Allied Chemical & Dye Corp.

National Labor Relations Board - Board Decisions

May 16, 1958

120 N.L.R.B. 1026 (N.L.R.B. 1958)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, the Union contends that the eligibility list was improper
because the company attorney challenged its accuracy just before the
.voting began, and that the tally of ballots as originally made out was
fatally defective because it showed only 10 ballots issued when in fact
11 were used, and it stated that a majority of ballots had been cast
for the "Employer and Petitioner," instead of against any labor
.organization. The Regional Director found that the company man-
ager noticed the 11 employees in line to vote when only 10 names
were on the eligibility list and upon checking notified the Board agent
of the name of the employee whose name had been omitted from the
list. There is no allegation that this employee did not properly belong
in the unit. The tally of ballots was corrected on January 17, 1958,
by the issuance of an amended tally of ballots. Like the Regional
Director we find no merit in any of these objections; in any event we
also agree with the Regional Director's conclusion that any possible
temporary inaccuracy of this type on the tally sheet could not have
interfered with the election because the sheet was not made out until
after the ballots were counted.
Accordingly, we adopt the Regional Director's recommendation that
none of the objections or exceptions raise material or substantial issues
respecting the results of the election. In view of the foregoing, we
also deny the Union's request for a hearing. As the Union has failed
to secure a majority of the ballots cast we shall certify the results of
the election.
[The Board certified that a majority of the valid ballots was not
cast for Tulsa General Drivers, Warehousemen and Helpers, Local
No. 523, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, and that this Union is not the ex-
clusive representative of the employees at the Employer's Tulsa, Okla-
homa, plant in the unit found to be appropriate.]
CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the con-
sideration of the above Supplemental Decision and Certification of
Results of Election.
Barrett Division , Allied Chemical & Dye Corporation and United
Cement, Lime and Gypsum Workers International Union, AFL-
CIO, Petitioner. Case No. P2-RC-1g20. May 16,1958
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
'Labor Relations Act, a hearing was held before Leonard Bass, hearing
120 NLRB No. 138.
BARRETT DIVISION, ALLIED CHEMICAL & DYE CORPORATION ' 1027
officer. The hearing -officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
.has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act. - -
2: The labor organizations involved claim to represent certain
-employees of the Employer. `
3. The Petitioner seeks a representation election in a unit consisting
of production and warehouse employees who have recently been
transferred from the Employer's gypsum board plant at South
Kearny, New Jersey, where the Petitioner was the recognized bar-
gaining representative, to its plant at Edgewater, New Jersey, where
the Intervenor is the recognized bargaining representative., The
'Intervenor contends that the petition is barred by its agreement with
.the Employer effective to July 28, 1958, as supplemented by an" addi-
tional provision added in July 1957, providing that new departments
might be added by mutual agreement of the parties. The Employer's
brief waives the contract-bar contention which it made at the hearing.
At -its -Edgewater plant the Employer produces a wide variety of
chemicals and building materials which are used in roofing and
-paving, as protective coatings, and as pigments in inks, plastics, and
finishes. The plant contains at least 10 buildings in which production
-operations are carried on, and is spread over 70 acres. The plant is
also used as a warehouse and distribution point for many other
products manufactured by the Employer at its other facilities
throughout the country. All operations are supervised by a plant
superintendent. All nonproductive functions, such as maintenance,
purchasing, 'accounting, payroll, and personnel are performed on
a plantwide basis and are administered by supervisors who are ulti-
mately responsible to the plant superintendent.
In February 1956 the Employer bought the business of a firm which
operated a gypsum calcining plant at Newark, New Jersey, and a
gypsum board mill at South Kearny, New Jersey. The Petitioner had
represented the production and maintenance employees at both loca-
tions for several years, and continued as such representative after the
'The hearing officer permitted Local 14, International Chemical Workers Union, AFL-
CIO, to intervene on the basis of its allegation that its current contract for the employees
at the Employer ' s Edgewater plant covers the employees who transferred from tbe'South
Kearny plant where they were represented by the Petitioner The Petitioner contends
that the intervention should have been denied because the Intervenor has no contractual
interest in these employees We find that the Intervenor does have an interest herein
which is sufficient to support its intervention . American Engineering Company, 112
NLRB 14 We affirm the hearing officer's ruling.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acquisition. The same year the Employer began, construction of
facilities for the manufacture of gypsum board at its Edgewater plant.
Although the Employer had contemplated continued production of
gypsum board at South Kearny even after completion of its new
facilities at Edgewater, the substantial decrease in demand for build-
