Carbide and Carbon Chemicals Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1948

79 N.L.R.B. 83 (N.L.R.B. 1948)

In the Matter of CARBIDE AND CARBON CHEMICALS CORPORATION,' EM-
PLOYER and INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, AMERI-
CAN FEDERATION OF LABOR, PETITIONER
Case No. 10-R-2231
SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
August 26, 1948
On March 16, 1948, the Board issued a Decision and Direction of
Election in this proceeding (76 N. L. R. B. 109). Thereafter, the
Board, having been advised that Carbide and Carbon Chemicals Cor--
poration, herein called Carbide, succeeded to the contract of Monsanto•
Chemical Company, herein called Monsanto, with the Atomic Energy
Commission for the operation of Oak Ridge National Laboratory, and
that Carbide is acting as the Employer of the employees concerned,.
issued, on March 30,1948, an Order that cause be shown why Carbide-
should not be substituted as the Employer in the place of Monsanto.
On April 12, 1948, Carbide filed its response to the Order to show cause,
stating certain allegations which the Board found raised substantial
and material issues. Thereupon the Board, on April 23, 1948, set
aside its Direction of Election and ordered that a further hearing be-
held to afford Carbide an opportunity to be heard on all issues raised
by the petition.
On June 10, 1948, pursuant to such order, a further hearing in this,
case was held at Oak Ridge, Tennessee, before T. Lowry Whitaker,.
hearing officer. The hearing officer's rulings made at the further hear-
ing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
1 Without objection, at the further hearing on June 10, 1948, Carbide and Carbon Chemi-
cals Corporation was substituted as Employer in the place of Monsanto Chemical Company,.
Clinton Laboratories, Oak Ridge, Tennessee.
79 N. L. R. B., No. 16.
83
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Carbide and Carbon Chemicals Corporation, a New York corpora-
tion, operates, among other plants, the Oak Ridge National Labora-
tory,2 at Oak Ridge, Tennessee. It processes at this plant certain mate-
rials pursuant to a cost reimbursement contract with the United States
Government.
All raw materials used by Carbide are furnished by the Government
and received by Carbide at Oak Ridge, Tennessee. A substantial
quantity of supplies and equipment of very substantial value are re-
ceived by Carbide as contractor for the Government. A substantial
quantity of these materials is shipped to Carbide from points out-
side the State of Tennessee; the remainder is delivered to Carbide by
the Government at Oak Ridge, Tennessee. Title to such materials
never vests in Carbide.
Carbide produces isotopes, described as radioactive elements which
are the byproducts of the main product of the Oak Ridge -operations.
Title to these isotopes is in the Government. The Government sells
and donates these isotopes to universities, hospitals, and similar insti-
tutions for experimental purposes. The deliveries of isotopes are made
by common carriers in the name of Carbide. The proceeds from these
sales go to the Government. Isotope deliveries comprise between 0.10
percent and 1.00 percent of the total dollar volume' of Carbide's opera-
tions at this plant. Since August 1946, isotope deliveries have av-
eraged $6,000, per month, of which more than 50 percent was shipped
to points outside the State of Tennessee.
The Atomic Energy Commission, through an authorized representa-
tive, indicated on the record in a prior proceeding involving Carbide's
predecessor,3 that public disclosure of facts relating to the operations
of this plant in interstate commerce would violate security regulations.
However, the Board has in its possession additional facts indicating
the extent of the interstate commerce operations at Oak Ridge, in-
cluding those,of Carbide, contained in a report prepared in 1946 by a
special Board representative after complete study .4 The; Board takes
notice of these facts, which are accessible only to Members of the
Board and its specially designated representatives, and on -tlhe. basis
thereof finds that Carbide's operations at Oak Ridge, Tennessee, affect,
commerce within the meaning of the Act .5
z Called Clinton Laboratories at the time it was operated by Monsanto and also referred
to as the X-10 plant.
Matter of Monsanto Chemical Company, 76 N. L. R. B. 767
At the further hearing , Carbide stipulated substantially to the above facts
See Matter of Carbide and Carbon Chemical Corporation , 73 N. L. R. B 134.
CARBIDE AND CARBON CHEMICALS CORPORATION 85
. Moreover, we find that the above recorded facts are themselves suffi-
cient to establish that Carbide's operations at this plant involve a,sub-
stantial inflow and outflow of materials from and to points 'outside
the State of Tennessee. A work stoppage at this plant would there-
fore have a direct and adverse effect upon this flow of materials in
commerce.
Upon consideration of the entire record in the case, we find, con-
trary to Carbide's contentions, that its operations at Oak Ridge Na-
tional Laboratory affect commerce within the meaning of the Act.5
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor claiming to represent employees of the Employer
' (Carbide) .
United Gas, Coke and Chemical Workers, herein called the Inter-
venor, is a labor organization affiliated with the Congress of Industrial
Organizations claiming to represent employees of the Employer
(Carbide) .7
III. THE QUESTION CONCERNING REPRESENTATION
. The Employer (Carbide) refuses to recognize the Petitioner as the
exclusive bargaining representative of certain of its employees until
the Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
At the further hearing, the Petitioner amended its unit request to
consist of all firefighters, fire-truck drivers, and fire-protection in-
spectors, excluding supervisors. Whether these employees, herein col-
lectively called the firefighters, are guards within the meaning of Sec-
6 Matter of Monsanto Chemical Corpoi ation. supra
I The Intervenor did not seek to intervene and made no appearance at the ouginal hear-
ing herein involving Monsanto At the further hearing, the hearing officer permitted, over
the Petitioner ' s objection , the initial intervention of the Intervenor on the basis of an ade-
quate showing of interest The hearing officer 's ruling was proper and is hereby affirmed.
