Solvay Process Co.

In the Matter Of SOLVAY PROCESS COMPANY and LOCAL 12103, CHEMI- CAL DIVISION OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA, C. I. O. ,Case No. R-0159-Decided January 16, 1941 Jurisdiction : chemical products manufacturing industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition ; contract no bar to, where executed after institution of proceedings with notice of petitioning union's claims ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees and watchmen, including chemists employed in the control labora- tories, employees in the plant engineer's office, hourly clerks, employees in the stores room, the timekeeper, and the combination mail clerk and chauffeur, but excluding executive-and supervisory officers or employees of the Company, office employees in the research and engineering division of its development department, and clerks on the salaried roll in the main office, and excluding also the so-called Thompson employees who have been found by the Board to constitute a separate unit. Mr. Herbert O. Eby, for the Board. Hunton, Williams, Gay c& Moore, by Mr. P. Justin Moore and Mr. Edmund M. Preston, of Richmond, Va. ; Mr. David A. Harrison, Jr., of Hopewell, Va.; and Mr. Harry S. Ferguson, of New York City, for the Company. Mr. Herman Edelsberg, of Washington, D. C., for the U. M. W. Mr. R. J. Francis, of Petersburg, Va., for the Council. 'Miss Grace McEldowney, of counsel to the Board. DECISION AND DIRECTION OF ELECTION - STATEMENT OF THE CASE On February 8, 1940, Local 12103, Chemical Division of District `50 United Mine Workers of, America, C. I. 0., herein called the U. M. W., filed with the Regional Director of the Fifth Region (Bal- timore, Maryland) a petition, and on March 28, 1940, an amended petition, alleging that a question affecting commerce had arisen con- cerning the representation of employees of Solvay Process Company, Hopewell, Virginia, herein called the Company, and requesting an 29 N. L. R. B., No. 5. 24 - ' SOLVAY PROCESS COMPANY ' 25 investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. At the request of the Ti. M. W., the National Labor Relations Board, herein called the Board, on April 16, 1940, issued an order permitting the withdrawal of the petition, and on May 8, 1940, an order permitting the withdrawal of the amended petition and revok- ing its order of April 16, 1940, permitting the withdrawal of the original petition.' On October 23, 1940, acting pursuant to Section 9 (a) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, the Board ordered 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 U. M. W., and Solvay Workers Council, herein called the Council, a labor organ- ization claiming to represent employees directly affected by the inves- tigation, a hearing was held at Hopewell, Virginia, on November 14 and 15, 1940, before William B. Barton, the Trial Examiner duly designated by the Board. The Board, the Company, the U. M. W., and the Council were represented 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.2 At the opening of the hearing counsel for the Council moved to dismiss the petition on the grounds, in effect, (1) that a valid and binding agreement was in full force and effect between the Company and the Council, the duly designated representative of employees of the Company in the appropriate bargaining unit; (2) that the unit described in the petition was contrary to an agreement made by the U. M. W., the Council, and the Company, approved by the Board; and (3) that there had been no change in operations or in the duties of the employees justifying any change in the appropriate unit. The Trial Examiner reserved the matter for the determination of the Board. The motion is hereby denied for, the reasons given below. During the course of the hearing the Trial Examiner made several rulings on other 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. 1 This action reinstated the original petition. a Pursuant to a stipulation of the parties , certain portions of the testimony in Matter of Solvay Process Co. and Wm. G. B. Thompson and District 50, United Mine Workers of America, Case No R-1864 , 26 N L. R. B. 650, were incorporated in the record in the present proceeding, with the understanding that such evidence should be treated "as if those persons had been called in this hearing as witnesses . . . and that the same questions were propounded to the witnesses as were there propounded and they gave the same answeis as v.ere given in that record." 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to requests therefor, and upon notice to all parties, a hearing was held before the Board in Washington, D. C., on December 5, 1940, for the purpose of oral argument. The Company and the Union appeared and participated. The Company and the Council also filed .briefs, which have been considered by the Board. Upon the entire record in the proceeding, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Solvay Process Company, an affiliate of Allied Chemical & Dye Corporation, is a New York corporation engaged in the manufacture and sale of chemical products. At its plant at Hopewell, Virginia, it manufactures nitrogenous and other products, including nitrate of soda, nitrogen solutions, and chlorine. The raw materials used in its, manufacturing operations are soda ash, coke, and air. During the 12 months ending May 1, 1940, over 75 per cent of the tonnage pro- duced at the plant was shipped out of the State, and all of the soda ash and 75 per cent of the coke used as raw materials were shipped to the plant from points outside Virginia. The Company admits that it is engaged in commerce within the meaning of the Act.3 II. THE ORGANIZATIONS INVOLVED Local 12103, Chemical Division of District 50 United Mine Workers of America, is a labor organization affiliated with the Congress of In- dustrial Organizations, which admits to membership employees of the Hopewell plant of the Company. Solvay Workers' Council is an unaffiliated labor organization ad- mitting to membership all employees of the Company except execu- tives, supervisors, and foremen. III. THE