Dow Chemical Co.

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 17 (N.L.R.B. 1973)

DOW CHEMICAL COMPANY 17
Dow Chemical Company, Rocky Flats Division and
International Brotherhood of Electrical Workers,
Local 1823 , AFL-CIO, Petitioner,' and Pipefitters
Local 208, AFL-CIO, Petitioner,2 and Painters
and Drywall Finishers, Local No. 79, Petitioner,3
and Sheet Metal Workers International Associa-
tion , Local No. 9, AFL-CIO, Petitioner,4 and
Carpenters District Council of Denver and Vicinity
and its affiliated local unions of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Petitioner.5 Cases 27-RC-4069,
27-RC-4072, 27-RC-4074, 27-RC-4077, and
27-RC-4078
March 1, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Clinton
Elges. Following the hearing and pursuant to Section
102.67 of the National Labor Relations Board's
Rules and Regulations and Statements of Procedure,
Series 8, as amended, these cases were transferred to
the Board for decision. Thereafter, the Employer, the
Intervenors,6 and the Petitioners7 filed briefs which
have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. The rulings are hereby
affirmed. Upon the entire record in these cases, the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. It was stipulated, and we find, that each of the
Petitioners and District 508 are labor organizations
within the meaning of Section 2(5) of the Act. The
status of the DMTC as a labor organization is in
I Herein called the Electrical Workers.
2 Herein called the Pipe Fitters.
3 Herein called the Painters.
4 Herein called the Sheet Metal Workers.
5 Herein called the Carpenters.
6 International Union of District 50, herein called District 50, and the
Denver Metal Trades Council, herein called DMTC.
The five Petitioners submitted one brief.
s On November 8, 1972, District 50 filed a motion herein asking that it
be referred to in all formal documents as "United Steelworkers of America,
AFL-CIO and its Local 15440." In our view of this case, we find it
unnecessary to pass on this motion.
9 The Electrical Workers seeks a unit of "all linemen , electricians,
dispute. But in view of our determination herein that
its petition, and all others, herein should be dismissed
in any event, we find it unnecessary to pass upon the
merits of contentions challenging DMTC's status as
a labor organization within the meaning of the Act.
3. For the reasons set forth below, we find that
the several petitions before us raise no question
concerning the representation of the employees of
the Employer within the meaning of Section 9(c)(1)
and 2(6) and (7) of the Act.
1. THE POSITIONS OF THE PARTIES
The Employer is engaged at the location here
material as a prime contractor for the Atomic Energy
Commission. Its operation involves the design and
production of weapons for the national defense. At
this location, the Employer employs 2074 production
and maintenance employees, all of whom have been
represented on a plantwide basis since the plant's
inception in 1953. Until 1964, that unit was repre-
sented by the DMTC. Thereafter, as the result of a
Board-conducted election, District 50 was certified
as the bargaining representative of the overall unit.
The five Petitioners herein each filed timely
petitions before the expiration date of the then
current collective-bargaining agreement between the
Employer and District 50. Each seeks to sever from
the established production and maintenance unit one
of five different groups of craftsmen.9 The employees
described by the five petitions encompass, as a
whole, approximately 348 employees, all of whom
are employed in the maintenance department.'° The
Employer and District 50 oppose each of these
petitions on the grounds set forth in Mallinckrodt
Chemical Works, Uranium Division, 162 NLRB 387.
DMTC intervened in this case during the hear-
ing.I' It requests the establishment of a unit
composed of all employees in the maintenance
department in the event the Board dismisses the five
petitions herein filed. Its proposed unit includes, in
addition to the 348 employees sought by the
Petitioners, an additional 140 employees classified as
machinists, tool grinders, and glass blowers.
The Employer and District 50 oppose considera-
tion of DMTC's request on its merits, contending
electrician technicians, and apprentices"; the Pipe Fitters seeks a unit of "all
pipe fitters and pipe fitting apprentices in the pipe shop department"; the
Painters seeks a unit of "all painter and sign writers"; the Sheet Metal
Workers seeks a unit of "all journeymen sheet metal employees , and all
apprentices related to the above group of employees, in the small sheet
metal department"; and the Carpenters seeks a unit of "all carpenters."
