Duval Texas Sulphur Co.

National Labor Relations Board - Board Decisions

Dec 17, 1943

53 N.L.R.B. 1387 (N.L.R.B. 1943)

In the Matter of DUVAL TEXAS SULPHUR COMPANY and SULPHUR
WORKERS UNION #23458
Case No. 16-11-690.-Decided December 17, 1943
Vinson, Elkins, Weems cfi Francis, by Messrs. Warren H. Dale and
C. E. Bryson, of Houston, Tex., for the Company.
Mr. A. L. Crystal, of Houston, Tex., and Mr. J. W. Park, of Beau-
mont, Tex., for the Union.
Mr. Robert Silagi, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by Sulphur Workers Union
#23458, herein called the Union, alleging that a'question affecting
commerce had arisen concerning the representation of employees of
Duval Texas Sulphur Company, Orchard, Texas, herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Robert F. Proctor, Trial
Examiner. Said hearing was held at Richmond, Texas, on August 27,
1943. The Company and the Union appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence 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.
On November 5, 1943, pursuant to an order of the Board reopening
the record and upon due notice, a further hearing was held for the pur-
pose of determining the exact supervisory status, if any, of employees
of the Company classified as chief electrician, motor mechanic, plant
engineer, driller, pipeline foreman, and rig builder foreman. Said
hearing was held at Richmond, Texas, before Bliss Daffan, Trial
Examiner. All parties appeared, participated, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
53 N. L. R. B., No. 253.
1387
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings made at the reopened hearing are free from prejudicial error
and are hereby affirmed. All parties were afforded a further oppor-
tunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Duval Texas Sulphur -Company, a subsidiary of United Gas Cor-
poration, is a Texas corporation engaged in the mining and market-
ing of crude sulphur. The Company operates a mine in Fort Bend
County near Orchard, Texas. During the first 6 months of 1943, its
sales of sulphur exceeded $1,000,000, 92 percent of which represents
sales to customers located outside the State of Texas.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
Sulphur Workers Union #23458, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to'grant recognition to the Union as the
exclusive bargaining representative of its employees until the Union
has been certified by the Board in an appropriate unit.
A statement of the Field Examiner, introduced into evidence at the
hearing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.' -
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.
IV. THE APPROPRIATE UNIT
The Union seeks a unit comprised of all employees of the Company
at the Orchard, Texas, plant, excluding office and warehouse clerks;
timekeepers; the mine manager; chief and assistant chief plant en-
gineers; plant, machine shop, carpenter, loading, and field foremen;
I The Field Examiner reported that the Union submitted 125 application-for-membership
cards, 112 of which bore apparently genuine original signatures , and 10 of which bore
printed signatures ; that the names of 122 persons appearing on the cards were listed on
the Company 's pay roll of July 25, 1943 , which contained the names of 163 employees in
the alleged appropriate unit; and that all the cards were dated in June or July 1943 with
the exception of 6 which were undated.
DUVAL TEXAS SULPHUR COMPANY 1389
chemists and assistant chemists ; and the mine engineer and' assistant
mine engineer . The Company agrees that the unit is substantially
correct, but would exclude the following categories of personnel from
the appropriate unit :
Defense watchmen. The record shows that since December 1941
the Company has enlarged its plant protection force from 4 to about
12. The new guards are termed "defense watchmen." The Company
contends that inasmuch as defense watchmen will be discharged after
the war, they are temporary employees , and should be excluded from
the unit. There is uncontested testimony to show that both regular
and defense watchmen alike perform the ordinary duties of plant
protection employees . Although armed, they are not members of the
Auxiliary Military Police or the Coast Guard Reserve . The evidence
further shows that many watchmen have previously worked in other
capacities at the plant , and at the end of the war will be given other
jobs, if possible , before being laid off . Since no plausible reason exists
for separating regular watchmen from defense watchmen, we shall
include all watchmen in the appropriate Unit .2
The Company contends that the employees in the following classi-
fications are supervisors , and as such should be excluded from the unit
under the doctrine established in the Maryland Drydock and Douglas
Aircraft cases .3 The Union denies that they are supervisory em-
ployees and urges their inclusion in the unit . While it is conceded
that none of the employees in question has authority to hire, the parties
differ as to their alleged authority to discharge , recommend discharge,
or otherwise effect changes in the status of their subordinates.
Chief electrician . The Company employs two electricians to take
care of its electrical and lighting equipment about the plant and in
the mines . One of the electricians is designated "chief electrician"
and is,paid on a salaried basis, whereas the'other is an assistant and
hourly paid . The chief electrician is engaged in the actual manual
work of a journeyman electrician and is assisted by his helper; the
chief electrician doing the intricate and complicated work and the
helper performing the more routine operations.
Motor mechanic. The motor mechanic keeps all natural gas and
gasoline motors in proper working order . He spends all of his time
in actual manual labor , helped by his assistant. The motor mechanic
does the complicated mechanical work and directs and supervises his
helper in doing the less complicated work. As in the case of the
chief electrician , the motor mechanic is a salaried employee whereas
2See Matter of the Henrietta Hills ( Caroleen plant ), 44 N. L R. B 690 ; Matter of
Pittsburgh Limestone Corporation, 53 N L. R B. 810; cf Matter of The Cleveland Electric
Illuminating Company, 52 N. L. It. B. 518; cf . Matter of Drava Corporation, 52
N. L It. B. 322.
3 Matter of The Maryland Drydock Company, 49 N. L . It. B. 733, and Matter of Douglas
Aircraft Company, Inc., 50 N. L. It. B. 784.
559015-44-vol. 53-89
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the helper is hourly paid. Apparently the reason for placing the
chief electrician and the motor mechanic on a salaried basis is that
they are subject to call 24 hours a day.
Plant engineers. There are four plant-engineers who work under
the supervision of the power plant engineer. Each plant engineer
is hourly paid and has a crew of either three or four men under
