Celanese Corp. of America

National Labor Relations Board - Board Decisions

Dec 29, 1939

18 N.L.R.B. 965 (N.L.R.B. 1939)

In the Matter Of CELANESE CORPORATION OF AMERICA and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
In the Matter of CELANESE CORPORATION OF AMERICA and
INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. R-187 and R-188, respectively.Decided December
29, 1939
Acetate Rayon Yarn Manufacturing Industry-Investigation of Representa-
tives: petition for, dismissed where no question concerning representation has
arisen in a unit which is appropriate for the purposes of collective bargain-
ing-Unit Appropriate for Qollective Bargaining : unit composed of electricians,
apprentices , and helpers inappropriate because petitioning union has no mem-
bers ; unit composed of machinists and apprentices inappropriate : divergent
views of Board members: ( 1) (Smith, concurring ) since there is no evidence of
past history of collective bargaining on part of the machinists , no justification
for weakening bargaining strength of employees as a whole by permitting craft
unit to split off from successful industrial unit; ( 2) (Leiserson , concurring)
prior contract covering engineering department and existing contract granting
exclusive recognition in an industrial unit make . unit requested inappropriate ;
unit requested is inappropriate because it excludes first-class helpers; (3)
(Madden, dissenting ) craft unit of machinists , apprentices, and first-class help-
ers is appropriate if employees involved desire it ; petitioning union should
be allowed to withdraw, and petition would be dismissed, if union did not
desire to represent the group thus defined.
Mr. Jacob Blum, Mr. Reeves R. Hilton, and Mr. Lester M. Levin,
for the Board.
Mr. Matthew H. O'Brien, of New York City, for the respondent.
Mr. Edward D. Bieretz, of Washington, D. C., for the I. B. E. W.
Mr. F. N. Kershaw, of Baltimore, Md., Mr. Paul Hutchingsi and
Mr. Tom Carroll, of Washington, D. C., for the I. A. M.
Mr. Arthur P. McNulty and Mr. Joseph E. Brill, of New York
City, and Mr. Isadore Katz, of Philadelphia, Pa., for the T. W. U. A.
Mr. Harry Sacker, of New York City, for the Transport Workers'
Union of America, amicus curiae.
Mr. Lee Pressman and Mr. Anthony Wayne Smith, of Washing-
ton, D. C., for the Congress of Industrial Organizations , am2cus
curiae.
Mr. Abraham L. Kaminstein and Mr. Edward Scheunemann, of
counsel to the Board.
18 N. L. It. B., No. 104.
965
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
On May 29, 1937, and on June 1, 1937, respectively, International
Association of Machinists, herein called the I. A. Al., and Inter-
national Brotherhood of Electrical Workers, herein called the I. B.
E. W., filed with the Regional Director for the Fifth Region (Bal-
timore, Maryland) petitions alleging that questions affecting com-
merce had arisen concerning the representation of employees in the
engineering department of Celanese Corporation of America, Cum-
berland, Maryland, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor . Relations Act, 49 Stat. 449, herein
called the Act. On June 10, 1937, the National Labor Relations
Board, herein called the Board, acting pursuant to Article III, Sec-
tion 10 (c) (2), of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered that the cases be consolidated
for the purposes of hearing, and acting pursuant to Section 9 (c)
of the Act and Article III, Section 3, of said Rules and Regulations,
directed an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due
notice.
Pursuant to notice duly served upon the Company, the I. A. M.,
the I. B. E. W., and Textile Workers Union of America, herein
called the T. W. U. A.,' a labor organization named in the I. A. M.
petition as claiming to represent the Company's employees, a, hearing
was held in Cumberland, Maryland, on July 6, 1937, before Tilford
E. Dudley, the Trial Examiner duly designated by the Board. The
Board, the Company, and the T. W. U. A. were represented by
counsel, and the I. A. M. and I. B. E. W. by officials. They all
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues was afforded all parties. During the course of the hearing
the Trial Examiner made several rulings on motions and on ob-
jections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On July 27, 1937, the T. W. U. A. filed a brief and on July 29,
1937, the I. A. M. and I. B. E. W. filed a joint brief with the Board.
' The organization was named in the petition as United Textile Workers of America.
It is referred to on other occasions throughout the proceedings as Textile Workers' Organ-
izing Committee, and T . W. U. A. It is clear from the record that the above names were
used in this case to refer to one and the same organization, which Is now the T. W. U. A.