10 Because the Employer's operation is in a constant state of flux, some
of the figures quoted herein were subject to slight variation even during the
course of the 5-month period over which the hearing was conducted.
11 The hearing herein opened on October 12, 1971, and was concluded
on February 11, 1972. DMTC intervened on February 4, 1972, 7 days
before the hearing was closed.
202 NLRB No. 6
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the petition should be dismissed as untimely
filed.
II. THE FACTS AND CONSIDERATIONS BEARING
ON THE ISSUES RAISED
A. The Petitioner's Proposals
In passing upon respective unit proposals of the
Petitioners, we are guided by the principles set forth
in Mallinckrodt Chemical Works, supra. The record
herein, and the consolidated brief submitted for all
five Petitioners, indicate that the relevant factors are,
in essential respects, similar for all of the proposed
craft groups. In these circumstances, we shall,
wherever possible, set forth these factors in terms
applicable to all of the groups for whom severance is
sought herein.
As noted above, the employees in the Petitioners'
proposed units form but a part of the Employer's
maintenance department. That department's major
function is to service approximately 50 production
buildings in the Employer's vast complex. The
maintenance department carries out its mission by
performing pure maintenance (troubleshooting and
breakdown maintenance); preventive maintenance
(conducting a schedule of inspections, lubrications
and adjustment of production machinery); fabrica-
tion (building repair equipment and new production
equipment); and betterment work (installation of
improved equipment). Pure maintenance accounts
for a majority of the maintenance department's
work.
The maintenance department is headed by a
general superintendent of maintenance. Under him
are 8 building maintenance superintendents and 43
crew foremen. Maintenance work orders normally
originate with the general superintendent of mainte-
nance or his foremen. Due to the close functional
relationship between the two departments, however,
production superintendents and foremen also have
some voice in determining maintenance employee
work assignments.
Because the plant's vast size would otherwise
render difficult the efficient procurement of needed
maintenance manpower throughout the production
areas, the maintenance department is organized on
geographical principles. Under this system, the
production buildings are divided into eight clusters,
or complexes. Each building maintenance superin-
tendent has charge of one complex of production
buildings. Under him are the foremen and crews that
are permanently assigned to his complex. Each
complex is serviced by those maintenance crews that
are permanently assigned to it. The craftsmen sought
herein, together with other maintenance department
employees, are assigned to 43 crews that work out of
maintenance shops in 8 production buildings.
Because the maintenance department is organized
on geographical principles, there is no single craft
shop, department, or superintendent. Nor is there
one overall maintenance shop on the premises.
Instead, each of the major complexes contains the
maintenance shop that is used by the crews assigned
to the complex. Because some members of each craft
are assigned to each complex, the maintenance shops
are similar and house a variety of craftsmen. Thus,
the maintenance shop in Building 778 is used jointly
by sheet metal workers, machinists, pipefitters, and
electricians. The shop in Building 883 serves as home
base for the electricians, pipefitters, and machinists
assigned to maintain that production area. These
shops, and others throughout the plant, are not
partitioned, and maintenance department employees
with different craft backgrounds, including the
craftsmen sought by the Petitioners herein, work side
by side.
Almost half of the 43 maintenance crews are
composed of members of diverse crafts. These
"mixed crews" are supervised by maintenance
department foremen whose craft backgrounds differ
from that of some craftsmen under them. One such
"mixed crew" is headed by a painter who supervises
pipefitters, sheet metal workers, carpenters, painters,
an electrician, an instrument man, and a machinists.
Crew assignments are not really permanent, as
changes in workload and individual requests give rise
to frequent transfers of craftsmen from crew to crew.
All hourly paid production and maintenance
employees, including the craftsmen herein, receive
the same vacation, holiday, and fringe benefits,
insurance coverage, and lunch and coffee breaks.
