American Potash & Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1957

117 N.L.R.B. 542 (N.L.R.B. 1957)

542 DECISIONS OF NATIONAL LABOR' Rklkffogs WARD
represented by the, Printing Pressmen a mtticraft unit of mainte-
nance employees in the board mill, and , the severance of such a unit
is contrary to Board policy ,6 we shall dismiss the petition .7
[The Board dismissed the petition.]
B See, e . g., Fort Die Casting Corporation , 115 NLRB 1749 ; American Bemberg, Division
,of Beaunit Mills, Inc., 111 NLRB 963.
7 Nor is our determination affected by the fact that the Printing Pressmen prior to the
hearing advised the Board that it desires to relinquish jurisdiction over the board mill
maintenance employees . It is clear that there has been no cessation of representation
of the board mill maintenance employees and that the Printing Pressmen will continue to
represent them under their existing certification.
American Potash & Chemical Corporation (formerly Western
Electrochemical Company) i and International Chemical Work-
ers Union, Local 218, AFL-CIO. Case No. 20-RC-2742 (Voting
Group 3). March 5, X957
ORDER DENYING PETITION FOR CLARIFICATION
OF CERTIFICATION
On October 17,1955, following elections held pursuant to a Decision
and Direction of Elections,2 the Board issued a certification of repre-
sentatives in which the International Chemical Workers Union, Local
218, AFL-CIO, was certified as the exclusive bargaining representa-
tive of a unit of production and maintenance employees. Thereafter,
about October 22, 1956, the Employer filed a "Petition for Clarification
of Certification" requesting the Board to "find that Research Tech-
nicians are not included within the unit as certified." On November
13, 1956, the Chemical Workers filed a "Statement in Opposition to
Petition to Clarify Unit." On November 23,1956, the Board remanded
the matter to the Regional Director for the Twentieth Region for the
purpose of holding a hearing on the issues raised by the Employer's
petition. Pursuant thereto, on December 10, 1956, a hearing was held
before David E. Davis, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.$ Upon the entire record in the case, the Board finds:
I Since the issuance of the certification of representatives herein, American Potash &
Chemical Corporation has become the successor to Western Electrochemical Company and
at the present hearing moved to amend the certification by changing the name of the Em-
ployer. The Chemical Workers changed its affiliation after the certification and at the hear-
ing also moved to amend the certification to reflect its current name. There was no oppo-
sition to either of these motions . Accordingly, the certification of representatives issued
on October IT, 1955, in Case No. 20-RC-2742 is hereby amended to show the name of
the Employer as American Potash & Chemical Corporation and that of the bargaining
representative as International Chemical Workers Union, Local 218, AFL-CIO.
z 112 NLRB 1276.
$ At the opening of the hearing , the hearing officer granted a motion to intervene by
International Association of Machinists , Local Lodge No. 845, AFL-CIO, the representative
117 NLRB No. 78.
AMERICAN POTASH & CHEMICAL CORPORATION 543
About February or March 1955 the Employer assigned operators
who had been performing production work to jobs in building T-4 of
the Employer's Henderson, Nevada, operation to assist, among other
things, in the performance of experimental work. In its Decision and
Direction of Elections, issued on June 21, 1955, the Board found ap-
propriate, and thereafter certified the Chemical Workers as the bar-
gaining representative for, a unit of "All production and maintenance
employees, excluding all machinists, machinists' helpers, welders (ma-
chinists), office clerical employees, chemical, metallurgical, engineer-
ing and other professional employees and their assistants, timekeepers,
time checkers, messengers, confidential employees, plant protection
force (guards and firemen), [employees in two other voting groups in
which the Decision directed elections], and supervisors as defined in
the Act." On April 1, 1956, the Employer and the Chemical Workers
signed a collective-bargaining contract for this unit of employees, effec-
tive to April 1, 1957, and providing for automatic renewal at yearly
intervals thereafter. The operators then doing the work in building
T-4 to which the operators were first assigned in 1955 were included
within the coverage of that agreement.
In May 1956 the Employer transferred the research and experi-
mental work conducted at another of its plants to building T-4 at
Henderson, Nevada, and the operators covered by the Chemical
Workers' collective-bargaining contract continued to work in build-
ing T-4 as part of the research department. About the same time
the Chemical Workers agreed to the Employer's request that certain
research laboratory technicians working in building T-4 be excluded
from the Chemical Workers' bargaining unit. About August or Sep-
tember 1956 the Employer requested that the seven operators then
working in building T-4 also be excluded from the Chemical Workers'
contract, but the latter refused. On September 17, 1956, the Employer
unilaterally prepared a job analysis for research technicians, a new
job classification, intended to replace the operators the Chemical
Workers had refused to exclude from the bargaining unit. Accord-
ing to the Employer, the job analysis for research technicians estab-
lished more demanding requirements than had existed for the oper-
ators they were to replace. The record shows, however, that if the
Chemical Workers had agreed to exclude the operators working in
building T-4 from the unit, they could have continued working in
the research department performing the functions set out in the
newly created research technician job classification. Indeed, the expe-
of the Employer's machinists. After the initial stages of the hearing, the hearing officer
ruled that the IAM's intervention would be limited to protecting its interest as representa-
tive of the unit of machinists . The IAM thereupon moved for a further hearing and the
right to examine witnesses without limitation . We find that the hearing officer's ruling was
correct and was not in any way prejudicial to the IAM' s rights or interests Accordingly,
we hereby deny the IAM's motion for a further hearing.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rience and functional requirements for the job of research technician
were essentially those of the operators.
