Atmospheric Nitrogen Corp.

National Labor Relations Board - Board Decisions

Sep 15, 1943

52 N.L.R.B. 618 (N.L.R.B. 1943)

In the Matter of ATMOSPHERIC NITROGEN CORPORATION and INTERNA-
TIONAL COUNCIL OF CHEMICAL AND ALLIED INDUSTRIES UNION, CHEM-
ICAL WORKERS UNION, LOCAL 23398, A. F, OF L.
In the Matter of ATMOSPHERIC NITROGEN CORPORATION and BUILDING
SERVICE EMPLOYEES UNION LOCAL 266, A. F. OF L.
In the Matter of ATMOSPHERIC NITROGEN CORPORATION and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 23, A. F. OF L.
Cases Nos. R-5837 'to R-5839 inclusive, respectively.Decided
September 15, 1943
Mr. J. M. Gaston, Jr., of Ironton, Ohio, for the Company.
Major J. K. Fisher, of Ironton; Ohio, for the Ordnance Department
of the War Department.
Mr. Cyril A. Moran, of Cincinnati, Ohio, for the Chemical Workers.
Messrs. Herman A. Herig and Nick McMahon, of Cincinnati, Ohio,
for the Building Employees.
Messrs. J. W. Thompson and Dan J. Connors, of Cincinnati, Ohio,
for the Operating Engineers.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon separate petitions duly filed by International Council of
Chemical and Allied Industries Union, Chemical Workers Union,
Local 23398, A. F. of L., by Building Service Employees Union, Local
266, A. F. of L., and by International Union of Operating Engineers,
Local No. 23, A. F. of L., herein collectively called the Unions and
individually called the Chemical Workers, the Building Employees,
and the Operating Engineers, respectively, each alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Atmospheric Nitrogen Corporation, South Point, Ohio,
herein called the Company, the National Labor Relations Board pro-'
52 N. L. R. B., No. 106.
618
ATMOSPHERIC NITROGEN CORPORATION 619
vided for an appropriate consolidated hearing upon due notice before
William I. Shooer, Trial Examiner. Said hearing was held at Iron-
ton, Ohio, on August 13, 1943. The Company, the Chemical Workers,
the Building Employees, the Operating Engineers, and the Ordnance
Department of the War Department appeared, participated, 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 hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board. Since the brief of the
Company adequately discusses the matters in issue, its request for
oral argument is hereby denied.2
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Atmospheric Nitrogen Corporation is engaged in the manufacture
of anhydrous ammonia at the Buckeye Ordnance Works, South Point,
Ohio. The plant is an ordnance facility owned by the United States
.and is operated by the Company as contractor for the United States.
All products at the plant are owned by the United States and are
delivered by the Company to the United States at the plant. Over
50 percent of all raw materials used at the plant are received from
points outside Ohio. Over 50 percent of the products finished at the
plant are shipped to points outside Ohio.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Council of Chemical and Allied Industries Union,
Chemical Workers Union, Local 23398; Building Service Employees
Union, Local 266; and International Union of Operating Engineers,
Local No. 23, are labor organizations affiliated with the American
Federation of Labor, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 13, June 18, and July 8, 1943, the Chemical Workers, the
Building Employees, and the Operating Engineers, respectively, each
'The caption of this case was amended at the hearing to disclose the correct name of
the Chemical Workers.
2 On August 30, 1943, the Company filed a motion to correct the record, copies of which
were duly served upon all parties . In the absence of objections to the Company 's motion,
the record is hereby corrected in accordance therewith.
620 DECISIONS OF NAfrIoNAL LABOR RELATION'S BOARD
asked the Company for recognition as exclusive bargaining representa-
tive of employees of the Company in a proposed bargaining unit. The
Company refused to recognize any of the Unions unless it was certified
by the Board.
A statement prepared by the Trial Examiner and read into the
record at the hearing indicates that the Building Employees represents
a substantial number of employees in the unit herein found appropriate
for bargaining.3
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 Chemical Workers contends that all hourly rated personnel
engaged in the production of the chemical phase of operation, to-wit,
gas makers, assistant gas makers, grate men and water tender, CO
conversion operators, assistant CO conversion operators, purification
operator, assistant purification operator, utility operator, circulating -
compressor operator, assistant circulating compressor operator, syn-
thesis operator, assistant synthesis operator, loading station operator,
assistant loading station operator, relief operator NH-, and assistant
relief operator NH3, but excluding compressor operators, assistant
compressor operators, guards, salaried personnel, all employees who
operate power-driven machinery, supervisors, and those who have the
right to hire and discharge, constitute an appropriate bargaining unit.'