Production and maintenance employees work the
same hours and, with the exception of the employees
attached to the maintenance department's central
fabrication shop, the two groups share lockers,
shower, and cafeteria facilities and report to work in
the same buildings. In addition, all employees are
covered by one plantwide seniority system for
purposes of job bidding, layoffs, and recall.
Approximately 25 percent of the maintenance
complement transferred into that department from
production. Of the craftsmen the Petitioners seek to
sever, 14 percent transferred to their present jobs
from production classifications. From 1959 to the
time of the hearing, 105 of the 192 enrollees in the
maintenance craft apprenticeship programs came
from production classifications. Another 23 entered
the programs from other maintenance classifications.
Maintenance employees have also transferred into
production classifications and, on occasion, large
DOW CHEMICAL COMPANY 19
groups of craftsmen have been "loaned" on a long-
term basis to the production department.
Examination of the record herein, in light of the
relevant factors discussed in Mallinckrodt, leads us to
conclude that it will not effectuate the policies of the
Act to permit the Petitioners to "carve out" the units
they seek.
On the basis of the record before us, it is apparent
that there is a high degree of integration between the
Employer's production process and the work of the
employees in the groups sought to be severed.12 All
production facilities are maintained by the mainte-
nance department, and the craftsmen in question
spend most of their time working in production
areas. Especially in the performance of their pure
and preventative maintenance functions, when pro-
duction machinery must often be shut down, mainte-
nance craftsmen work in close association with
production employees in production areas of the
plant. This close association continues through many
stages of the maintenance craftsmen's work, for
production supervisors often initiate maintenance
work by calling for maintenance men; production
supervisors must often approve work permits so that
maintenance men can enter their areas; production
employees must stand by and monitor radiation
levels to allow work in potentially dangerous plant
areas; and still other production employees must sign
for maintenance work performed on their machines.
Some jobs, such as changing the K-Coil and
changing filters, require that maintenance craftsmen
and production employees work together as a team.
The maintenance craftsmen spend only a small
amount of time working in their shop areas.
The craftsmen's shared community of interest with
production employees is evidenced by their common
working conditions and benefits, supra. The crafts-
men in the five units sought by Petitioners also have
a close community of interest among themselves, as
craftsmen of diverse backgrounds operate out of the
same shops, often in mixed teams under common
supervision. Further, the frequency of transfers
among crews renders it probable that an individual
craftsmen will work on more than one crew,
including a mixed craft crew, at some time during his
employment.
As noted above, the employees described by the
petition herein have been represented as part of a
12 In the view that we take of this case, it is unnecessary to pass upon the
Employer's contention that a work stoppage by any of the craftsmen herein
would result in a total production stoppage.
13 Five of the Employer's other plants have representation on the basis of
an overall production and maintenance unit . In another of its plants, the
employees are represented by a variety of unions . It appears from the
record, however, that the plant in question is actually a collection of several
plants producing different chemical products , rather than an integrated
plant such as the facility herein.
single production and maintenance unit since the
plant's inception in 1953. With minor exceptions, this
pattern of representation is characteristic of the
Employer's other plants 13 and of the remaining
prime Atomic Energy Commission contractors in the
ALOO weapons complex. l4
We find no substantial evidence that the craftsmen
here involved have sought to maintain a separate
identity for bargaining purposes. During this 19-year
period of bargaining on the basis of an overall
production and maintenance unit, it is undisputed
that during both the tenure of the DMTC and
District 50, craftsmen have actively participated in
the conduct of the overall unit's representation
functions as union officers, stewards, and members
of grievance committees.
On this record, we cannot agree with the Petition-
ers' strenuous contentions that the craftsmen have
received less than adequate representation from their
current collective-bargaining representative, District
50. As noted, supra, maintenance employees, includ-
ing members of the crafts here involved, have
actively participated in the representation process as
District 50 officers, executive board members, shop
stewards, and as subcommitteemen on apprentice-
ship committees. During District 50's tenure, that
Union afforded all employees equal opportunities to
air their problems in grievance proceedings and
miscellaneous plant problems meetings. The record
indicates that employee members of the groups here
sought to be severed have in fact utilized these
opportunities.