ing materials toward the close of 1957, when'the additional facilities
became ready, caused it to discontinue all production at the old plant.
Production of gypsum board began at the new building of the Edge-
water plant in January 1958, and the more than 70 employees at the-
old plant were all offered jobs at.Edgewater at their existing rates of
pay. The maintenance employees from South Kearny were absorbed
into the maintenance department at Edgewater which services the
entire plant, while the production employees, 53 in number, are now-
-engaged in the same type of work at Edgewater. Although all pro-
duction work has ceased at South Kearny, eight employees remain
there for maintenance duties. If demand warrants, the Employer-
will resume operations at South Kearny. The present employment of
hourly rated personnel at Edgewater is about 220, which includes the
70 employees who formerly worked at South Kearny.
While the new gypsum board facilities were being built in 1957,
.both the Petitioner and the Intervenor asserted claims to represent
all employees hired for the new operation at Edgewater. More than 5
months before production began, the Employer and Intervenor added
a supplement to their agreement providing that "By mutual agree-
ment, new departments may be added or existing departments deleted
as operations may require." The Intervenor contends that this para-
graph has had the effect of including the new employees at the gypsum
board facilities within its contract unit, and that its agreement there-
fore constitutes a bar to this proceeding. We do not agree. What-
ever may have been the Intervenor's intent in suggesting the addition
of this paragraph, it is clear that the Employer had not agreed to their
automatic inclusion within the Intervenor's unit, since it told both
unions that the matter was one for Board resolution. Further, even
if the Employer and Intervenor had mutually agreed to the inclusion,
the fact that the supplementary paragraph was added before any em-
ployees were hired for the new operation would be sufficient to pre-
vent it from being a bar.2 In view of the long, separate bargaining
history for the South Kearny, gypsum board employees and the fact
that gypsum board, although a building material, is not functionally
related to the other types of building products already in production
at Edgewater, we consider that the employees who were transferred
from the old plant were not a normal accretion to the working force
2 Flemting t Sons , Inc, 118 NLRB 1451 ; Byron-Jackson Division, Borg -Warner Corpo-
ration, 117 NLRB 1613; Armstrong Cork Company (Lancaster Floo, Plant), 106 NLRB-
1147.
BARRETT DIVISION, ALLIED CHEMICAL & DYE CORPORATION 1029
.t Edgewater. It follows, therefore, that the agreement in effect can-
not serve as a bar.3
Accordingly, we find that a question affecting commerce exists con-
-cerning the representation of the gypsum board employees within the
.meaning of Section 9 (c) (1)-and Section 2 (6) and (7) of the Act.
4. The Petitioner contends that a unit limited to the gypsum board
production employees and the employees who work in the warehouse
.adjacent to the new facility is appropriate. The Employer and
Intervenor maintain that only a plantwide unit is appropriate.
As the gypsum board operation is now physically part of the Edge-
-water plant, shares all its facilities and services, and is subject to
the same general supervision, we find that absorption of the gypsum
-board employees into the Intervenor's existing unit may be appro-
priate. We do not believe, however, that they compel a finding that
.a separate unit of the same employees may not also be appropriate.
As these employees were separately represented before their physical
transfer to the Edgewater plant as a homogeneous group, and as the
production of gypsum board is a new operation for the Edgewater
plant, we shall follow our normal practice of permitting employees
in these circumstances to decide whether they wish to be separately
represented. We shall make no determination with respect to the
gypsum board production employees at this time but shall first ascer-
tain their desire as expressed in the election which we direct herein.
We shall direct an election among the following employees: All
production employees at the Employer's gypsum board facility at
its Edgewater, New Jersey, plant excluding maintenance and ware-
house employees,' office clerical and professional employees, guards,
and supervisors as defined by the Act.
If a majority vote for the Petitioner, they will be taken to have
indicated their desire to constitute a separate unit, and the Regional
Director is instructed to issue a certification of representatives to
the Petitioner for such unit, which the Board, under these circum-
stances, finds to be appropriate for purposes of collective bargaining.
If a majority of the employees in the above-voting group cast their
ballots for the Intervenor they will be taken to have indicated their
desire to be part of the existing production and maintenance unit
represented by the Intervenor, in which event the Regional Director
will certify the results of the election.
[Text of Direction of Election omitted from publication.]
3 Ibid.
' Some of the employees in the warehouse immediately adjacent to the gypsum board
building were warehouse employees at South Kearny , but most of the employees now as-
signed there have worked only at the Edgewater plant The warehouse is used to store
products other than gypsum board, and gypsum board is also stored at other warehouses
at the plant . Further , crews are trequently shitted between warehouses We find,
therefore , that there are no warehouse employees who are exclusively identified with the
gypsum board operation