QUESTION CONCERNING REPRESENTATION In 1937 both the Congress of Industrial Organizations herein called the C. I. 0., and the Council began organizational activities at the Company's plant, during the course of which a charge was filed with the Board by the Federation of Architects, Engineers, Chemists and Technicians, a C. I: O. affiliate, and a complaint was duly issued, alleging that the Company had dominated and interfered with the formation and administration of the Council. In February 1938, before the Board had issued a decision in the aforesaid case, the B The facts found by the Board as to the business of the Company in Matter of Solvay Process Co . and Win. G. B. Thompson and District 50 United Mine Workers of America, 26 N. L. R. B 650, were stipulated by the parties for the purpose of this proceeding. SOLVAY PROCESS COMPANY k 27 Regional Director notified the Company that the U. M. W. had filed a petition for investigation and certification of representatives of the Company's production and maintenance employees. On February 16, 1938, the complaint was dismissed.4 Shortly thereafter the U. M. W. asked the Company for recognition as the bargaining repre- sentative of its employees, and at the instance of the Regional Director it was decided to settle the question by a consent election. Confer- ences were held, presided over by a representative of the Board and attended by representatives of the Company, the U. M. W., and the Council, to draw up an election agreement. As a result an election was duly held on March 24, 1938, under the supervision of the Regional Director. In the election the Council received a majority of the votes cast. The Company thereupon recognized the Council as the exclusive representative of the employees involved, and after negotiations executed a bargaining agreement on April 12, 1938, to become effective May 1, 1938, and to continue in force for 1 year. On March 24, 1939, the agreement was superseded by a new contract, also for-1 year, effective April 1, 1939. Before the 'second contract had expired or a new one had been executed, the U. M. W. once more notified the Company that it claimed to represent a majority of the employees, and on February 8, 1940, filed the petition in the present case. The Company took the position that it would continue to recognize the Council "unless and until it should be properly determined in accordance with the National Labor Relations Act that Solvay Workers Council no longer is the duly designated representative of our employees for such purpose." It accordingly entered into a new contract with the Council on March 11, 1940, effective April 1, after receiving a sworn statement that the Council had 460 members. This contract will not expire until April 1, 1941, and.under it the parties have continued the bargaining relations established in 1938. It is contended by the Company and the Council that the existing contract is a bar to any investigation of representa- tives at the present time. We do not so consider it, in view of the fact that at the time of the execution of the contract the U. M. W. had filed its petition and the Company had notice of the conflicting claims of the unions.5 At the hearing, held November 14 and 15, 1940, there were intro- duced in evidence reports prepared by a representative of the Regional 4 Matter of The Solvay Process Company and United Chemical Workers Local Industrial Union No. 164, 5 N L R. B. 330 5 See Matter of Wilmington Transportation Company and Inland Boatmen 's Union of the Pacific, San Pedro Division, 4 N. L. R B 750; American-West African Line, Inc, and National Marine Engineers' Beneficial Association , 4 N. L R. B. 1086 ; California Wool Scouring Company and Textile Workers Organizing Committee , 5 N. L. R. B. 782 ; Joseph S Finch & Co ., Inc. and United Distillery Workers Union, Local No 3, 7 N. L R. B. 1 ; and Standard Cap & Seal -Company and Lodge 304, International Association of Machinists, 10 N. L. R B. 466. - 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director showing that both the U. M. W. and the Council represented' a substantial number of employees in the unit hereinafter found to be appropriate s We find that a question has arisen concerning the 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 tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT As stated above, in 1938 the Company, the U. -M. W., and the Council entered into a consent election agreement. The appropriate unit thereby established included "all production employees and all maintenance employees at the Company's plant . . . and watchmen," and specifically excluded "(a) executive and supervisory officers or employees; (b) office employees in the research and engineering divi- sion of its development department; (c) clerks on the salaried roll in the main office; and (d) employees of W. G. B. Thompson, an independent contractor doing work within said plant." The unit so established has been the basis of bargaining relations between the Company and the Council, which is the only labor organization in the plant with which the Company has carried on collective bargaining since 1938. In its petition in the present proceeding the U. M. W. described the appropriate unit as "all hourly `production and maintenance employees, excepting those engaged in a supervisory capacity, and excepting clerical and technical employees, and excepting watchmen and company police." 7 At the hearing it requested, in addition to the exclusions listed in the 1938 agreement, the further exclusion of some 88 employees, including all chemists employed in the control laboratories, all employees in the plant engineer's office, all watchmen or company police, all hourly clerks in addition to the salaried clerks The U. M. W. submitted to the Board 457 authorization cards, of which 3351 bore the signatures of persons on the pay roll of the Company as of March 5, 1940 . The Council submitted 672 cards , of which all -but 53 bore the signatures of persons whose names appear on the Company 's social security cards at the time of the hearing. On November 5, 1940, there mere 835 employees in the appropriate unit ' The petition was later amended to add to the unit "all common labor and longshore- men," the so-called Thompson employees, but the amendment was subsequently withdrawn. SOLVAY PROCESS COMPANY .29 in the main office who had been excluded, the plant nurse, all the employees in the stores room, the timekeeper, the clerk to the master mechanic, and a combination mail clerk and chauffeur. The Com- . pany and the Council took the position that the appropriate unit should be the unit agreed on by the parties in 1938. The Company admitted that under the terms of the 1938 consent election agree nlent, the plant nurse and the clerk to the master mechanic are not properly included in the existing unit. The U. M. W. admitted that it was seeking to exclude groups that had been discussed and included in the unit with the consent of all parties in 1938, but claimed that it had not been adequately repre- sented at the conferences held at that time, and in particular had not then known that the watchmen were deputized police. In support of its position as to the unit it contended that employees in the desig- nated groups were not maintenance or production employees and were not eligible to membership in the U! M. W. It appears, how- ever, that they work in close contact with the production employees, and as we have seen, they are eligible to membership in the Council." At the hearing representatives of the groups involved testified that they wished to remain in the unit; none expressed dissatisfaction with their inclusion or with their representation by the Council. There was no evidence that the duties of these employees had changed since' 1938. Since the employees whose exclusion from the appropriate unit is sought in this proceeding have been included under valid exclu- sive bargaining contracts for a period of over 21/2 years, pursuant to a consent election agreement to which the present petitioner was a party, and since the interests of the employees involved have not been shown to be incompatible with the interests of the other em- ployees in the unit, we see no reason to change the established unit at this time. We find that all production and maintenance employees and watchmen of the Company at its plant at Hopewell, Virginia, including chemists employed in the control laboratories, employees in the plant engineer's office, hourly clerks, employees in the stores room, the timekeeper, and the combination mail clerk and,chauffeur, but excluding executive and supervisory officers or employees of the Company, office employees in the research and engineering division of its development department, and clerks on the salaried roll in the main office, and excluding also the so-called Thompson em- ployees who have been found by the Board to constitute a separate unit,9 constitute a unit appropriate for the purposes of collective e See Section II, supra. e Matter of Solvay Process Co. and Wm. G. B. Thompson and District .50 United Mine Workers of America, 26 N L. R. B. 650. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining and that said unit will insure to employees of the Com- pany the full benefit of their rights to self-organization and to col- lective bargaining and otherwise effectuate the policies of the Act. VT. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. The U. M. W. asks to have the pay roll of March 1, 1940, used to determine - eligibility, chiefly on the ground that some of the em- ployees hired by the Company since that date may be strikebreakers.10 On March 8, 1940, the U. M. W. called a strike of the so-called "Thompson employees," dock workers and laborers working at the plant pursuant to contracts between William G. B. Thompson and the Company. On June 4- the U. M. W. offered to terminate the strike and return the striker"s to their former jobs, but the offer was not accepted by the Company, and picketing continued tip to the time of the hearing in the present case. The Board subsequently found that the strikers were employees of the Company and constituted an appropriate bargaining unit." . The Company's manager and assistant manager of production testi- fied that with the possible exception of two janitors,12 none of the individuals added to the pay roll after March 8 are performing work formerly done by Thompson employees; that such work is now being done by other contractors or has been eliminated; and that the increase in the number of employees on the pay roll is due solely to increased production. The Company feels that all employees in- cluded in the unit should be allowed to participate. in the choice of representatives, and that the pay roll of November 5, 1940, the pay- roll date next preceding the hearing, should determine eligibility. The Council believes that the pay-roll date immediately preceding the election should be used for such purpose. The U. M. W. conceded that it had solicited members among the new employees, not all of whom it considered strikebreakers, but said that it was impossible to identify and eliminate those who were. One of its members who worked in the chlorine department testified that two new employees there were doing work formerly done by Thompson men, but admitted on cross-examination that two or three men who had done the same kind of work on the Solvay pay roll had 10 Between March 8, 1940, and November 5, 1940, there was a net increase of 103 em- ployees within the appropriate unit, 170 having been 'added and 67 having left or been transferred to other positions. u See footnote 9, supra '- Before the strike the Company had planned to put the two janitors ' jobs on its regular pay roll, but had not yet done so SOLVAY PROCESS COMPANY 31 left the department.13 The assistant to the Company's production manager testified that the new men were merely replacements. Since there was no clear evidence of the identity or number of employees on the Company pay roll who are now performing work formerly done by the strikers, if indeed any are so employed, and since Thomp- son men would not be in the unit herein found appropriate even if they should be reinstated to their former jobs, we do not consider it necessary in order to effectuate the purposes of the Act to exclude employees hired since March 8, 1940, from participation in the choice of representatives.14 In accordance with our usual practice we shall direct that the employees eligible to vote shall be those within the appropriate unit during the pay-roll period immediately preceding the Direction of Election, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the foregoing findings of fact and upon the entire record in the proceedings, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has'arisen concerning the repre- sentation of employees of Solvay Process, Company, Hopewell, Vir- ginia, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees and watchmen of the Company at its plant at Hopewell, Virginia, including chemists employed in the control laboratories, employees in the plant engi- neer's office, hourly clerks, employees in the stores room, the time- keeper, and the combination mail clerk and chauffeur, but excluding executive and supervisory officers or employees of the Company, office employees in the research and engineering division of its develop- ment department, and clerks on the salaried roll in the main office, and excluding also the so-called Thompson employees who have been found -by the Board to constitute a separate unit, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 19 In some departments prior to the strike men on the Company's pay roll and men on Thompson's pay roll peiformed similar operations, the former having comparatively steady employment while Thompson men took care of peak loads 14 In Dfatter of A. Sartorius & Co, Inc and United Mine Workers of America, Distinct 50, Local 12090, 9 N. L. R. B. 19 and 10 N L R B. 493, the striking employees and em- ployees hired to take their places were in the same unit We held that the individuals who had taken jobs vacated by the strikers were ineligible to vote, because otherwise a situation would result "where two individuals, with interests diametrically opposed, were, by virtue of one and the same job, entitled to participate in the selection of the bargaining repre- sentative " In the present case , because of the two units involved , we are not faced with the same problem. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Solvay Process Company , Hopewell, Virginia , 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 of the ,Fifth 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 production and maintenance employees and watchmen of the Company at its plant at Hopewell , Virginia, including chemists employed in the control laboratories , employees in the plant engineer's office, hourly clerks, employees in the stores room, the timekeeper, and the combination mail clerk and chauffeur, who were employed during the pay-roll period immediately preceding the date of this Direction of Election and including employees who did not work during such pay-roll period because they were tempo- rarily laid off,. but excluding executive and supervisory officers or employees of the Company , office employees in the research and engi- neering division of its development department, clerks on the salaried roll in the main office and the so-called Thompson employees who have been found by the Board to constitute a separate unit, and ex- cluding also,employees who shall have since quit or been discharged for cause, to determine whether they desire to be represented by Local 12103, Chemical Division of District 50 United Mine `Yorkers of America, C. I. 0., or by Solvay Workers' Council for the purposes of collective bargaining, or by neither. -[SAME TITLE ] CERTIFICATION OF REPRESENTATIVES February 24, 1941 On January 16, 1941, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in the above-entitled proceedings. Pursuant to the Direction of Election, an election by secret ballot was conducted on February 6, 1941, under the direction and supervision of the Regiona l Director for the SOLVAY PROCESS COMPANY 33 Fifth Region (Baltimore, Maryland). On February 7, 1941, the Regional Director, acting pursuant to Article IId, Section 9, of Na- tional Labor Relations Board Rules and Regulations-Series 2, as amended, issued and duly served upon the parties an Election Re- port. No objections to the conduct of the ballot or the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total on eligibility list------------------------------------ 870 Total ballots cast---------------------------------------- 809 Total ballots challenged ----------------------------------- 2 Total blank ballots--------------------------------------- 0 Total void ballots---------------------------------------- 3 Total valid votes cast-----------------------,-------------- , 806 Votes cast for Local 12103, Chemical Division of District 50, United Mine Workers of America'(CIO) ----------------- 372 Votes cast for Solvay Workers' Council-------------------- 409 Votes cast for neither------------------------------------- 23 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended. IT IS HEREBY CERTIFIED that Solvay Workers' Council has been designated and selected by a majority of the production and lnain- tenance employees and watchmen of Solvay Process Company at its plant at Hopewell, Virginia, including chemists employed in the control laboratories, employees in the plant engineer's office, hourly clerks, employees in the stores room, the timekeeper, and the com- bination mail clerk and chauffeur, but excluding executive and su- pervisory officers or employees of the Company, office employees in the research and engineering division of its development depart- ment, clerks on the salaried roll in the main office, and the so-called Thompson employees who have been found by the Board to consti- tute a separate unit, as their representative for the purposes of col- lective bargaining, and that, pursuant to the provisions of Section 9 (a) of the National Labor Relations Act, Solvay Workers' Council is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 29 N. L. R. B., No. 5a.