No adverse inference as to the adequacy of District
50's representation of craftsmen is compelled by
International Union of District 50, 187 NLRB 968,
where we found that, in early 1969, a member of
District 50's negotiating team violated the Act by
telling two craftsmen that they would receive better
treatment on their grievances if they joined District
50. The unlawful statements in that case involved but
2 out of 487 maintenance department employees.
Furthermore, there is no allegation that District 50
has failed to comply with our remedial order.
Nor does the record support Petitioners' allegations
that District 50 delayed arbitrating the grievance of
maintenance employee Ryan and failed to assist
maintenance employee Shockley in pressing his case.
Instead, the record indicates that District 50 repre-
14 One of the five other prime Atomic Energy Commission contractors
working in the ALOO weapons complex , Mason and Hanger-Silas Mason
Company. has representation on the basis of more than one union. That
company. however, had a history of bargaining with more than one union
and, in a recent craft severance case , unlike the Employer herein, Mason
took the position that an additional craft unit would not adversely affect
labor stability at its plant . See Mason and Hanger -Silas Mason Company, 180
NLRB 63.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented Ryan at his step two grievance proceeding
and that, thereafter, Ryan himself acquiesced in a
proposal that processing of his case be delayed
pending arbitration of three other grievances which
had plantwide significance. The record also indicates
that Shockley received union aid and representation
on his unsuccessful grievance, and that District 50's
president personally offered to continue to press
Shockley's case after his grievance was denied at the
second step of the grievance proceeding.
Nor do we believe that either discontinuance of the
joint job evaluation program and use of the jurisdic-
tional manual following District 50's incumbency, or
District 50's establishment of a new seniority system,
substantiates Petitioners' position that District 50 has
failed to give adequate representation to the employ-
ees here sought. The record does not indicate that the
craftsmen have suffered due to these alterations.
Indeed, during the tenure of District 50, the
craftsmen herein have received steady wage increases
in amounts which continued to be larger than those
of the average bargaining unit employee. Further, the
craftsmen herein receive wages and fringe benefits
that are comparable to, if not greater than, those
earned by similar craftsmen in the area, many of
whom work at premium construction rates for less
than the entire year and receive a smaller package of
fringe benefits.
Although the craftsmen possess to some extent a
separate identity by reason of their skills, they also
share a close community of interest with other
employees in the existing production and mainte-
nance unit, both because of their long and uninter-
rupted association in that unit and because their
work is functionally integrated with other work
performed in that unit. As noted above, due to the
geographic form of plant organization, each craft
group also shares a close community of interest with
the other craftsmen in the maintenance department.
For all of the above reasons and in the absence of
other compelling considerations of overriding force,
we do not believe it would effectuate the purposes of
the Act to permit disruption of the historically
established pattern of bargaining and the stable
bargaining relationship developed thereunder over a
period of approximately 20 years. In our opinion, the
interests to be served by maintaining the established
bargaining unit far outweigh any interests that may
be served by affording the craftsmen herein an
15 By letter dated December 26, 1972, DMTC advised the Board and the
other parties to this proceeding that , in the event the Board found that an
overall unit was appropriate and determined that an election should be
conducted among all such employees, it would accept such unit determina-
tion and would request that its name appear on the ballot It further stated
that it believed the showing of interest it heretofore made would be
sufficient to support that request Thereafter, both the Employer and the
Intervenor filed letter statements with the Board in opposition to DMTC's
opportunity to change their mode of representation.
Accordingly, finding as we do that the units
requested are not now appropriate, we shall dismiss
the petitions.
