Charles Eneu Johnson and Co.

National Labor Relations Board - Board Decisions

Apr 12, 1948

77 N.L.R.B. 41 (N.L.R.B. 1948)

In the Matter of CHARLES ENEU JOHNSON AND COMPANY, EMPLOYER
and INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL,
PETITIONER
Case No.16E-R42.Decided April 12,1948
Mr. F. A. Catron, of Santa Fe, N. Mex., for the Employer.
Mr. B. E. Tiller, of Midland, Tex., for the Petitioner.
Mr. F. H. Mitchell, of Pecos, Tex., for the Intervenor;
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Hobbs,
New Mexico, on January 22, 1948, before Clyde F. Waers, 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 National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF TIIE EMPLOYER
Charles Eneu Johnson Company, a Pennsylvania corporation, is
engaged in the manufacture and sale of carbon black at its plants
located at Hobbs and Eunice, New Mexico. The primary or basic
ingredient in the manufacture of carbon black is natural gas. The gas,
however, cannot be used in its natural form, but must be desulphurized
or treated. For the Hobbs plant, treated gas is purchased from a local
company. For the Eunice plant, natural gas is purchased locally,
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three -man panel consisting of Board Members Houston , Reynolds , and Gray.
' At the hearing, the Employer moved to dismiss the petition upon the ground that the
Petitioner had not complied with the requirements of Section 9 of the Act, as amended, since
none of the necessary documents and affidavits were filed within 10 days after the effective
date of the amendments to the Act. By administrative ruling, labor organizations who
were parties to representation proceedings filed prior to August 22, 194,7, the effective date
of the amendments to the Act, were given until November 30, 1947, to comply with Section
9. Inasmuch as the Petitioner was in compliance by November 14, 1947, we find no merit
in the Employer 's contention . The Employer 's motion is hereby denied.
77 N. L. R. B., No. 3. 41
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
piped to a treater plant owned by the Employer, where the gas is
desulphurized, and then piped to the Eunice plant. The Employer
sells, from these plants, carbon black, valued in excess of $400,000,
all of which is shipped to points outside the State of New Mexico.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the
Employer.
Oil Workers International Union, herein called the Intervenor,3
is a labor organization affiliated with the Congress of Industrial Or-
ganizations, claiming to represent employees of the Employer.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer 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
The Petitioner contends that all production and maintenance em-
ployees at the Hobbs and Eunice plants, excluding all employees at
the treater plant, office and clerical employees, guards, professional
men, and supervisors, constitute a single appropriate unit. While
agreeing that the unit sought by the Petitioner is otherwise appropri-
ate, the Intervenor would include the employees at the treater plant.
The Employer contests the appropriateness of a single unit for em-
ployees of both the Hobbs and Eunice plants, and contends that em-
ployees at each of these plants constitute a separate appropriation unit.
8 The Petitioner objects to the participation of the Intervenor in this proceeding , alleging
that the latter "waived" representation of the employees herein concerned when the instant
petition was filed and that Petitioner ' s-authorization cards purport to supersede any prior
authorization and to bind the signatory employees to representation by labor organizations
affiliated with the American Federation of Labor for 1 year from the date appearing on the
card and indefinitely thereafter, subject to 30 days' notice to withdraw such authority.
We find no merit in this contention As we ha%e held in earlier cases,'a question concern-
ing the representation of employees may best be resolved by an election in which all inter-
ested labor organizations making a prima facie showing of interest may participate Matter
of United Brass and Aluminum Manufacturing Company , 66 N. L . R. B 579, and cases
cited therein.
CHARLES ENEU JOHNSON AND COMPANY 43
The Employer would include the employees at the treater plant in
the unit for employees at the Eunice plant.
There are 15 employees at the Hobbs plant, of whom 2 are clerks,
2 are alleged by the Employer to be foremen, and 11 are production
and maintenance employees. There are 30 employees at the Eunice
plant, of whom 1 is a clerk, 3 are alleged by the Employer to be
foremen, and 26 are production employees .4 There are 5 production
employees at the treater plant.
The Employer's objection to a single unit of the Hobbs and Eunice
plants is based on the fact that the Hobbs plant is a leased plant and
that its operation of the Hobbs plant is on a month-to-month basis;
that the termination of its lease, and consequently of production at
the plant, appears imminent since bids for the sale of the Hobbs plant
have been received by the United States Government; that since union
representation is a matter of a simple majority within the unit found
appropriate, employees at the Hobbs plant may establish such majority
despite the desire of the majority of employees at the Eunice plant
for different representation; and that, after termination of the lease
for the Hobbs plant, the Employer may find that the union with
which it is dealing as representative of the employees at the Eunice
plant is not the one for which a majority of such employees voted.
