office, and storeroom. III. THE QUESTION CONCERNING REPRESENTATION On July 13, 1939, the Union apprised the Company that it claimed to represent a majority of the Company's employees at Brewster for AMERICAN CYANAMID COMPANY 1029 purposes of collective bargaining, and was entitled to recognition as the exclusive bargaining agency for all such employees in an appro- priate collective bargaining unit. The Company refused and refuses to recognize the Union as the exclusive bargaining agency of any of its employees at Brewster until the matter is so determined by the Board. We find that a question has arisen concerning representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen , occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and between the States and foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The petition alleges that "all employees except managerial and su- pervisory employees working for the company" at Brewster, Florida, constitute a unit appropriate for the purposes of collective bargaining. As further defined by the Union this would comprise employees at work on the draglines ;2 employees who work in or at the mines,3 Oak Ridge pumps,4 stage pumps-Old Colony,5 dam and spillway;6 re- pairmen-Old Colony and Oak Ridge;7 spare men for mines, section crew, etc.;8 flotation plant employees;9 employees in or at the yard,1e dry plant,11 dry plant boiler ;12 rock loaders;13 employees in or at the dust mill,14 brown hoist;15 dust car loaders; employees in or at the 2 Includes operators, oilers, groundmen. s Includes oilers , tractor and car loaders, car loaders , motor employees, boosters , booster and car helpers , dam employees , gun employees , section employees, wrenchers, laborers, car L. helpers. * Includes operators. "Includes operators. O Includes operators. T Includes repairmen, repairmen's helpers. I Includes laborers. 9 Includes fag operators, classifiers , welder, sample and oiler employees, welder and feed pumps employees, dredge operators, laborers. 10 Includes engineers , firemen, hostlers , flagmen. 11 Includes firemen, oilers, Bull car employees , screens employees, belt employees, swing crews and repairmen. 11 Includes firemen. Is Includes contract rock loaders. It Includes operators. " Includes operators , firemen, groundmen. 283030-41-vol. 11--66 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laboratory,"' electric shop,17 machine shop,18 garage;` filling-station employees ;20 sanitary workers; 21 construction workers ;22 town watch- men; janitors;',' and telephone operators'24 and would exclude, irre- spective of the foregoing, all managerial and supervisory employees, with certain exceptions mentioned below, and all employees who work in or at the oflice,21 commissary '26 doctor's office '27 and storeroom .21, Among those excluded as managerial and supervisory are : mine super- intendents, superintendent and assistant superintendent of the flotation plant, supervisor of the dry plant, chief electrician, master mechanic, chemists, and flotation chemist. However, the. Union would include mine foremen, mine and washer foremen, oiler and washer foremen, washer foremen, and dry-plant shift foremen. The Company takes no position in regard to what employees should be included in or excluded from the bargaining unit claimed by the washer foremen, and dry-plant shift foremen. The employees who operate the electric draglines at the mines strip the "overburden" or barren material covering the phosphate-rock deposit. The phosphate rock is mined hydraulically by the mine workers and pumped to the "washers," that is, machines which separate the admixed sand and clay from the rock. Employees at the Oak Ridge pumps, stage pumps-Old Colony, and the dam and spillway also are engaged in these operations. At the Old Colony mine a flotation plant is maintained where the floating-plant workers recover phosphate rock from debris left from the washer. The wet rock from the washers and the flotation plant is loaded by the workers at the mines on railroad cars and transported by common carrier to the town proper. There the yard employees switch the cars to the dry plant where the phosphate rock is taken to be dried to a minimum of 3 per cent moisture. Work at the plant is performed by the vari- ous dry-plant employees, in connection with the workers who operate the dry-plant boiler. After the rock is dried it is again loaded on railroad cars for shipment to customers in various parts of the 18 Includes chemists' helpers and flotation chemist 's helpers. 17 Includes elec. and linemen , elec. helpers. 18 Includes Machinists, boilermakers , lathe operators , blacksmiths , plumbers, elec. welders, elec. welders' apprentices, mach. 11 Includes auto mechanics and auto mechanic helpers. 20 Includes clerks. 21 Includes sanitary wagon employees, gardeners, garden truck employees , mosquito sprayers, laborers. 22 Includes painters, carpenters, helpers, plasterevs , and brickmasons. 20 Includes office and yard janitor , and office and doctor's office janitor. 21 Includes operators. 21 Includes cashiers, clerks , timekeepers , shipping clerk, and yard masters, assistant shipping clerk and yard masters , stenographers. 20 Includes assistant manager and butcher, clerks, bookkeepers. 17 Includes nurses. 