Carbide and Carbon Chemicals Corp.

National Labor Relations Board - Board Decisions

Oct 26, 1944

58 N.L.R.B. 1365 (N.L.R.B. 1944)

In the Matter Of CARBIDE AND CARBON CHEMICALS CORPORATION and
OIL WORKERS INTERNATIONAL UNION, C. I. O.
Case No. 13-R-2,589.-Decided October 26, 1944
Mr. John D. Cooke, Jr., of Chicago, Ill., and Mr. Clarence L. Sager,
of New York City, for the Company.
Messrs. R. T. Aylor and Walter N. Collins, of Whiting, Ind., for the
Oil Workers.
Mr. Glenn E. Springer, of Whiting, Ind., for the Association.
Mr. Hugh Gormley, of Indianapolis, Ind., for the A. F. of L.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Oil Workers International Union,
C. 1. 0., herein called the Oil Workers, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Carbide and Carbon Chemicals Corporation, Whiting; Indiana, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Jack G. Evans,
Trial Examiner. Said hearing was held at Chicago, Illinois, on
September 11, 1944. At the commencement of the hearing, the Trial
Examiner granted motions of Carbide and Carbon Employees Asso-
ciation, herein called the Association, and. American Federation of
Labor, herein called the A. F. of L., to intervene. The Company, the
Oil Workers, the Association, and the A. F. of L., 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 hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
58 N. L. R. B., No 247.
1365
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Carbide and Carbon Chemicals Corporation is a New York cor-
poration with its principal office at New York City. It operates
plants in the States of Indiana, New York, Kentucky, Texas, and
West Virginia. We are here concerned with its plant at Whiting,
Indiana, where it is engaged in the production of isopropanol, acetone,
ethanol, isopropyl ether, ethyl ether, and acetic anhydride. The Com-
pany uses raw materials valued in excess of $100,000 annually, most
of which are shipped to it from points within the State of Indiana.
During the same period, the Company manufactures products valued
in excess of $100,000, approximately 90 percent of which is shipped
to points outside the State of Indiana.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Oil Workers International Union is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
Carbide and Carbon Employees Association is an unaffiliated labor
organization, admitting to membership employees of the Company.
American Federation of Labor is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On July 28, 1944, the Oil Workers requested the Company to recog-
nize it as exclusive bargaining representative at the Whiting plant.
The Company refused this request on the ground that it was operating
under a contract with the Association.
On May 15, 1941, the Company and the Association entered into an
exclusive bargaining contract. On July 1, 1942, and November 4, 1943,
respectively, the Company entered into second and third agreements
with the Association. The last contract provided that it should remain
in effect until May 15, 1944, and from year to year thereafter, unless
either party thereto notified the other of a desire to terminate not less
than thirty days prior to any annual expiration date. During Feb-
ruary 1944 the Association and the Company entered into negotiations
for a fourth agreement, and being unable to reach agreement on sub-
stantial issues, submitted the matter to the National War Labor Board
CARBIDE AND CARBON CHEMICALS CORPORATION 1367
in May 1944. The hearing was conducted before the National War
Labor Board on June 16, 1944, and.no decision had been issued by it at
the time of the hearing in the instant proceeding. On May 15,1944, the
Company and the Association extended their November 4, 1943, agree-
ment until September 15, 1944. The extension provided that the con-
tract should terminate on September 15, 1944, unless another exten-
sion was mutually agreed upon. At the time of the hearing, no such
extension had been entered into. The Company contends that the pe-
tition should be dismissed because of the pendency of the proceedings
before the National War Labor Board. The record shows that the As-
sociation was in full enjoyment of its right as exclusive bargaining
representative from May 1941 to the present. While the disputed
matters were pending before the National War Labor Board, the
parties operated under the November 4, 1943, agreement, as extended
Thus, the Association has enjoyed the rights of an exclusive representa-
tive for over 3 years, and the employees it represented received the
benefits of the November 4, 1943, contract for its duration until ex-
tended. This case, therefore, is clearly not comparable to those recent
cases 1 in which we declined to hold an election because the recognized
or certified representative had no real opportunty to obtain for em-
ployees the benefits of exclusive representation inasmuch as the initial
collective bargaining efforts following recognition, or certification,
had resulted in resort to the processes of the National War Labor
Board. We find, therefore, that the pendency of a dispute between
the Association and the Company before the National War Labor
Board does not constitute a bar to this proceeding,2 nor do we find that
the contractual relationship between the Association and the Company
constitutes a bar to this proceeding, inasmuch as the contract of
.November 4, 1943, as extended on May 15, 1944, expired by its terms
on September 15, 1944.3
Statements of a Field Examiner of the Board and the Trial Ex-
aminer, introduced into evidence at the hearing, indicate that the
Oil Workers and the A. F. of L. each represents a substantial
number of employees in the unit hereinafter found to be appropriate'
I Matter of Aluminum Company of America, Vancouver, Washington, 53 N. L. R. B 593 ;
Matter of Allis Chalmers Manufacturing Company, 50 N. L R B. 306.
2 Matter of MacClatchie Manufacturing Co., 53 N L R B 1268.
8 The Company points out in its brief that on September 15, 1944, the contract between
it and the Association was further extended by mutual agreement to a date not more than
30 days after the date of the final determination by the National War Labor Board of the
dispute before it. We conclude that the extension of September 15, 1944, is not a bar inas-
much as it was entered into with knowledge of all parties that a representation dispute
was pending before this Board.
- 4 The Field Examiner reported that the Oil Workers presented 108 authorization cards
bearing the names of persons who appear on the current pay roll of the Company. The
Trial Examiner reported that the A. F. of L. presented 119 authorization cards bearing
the names of persons who appear on the same pay roll . There are approximately 242
employees in the appropriate unit. The Association did not present any evidence of