The Operating Engineers contends that all employees who operate
power-driven machinery, to-wit, compressor operator, assistant com-
pressor operator, relief operator (electrical and steam generation),
assistant relief operator (electrical and steam generation), firemen,
boiler board operators, boiler auxiliary operators, pump operators
power station, control operator, operating laborers (electrical and
steam generation), switchboard operators, refrigeration, operators,
assistant refrigeration operators, patrolman (water, air, steam distri-
bution), river water pump operators, well water pump operators , cater-
pillar operators, crane operators, and,turbine operators, but excluding
all salaried personnel, supervisors, clerks, and all those who have the
right to hire and discharge; constitute an appropriate bargaining unit.
s The Building Employees submitted to the Trial Examiner undated cards , of which
60 percent bear names of employees in the appropriate bargaining unit.
The Chemical workers submitted authorization cards , some of which bear dates in
April, May, June , and July, 1943 , indicating that the Chemical workers represents 60
percent of the employees in its proposed unit
The Operating Engineers submitted authorization cards, some of which bear dates
in March, April , and May, 1943 , indicating that the Operating Engineers represents 50
percent of the employees in its proposed unit.
All authorization cards were checked against the Company 's pay roll for August 7, 1943.
ATMOSPHERIC NITROGEN CORPORATION 621
The Building Employees contends that all guards, including those
engaged in fire-prevention work below the grade of corporal, sergeant,
lieutenant, and captain, and all others who have the right to hire or
discharge, constitute an appropriate bargaining unit. The Company
contends that guards are instruments of management and should not
be included in a bargaining unit. The Company further contends that
the appropriate bargaining unit for production and maintenance
employees at the plant should include all hourly paid, employees,
,excluding guards, and certain salaried employees directly concerned
with production and maintenance work at the plant and in the field.
The Company's plant consists of a group of buildings near or ad-
jacent to one another. A complicated network of pipes affords the
necessary flow of steam, water, and compressed air through the several
sections of the plant. The power plant generates steam used not only
for power purposes but as a raw material and reagent in the produc-
tion process and the source of hydrogen in the manufacture of am-
monia. Electricity generated in the powerhouse is used not only for
lighting purposes but for the operation of machinery and in the vari-
ous controls and meter system used throughout the plant. Maintenance
employees generally work on daylight shift. They are responsible
for the care of machinery and equipment and constitute a general
repair crew for the plant. Their work is not differentiated along
traditional craft lines. A photographer and' a blueprint operator are
indispensable in the repair and maintenance of machines. Other op-
erating employees work on shifts and work the same shift hours. All
hourly paid employees are subject to preemployment physical examina-
tion. They use the same time-clock station. Vacation privileges,
sick leave, and leaves of absence are the same for all. All hourly paid
employees work upon the basis of a 48-hour week. They are paid time
and a half for work in excess of a 40-hour week. A small group of
non-supervisory salaried employees perform duties which are closely
tied with those of hourly paid operating and maintenanec workers.
Employees constituting a stores group, including material men, dis-
-bursing men, products men, and receiving men, are responsible for
materials used throughout the plant. Instrument men are engaged in
maintaining and repairing the meter chronometer system and other
instruments in the plant, including meters, biometers, recorders, and
automatic analyzers. They work throughout, the plant's operating
area. The total complement of employees is small in proportion to
the plant's production output because of the nature of the process per-
formed.- The compact physical lay-out of the plant and the nature
of the work processes therein result in a close commingling of
employees.
The Chemical Workers and the Operating Engineers propose
separate units of allegedly production and maintenance employees,
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respectively. Employees in the categories in their proposed units work-
together and interchange in the several production departments and
subdivisions of the plant. The record does not disclose any clear line of
demarcation between the two proposed groups. Some employees in
the unit proposed by the Operating Engineers work in the powerhouse;
others elsewhere in concededly production departments. Essential
skilled non-supervisory production employees are excluded from both-
groups. Unskilled maintenance employees in the gas house, power-
house, and production departments are likewise excluded. The de-
pendence and interchange of employees in the several processes and the-
close unified control of the entire plant support the Company's con-
tention that production and maintenance employees partly apportioned
in the units proposed by the Chemical Workers and the Operating En-
gineers, respectively, do not constitute units appropriate for bargaining-
purposes. We shall therefore dismiss these petitions.'