CELANESE- CORPORATION OF AMEIBLCA 967
On November 3, 1937, pursuant to notice, a hearing for the pur-
pose of oral argument was held before the Board at Washington,
D. C. All parties were represented by counsel and presented argu-
ment. Counsel for Transport Workers' Union of America and the
Congress of Industrial Organizations 2 appeared by counsel and par-
ticipated as amici curiae. On November 8, 1937, the T. W. U. A.
filed a further brief with the Board, and the I. A. M. and I. B. E. W.
a further joint brief. The following organizations filed briefs as
amici curiae: International Union, United Automobile Workers of
America, International Longshoremen and Warehousemen's Union,
International Woodworkers of America, United Cannery, Agricul-
tural, Packing and Allied Workers of America, District #2, Con-
gress of Industrial Organizations, and Federation of Flat Glass
Workers of America.
On September 16, 1939, the Board issued an order reopening the
record, directing a further hearing, and authorizing the Regional
Director to conduct it. Pursuant to notice,. a hearing was held at
Cumberland, Maryland, on November 16, 1939, before Guy Van
Schaick, the Trial Examiner duly designated by the Board. The
Board, the Company, the I. A. M., and the T. W. U. A. were repre-
sented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On November 29 and December 4, 1939, respectively, the T. W. U. A.
and the I. A. M. filed further briefs with the Board.
On November 29, 1939, pursuant to notice, a hearing for the pur-
pose of oral argument was held before the Board at Washington,
D. C. The I. A. M. and the T. W. U. A. were represented by counsel
and presented argument.
Upon the argument, the briefs, and the entire record in the case,
the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Celanese Corporation of America is a Delaware corporation with
principal offices in New York City. It is the largest domestic manu-
facturer of acetate rayon yarns. The Company employs approxi-
mately 9,138 persons in its plant near Cumberland, Maryland. Peter
Cooper, chief accountant of the Company, testified at the 1937 hearing
2 Then called Committee for Industrial Organization.
283029-41-vol. 18-62
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "practically all" of the raw materials used at the Cumberland,
Maryland, plant came from without Maryland, and that "all the fin-
ished products but a small percentage" are shipped from Maryland
to Nation-wide and foreign markets. Counsel for the Company
stated at the 1939 hearing that there had been no material change in
the character of the business with regard to interstate commerce since
1937, and that goods valued at more than $1,000,000 have been shipped
from Maryland to other States in 1937 and in each year since.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists is a labor organization
affiliated with the American Federation of Labor. It admits to mem-
bership certain employees of the Company.
International Brotherhood of Electrical Workers is a labor organi-
zation affiliated with the American Federation of Labor. It admits
to membership certain employees of the Company.
Textile Workers Union of America is a labor organization, affili-
ated with the Congress of Industrial Organizations. It admits to
membership all non-supervisory employees of the Company.
III. THE APPROPRIATE UNIT
A. The petition of the I. B. E. TV.
The petition of the I. B. E. W. seeks a unit composed of "journey-
men electricians, helpers and apprentices employed on construction
and maintenance electrical work in the plant." The I. B. E. W.
claimed substantial membership among the electricians at the 1937
hearing, although Robert Thwaites, financial secretary of the
I. B. E. W., testified that he could not say definitely that there was
any expressed sentiment for separate representation on the part of
the electrical workers.
On August 4, 1939, the I. B. E. W. informed the Board's attorney
by letter, which was introduced in evidence at the 1939 hearing, that
it no longer had any members among the employees of the Company.
It was not represented and took no part in the 1939 hearing.
Sylvester Butts, former treasurer of the I. B. E. W., testified at
the 1939 hearing that there was no local group of electrical workers
who wanted separate bargaining rights.
Consequently, we find that the bargaining unit sought by the
I. B. E. W. is not appropriate for the purposes of collective
bargaining.
B. The petition of the I. A. M.
The I. A. M. petition, as amended at the second hearing, seeks a
unit composed of journeymen machinists and apprentices. The
CELANESE CORPORATION OF AMFJRZCA 969
T. W. U. A. intervened and contends that all the employees in the
plant, exclusive of supervisory employees, constitute a single appro-
priate unit, and that the unit proposed by the I. A. M. is not suitable
for the purposes of collective bargaining.