21 Includes storeroom helpers. AMERICAN CYANAMID COM'PANY 1031 country. The record is not clear as to the functions performed by the employees in the dust mill and brown hoist, or by the dust-car loaders, but they evidently work in connection with the operations mentioned. The Company also maintains at Brewster a mines office and the following so-called "service departments" : a laboratory, an electric shop, a machine shop, and a garage. The "service departments" are operated, and the work of employees there carried on, as a necessary incident to the mining and plant operations of the Company. As already stated, Brewster is a company town. It was built in 1912 or 1913 by the Company's predecessor at a time when there were no ready transportation facilities to the mines from adjacent populated areas. It was necessary in order to carry on mining operations to furnish the mine workers with dwellings where they could live and with related town services. The Company presently owns and operates the town. Substantially all the employees of the Company here in- volved live in Brewster and constitute virtually the entire town popu- lation. Employees at the mines are transported to and from work at the expense of the Company. For the convenience of its employees the Company maintains a commissary, where meats, groceries, dry goods, and other commodities are sold, and also maintains a filling station. In connection with its management of the town the Company employs sanitary workers, construction workers, town watchmen, janitors, mis- cellaneous laborers, telephone operators, employees in the doctor's office, and storeroom employees. Some of these employees, also per- form work incident to the Company's mining and plant operations. We see no reason why, under the circumstances presented, the unit proposed by the Union as appropriate for purposes of collective bar- gaining should not insure to the Company's employees at Brewster the full benefit of their right of self-organization and collective bar- gaining and. otherwise effectuate the policies of the Act. The func- tional coherence which exists among workers engaged in its mining and plant operations, and at work in the related service departments demonstrates clearly a mutuality of interest among such workers as employees. While the interdependence in work function between these workers and the employees engaged in town management is not so marked, we nevertheless are of the opinion, in view of the economic relationship existing between the town.and the Company's mining and. plant operations, as well as the Company's control of the town, that a sufficient common interest regarding wages, hours, and working conditions exists among all such employees to warrant their constitut- ing a single bargaining unit. As already stated, the Union would exclude from the proposed bargaining unit all managerial and supervisory employees, with cer- 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tain exceptions, and employees in the office, commissary, doctor's office, and storeroom. The managerial and supervisory employees, save those excepted, are properly excluded under our usual- rul 3.29 The supervisory employees whom the Union would include, as men- tioned above, are mine foremen, mine and washer foremen, oiler and washer foremen, washer foremen, and dry plant shift foreman. These men, while exercising some supervisory powers, do not perform major supervisory functions at the plant and mines. In most instances they do some work similar to that of ordinary workers, and like them are paid on an hourly basis. The Union is the only labor organization here concerned and it desires their inclusion in the unit. Under these circumstances we hold that the desires of the labor organization are determinative and we shall therefore include these men in the unit.-10 The office, commissary, doctor's office, and storeroom employees are either clerical or professional workers and thus to be differentiated from the other employees.21 They may be excluded at the request of the only union involved. We find that all employees of the Company .at Brewster, Florida, including employees at work on the draglines; employees who work in or at the mines, Oak Ridge pumps, stage pumps-Old Colony, dam and spillway; repairmen-Old Colony and Oak Ridge; spare men for mines, section crew, etc.; flotation-plant employees; employees in or at the yard, dry plant, dry-plant boiler; rock loaders; employees in or at the dust mill, brown hoist; dust-car loaders; employees in or at the laboratory, electric shop, machine shop, garage; filling-station employees; sanitary workers; construction workers; town watchmen; janitors; and telephone operators, but excluding managerial and super- visory employees,32 and all employees who work in or at the office, commissary, doctor's office, and storeroom, constitute a unit appro- priate for the purposes of collective bargaining, and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effec- tuate the policies of the Act. 29 Managerial and supervisory employees excluded are : mine superintendents , super- intendent and assistant superintendent of the flotation plant, supervisor of the dry plant, chief electrician, master mechanic , chemist, and flotation chemist. 80 See Matter of Shell Petroleum Corporation and Oil Workers International Union, Local No. 367, 9 N . L. R. B. 831 ; Matter of Southern Chemical Cotton Company and Textile Workers Organizing Committee, 3 N. L. R. B . 869; Matter of Lid,- Brothers, Incorporated and United Wholesale Employees , (Local No. 65), 5 N. L. R . B. 757. 21 See Matter of Pacific Gas and Electric Company and United Electrical and Radio Workers of America, 3 N. L. R . B. 835; Matter of Atlantic Basin Iron Works and In- dustrial Union of Marine and Shipbuilding Workers of America, Local No. 18, 5 N. L. R. B. 402. 