The Hobbs and Eunice plants are located a few miles apart, and
are under the supervision of the Employer's superintendent.' Hiring
for these plants and the treater plant is effected by application to the
superintendent's office. The same skills are required of production em-
ployees in both plants, and they perform like tasks. Interchange of
employees between the plants, however, has been infrequent.6 Re-
specting the employment policy relative to the plants, the superin-
tendent of the Employer testified that if the lease for the Hobbs plant
were lost, the Employer might transfer some employees from the
Hobbs plant to the Eunice plant and discharge some of the newer
employees at the Eunice plant to make positions available for them.
Under all the circumstances, including the common control of the
two plants, the sameness of the skills required, the similarity of the
tasks involved, and the substantial community of employment interest
among employees of both plants in view of the Employer's retention
policy, we .find that a.single unit including employees at both plants
is appropriate.'
The so -called technical employee discussed subsequently in this section is included in
this group.
The superintendent is also in charge of the treater plant
Two men were transferred from the Hobbs plant to the Eunice plant, one of whom was
subsequently retransferred.
7 Matter of A. W. Franklin Manufacturing Corporation, 71 N L R B 142 ; Matter of
Sheffield Farms Company, Inc, 73 N. L. R B. 572
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees at the treater plant are classified by the Employer as
operating employees.8 The skills required and tasks performed, al-
though of a somewhat higher caliber than those of the production
employees at the Hobbs and Eunice plants, are still substantially
similar to them. There has been some interchange of employees be-
tween the treater plant and the Eunice plant. The treater plant's
desulphurization process, upon which the Eunice plant is dependent
for its operation, is an integral part of the production process of the
Eunice plant and both comprise one production operation. Em-
ployees at the three plants are subject to the Employer's retention
employment policy. In the absence of any reason for the Petitioner's
request that employees at the treater plant be excluded from the unit,
we find no reason for their exclusion, and we shall include employees
at the treater plant in the appropriate unit.
Some doubt exists with respect to the status of several employees
alleged by the Employer to be foremen. The parties are in disagree-
ment with respect to the unit placement of one so-called technical
employee.
Foremen: The parties are undecided whether certain employees at
each plant classified on the Employer's pay roll as operating em-
ployees, but deemed by the Employer to be foremen, should be excluded
from the appropriate unit as supervisors. The employees in question
supervise several other operating employees, make recommendations
to the superintendent with reference to work being done by such op-
erating employees, make recommendation for hire and discharge, and
are responsible for the training of new employees. These tasks occupy
a major portion of their time. They also perform important repair
work. They are paid on a monthly salary basis, whereas all operating
employees, except the maintenance electrical employee noted below,
under their supervision are employed at an hourly wage. We are of
the opinion that these employees are supervisors within the meaning
of the Act, and, as such, they are excluded from the appropriate unit.
Maintenance Electrical Employee: The parties disagree with re-
spect to the unit placement of one employee, who, although a profes-
sional chemist by training, performs maintenance electrical work and,
at times, unskilled labor. Although this employee is on a monthly
salary, his salary is less than the wages of an operating employee. The
Petitioner and Intervenor both regard him as a "technical" employee,
who should be excluded from the appropriate unit. The Employer re-
gards him as a maintenance employee, and not as one performing tech-
nical work, either as a chemical engineer or as a fully qualified
electrician. We find that the disputed employee is not a professional
"Operating employee" is synonymous with "production employee."
CHARLES ENEU JOHNSON AND COMPANY 45
employee at the Employer's plant within the meaning of the Act, and
he is therefore included in the appropriate unit as a maintenance
employee.
We find that all production and maintenance employees 9 at the
Employer's Hobbs and Eunice plants, including those at the treater
plant, but excluding office and clerical employees, guards, professional
men, and all other supervisors,10 constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with Charles Ellen Johnson and Com-
pany, Hobbs, New Mexico, 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 Sixteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Sections
203.61 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 em-
ployees 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 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, excluding employees on strike who are not en-
titled to reinstatement, to determine whether they desire to be repre-
sented by International Union of Operating Engineers, AFL, or by Oil
Workers International Union, CIO, for the purposes of collective
bargaining, or by neither.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Direction of Election.
0 The maintenance electrical employee is deemed included in the unit as a maintenance
employee.
10 The so-called foremen and included under the term "supervisors."