The Company's guards are'plant-protection employees rather than
watchmen, employed for the protection of the plant and products used
for war purposes. Guards are assistant military police, subject to the.
direction of the War Department. A group of guards work on each
shift, some of them at fixed stations and some on patrol duty. The
Company contends that guards are not employees within the meaning
of the Act and that they should not therefore be included in a bargain-
ing unit. We have held in. other representation proceedings that
guards of this character are, employees within the meaning of the Act
and that-such guards may constitute separate appropriate bargaining
units.5 For the reasons therein set forth, we find that the Company's
guards constitute a unit appropriate for bargaining apart from other
production and maintenance emloyees.
The Company and the Building Employees agree that the chief
guard and the sergeants are salaried supervisory employees and that
they should be excluded from the unit which includes the hourly paid
guards. They disagree with respect to corporals. The Company
would include corporals within the unit, and the Building Employees
would exclude them. Plant-protection employees are under the direct
supervision of the chief guard who is under the general supervision of
the superintendent of plant protection. Sergeants are supervisory
employees under the chief guard. Corporals are hourly paid em-
ployees and receive 5 cents per hour more than ordinary guards. They
have some of the characteristics of a working foreman. They per-
form 'the duties of an ordinary guard more than 50 percent of their
working time. One corporal on a shift works as a desk corporal.
Another corporal patrols the plant and checks each guard on the shift
at least three times to see that he is at his post. The corporal on the
4 Cf. Matter of Remington Arm8 Company, 51 N L. R. B. 628
5Matter of Drava Corporation, 52 N. L R. B. 322, and cases cited therein.
ATMOSPHERIC NITROGEN CORPORATION 623
:shift is required to challenge all persons whom he does not recognize
and see that all such persons are duly authorized to be on plant prop-
erty. Corporals have no authority to hire or discharge other plant-
protection employees. They may recommend discharge, but the record
does not disclose that their recommendation has any more effect than
that of any other employee. Corporals transmit to guards upon the
shift instructions from the sergeants and chief guard. Since it ap-
pears that corporals are without substantial supervisory authority,
within the Board's use of the term, we shall include them in the bar-
gaining unit.
We find that all guards, including those engaged in fire prevention
work and corporals, but excluding sergeants and the chief guard, and
all other supervisory employees who have authority to hire, promote,
.discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of the Company's employees may best be resolved by an
election by secret ballot.
So far as the record discloses, the Building Employees is the only
labor organization claiming to represent any employees in the unit
found appropriate in Section IV, above. For this reason we shall
not provide that any other labor organization appear upon the bal-
lot. The Building Employees requests that the Board determine
eligibility by the pay roll of August 7, 1943, the pay roll against
which the Trial Examiner checked the authorization cards submitted
by the Unions. The record discloses that the Company has recently
laid off certain plant-protection employees at the direction of the War
Department, which determines the number of such employees neces-
sary for adequate protection of the plant. The Company does not
anticipate the rehire of such employees in the immediate future. Since
there seems to be no reason to depart from our usual practice, we
shall determine eligibility in accordance therewith.
Those eligible to vote in the election shall be all employees of the
Company in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of the Direction of Election herein, subject to the limitations
and additions set forth in the Direction.
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 Relations
624 DECISIONS OF NAMIONAL LABOiR RELAT'ION'S BOARD
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it, is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Atmospheric
Nitrogen Corporations,. South Point, Ohio, 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, under the direction and super-
vision of the Regional Director for,the Ninth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Sections 10 and 11, of said Rules and Regulations,
among all employees of the Company in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, and including employees in the
armed forces of the United States who present themselves in person
at the polls, but excluding employees who have since quit or been
discharged for cause, to determine whether or not they desire to be
represented by Building Service Employees, Local 266, A. F. of L.,
for the purposes of collective bargaining.
ORDER
IT IS HEREBY ORDERED that the separate petitions for investigation
and certification of representatives filed herein by International
Council of Chemical and Allied Industries Union, Chemical Workers
Union, Local 23398, A. F. of L., and by International Union, of Op-
erating Engineers, Local No. 23, A. F. of L., respectively, be, and
they hereby are, dismissed.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision, Direction of Election and Order.