Chemurgic Corp.

National Labor Relations Board - Board Decisions

Feb 5, 1945

60 N.L.R.B. 412 (N.L.R.B. 1945)

In the Matter of CHEMURGIC CORPORATION and INTERNATIONAL Asso-
CIATION OF MACHINISTS , LODGE 824, A. F. OF L.
Case No. 20-R-1128.-Decided February 5, 1945
Mr. Herbert L. Breed, of Oakland, Calif., for the Company.
Mr. James F. Galliano, of Oakland, Calif., and Mr. K. C. Apperson,
of Richmond, Calif., for the IAM.
Mr. P. H. McCarthy, Jr., of San Francisco, Calif., and Mr. R. D. Lee,
of Richmond, Calif., for the Laborers.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition,duly filed by International Association of Ma-
chinists, Lodge 824, A. F. of L., herein called the IAM, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Chemurgic Corporation, Richmond, California, herein
called the Company, the National Libor Relations Board provided
for an appropriate hearing upon due notice before Robert E. Tillman,
Trial Examiner. Said hearing was held at San Francisco, California,
on December 11, 12, and 13, 1944. The Company, the IAM, and Con-
struction, General and Track Laborers, Production, Factory, Plant,
Maintenance, Oil, Tunnel and Aqueduct Workers, Local Union 324 of
Contra Costa County, A. F. of L., herein called the Laborers, appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence 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 an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Chemurgic Corporation is a Nevada corporation having its office
and principal place of business in Richmond, California. The Com-
60 N. L. R. B., No. 80.
412
CHEMURGIC CORPORATION 413
pany is engaged in the manufacture of bombs and other pyrotechnics
at its two plants, one in Richmond, California, with which we are
solely concerned, and the other in Turlock, California. During the
first 10 months in 1944, the Company purchased for use at its two
plants, raw materials valued at approximately $500,000, of which
about 50 percent was shipped from points outside the State of Cali-
fornia. During the same period, products finished at these plants
were valued at approximately $1,500,000, about 90 percent of which
was delivered to the United States Government at these plants, the
remainder having been sold to private firms, some of which are located
outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge 824, and Construc-
tion, General and Track Laborers, Production, Factory, Plant, Main-
tenance, Oil, Tunnel and Aqueduct Workers, Local Union 324 of
Contra Costa County, both affiliated with the American Federation of
Labor, are labor organizations admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 23 and July 7, 1944, the IAM requested the Company to
bargain with it as the representative of certain of the Company's
employees. The Company refused, claiming that it was bound by
an existing contract with the Laborers. While the Company does not
now raise the contract as a bar, the Laborers argues that it precludes
a present determination of representatives.
On November 26, 1941, the Company and the Laborers entered into
a closed-shop contract covering all employees, effective January 2,
1942, for a term expiring on July 1, 1945. In accordance with its
provisions, the contract was modified in unimportant respects by a
supplemental agreement dated August 17, 1942, which left the termi-
nation date unchanged. Inasmuch as this contract is for a longer
period than 1 year and has already been in effect more than 3 years,
it does not constitute a bar.'
The Laborers also urges, in substance, dismissal of the petition on
the ground that both it and the IAM are American Federation of
Labor affiliates involved in a jurisdictional dispute. However, since
'Matter of Mathieson Alkali Works , 55 N L. R. B. 1100 ; and Matter of Sutherland
Paper Company , 55 N. L. R. B. 38
Moreover , the record discloses that the Company and the Laborers have negotiated a
new contract which only awaits disposition of the instant proceeding before becoming
effective.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it appears that the jurisdictional dispute has been in existence for
more than 21/2 years and there is no likely prospect of settlement by
the parent organization,' we are of the opinion that a present deter-
mination of representatives is not foreclosed 3
The record indicates that the, IAM represents a substantial number
of employees in the unit hereinafter found appropriate.4
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.
TV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The IAM requests a unit of machinists and machinist helpers. The
Laborers and the Company contend that such a unit is inappropriate
for the reasons that there are no employees solely engaged in work
associated with the machinist craft, and collective bargaining has
been conducted for 3 years on the basis of a plant-wide unit.
There are, at present, six employees whom the IAM would include
in the unit. Three of them, Lloyd Westcamp, Thomas Peterson, and
Elmer McCrea, are classified by the IAM as machinists, and three,
Joseph Shields, Albert Evans, and Ocy Pearce, as machinist helpers.
The Company and the Laborers apparently consider these employees
merely general maintenance men. Westcamp testified that he de-
votes 90 percent of his time to machinist lathe work, and the balance
of his time to the upkeep of motors and plant maintenance and that
Peterson performs similar work. McCrea testified that his duties
entail repairing, installing and setting up machinery, building new
equipment, and lathe work.5 Significantly, in an application sub-
mitted to the War Labor Board requesting a machinist wage'rate for
Westcamp, Peterson, and McCrea, the functions of these employees
were described by the Company as those of machinists.
Turning to Shields, Evans, and Pearce, it appears that they are
unskilled workers performing diverse jobs. Shields spends about
75 percent of his time collecting and disposing of waste chemical
products, and the rest of his time in gardening and other odd tasks.
A copy of an unanswered letter dated October 4, 1944, from the Board 's Director of
Field Division to Frank P Fenton, Director of Organization of the American Federation
of Labor, requesting information as to efforts made to settle the jurisdictional dispute
between the unions involved herein, was received in evidence
8 Matter of Southwestern Public Service Company, Panhandle Division , 58 N. L. R. B. 926;
Matter of Midwest Printing Co., 58 N. L. R. B 673; Matter of Mountain States Power
Company, 58 N. L. R B 109.
The IAM introduced into evidence an authorization list containing the names of six
persons appearing on the Company's pay roll. There are six employees in the alleged
appropriate unit.
The Laborers relies on its contract as proof of interest in the proceeding,
5 It appears that machinists also may occasionally do work not directly related to their
craft.
CHEMURGIC CORPORATION 415
Evans cares for the company-owned sheep, assists in gardening, helps
the electrician "a large percentage of the time" and does other general
