Allied Chemical and Dye Corp.

National Labor Relations Board - Board Decisions

Aug 2, 1946

69 N.L.R.B. 1146 (N.L.R.B. 1946)

In the Matter Of BARRErT DIVISION, ALLIED CHEMICAL AND DYE:
CORPORATION and UNITED STEELWORKERS OF AMERICA, CIO
Case No. 9-R-0090.-Decided August 2, 1946
Mr. Howard Van Antwerp, Jr., of Ashland, Ky., for the Company.
Messrs. Paul R. Normile, Babe Shelton, and M. V. Vanover, all of
Huntington, West Va., for the Union.
Margaret H. Patterson, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
Upon a petition duly filed by United Steelworkers of America, CIO,.
herein called the Union, alleging that a question affecting commerce
had arisen concerning the representation of employees of Barrett
Division, Allied Chemical and Dye Corporation, Ironton, Ohio, herein
called the Company, the National Labor Relations Board conducted
a prehearing election by mail pursuant to Article III, Section 3, of
the Board's Rules and Regulations, among employees of the Company
in the alleged appropriate unit to determine whether or not they de-
sire to be represented by the Union for the purpose of collective bar-
gaining . The ballots were counted on May 8, 1946.
A Tally of Ballots was furnished the parties. The Tally shows
that there were approximately 27 eligible voters, that 22 of these
voters cast ballots, of which 8 were for the Union, 4 were against, and
9 were challenged. One void ballot was cast.
Thereafter, pursuant to Article III, Section 10, of the Rules and
Regulations, the Board provided for an appropriate hearing upon due
notice before William O. Murdock, Trial Examiner. The hearing
was held at Ironton, Ohio, on May 28, 1946. The Company and the
Union appeared and participated. All parties were afforded oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues. The Trial Examiner re-
served ruling upon the Company's motion to set aside the election.
For reasons set forth hereinafter, the motion is denied. The Trial
69 N. L. R. B., No. 139.
1146
ALLIED CHEMICAL AND DYE CORPORATION 1147
Examiner 's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. 'All parties were afforded opportunity to file
briefs with the Board. Upon the entire record in the case, the Board
makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Barrett Division, Allied Chemical and Dye Corporation, is a New
York corporation with its principal office located in New York City.
It operates a plant at Ironton, Ohio, which is the only plant involved
in this proceeding.
At its Ironton, Ohio, plant the Company is engaged in the proc-
essing of coal tar. The principal raw material used in connection
therewith is coal tar which will exceed an annual value of $100,000,
of which approximately 5 percent comes to the plant from outside
the State of Ohio. The finished products will exceed an annual value
of $100,000, of which approximately 50 percent will be shipped to points
outside the State of Ohio.,
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
United Steelworkers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the Union as the collective
bargaining representative of its employees in the alleged appropriate
unit.
We find that a question affecting commerce has 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 parties stipulated to the following appropriate unit : "All
employees of the Company at its Ironton, Ohio, plant, excluding the
superintendent, foremen, assistant foremen, chemists, policemen,
watchmen, clerical and salaried employees, and all supervisory em-
ployees with the authority to hire, promote, discharge, discipline, or
' This is a new plant and operations were not commenced until November 1945.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise effect changes in the status of employees, or effectively
recommend such action."
A dispute exists as to whether or not certain construction-mainte-
nance employees whose votes were challenged 2 by the Company are
within the unit agreed upon.
Construction of the Company's Ironton, Ohio, plant began in
November 1944. Most of the work was done by independent con-
tractors. Because of material shortages, commencement of opera-
tions was delayed until November 1945, and thereafter, the Company
found it necessary to hire a small crew of men to complete the new
construction. In general, this work consisted of pipe fitting, pipe
installing, excavating, grading, and small foundation work. A small
amount of maintenance and repair work was also done by this crew
on existing facilities. At one time the crew consisted of 11 men but
at the time of the election there were only 9 and at the time of the
hearing, only 6, working. The Company expects to finish its new
construction work in August 1946, and plans to employ 2 all-round
mechanics on a permanent basis to perform maintenance-construction
functions. Although the ,Company has expressed its intention to re-
tain as many of the construction crew as possible on operations jobs,
there are no indications at the present time that it will be possible to
do so. The Company alleged that at the time of hearing most of the
11 construction crew members had been told their employment was
temporary. Six of these employees had been laid off temporarily
from another company in Ironton where they had been permanent
employees for several years. All of these men were subject to recall
and at the time of the election 2 had already returned to their old
jobs and did not vote in the election. Since the election, of the 9
whose ballots were challenged, 1 has returned to his old job, and 2
who are still working with the Company, admit that they may be
recalled at any time. It was undisputed that none of the 9 employees
was actually promised permanent employment. At most, the Com-
pany merely expressed the hope that permanent operating jobs might
be found for the men upon the completion of the construction
program.
We find that the function of new construction is not within the
unit agreed upon by the parties.3 Inasmuch as all the employees
whose ballots were challenged at the election were engaged principally
in new construction at the time of the election, and only a very minor