B. DMTC's Request
Having found that the units requested by the
Petitioners are inappropriate for severance, it be-
comes appropriate to consider DMTC's request for
severance of a unit composed of all maintenance
department employees. We shall not grant this
request. No compelling reason has been shown for
departing from the established policy of refusing to
sever heterogeneous, multicraft maintenance depart-
ment units, such as that sought here. See General
Foods Corp., 166 NLRB 1032; Moloney Electric
Company, 169 NLRB 464. Accordingly, it is not
necessary for us to reach the question as to whether
DMTC's unit request was timely made.i5
ORDER
It is hereby ordered that the petitions herein be,
and they hereby are , dismissed.
MEMBER FANNING, dissenting:
Dismissal of this spirited craft severance attempt
warrants expression of opinion from a perspective
other than that of the majority . The hearing was
prolonged , offering opportunity for in-depth consid-
eration of the Employer 's use of skilled craftsmen in
its maintenance function . Five unions seek to
represent some 350 employees . In effect these Unions
represented these same employees for 11 years before
1964, pursuant to Board certifications to the Denver
Metal Trades Council of which the Unions were
members. Then, International Union of District 50
was certified , and it has since affiliated with the
Steelworkers . In the wake of this severance dismissal,
craftsmen will continue to be represented by an'
industrial type union , regardless of craft skills and
functions on the job.
As I view it , my colleagues have dealt an additional
blow to craft severance by their application of
Mallmckrodt criteria in broad , conclusionary terms.16
They concede that the employees sought are skilled
craftsmen . Indeed it would be difficult to take a
contrary position , inasmuch as Dow -approved ap-
prenticeship systems have long existed for electri-
cians, for pipefitters , and for sheet metal workers.
request
We find no warrant for DMTC's request as set out in its letter dated
December 26, 1972 No petition has been filed by any labor organization
which raises a question concerning representation in the overall unit, and, in
any event , we have administratively determined that the showing of interest
made by DMTC is not sufficient to support an election in such overall unit
Is ,Mallmckrodt Chemical Works, 162 NLRB 387, 397
DOW CHEMICAL COMPANY 21
Carpenters, though not apprenticed at Dow, are
hired with a minimum of 6 years' experience, after
tests, if they were not formally apprenticed else-
where. They must have an ability to do their own
layout work, which is often the test of a lead
carpenter. For painters Dow provides a written
examination in lieu of formal apprenticeship, and 6
years' experience is required for hire, 4 of which must
be in brush work.
These five groups of skilled employees constitute
two-thirds of the maintenance employees at the
Rocky Flats Division of Dow. This facility is vast, so
much so that it requires a grid of streets and these all
have names. For maintenance purposes its 50
buildings are administered on a cluster basis. There
are eight of these clusters, each with its own
maintenance shop. Forty-three crews operate out of
these eight major shops. Some of the crews are made
up of various crafts, from which my colleagues
conclude that craftsmen are being used in geographic
groups, without craft supervision in the customary
sense , or separate craft shops. They say that the
number of mixed maintenance crews is "almost half"
of the 43 crews. Thus, more than half of the
43-perhaps 25 or more-are straight craft crews
with their own craft supervision. This is a facet of the
case, a perspective that should be kept in mind in
deciding whether these admitted craftsmen are a
distinct and homogeneous group performing the
functions of their craft on a nonrepetitive basis
within the meaning of criterion no. 1 of Mallinckrodt.
In this connection it is interesting to note that when
the Employer announced its February 27, 1969,
Maintenance Department Organizational Changes it
spoke of keeping the multicraft foreman assignments
". . . to a minimum. Where there is [sic ] enough men
of one craft to support a foreman, one is assigned
from that craft." The central shop in 334 Building
was another exception, with the craft superintendent
in full charge, over the central shop foreman. The
change was described as one in the management and
supervision of maintenance department activities,
not intended to change work assignments or proce-
dures. At thef time of hearing, separate craft crews
with their own supervision actually predominated.