Upon the Chemical Workers' refusal to agree to the exclusion of
building T-4 operators from its unit and its refusal to allow those
jobs to be reclassified as research technician, five of the operators were
reassigned to jobs elsewhere in the plant. The other two continued
to work in building T-4. Shortly thereafter, the Employer filled the
open research technician positions, apparently with new employees.
On October 4,1956, the Chemical Workers filed a grievance contending
the Employer had violated the collective-bargaining agreement.
The Employer contends that the research technicians are technical
employees and therefore should be excluded from the unit. The Chem-
ical Workers and the IAM contend, in effect, that the Employer is,
by its past practice, foreclosed, at this time, from requesting exclusion
of the research technicians from the certified unit.
This is not the type of case in which the unit placement depends
upon statutory factors. In other words, the research technicians are
not a classification that the statute requires be excluded from the certi-
fied unit, such as guards. Further, reference to the language of the
Board's certification does not resolve the problem.' Thus, this case
poses, as an initial issue, whether the parties' past actions establish
an accord as to the unit placement of the research technicians .5
The Employer takes the position that the parties never considered,
and therefore never reached agreement on, the unit placement of re-
search technicians. The record establishes the contrary. At the hear-
ing upon the representation petition no party to the proceeding urged
that the building T-4 operators be excluded from the unit as technical
employees or for any other reason. The agreement to include the
operators in the production and maintenance unit is affirmatively
established by the failure of any party to challenge the right of the
operators to vote in the initial election or in the runoff election in the
production and maintenance unit and by the signing of a collective-
bargaining agreement by the Employer and the Chemical Workers
in April 1956 that included in its coverage the operators who were
then working in building T-4. The record establishes that the research
technicians have succeeded to the very same jobs once performed by
the building T-4 operators; as noted above, two of the operators
actually became research technicians. Contrary to the Employer's
contention, the requirements for filling the position now designated
4 We reject the Employer 's contention that the Board 's certification requires exclusion
of the research technicians from the unit if they are, in fact, technical employees. The
Board has , as a policy matter, established the practice of excluding technical employees
from production and maintenance units upon the timely request of a party to a repre-
sentation proceeding . There is , however, no Board policy of excluding technical em-
ployees from production and maintenance units where no party makes such a timely
request.
5 Ctarostat Mfg. Co., Inc., 105 NLRB 20, 22-23.
• PEORIA PLASTIC COMPANY 545
by the Employer as research technician are not significantly, if at
all, more demanding than they had been for the operators who had
formerly performed the work. Indeed, it is evident that, but for
the disagreement between the Employer and the Chemical Workers
as to the unit exclusion of the building T-4 operators, all of those very
operators would have continued in their jobs upon a mere change of
their job title and formalization of their job analysis.
Inasmuch as the jobs of the building T-4 operators and the research
technicians are, for all practical purposes, the same except for their
titles, we find that the research technicians (building T-4 operators)
are included in the unit certified by the Board and covered by the
parties' collective-bargaining contract.' Accordingly, we shall deny
the Employer's petition.'
[The Board denied the petition.]
MEMBER RODGERS took no part in the consideration of the above,
Order Denying Petition for Clarification of Certification.
e Sangamo Electric Company, 112 NLRB 1310, 1311-12. The Employer's reliance upon
Bermite Powder Company, 116 NLRB 65, is misplaced because the Board specifically held
therein ". . . nor does the record disclose the parties' intentions, in reference 'to [the
employees in issue]
7Sangamo Elect, cc Company, supra In view of this finding, it is unnecessary to deter-
mine whether the research technicians are technical employees
Peoria Plastic Company and International Association of Ma-
chinists, AFL-CIO, Petitioner . Case No. 13-RC-5141. March 5,,
1957
SUPPLEMENTAL DECISION, ORDER, AND SECOND
DIRECTION OF ELECTION
On November 1, 1956, pursuant to the Board's Decision and Direc-
tion of Election dated October 11, 1956, an election by secret ballot
was conducted under the direction and supervision of the Regional
Director for the Thirteenth Region among the employees in the unit
heretofore found appropriate. At the conclusion of the election, a
tally of ballots wss furnished the parties. The tally shows that of ap-
proximately 27 eligible voters, 26 cast ballots, of which 9 were for, and
16 against, the Petitioner. There was one challenged ballot.
On November 2, 1956, the Petitioner filed timely objections to the
conduct of the election, a copy of which was served on the Employer.
In accordance with the Rules and Regulations of the Board, the Re-
gional Director conducted an investigation of the objections and, on
December 4, 1956, issued and served on the parties his report on ob--
117 NLRB No. 77.
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