Duval Sulphur and Potash Co.

National Labor Relations Board - Board Decisions

Jan 28, 1954

107 N.L.R.B. 1002 (N.L.R.B. 1954)

1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer may then insist that the Petitioners do in fact
bargain jointly for such employees as a single unit.
[Text of Direction of Election omitted from publication.]
DUVAL SULPHUR AND POTASH COMPANY and INTERNA-
TIONAL UNION OF MINE, MILL AND SMELTER WORKERS,
for itself , and onbehalf of its CARLSBAD POTASH WORKERS,
LOCAL 415, Petitioner
DUVAL SULPHUR AND POTASH COMPANY and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS , LOCAL 953,
AFL, Petitioner . Cases Nos . 33-RC-463 and 33-RC-465.
January 28, 1954
DECISION AND DIRECTION OF ELECTION
Upon petitions duly filed under Section 9 ( c) of the National
Labor Relations Act, a consolidated hearing was held before
Byron E. Guse , 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 this case , the Board finds:
1. The Employef is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
employees of the employer.
3. 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.'
4. Pursuant to Board certification , 2 Mine-Mill Workers
(Petitioner in Case No . 33-RC-463 ) and the Company executed
a collective - bargaining agreement , effective May 1, 1953,
covering a unit of general maintenance employees . Mine-Mill
Workers and Operating Engineers ( Petitioner in Case No.
33-RC-465 ) each now seeks to represent the Employer's
unrepresented production and operating employees . Mine-Mill
Workers also requests that, in the event it wins the election,
it be certified in a single unit including the maintenance
workers it now represents . With the exception of hoistmen,
the Petitioners agree on the general grouping of the Employer's
production and operating employees . The Employer contends
1 Contrary to the Operating Engineers ' contention, we have administratively determined
that Mine-Mill Workers have sufficient interest in the Employer's production and operating
employees to support Mine-Mill Workers' petition and to warrant an election with the latter
union on the ballot.
Y 100 NLRB 1528.
107 NLRB No. 200.
DUVAL SULPHUR AND POTASH COMPANY 1003
that the only appropriate unit is one consisting of all its
hourly paid maintenance and production-operating employees.3
It is clear that the production and operating employees may
properly constitute a single unit together with the maintenance
employees, in the event they select Mine-Mill Workers to
represent them. On the other hand, in view of the fact that the
maintenance employees are currently represented by Mine-Mill
Workers pursuant to Board certification, we find that the
production and operating employees may also constitute a
separate bargaining unit if they select Operating Engineers to
represent them.4 Accordingly, we shall make no final unit
determination herein, but shall first ascertain the desires of
the employees sought by the Petitioners in the election
hereinafter directed.
As indicated above, the parties are in dispute with respect
to the unit placement of hoistmen. Operating Engineers would
include, while the Employer and Mine-Mill Workers would
exclude, these employees. In support of its position, the
Employer contends that hoistmen are concerned with the
protection of the mine and personnel in case of emergencies,
and, as salaried employees, with some benefits different
from those of other employees, have historically been ex-
cluded from collective-bargaining agreements in the potash
industry in the Carlsbad basin area. The record shows that
hoistmen operate hoists which transport men and materials
into and out of the mine, and, unlike the general production
and operating employees, are salaried and work under main-
tenance department supervision. Contrary to the Employer,
we are not persuaded that their duties are like those of guards
within the meaning of the Act or that they otherwise have
characteristics warranting their exclusion. Moreover, apart
from the fact that there is little corroborative record evidence
that salaried employees have historically been excluded from
Carlsbad basin collective-bargaining contracts, we do not
regard the method of payment to be controlling. As we find
that the hoistmen's duties are an integral part of the Employer's
mining and refining operations and that they have interests
in common with the production and operating employees with
respect to terms and conditions of employment, we shall
include them in the voting unit.5
In accordance with the foregoing, we shall direct an election
in the following voting group: All mine department and
refinery department employees at the Employer's Carlsbad,
New Mexico, operation, including storage, loading, and shipping
9All parties agree to exclude electricians, who are currently represented by international
Brotherhood of Electrical Workers.
4 W H. Anderson Co , Inc., 99 NLRB 820.
5By order dated February 16, 1954, the Board amended this Decision and Direction of
Election by excluding hoistmen from the voting group.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department employees and hoistmen, but excluding all main-
tenance employees , electricians , office clerical employees,
plant clerical employees , professional employees , guards,
and supervisors as defined in the Act.
If a majority of the employees in the voting group select
Mine-Mill Workers, they will be taken to have indicated their
desire to be bargained for as part of a larger unit including
the Employer ' s maintenance employees , and the Regional
Director conducting the election ordered herein is instructed
to issue a certification of results of election to that effect.
If, however, a majority vote for Operating Engineers, they
will be taken to have indicated their desire to constitute a
separate unit, , which, under thses circumstances , we find
appropriate , and the aforesaid Regional Director is instructed
to issue a certification of representatives to the labor organi-
zation thus selected for such unit.
[Text of Direction of Election omitted from publication.]
LOCAL 58, INTERNATIONAL BROTHERHOOD OF ELECTRI-
CAL WORKERS, AFL, AND ITS AGENT HUGH DORIAN;
DETROIT BUILDING TRADES COUNCIL, AFL, AND ITS
AGENT ANDREW DeFILIPE and LOCAL 909, INTERNA-
TIONAL UNION OF ELECTRICAL, RADIO & MACHINE
WORKERS, CIO. Case No. 7-CD-8. January 29, 1954
DECISION AND DETERMINATION OF DISPUTE
The present proceeding arises under Section 10 (k) of the
Act, which provides that whenever it is charged that any person
has engaged in an unfair labor practice within the meaning of
Section 8 (b) (4) (D) of the Act, the Board is "empowered and
directed to hear and determine the dispute out of which such
unfair labor practice shall have arisen, . . . . "' 1
On September 9, 1953, Local 900, International Union of
Electrical, Radio & Machine Workers, CIO, herein called
IUE-CIO, filed a charge alleging that Local 58, International
Brotherhood of Electrical Workers, AFL, and its agent Hugh
Dorian, and Detroit Building Trades Council, AFL, and its agent
Andrew DeFilipe, herein respectively called Local 58, Dorian,
Council, and DeFilipe and collectively called the Respondents,
had engaged in and were engaging in certain activities pro-
ISection 8 (b) (4) (D) provides in part that it shall be an unfair labor practice for a labor
organization or its agents to induce or encourage employees of any employer to engage in a
strike, where an object is forcing any employer to assign particular work to employees in
one labor organization , trade , craft , or class rather than another, unless such employer is
failing to conform to a Board order or certification determining the collective-bargaining
representative for employees performing such work.
107 NLRB No. 220.