portion of their time was devoted to operational work, it does not
appear that any of these employees has a sufficient interest in the re-
The ballots of nine voters were so challenged.
See Matter of Aluminum Company of America, 52 N. L. R. B. 568; Matter of Ohio Pub-
lic Service Company, 36 N. L. R. B. 1269.
ALLIED CHEMICAL AND DYE CORPORATION 1149
stilts of collective bargaining in the operating unit to entitle him to
vote in an election of production and maintenance employees. We
shall accordingly exclude the construction- maintenance employees
engaged on new construction from the appropriate unit at the present
time. However, inasmuch as the Company has stated that it may
retain some of these employees in permanent operational jobs, this
exclusion will not preclude such employees from inclusion in the unit
for the purposes of representation upon their employment as regular
operational workers for the Company.
At the hearing, the Company objected to the inclusion in the unit
of three employees 4 whose ballots were not challenged at the election.
The Company contended that as part-time watchmen, these three men
did not properly come within the scope of the stipulated production
and maintenance unit which specifically excluded "watchmen." 5 The
record reveals that these men are neither armed nor uniformed, and
that they spend at least 60 percent of their time as laborers in the
operations department. Inasmuch as we have customarily included
such employees in production and maintenance units 6 and nothing in
the record warrants their exclusion in this case, we shall include them
in the unit as production workers.
Also at the hearing, the Company questioned the inclusion of Gabe
Hughes, a leadman, who was permitted to vote without challenge.
The Company contended that this employee is a supervisor. It was
undisputed that Hughes does not have the right to hire or fire, that
he performs the same manual work as the two to six men whose work
he allegedly directs, and that lie is not considered a foreman inasmuch
as the Company's foremen do not do manual work. Although there
was some testimony to the effect that Hughes' recommendations re-
garding hiring or discharging have been followed in some instances,
and that his pay is slightly more than that of the other laborers, we
find that his duties do not bring him within our usual definition of a
supervisory employee and we shall include him in the unit as a pro-
duction worker.
We find that all production and maintenance employees of the Com-
pany at its Ironton, Ohio, plant, excluding employees engaged on
new construction, chemists, policemen, watchmen,' clerical and sala-
ried employees, the superintendent, foremen, assistant foremen, and
all supervisory employees with authority to hire, promote, discharge,
' Elias Perry , John Johnson , and Raymond Hughes.
" The record does not indicate whether or not the Company employs any full-time
watchmen.
6 See Matter of Congoleum -Nairn , Inc., 64 N. L . R. B. 95 ; Matter of Procter & Gamble
Manufacturing Company, 64 N. L. R. B. 1555 1, Matter of Gulf Refining Company, 64 N. L.
R. B. 304.
7 This exclusion does not apply to the three part -time watchmen discussed supra.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
In view of our conclusion set forth in Section IV, above, we hereby
sustain the Company's challenges to the ballots of Lawrence C. Schill-
ing, Edward McClellan, Delbert Click, Everett Hixon, R. B. Carter,
Mr. Shockey, Mr. Sergeant, Mr. Brownstead, and Mr. Queen, con-
struction-maintenance employees.
At the hearing the Company objected to the use of the mail ballot.
Inasmuch as no evidence was introduced to indicate that the Regional
Director abused his discretion as to the method to be used in conduct-
ing the election, or that the Company was in any way prejudiced
thereby, we find the Company's objections without merit. We like-
wise find no merit in the Company's contention that the Regional
Director's action in conducting the prehearing election was " illegal
and unauthorized."
At the election the Company questioned the authenticity of the
signature appearing on an envelope purporting to contain the ballot
of one P. A. Hush, an employee. The Company produced samples of
this employee's signature for comparison but the Field Examiner re-
fused to permit the Company to challenge the ballot which was
opened, commingled with the others, and counted. We find that the
Field Examiner 's refusal to permit the Company to challenge the
ballot was in error. However, inasmuch as we have sustained all the
Company's nine challenges, the ballot of P. A. Hush cannot affect the
result of the election, and the error, therefore, affords no ground for
setting aside the election.
In view of our decision to sustain the Company's challenge to the
nine ballots, the results of the election held previous to the hearing
show that the Union has secured a majority of the valid votes cast
and we shall, therefore, certify the Union as the collective bargaining
representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
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, and pursuant to Article III, Sections 9 and 10, of National Labor
Relations Board Rules and Regulations, Series 3, as amended.
IT Is HEREBY CERTIFIED that United Steelworkers of America,
CIO, has been designated and selected by a majority of all produc-
ALLIED CHEMICAL AND DYE CORPORATION 1151
tion and maintenance employees of the Barrett Division, Allied Chem-
ical and Dye Corporation, at its Ironton, Ohio, plant, excluding
employees engaged on new construction, chemists, policemen, watch-
men, clerical and salaried employees, the superintendent, foremen,
assistant foremen, and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, as their
representative for the purposes of collective bargaining and that pur-
suant to Section 9 (a) of the Act, the said organization is the exclusive
representative of all such employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
MR. JOHN M. HOUSTON took no part in the consideration of the
above Decision and Certification of Representatives.