Based on the existence of mixed craft crews-which
do not predominate-is it wise to conclude that
skilled crafts, including many craftsmen who ac-
quired their skills through apprenticeship at this very
facility, are not sufficiently distinct and homogene-
ous for craft severance? Is it wise to glibly conclude
that there is a high degree of integration in the
Employer's production processes on a record which
fails to state what those processes are because of
security? Actually, in this area of integrated pro-
duction processes, my colleagues speak only of
integration between "the process" and "the work of
the employees sought." They then proceed to rely
upon craftsmen doing work in production areas at
times , upon production supervisors being involved
by initiating maintenance work and approving access
permits for craftsmen, and they conclude that facet
of their final conclusion by referring to the small
amount of craft employee time spent in shops. This
seems to belie a list of responsibilities of "the craft
superintendent in his assigned craft," which are
itemized from a. to m., the first being as follows:
a. Direct all craft effort in the Central Fabrica-
tion Shops according to established job priorities
and schedules.
Moving to the criterion of the history of represent-
ation at the plant where severance is sought, my
colleagues do not mention the type of bargaining
which necessarily existed during the first 11 years of
the plant's existence. Even though the unit was
plantwide, the bargaining representative was the
Denver Metal Trades Council, and the membership
of Petitioners in that group insured considerable
opportunity for craft-oriented bargaining. Since 1964
this has not been true, and the plantwide unit has not
been productive of stability in bargaining. In 1970
there was a long strike, despite which production was
maintained.
Bargaining in the industry, another criterion under
Mallinckrodt, does not rule out craft units. In this
case "the industry" is made up of the six prime
Atomic Energy Commission contractors for weapons
productions. Dow-Rocky Flats Division is one of the
six. Mason & Hanger-Silas Mason Company is
another. In December 1969, the Board (180 NLRB
467) granted a severance election to journeyman
machinists and tool and die men of the latter
employer, noting that they were the only apprenticed
trade in the plant and that bargaining had been on
the basis of "separate representation of skilled
employees as well as the separate representation of
employees in two production and maintenance
units." Carpenters, pipefitters, electricians, power-
house engineers and stationary firemen, iron work-
ers, boilermakers, painters, sheet metal workers, and
truckdrivers and certain service personnel all had
separate units. Mason & Hanger-Silas Mason Com-
pany did not oppose the severance, apparently
having learned to live under bargaining conditions
allowing freedom to their employees.
Then there is the criterion which concerns mainte-
nance of separate identity by the craft sought while it
is not bargained for separately. My colleagues say
that there is no substantial evidence of an attempt to
maintain such identity here. This totally ignores a
series of craft petitions filed in the spring of
1968-by the Pipefitters, the Carpenters, the Sheet
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Workers, the Painters, the Operating Engi-
neers, and the Machinists-which were dismissed
because of a pending 8(a)(5) charge . 17 At the next
contract opportunity, the instant craft severance
petitions were filed . Of considerable significance is
the fact that since 1964 these craft unions continued
to retain much of their membership among the
employees, and more recently, craftsmen who did
join District 50 now show a tendency to withdraw
from it.
Finally, my colleagues say that they cannot agree
that these craft employees had less than adequate
representation by District 50, and they see no
adverse inference "compelled" by the Board ' s deci-
sion in Dow Chemical, 187 NLRB No. 130, though it
involves an 8(b)(1)(A) violation by District 50. For
responsible representatives of District 50 to tell
craftsmen that they would receive better treatment
on their grievances if they joined District 50 reflects
an understandable human trait but hardly establishes
a picture of full and fair representation for all
members of the plantwide unit.
The conclusion seems inescapable that mixed craft
crews will at times be required at a complex facility
such as this, where apparently 50 separate buildings
must be serviced by skilled craftsmen and work
taken to the craft shops whenever necessary . Should
that fact be allowed to cloud the entire issue and, in
effect , be used as a reason for denying severance in
an industry where bargaining for crafts does exist? I
think not.
I would direct the elections sought.
17 Case 27-CA-2318, where it appears that no exceptions were filed to
the Trial Examiner 's Decision