82 See footnote 29 for managerial and supervisory employees excluded. AMERICAN CYAN AMID COM'PANY VI. THE DETERMINATION OF REPRESENTATIVES 1033 The union claims to represent a majority of the Company's em- ployees:. The Company expressed the view that an election among the employees in the appropriate bargaining unit should be held to ascertain their choice of a bargaining representative. We believe that the question which has arisen concerning the representation of employees of the Company can best be resolved by holding an election by secret ballot among employees in the unit to determine their de- sires with regard to representation. We, accordingly, shall direct that such an election be held subject to such limitations as may be stated in the Direction of Election. The Union urges that December 9, 1939, should be taken as the date for determining employees eligible to vote in the election. The Company expressed indifference to this matter. Between December 9 and 15, 1939, 32 employees at Brewster were dismissed because of re- duced operations occasioned by business conditions. A majority of these persons had been in the Company's employ for more than 1 year, and a few had been employed for 10 or more years. The dismissal was described by the Company at the hearing as a "long time lay-off" and it appears that there is little expectancy of the employees affected being recalled to work within a year or 18 months. However, while the Company maintains no seniority list as such, it does keep a list of employees laid off, and when positions become available it prefers these employees to applicants who are not on the list.33 Furthermore, there is no showing that laid-off employees, such as these, are removed from the list upon the expiration of any fixed period. We are of the opinion that under all these circumstances the employees dismissed between December 9 and 15, 1939, because of business conditions, and who have not obtained regular and substantially equivalent employ- ment elsewhere, have still retained their status as employees, within the meaning of Section 2 (3) of the Act.34 We, accordingly, shall fix December 9, 1939, as the eligibility date for voting in the election, and for such purpose the company pay roll for the period December 1 to 15, 1939, shall be used. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: ss At the oral argument counsel for the Company said : ". . . if they are still available for jobs that these men are fitted for, they will be given the first opportunity to come back .. ." s; Matter of Robbins & Myers, Incorporated and Joint American Federation Committee for the Robbins & Myers Co. Plant, 7 N. L. R. B. 1119; Matter of La Plant-Choate Manufacturing Co., Inc. and United Farm Equipment Workers Organizing Committee, Local 416, affiliated with the C. 1. 0., 13 N. L. R. B. 1228. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of American Cyanamid Company, Brewster, Florida, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company at Brewster, Florida, including employees at work on the draglines; employees who work in or at the mines, Oak Ridge pumps, stage pumps-Old Colony, dam and spill- way ; repairmen-Old Colony and Oak Ridge ; spare men for mines, section crew, etc. ; flotation-plant employees ; employees in or at the yard, dry plant, dry-plant boiler; rock loaders; emlpoyees in or at the dust mill, brown hoist; dust-car loaders; employees in or at the labora- tory, electric shop, machine shop, garage; filling-station employees; sanitary workers; construction workers; town watchmen; janitors; and telephone operators, but excluding managerial and supervisory employees,3' and all employees who work in or at the office, commissary, doctor's office, and storeroom, constitute a unit appropriate for pur- poses of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with American Cyanamid Company, Brewster, Florida, an election by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Fifteenth Region, acting in this matter as agent for the. National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all employees of the Company at Brewster, Florida, including employees at work on the draglines'; employees who work in or at the mines, Oak Ridge pumps, stage pumps-Old Colony, dam and spillway; repairmen-Old Colony and Oak Ridge; spare men for mines, section crew, etc.; flotation-plant employees; employees in or at the yard, dry plant, dry-plant boiler; ,rock loaders ; employees in or at the dust mill, brown hoist ; dust car loaders; employees in or at the laboratory, electric shop, machine shop, 81 See footnote 29 for managerial and supervisory employees excluded. AMERICAN CYANAMID COM'PANY 1035 garage; filling-station employees; sanitary workers; construction workers; town watchmen; janitors; and telephone operators, whose names appear on the company pay roll of December 1 to 15, 1939, including employees who were dismissed or laid off between December 9 and 15, 1939, both inclusive, who have not since obtained regular and substantially equivalent employment elsewhere, as set forth in Section VI, above, and including employees not on that pay roll be- cause they were ill or on vacation, but excluding those who have, since December 1, 1939, quit or been discharged for cause other than being dismissed or laid off, as aforesaid, and further excluding managerial and supervisory employees'36 and all employees who work in or at the office, commissary, doctor's office, and storeroom, to deter- mine whether or not they desire to be represented by United Phosphate Mine Workers' Union No. 22036 for the purposes of collective bargaining. " See footnote 29 for managerial and supervisory employees excluded.