For the reasons set forth in the separate opinions below, we find
that the bargaining unit sought by the I. A. M. is not appropriate
for the purposes of collective bargaining.
IV. THE QUESTION CONCERNING REPRESENTATION
Since the bargaining units sought to be established by the petitions
are inappropriate for the purposes of collective bargaining, we find
that no question has been raised concerning the representation of
employees of the Company.
On the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSION OF LAW
No question concerning the representation of employees of Cela-
nese Corporation of America in a unit appropriate for the purposes
of collective bargaining has arisen, within the meaning of Section
9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board hereby orders that the peti-
tions for investigation filed by International Association of Machin-
ists and International Brotherhood of Electrical Workers be, and
they hereby are, dismissed.
Separate concurring opinion of MR. EDWIN S. SMITH :
The Company employs approximately 8,600 non-supervisory em-
ployees in its Cumberland plant. Of these, 1,458 are employed in the
engineering department which performs all the mechanical work nec-
essary in installing, repairing, and maintaining machinery and
equipment.
The work of the engineering department is closely related to pro-
duction, and the employees are assigned to subdivisions of the engi-
neering department which correspond to the production departments
of the plant. There are, in addition to other craftsmen, approxi-
mately 203 journeymen machinists, 2 or 3 machinist apprentices, 58
first-class helpers, and 350 helpers employed in the engineering
department.
The T. W. U. A. began organizing the employees of the Company
in August 1936. By October, the T. W. U. A. claimed to have en-
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rolled 3,000 members and began negotiations with the Company. In
November the T. W. U. A. called a strike which closed the plant. A
settlement was reached by the end of November and on December 2,
1936, the T. W. U. A. signed an agreement with the Company which
recognized the T. W. U. A. as collective bargaining representative of
all employees who were or might become members of the T. W. U. A.
The agreement set forth a method of adjusting grievances, provided
for seniority, and resulted in wage increases to employees in the engi-
neering department as well as to other employees. At that time the
T. W. U. A. claimed to represent 11,000 of the 11,800 persons then
employed by the Company.
The I. A. M. and I. B. E. W. were organized shortly after the execu-
tion of the agreement between the Company and the T. W. U. A. On
May 6, 1937, the I. A. M. and the I. B. E. W. attempted to enter into
negotiations with the Company concerning employees of the engineer-
ing department. One conference was held, which was apparently
treated by the Company as a conference concerning grievances only.
On May 20, 1937, the Company informed the I. A. M. and I. B. E. W.
that because of its contract with the T. W. U. A. it would not bargain
with the I. A. M. or I. B. E. W. unless ordered to do so by the Board.
On June 1, 1937, 115 machinists and electricians struck. The strike
lasted 5 days and resulted in some inconvenience to the Company, but
did not close the plant.
The Company continued to bargain with the T. W. U. A., and to
apply any agreements reached to all non-supervisory employees. On
October 22, 1937, the Company signed a contract with the T. W. U. A.
recognizing it as sole bargaining agency for all non-supervisory
employees.
On August 4, 1939, following an impasse in negotiations for a new
contract, the T. W. U. A. struck and again caused the plant to close.
The I. A. M. informed the Company that it was not on strike but that
its members were not working because they "respected the picket lines
of other organizations." On September 5, 1939, the Company and the
T. W. U. A. settled the strike and entered into another contract which
again recognized the T. W. U. A. as sole bargaining agency for all
non-supervisory employees and which resulted in general pay in-
creases for, among others, the machinists and other employees in the
engineering departments
The record thus discloses successful collective bargaining between
the Company and the T. W. U. A. in a unit comprising non-supervisory
3 It should be noted that both this contract and its predecessor were entered into at a
time when the petition for certification of representatives as a separate unit , filed by the
I. A. M., was pending before the Board. Under these circumstances I do not consider that
the recognition of the T. W. U. A. in either the contract of October 22, 1937, or of August
4, 1939, as sole bargaining agent strengthens the claim of the T. W. U. A. to an industrial
unit, which I find appropriate on other grounds.
CELANESE CORPORATION OF AMERICA 971
employees from December 1936 to the present time. The employees in
the engineering department have been represented on the bargaining
committees of the T. W. U. A. and have participated in the benefits
achieved by the T. W. U. A. through collective bargaining.