As noted above . the Board ' s Order directed that the Regional Director conduct a "further
hearing on all issues raised by the petition " The entire representation proceeding , there-
fore, was thrown open and any union otherwise qualified could intervene . Cf Matter of
Goodyear Tire it Rubber Company, 65 N. L R. B. 532, Matter of Western Electric Co.,
76 N.L .R B 400.
809095-49-vol 79-7
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 9 (b) (3) of the amended Acts is the sole unit issue before us. The
Petitioner and the Intervenor, being affiliated with organizations
which admit to membership employees other than guards, are not
qualified under the Act to represent guards.9 Carbide contends they
are guards , contrary to the position of the Petitioner and the Inter-
venor.10
The firefighters, in addition to their primary function of fighting
fires when they occur, make inspections of fire hazards and perform
stand-by watches when open flames are used by workmen.
The fire-truck drivers, in addition to performing the same duties as
firefighters, in the event of a fire and during fire drills, operate mo-
torized firefighting equipment, guard operating equipment, and assist
available patrolmen in preventing interference by plant personnel.
The fire-protection inspectors patrol the plant and investigate fire
hazards. They make spot explanations and recommendations to the
employees involved when such hazards are discovered by them. With
respect to such matters, they have no authority to order employees to
take action, but they may make recommendations to the supervisors of
the employees concerned who apparently take whatever action they
deem necessary in the circumstances. They fight fires, render first
aid when necessary, inspect equipment, and instruct firemen and others
in fire prevention.
Carbide's safety and fire-protection supervisor testified that these
.employees in emergency situations may serve as auxiliary police. In
such emergencies, any outside protective sources in the area would
also be alerted for assistance. Only in these emergencies may the
firefighters detain an employee. However, this supervisor further
testified that the firefighters have never been instructed that they pos-
sess such power, and that he knows of no instance in which the fire-
fighters have actually served as auxiliary police in an emergency.
There is, in addition, evidence of certain cooperation between the fire
-and patrol departments, the latter concededly being composed of
"guards." The patrol department sends a car to answer fire alarms,
8 Section 9 (b) (3) provides:
That the Board shall not decide that any unit is appropriate for such purposes if it in-
cludes , together with other employees , any individual employed as a guard to enforce against
employees and other persons rules to protect property of the employer or to protect the
safety of persons on the employer' s premises ; but no labor organization shall be certified
-as the representative of employees in a bargaining unit of guards if such organization
admits to membership , or is affiliated directly or indirectly with an organization which
admits to membership , employees other than guards. ( Emphasis supplied
8 Matter of Schenley Distilleries , Inc., 77 N. L R. B 468.
10 Carbide stipulated at the further hearing that the firefighters perform the same duties
they had performed when Monsanto operated the plant. In the earlier case involving
Monsanto (76 N. L. R. B. 767), the Board found on the basis of that record that these
employees are not "guards ." However, as noted above , further hearing was directed by
the Board to permit Carbide, as successor , to be heard on all issues.
CARBIDE AND CARBON CHEMICALS CORPORATION- 87
reports fires, assists in maintaining communications within the fire
department; and a firefighter accompanies an ambulance driven by a
patrolman. The general working conditions of the firefighters and
the patrolmen are substantially similar.
Carbide admits that the firefighters and patrolmen do not perform
the same functions or have the same power. In its brief it states that
"it mainly attempted to show that their work-is correlated and both
groups are constituted to protect life and property."
The broad function of these firefighters to protect life and property
is inadequate to bring them within the definition of "guard" in Sec-
tion 9 (b) (3) of the Act,11 which specifically prescribes that such an
individual be employed as a guard to enforce rules against employees
and others. The record does not establish that the regular duties of
the firefighters in this case involve the enforcement of such rules. Such
emergency and incidental powers as these firefighters may possess are
not sufficient to make them "guards." 12 The evidence in this case of
substantial similarity in the employment conditions of the firefighters
and the patrolmen and of certain correlation in the work of their re-
spective departments, is not determinative of the issue. We find,
therefore, that the firefighters are not guards within the definition of
Section 9 (b) (3) of the Act.
Accordingly, we find that all firefighters, fire-truck drivers, and
fire-protection inspectors of the Employer (Carbide) at Oak Ridge
National Laboratory, Oak Ridge, Tennessee, excluding fire captains,
the fire-protection inspector, the fire chief, and all supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
SECOND DIRECTION OF ELECTION 13
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Carbide and Carbon Chemicals
Corporation, Oak Ridge, Tennessee, 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 Tenth Region, and subject to Sections
263.61 and 203.62, of National Labor Relations Board Rules and
Regulations-Series 5, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
11 See footnote 8, supra.
u Cf. Matter of The Electric Auto-Lite Co., 76 N. L. R. B. 1189.
11 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether they desire to be represented, for the
purposes of collective bargaining, by International Association of
Firefighters, American Federation of Labor, or by United Gas, Coke
and Chemical Workers, CIO, or by neither.
MEMBER GRAY took no part in the consideration of the above
Supplemental Decision and Second Direction of Election.