representation , but relies upon its contract as evidence of its interest in the instant
proceeding.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Oil Workers urges that all hourly-paid operating and mainte-
nance employees at the Whiting, Indiana, plant of the Company, in-
cluding truck drivers and janitors, but excluding watchmen, guards,
fire inspectors, office employees, laboratory employees, superintendent,
assistant superintendent, operating heads, foremen, technical super-
visors and minor supervisors, constitute an appropriate unit. The only
controversy with respect to the unit concerns minor supervisors, labo-
ratory employees and office employees.
The Company employs three persons classified as minor supervisors.5
They are classified respectively as chief pump repairmen, chief insula-
tor, and chief compressor repairman. They are all paid on an-hourly
basis, do not attend supervisory meetings, and are covered by the pres-
ent contract between the Company and the Association. It appears
that their relationship to the employees in their department is that of a
journeyman to his helper, rather than a supervisor to his subordinate.
We find that the so-called minor supervisors should be included in the
unit.
The A. F. of L. would include the laboratory employees in the unit,
while the remaining parties would exclude them. The Company main-
tains a laboratory for research and control purposes which is housed in
a separate building. The Company employs six chemists, one senior
analyst, six junior analysts, and one laboratory assistant in its labo-
ratory. They are all paid on a salary basis and the chemists and the
senior analysts are either college graduates or have experience equiva-
lent to a college degree in chemistry. They are presently excluded
from provisions of the contract between the Association and the Com-
pany. Inasmuch as the laboratory employees are distinct from the
operating and maintenance employees in skill and training, method of
pay, and function in the plant, we shall exclude them from the unit.
The A. F. of L. would include the office employees in the unit, while
all the other parties would exclude them. The Company's offices are
housed in a separate building, and only employees other than the
guards and janitors therein are paid on a salary basis. It is obvious
that the status and function of clerical and office employees are essen-
tially different from the status and function of employees who do
manual labor. Since no affirmative showing has been made, nor any
compelling arguments advanced, as to why we should depart from our
usual practice of excluding office and clerical employees from a unit
Arvid Peterson , Ingvald Furness , and Whitworth.
CARBIDE AND CARBON CHEMICALS CORPORATION 1369
largely composed of operating and maintenance employees , we shall
exclude the office employees from the unit.
There is some discussion in the record with respect to the feasibility
of setting up the laboratory and office employees as a separate unit at
this time. The Trial Examiner reported that the A. F. of L., the only
organization claiming such employees at this time , presented 10 au-
thorization cards signed by laboratory or clerical employees. There
are 42 such persons employed by the Company at the present time. In-
asmuch as the A . F. of L . has failed to make a preliminary showing
that it represents a substantial number of laboratory and office em-
ployees , we shall not set up a unit of such employees at this time.
We find that all hourly paid operating and maintenance employees
at the Whiting, Indiana, plant of the Company , including truck drivers
and janitors,6 but excluding watchmen , guards, fire inspectors , office
employees , laboratory employees , the superintendent , assistant super-
intendent , operating heads , foremen, technical supervisors , and any
other supervisory employees with authority to hire, promote , discharge,
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
We find that the question concerning representation which has arisen
can best be resolved by means of an election by secret ballot. The
Oil Workers urge that the August 14, 1944, pay roll be used to deter-
mine eligibility to vote. Since no persuasive reason appears as to
why we should depart from our usual practice, we shall direct that
employees eligible to vote in the election shall be those within the
appropriate unit who were employed during the pay-roll period imme-
diately preceding the date of the Direction of Election herein, subject
to the limitations and additions set forth in the Direction.
The Company contends that its employees presently in the armed
forces of the United States should be afforded an opportunity to vote.
We are not unmindful of the fact that employees on military leave
retain their status as employees and, therefore , have a real interest
in the choice of a bargaining representative . For this reason, our
Direction of Election will provide , as has been the case in the past,,
that those who appear at the polls in the election shall be allowed
to vote if otherwise eligible . The Company urges, however , to assure
an opportunity for all employees in the armed forces to vote, a provi-
sion should be included in the Direction of Election requiring the Re-
6 The three employees referred to in footnote 5, Supra, are deemed included.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director to mail ballots to each such employee. We find such
a suggestion to be unfeasible for the reasons stated In re Mine Safety
Appliance Co., 55 N. L. R. B. 1190. When it is determined that service
men have returned to their employment in sufficient numbers so that
they comprise a substantial percentage of the employees in an appro-
priate unit in which we have certified a collective bargaining repre-
sentative , a new petition for the investigation and certification of a
bargaining agent may be filed with the Board. In this manner,
employees in the armed forces, who are unable to cast a vote , will be
afforded an opportunity to affirm or change the bargaining agent
selected in their absence.
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 Act
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Carbide and Car-
bon Chemicals Corporation , Whiting, Indiana, 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 supervision of the Regional Director for the Thirteenth 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 Regu-
lations, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immedi-
ately 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 any who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by Oil
Workers International Union, C. I. 0., or by Carbide and Carbon
Employees Association , or by American Federation of Labor, for the
purposes of collective bargaining , or by none of said organizations.