There is, on the other hand, no history of collective bargaining with
the Company on a craft basis. The I. A. M. was not organized until
after the T. W. U. A. and the Company had entered into an agreement
covering the employees in the engineering department.
For the reasons which are stated in my dissenting opinion in Matter
of Allis-Chalmers Manufacturing Company 4 and in my concurring
opinions in Matter of American Can Co.,5 and Matter of Milton Brad-
ley Co.,e I see no justification in the present case for weakening the
bargaining strength of the employees as a whole by permitting the
machinists and apprentices to split off from the main bargaining unit.
Separate concurring opinion of MR. WILLIAM M. LEISERSON :
The Company's employees, including those in the engineering de-
partment, have been covered by a collective agreement .between the
Company and the T. W. U. A. since December 1936. Since October
1937 the agreement has provided for recognition of the T. W. U. A.
as exclusive representative of a unit consisting of all the Company's
non-supervisory employees. The I. A. M. desires to split off from
the unit thus established by agreement journeymen machinists and
apprentices, although there are machine workers and helpers whom
it admits to membership and who are commonly included in the
machinists crafts whom it would exclude from its proposed unit.
The Chairman in his dissenting opinion recognizes that the I. A. M.
is requesting an inappropriate unit by excluding the first-class helpers
and he therefore would take these out of the larger unit and transfer
them to the unit proposed by the I. A. M. although it has not asked
for them. Under these circumstances and for the reasons stated in
my concurring opinions in Matter of American Can Company 7 and
Matter of Milton Bradley Company,8 I am of the opinion that the
unit sought by the I. A. M. is inappropriate.
CHAIRMAN MADDEN, dissenting in, part :
The I. A. M. requests that a separate bargaining unit be established
of journeymen machinists and apprentices. There are somewhat
over 200 employees in the foregoing classifications. In addition there
are about 60 first-class helpers who assist the journeymen machinists
*Matter of Allis-Chalmers Manwfaeturing Company and International Union, United
5 Matter of American Can Co. and Engineers Local No. 30, 13 N. L. R. B. 1252.
°Matter of Milton Bradley Co. and International Printing Pressmen and Assistants'
Union of N. A., 15 N. L. R. B. 938.
T Matter of American Can Co. and Engineers Local No. 30, 13. N. L. R. B. 1252.
8 Matter of Milton Bradley Co. and International Printing Pressmen and Assistants'
Union of N. A., 15 N. L. R. B. 938.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to a limited extent perform the same functions. Also in the
engineering department there are about 200 machine fixers and re-
pairmen, sometimes known as specialists, and about 350 helpers who
assist in all phases of the work performed by the engineering
department.
I am of the opinion that the journeymen machinists, apprentices,
and first-class helpers may properly be considered a separate bargain-
ing unit. Although the specialists and helpers are eligible for mem-
bership in the I. A. M., that organization desires to confine the bar-
gaining unit to the narrower limits of skilled machinists. The Board
has previously recognized such a unit as appropriate 0 and I believe
it should do so in this case.
The contract between the Company and the T. W. U. A., recog-
nizing the latter as exclusive bargaining agent for all the non-super-
visory employees, was entered into after the proceedings in this case
were instituted. I do not see, therefore, how that contract, or its
successor, can be given any weight in the determination of the issue
raised by the I. A. M. petition.
In view of the foregoing, and for the reasons stated in my dis-
senting opinions in Matter of American Can Company 10 and Matter
of Milton Bradley Company," I would give the journeymen machin-
ists, apprentices, and first-class helpers the opportunity to determine
by secret ballot whether they wish to bargain collectively through
the I. A. M. as a separate unit or whether they wish to merge with
the other employees in an industrial unit. Since the craft group as
thus defined, including the first-class helpers as well as the journey-
men machinists and apprentices, is broader than the unit requested
by the I. A. M., I would permit the I. A. M. to withdraw from the
election, if it so desired, upon notice to the Board within 5 days after
issuance of the Direction of Election. If the I. A. M. did so with-
draw, I would then dismiss its petition, since it is the only party
seeking.a determination of representatives.
9 Matter of American Hardware Corporation and United Electrical and Radio Workers of
America, 4 N. L. R. B. 412.
10 Matter of American Can Co . and Engineers Local No. 30, ].3 N. L. R. B. 1252.
11 Matter of Milton Bradley Co . and International Printing Pressmen and Assistants'
Union of N. A., 15 N. L. R. B. 938.