Allied Chemical and Dye Corp.

National Labor Relations Board - Board Decisions

May 13, 1942

40 N.L.R.B. 1351 (N.L.R.B. 1942)

In the Matter of NATIONAL ANILINE DIVISION, ALLIED CHEMICAL AND
DYE CORPORATION and DISTRICT 50, UNITED MINE WORKERS OF
AMERICA, LOCAL 12330
In the Matter of NATIONAL ANILINE DIVISION, ALLIED CHEMICAL AND
DYE CORPORATION and ASSOCIATED WELDERS OF WESTERN NEW
YORK, INC.
Cases Nos. R-3606 and R-3607, respectively.Decided May 13, 1942
Jurisdiction : chemical and dye manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal to accord petitioners recognition until certified by the Board ; elections
necessary.
Units Appropriate for Collective Bargaining : production and maintenance em-
ployees with stipulated exclusions; in view of the highly skilled nature of
"welders" work and their separate supervision and classification, and because
they perform all welding operations at the plant and do nothing but welding,
the Board found that they could properly function as a separate bargaining
unit or as part of a unit comprising the production and maintenance employees
of the Company, determination of which held dependent upon election.
Kene fick, Cooke, Mitchell, Bass and Letchworth, by Mr. Lyman M.
Bass, of Buffalo, N. Y., for the Company.
Mr. Edward D. Flaherty, of Buffalo, N. Y., for the U. M. W.
Mr. Solomon Tully, of Buffalo, N. Y., for the Welders.
Mr. James 0. Moore, of Buffalo, N. Y., for the N. A. E. U.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon petitions duly filed by District 50, United Mine Workers of
America, Local 12330, herein called the U. M. W., and by Associated
Welders of Western New York, Inc., herein called the Welders,
alleging that a, question affecting commerce had arisen concerning
the representation of employees of National Aniline Division, Allied
Chemical and Dye Corporation, Buffalo, New York, herein called the
Company, the National Labor Relations Board consolidated the two
cases and provided for an appropriate hearing upon due notice be-
40 N. L. R. B, No. 241.
1351
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore Peter J. Crotty, Trial Examiner. Said hearing was held at
Buffalo, New York, on March 4, 1942. The Company, the U. M. W.,
the Welders, and National Aniline Employees Union, herein called
called the N. A. E. U., appeared and participated. All parties, were
the N. A. E. U., appeared and participated. All parties were afforded
full opportunity to be heard; to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues. The Trial
errors and are hereby affirmed. On March 19 and 20, 1942, re-
spectively, the Welders and the Company filed briefs which the
Board has considered.
On March 24, 1942, the Board provided for a further hearing.
Said further hearing was held at Buffalo, New York, on April 4
and 6, 1942, before Trial Examiner Crotty. The Company, the
U. M. W., the Welders, and the N. A. E. U. again appeared, par-
ticipated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. The Trial Examiner's rulings,' made at the further hear-
ing, are free from prejudicial errors and are hereby affirmed. On
April 20, 1942, the Welders filed a second brief which the Board
has considered.
Upon the entire record in the case,' the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Allied Chemical and Dye Corporation, a New York corporation,
operates its National Aniline Division plant in Buffalo, New York,
where it is engaged in the manufacture of chemicals and dyes.
During 1941, raw materials valued at more than $4,000,000 were
shipped to this plant. More than 60 percent of such materials was
shipped from points outside the State.of New York. During the
same year, finished products exceeding $5,000,000 in value were
shipped from this plant. More than 60 percent of such products was
shipped to points outside the State of New York.
The Company admits that in its operations at the National Aniline
Division plant it is engaged in commerce within the meaning of
the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, Local 12330, is a
labor organization affiliated with the Congress of Industrial Organ-
izations . It admits to membership employees of the Company.
'On March 18 , 1942 , the parties filed a stipulation correcting the record of the
first hearing Said stipulation has been incorporated in the record
ALLIED CHEMICAL AND DYE CORPORATION 1353
Associated Welders of Western New York, Inc., is an unaffiliated
labor organization, admitting to membership welders ' employed by
the Company, and their apprentices.
National Aniline Employees Union is an unaffiliated labor organi-
zation, admitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Welders and the U. M. W. each notified the Company that it
represented a majority of the Company's employees in the respective
bargaining units desired by each, and requested the Company to
negotiate. The Company declined to negotiate until such time as
the Board should determine the proper representative or representa-
tives of its- employees. A statement of the Regional Director, and
other evidence developed at the hearings indicate that the U. M. W.
and the N. A. E. U. represent a substantial number of employees in
the unit they contend is appropriate,' and that the Welders, the
U. M. W. and the N. A. E. U. all represent a substantial number of
the employees in the unit requested by the Welders.3
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and .(7) of the Act.
IV. THE APPROPRIATE UNIT
The U. M. W. and the N. A. E. U. stipulated that all production
and maintenance employees, excluding executives, office employees,
restaurant employees, confidential clerks, chemists and their assist-
ants, research employees, salaried employees, foremen and super-
visors, technical engineers, uniformed policemen, watchmen, first-aid
2Theie are approximately 1,600 employees in the unit desired by the U M W. and
the N A. E. U The Regional Director 's statement shows that the U M W. submitted
993 authorization cards ; that 40 of these bore only printed signatures ; and that the
names on 80 did not appear on the pay -roll list. The remaining 873 cards bore
apparently genuine original signatures , all of which were names of persons listed on
an unspecified pay roll of the Company Of these 873 cards , 59 were undated , 449 were
dated 1941 , and 306 were dated 1942.
The N . A E U relies upon cards submitted by it in September 1941 , at which time
a pay-i oll check was conducted by the Regional Director The N. A. E. U. then sub-
mitted 999 cards; the signatures on 569 cards agreed with signatures of employees
submitted by the Company Many of the other cards were apparently signed by 1 indi-
vidual for the employees concerned
.3 The Welders submitted a petition signed by 16 persons , 15 of 'whom appear as
welders, combination welders and lead burners , or welders ' apprentices on the Company's
unspecified pay roll, which listed 19 ' such employees . At the further hearing, the U. M W.
submitted 6 cards ; 5 of these bore the names of persons listed among the 19 employees
referred to above. The N A E U submitted 5 cards, all of which bore names of persons'
listed among these same 19 employees . A cross-check of the names appearing on the 10
-cards and on the Welders ' petition disclosed 2 duplications between the U. M W. and the
Welders , 3 duplications between the N A IS. U and the Welders , and 1 duplication between
the U. M. W. and the N A E U.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, and all other employees whose work is of a confidential
nature, constitute an appropriate unit. The Welders requests a
separate unit of welders, combination welders and lead burners, and
welders' apprentices. The Company takes no position.
The hierarchy of supervisors in the Company is as follows : plant
manager, superintendents, supervisors or group leaders, general fore-
men, and subforemen. Directly below the subforemen in the pro-
duction, mechanical, and service divisions are classes of special
employees. In the production department are operators A. There
are three classes of operators A. Employees in the first class super-
vise small shifts of two or three men at night; they work with the
men, and-recommend hiring, and discharging. Employees in the
second group act as relief foremen in the absence of the regular f ore-
men during 2 days each week. The third group consists of specialists
who may have an assistant or helper. The plant manager expressed
doubt as to whether the first two classes are supervisory, but stated
that the third class is not. Unlike subforemen and their superiors,
none of the operators A is on a salary basis. The U. M. W. and the
N. A. E. U. request the inclusion of all operators A in the unit. The
Company takes no position as to their inclusion or exclusion. In
view of the foregoing facts,.we shall include the operators A in the
unit with production employees.
The mechanical division has certain employees classified as me-
chanical pushers, who lead small gangs of men numbering from two
to eight, or who, like some operators A, act as relief foremen. To a
greater or less degree they work with the men under their charge.
Some of these employees have been put on a salary basis and given
a rank equivalent to subforemen. The U. M. W. and the N. A. E. U.
would include all mechanical pushers who are hourly paid, and ex-
clude those paid on a salary basis. The Company takes no position.
We shall include mechanical pushers who are hourly paid, and shall
exclude those who are paid on a salary basis.
In the service departments, consisting among others of the ware-
house, mechanical stores, and packing sections, and the restaurant,
there are about 20 employees who act as leaders of groups and are
classified as labor pushers. - They, too, work with the regular em-
ployees in varying degrees. Except in that they stipulated to exclude
all restaurant employees, the U. M. W. and the N. A. E. U. failed to
take any position on labor pushers. In accordance with our con-
clusions in the case of mechanical pushers and operators A, we shall
include in the unit labor pushers who are hourly paid. '
Of the plant's approximately 1,600 employees, there are 19 who
fall within the unit requested by the Welders. The welders, 'to-
gether with 5 lead burners, are classified by the Company as a sub-
ALLIED CHEMICAL AND DYE CORPORATION 1355
division of the maintenance department, which includes, among
others, pipe fitters, riggers, painters, shop mechanics, and machinists.
This department is headed by 1 supervisor, and each subdivision
therein has a foreman. It appears that welders have a separate wage
scale and are-more highly paid than any other production employees
with the exception of lead burners and bricklayers.
The welders have a separate room which they share with the lead
burners, in which they keep tools and equipment, and where they
receive their work assignments. It appears that 40 percent of the
welding in the plant takes place here, the remaining 60 percent being
performed throughout the plant. No employees other than those in
the unit desired by the Welders do any of the welding work at the
plant. It is possible that some of the lead-burners might do'so in an
emergency, but it was stated by the Welders that a lead burner would
have to undergo a second apprenticeship before he could regularly
engage in welding. Machinists, although they use welding tools to
cut metal, do not weld metal together. ' Operating employees fre-
quently assist welders by acting as safety guards, occasionally hand-
ing them tools and materials. Pipe fitters and machinists at the
plant lay out their own work for welding by the welders.
The welders do no other work than welding, except that in emer-
gencies some of them may be used as lead burners. Their duties
include a great variety of welding, embracing construction and main-
tenance operations, employment of many kinds of metal, and the
use of most, if not all, welding methods. Welding is highly skilled
work, qualifications being determined by severe tests. Welders must
have some knowledge of metallurgy, tank pressures, electricity, and
gases as well as the ability to read blue prints and proficiency in the
operation of their tools. At this plant, a 3-year period of appren-
ticeship is a prerequisite to classification as a welder. And even a
journeyman welder must serve a 6-month probationary term at the
plant before full recognition as a welder is accorded by the Company.
There is little history of collective bargaining among employees
of the Company. An attempt at collective bargaining was made in
1933 by a federal union affiliated with the American Federation of
Labor. It appears that membership in that organization was ex-
tended to all employees in the production and maintenance group,
exclusive of supervisory and salaried employees. The record fails to
disclose the subsequent history of this federal union. However, the
Company has never had any collective bargaining contracts. It fur-
ther appears that the N. A. E. U. began organizing on an industrial
basis before the Welders began organizing on a craft basis, but that
the U. Al. W.- began organizing somewhat later than the Welders.
Under the circumstances herein presented, we find that the em-
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees listed as welders, combination welders and -lead burners, and,,
welders' apprentices could properly function as a separate bargain-
ing unit, or as a part of a unit comprising the production and main-
tenance employees generally. We hold, therefore, that the desires
of the employees shall govern, and we shall direct that separate
elections be held (1) among the welders, combination welders and-
lead burners,3 and welders' apprentices, to determine whether they
desire to be represented by the U. Al. W., the N. A. E. U., the Welders,
or none, and (2) among the remaining production and maintenance
employees of the Company, with the exclusions above noted, to deter-
mine whether they desire to be represented by the U. M. W., the
N. A. E. U., or neither. Upon the results of these elections will
depend in part our determination of the appropriate unit or units.
If a majority of the welders, combination welders and lead burners;
and welders' apprentices select the Welders as their representative,
they will constitute a separate unit; if a majority of them choose
the same representative as is chosen by a majority of the remaining
production and maintenance employees, then the welders, combination
welders and lead burners, and welders' apprentices, shall be included
in the larger industrial unit.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by means of elections by secret ballot, in
which those eligible to vote shall be the employees in the aforesaid
voting groups who were employed during the pay-roll period imme-
diately preceding the date of our Direction of Elections, subject to
the limitations and additions set-forth therein.
DIRECTION OF ELECTIONS
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, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby J
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargain-
ing with National Aniline Division, Allied Chemical and Dye Cor-
poration, Buffalo, New York, elections by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
3 "Combination welder and lead burner" is a single job classification , differing from
that of "lead -burner."
ALLIED CHEMICAL AND DYE CORPORATION 1357
the date of this Direction of Elections, under the direction and
supervision of the Regional Director for the Third 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:
1. Among all welders, combination welders and lead burners and
welders' apprentices employed by the Company during the pay-roll
period immediately preceding the date of this Direction of Elections,
including employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but exclud-
ing foremen and supervisors, -and those employees who have since
quit or been discharged for cause, to determine whether they desire
to be represented by District 50, United Mine Workers of America,
Local 12330, or by National Aniline Employees Union, or by Asso-
ciated Welders of Western New York, Inc., or by none. ,
2. Among all production and maintenance employees of the Com-
pany who were employed during the pay-roll period immediately
preceding the date of this Direction of Elections, including operators
A, mechanical pushers and labor pushers who are hourly paid, and
employees who did not work during such pay-roll period because they
were ill or on vacation or in the active military service or training of
the United States, or temporarily laid off, but excluding executives,
office employees, restaurant employees, confidential clerks, chemists
and their assistants, research employees, salaried employees, foremen
and supervisors, technical engineers, uniformed policemen, watchmen,
first-aid employees, welders, combination welders and lead burners,
welders' apprentices, and all other employees whose work is of a
confidential nature, and those employees who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented by District 50, United Mine Workers of American, Local
12330, or by National Aniline Employees Union, for the purposes
of collective bargaining, or by neither.
L