jobs. Pearce performs substantially the same duties as Shields and
Evans, and all three occasionally help machinists in such work as
moving heavy machinery.
In view of the foregoing facts, we are of the opinion and find that
Westcamp, Peterson, and McCrea comprise a well-defined, machinist
craft group, and that Shields, Evans, and Pearce are not madhinist
helpers.
As noted in Section III, supra, for 3 years the Laborers has main-
tained contractual relations with the Company for all employees pur-
suant to the closed-shop agreement dated November 26, 1941; as modi-
fied by the 1942 agreement. It appears, however, that at the time of
the execution of the original contract, the Company employed about
two non-supervisory maintenance employees, neither of whom prob-
ably was a machinist. The record indicates that the machinists,
Westcamp, Peterson, and McCrea, never became members of the La-
borers, despite the provision in the contracts requiring new employees
to join within 3 weeks after they are hired .6 On the contrary, it is
clear that, during their employment, they have continuously retained
their membership in the IAM.7 In 1942, the IAM sought recognition
from the Company as the bargaining agent for machinists, but the
Company refused because of its contract with the Laborers, while the
Laborers apparently declined, and still declines, to relinquish juris-
diction over such employees to the IAM.
The evidence is not contradicted that machinists have ignored the
grievance procedure 8 adopted by the Laborers and the Company, and
both individually and as a group, and without the Laborer's aid, have
presented their.complaints and requests for wage increases directly to
the Company's personnel office, its president, or other officer, who may
° Westcamp testified that 3 or 4 months after he began to work for the Company he
received a post card from the Laborers requiring him to join or be relieved of his job;
that he complained to the IAM 's financial secretary ; and that together they discussed the
matter with the Laborers ' senior business representative who tore up the card saying
that it was a mistake.
7 Westcamp was employed in July 1942 and was initiated into the TAM on September
16, 1942. McCrea was employed on April 20 , 1943 and was transferred to the IAM on
April 9, 1943 from another lodge , while Peterson also was transferred to the IAM in
July 1942.
° While the contract and its supplement do not specifically provide for the handling of
grievances , a grievance procedure has been evolved through a course of practice About
a year ago , at the suggestion of the War Labor Board , a Labor Management Committee
was formed to consider job reclassifications necessitated by the frequent changes in the
Company ' s operations . Gradually , this Committee assumed the additional function of
adjusting employees ' grievances , and a procedure was adopted , which is presently in
effect, whereby employees, in the first instance , bring their complaints to the plant steward
or a committee member, who in turn submits them to the Committee If no settlement
results , the grievances are jointly considered by the Laborers' senior business representative
and the Company 's president . This Committee consists of three employees and three
Company representatives . The employee representatives are chosen by and from 10 of
the oldest employees who are members of the Laborers.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have referred such complaints and requests to the Labor Management
Committee for initial consideration. In pursuing this independent
course of bargaining, machinists, it appears, have been successful in a
number of instances, although they may also have shared in a general
wage increase and other benefits obtained by the Laborers for all the
Company's employees.
In view of all the circumstances, we are of the opinion that the
machinists, may constitute a separate bargaining unit,° or be included
in the existing comprehensive unit. Therefore, before making a final
determination with respect to the appropriate unit, we shall first ascer-
tain the desires of the employees-themselves as reflected by an election.
Upon the results of this election, will depend, in part, our determina-
tion. Accordingly, we shall direct that, an election by secret ballot
be conducted among all the Company's machinists at its Richmond;
California, plant, excluding all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees or effectively recommend such action, who were
employed during the pay-roll period immediately preceding the date
of the Direction of Election, subject to the limitations and additions
set forth therein, to determine whether they desire to be represented
by the IAM or the Laborers. If a majority of the employees in this
voting group select the IAM as their bargaining representative, they
will have thereby indicated their desire to constitute a separate appro-
priate unit. If, however, a majority of these employees choose the
Laborers, then they will have thereby indicated their desire to be part
of the established plant-wide unit.'0
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 Rela-
tions 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 Chemurgic Cor-
° See Matter of General Electric Company ( Lynn River Works and Everett Plant),
58 N. L. R. B. 57 , and cases cited ; and Matter of Goodyear Tire d Rubber Company, 55
N. L. R. B. 918, and cases cited.
10 The IAM, in the alternative , would accede to a unit of maintenance department
employees excluding the toolroom attendant and the maintenance department foreman.
While we have permitted , under appropriate circumstances, a unit restricted in scope
to be established , notwithstanding a history of collective bargaining on a more compre-
hensive basis , we have done so in cases involving well-defined skilled, and cohesive craft
groups . See cases cited in footnote 9. Accordingly , we find no merit in the IAMs alter-
native position . Moreover , considering the history of collective bargaining , those factors
which impel a self-determination election for machinists are not present insofar as the
maintenance department employees are concerned.
CHEMURGIC CORPORATION - 417
poration, Richmond, California, 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 Twentieth 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 the
employees in the voting group set forth 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
the said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but exclud-
ing those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Machinists
Lodge 824, A. F. L.,11 or by Construction, General and Track Laborers,
Production, Factory, Plant, Maintenance, Oil, Tunnel and Aqueduct
Workers, Local Union 324 of Contra Costa County, A. F. of L., for the
purposes of collective bargaining, or by neither.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.
11 The IAM's request that its name appear on the ballot as set forth above is granted.
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