his supervision. Each member of the crew has his own specific
duties to perform and ordinarily does not need much supervision. As
the name implies, plant engineers are responsible for the proper
functioning of the engines used in the power plant of the Company.
Plant engineers ordinarily work throughout the plant manually
assisting their crew members in the operation of the various machines.
At the hearing the Union amended its petition to exclude "chief, or
assistant chief, plant engineer." The Company's counsel stated that
there are no employees carried on the pay roll with those titles.
Drillers. As of the date of the reopened hearing, the Company
employed six hourly paid drillers who work under the supervision of
a field foreman. The job of a driller is a skilled one entailing spe-
cialized mechanical and geological knowledge. The job is also con-
sidered by the Company to be a responsible one since the driller,
for, the most part, supervises all work connected with the drilling
of a sulphur well. The drilling crew consists of the driller and
three driller helpers or "rough-necks." The driller keeps the time of
his helpers. While the crew is engaged in the actual process of drill-
ing the well, substantially all of the driller's time is spent operating
the rig.' When the machinery is not in operation, the driller joins
the rough-necks in doing the manual labor incident to drilling a well.
Approximately 25 percent of the driller's time is spent in this latter
work.
Pipe line f oremian. The pipe line foreman supervises a gang of men
ranging from 3 to 12 who construct pipe lines for the Company.' The
pipe line foreman is hourly paid but at a substantially higher rate than
the common laborers who work under him. Unlike the employees
mentioned above, the pipe line foreman performs very little manual
labor, but spends nearly all his time in supervising his crew.
Rig builder foreman. There is one rig builder foreman in the em-
ploy, of the Company. Like the pipe line foreman he is hourly paid,
but at a substantially higher rate than the dozen or so laborers who
comprise his labor gang. The rig builder foreman is charged with re-
sponsibility of building and moving the derricks and rigs used in
drilling for sulphur. Nearly all of his time is spent in supervision.
As to the chief electrician, motor mechanic, plant engineers, and
drillers, it is apparent that they occupy positions comparable to that
of master mechanics or journeymen in their respective crafts. The
fact that they work with helpers, and perforce direct and guide the
DUVAL TEXAS SULPHUR COMPANY 1391
work of their helpers, does not, of itself, elevate them to such super-
visory rank that they must be excluded from the broad production and
maintenance unit 4 While they have authority to make recommenda-
tions with respect to their helpers, the record indicates that such rec-
ommendations do not go beyond those normally and customarily
made by every skilled craftsman regarding his less skilled helpers.
The record contains no evidence which indicates that either the chief.
electrician or the motor mechanic had ever discharged or recommended
the discharge of his helper. As for the plant engineers, their imme-
diate supervisor testified that he did not know whether they had ever,
been told that they had the authority to discharge; but in any event he
knew of no instance where plant engineers had discharged their
helpers.
There is considerable conflict in the evidence concerning the author-
ity of the drillers over their helpers. Testimony was offered by the
Company to the effect that drillers have authority to discharge their
helpers. On the other hand no instance was cited where a driller
had actually discharged a helper, and there is testimony to the effect
that the authority of a driller is limited to reporting any dereliction of
duty on the part of a helper to the field foreman for appropriate action
by the latter. In this respect, the authority of the drillers is appar-
ently similar to that of the pipe line welders employed by the Company
who have one or more helpers working with them. Should a welder
become dissatisfied with the work or conduct of his helpers, he would
report his dissatisfaction to his immediate supervisor, the shop fore-
man, who would act upon the report in the same fashion as the field
foreman acts upon the report of a driller. The Company does not
contend that welders are thereby employees who should be excluded
from the unit. In view of the evidence that discharges from the
Company's operations are not a common occurrence, we are of the opin-
ion that any authority to discharge vested in the drillers is both nebu-
lous and at best only theoretical. In actual practice, decisions are
made by supervisors with at least the rank of field foreman. We have
generally included skilled workers such as these in appropriate units
with their helpers.5 Accordingly, in the instant proceeding, we shall
include the chief electrician, motor mechanic, plant engineers, and
drillers in the unit appropriate for collective bargaining.
With respect to the pipe line foreman and the rig builder foreman,
the record discloses that they have the authority to discharge members
of their crews working under them. On at least one recent occasion
the rig builder foreman exercised that authority. We shall there-
See Matter of Victor Chemical Workers, 52 N. L R B. 194.
See Matter of Norwood Sash & Door Mfg. Co., 42 N. L. R. B. 678 ; Matter of Bond
Stores, Inc , 51 N. L. R. B. 1437.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore exclude both the pipe line foreman and the rig builder foreman
from the appropriate unit.
We find that all employees of the Company at its Orchard, Texas,
plant, including all watchmen, the chief electrician, motor mechanic,
plant engineers, and drillers, but excluding office and warehouse
clerks; timekeepers; the mine manager; the power plant engineer;
plant, machine shop, carpenter, loading, and field foremen; chemists
and assistant chemists; the mine engineer and assistant mine engineer;
the pipe line foreman; and the rig builder foreman, and all other
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Duval Texas
Sulphur Company, Orchard, Texas, 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 Article III, Sections 10 and 11, of said Rules and Regulations,
among the employees in the unit found appropriate 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 said pay-roll period because they were ill or on
This is intended to be the same person ( s) whom the Union apparently incorrectly
designated as "chief and assistant chief plant engineers."
DUVAL TEXAS SULPHUR COMPANY 1393
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 dis-
charged for cause and have not been rehired or reinstated prior to the
date of the election, to determine whether or not they desire to be
represented by Sulphur Workers Union #23458, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining.