East Texas Pulp & Paper Co.

National Labor Relations Board - Board Decisions

Aug 10, 1955

113 N.L.R.B. 539 (N.L.R.B. 1955)

I EAST TEXAS PULP & PAPER_-COMPANY 539
machinists do metal pattern work a portion of their time does not con-
stitute them metal patternmakers, nor has this been contended by any
of the parties. On the other hand, the fact that some metal pattern
work is done by machinists does not destroy, as contended by the Em-
ployer and Intervenor, the appropriateness of the unit sought by the
Petitioner for all craftsmen of the patternmaking skill are assigned
to the pattern shop where they devote their entire time to patternmak-
ing. , Therefore, we find that the employees in the pattern shop con-
stitute a homogeneous group of skilled craftsmen, working as such,
together with their helpers and those in direct line of craft progres-
sion, who may, if they so desire, be represented as a separate unit by
the Petitioner which has historically represented such units.
Accordingly, we shall direct that an election be conducted in the
following voting group of employees at the Employer's Hampton,
Georgia, plant:
All patternmakers, patternmakers advanced, patternmaker repair-
men, pattern shop helpers, and pattern shop handymen in the pat-
tern shop excluding all other employees and all supervisors as defined
in the Act.
5. If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner for
the unit described in paragraph numbered 4, which the Board, under
such circumstances, finds to be appropriate for purposes of collective
bargaining. In the event a majority vote for the Intervenor, the
Board finds the existing unit to be appropriate and the Regional Di-
rector will issue a certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
East Texas Pulp & Paper Company and International Brother-
hood of Paper Makers, AFL, Petitioner
East Texas Pulp & Paper Company and Beaumont Metal Trades
Council , AFL, Petitioner. Cases Nos. 39-RC-874 and 39-RC-875.
August 10, 1955
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions filed under Section 9 ( c) of the National
Labor Relations Act, a consolidated hearing was held in the above-
entitled cases before C. L. Stephens, hearing officer. The Petitioner,
International Brotherhood of Paper Makers , AFL, herein called the
Paper Makers , and the Intervenor, United Paper Workers • of Amer-
113 NLRB No. 62.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ica, CIO, herein called the Paper Workers, the Petitioner, Beaumont
Metal Trades Council, herein called the Council, and Intervenor Local
No. 479, International Brotherhood of Electrical Workers, AFL,
herein called the IBEW, contend that because of a certain alleged
employer assistance to the Intervenor, International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, AFL, herein called the Pulp
and Sulphite Workers, involving solicitation of membership in the
latter's organization, the said Pulp and Sulphite Workers showing of
interest in the present proceeding has been impaired, and that for
this reason the said Pulp and Sulphite Workers was not entitled to
appear on the ballot in any election which the Board may direct. The
hearing officer refused to receive evidence in support of such con-
tention, and the question is now before the Board, on a motion to re-
open the record for said purpose, as to whether the hearing officer's
ruling was prejudicial.' We are of the opinion that, for the follow-
ing stated reasons, the contention is without merit and that the hear-
ing officer's ruling was not prejudicial.
The record shows that on December 9, 1954, the Employer and the
Pulp and Sulphite Workers, entered into a collective- bargaining agree-
ment, effective until August 1, 1956, for all production and mainte-
nance employees, excluding certain specified categories of employees.
Intervention in this proceeding was thereafter granted to the Pulp
and Sulphite Workers on the basis of this contract. The validity of
this agreement has not been challenged in any unfair labor practice
proceeding; nor do the objecting parties indicate that they intend to
do so. In such circumstances, the contract, concerning which no un-
fair labor practice charges have been found, entitled the Pulp and
Sulphite Workers to participate in this proceeding for all purposes
and to a place on the ballot 2 We reject therefore the offer of proof as,
in effect, an attempt, contrary to Board policy, to litigate the unfair
labor practice charge of employer domination and interference in a
representation proceeding.' We believe the facts in the instant case
are distinguishable from those in Toledo Stamping and Manufactur-
ing Company,' and other cases cited by the Paper Makers. The mo-
tion to reopen the record is therefore denied.
The hearing officer's other 'rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
'During the hearing, the Paper Makers, and the Paper workers moved the Board for
leave to appeal the hearing officer's ruling on the question of the admissibility of evidence
of employer assistance . In denying their request , the Board stated that it would consider
the matter in connection with a ieview of the entire record in the case.
Aluminum Foils, Inc., 94 NLRB 806.
See David Max and Company, 109 NLRB 1308 Cf. National Foundry Company of
New York, Inc., 109 NLRB 357. See also Sears Roebuck and Company, 112 NLRB 559;
Brown Express 80 NLRB 753.
A 55 NLRB 865.
EAST TEXAS PULP & PAPER COMPANY 541
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
'2. The labor organizations involved claim to represent certain em-
ployees of the Employer.'
3. The Employer and the Pulp and Sulphite Workers contend that
their current agreement executed on December 9, 1954, at 2: 40 p. m.
is a bar to this proceeding. As indicated, the agreement was made
'effective until August 1, 1956, and for annual periods thereafter unless
terminated upon proper notice as provided in the agreement. The
agreement covered all production and maintenance employees, but
excluded employees in the beater room, paper machine, and finishing
and shipping departments The agreement also provided that it could
be opened 3 times during its life at any time on 30 days' written notice
for the purpose of discussing "wages and working conditions only"
and that the contract could be canceled if no agreement was reached.
The effectiveness of this agreement as a bar is challenged by the Paper
Makers , the Council, and the Paper Workers on various grounds, in-
cluding the alleged inappropriateness of the contract unit, and the fact
that the agreement includes a broad renegotiation clause which pro-
vides that the agreement may be canceled if negotiations to revise the
agreement are unsuccessful. The parties also contend, however, that
the agreement cannot operate as a bar since it was executed after prior
notice of adverse claims to representation and after the filing of the
petition.
It appears fairly established by the record that a short time prior
to December 9, 1954, King, the Paper Makers' representative, informed
Menius, the Employer's personnel director, of his representative inter-
est in the Employer's production and maintenance employees, and that
on the morning of December 9, he told Menius that having heard
of the impending execution of an agreement between the Employer
and the Pulp and Sulphite Workers, he was taking immediate steps
to file a petition. While there is some question as to whether the Paper
Makers at that time made claim to represent a majority of the em-
ployees in a plantwide unit of production and maintenance em-
6 As indicated , the Pulp and Sulphite workers intervened on the basis of their contrac-
tual interest. The Paper Workers and the IBEW were permitted to intervene on the
basis of respective appropriate card showings . The IBEW after its original intervention
withdrew from the proceeding , without objection from any of the parties herein. During
the hearing the IBEW asked for and was permitted to intervene again. In such circum-
stances, we find no merit in the contention that the second intervention was improperly
allowed. In our opinion, it contravened no established Board policy . Nor does the fact
that the IBEW is one of the constituent locals of the Council preclude it from seeking
to represent in separate units, in Its individual capacity , some of the employees also sought
to be represented by the Council. The conflict of interest, if any, between the Council and
the IBEW would appear to be entirely a matter of these organizations ' internal affairs.
G According to the Employer and the Pulp and Sulphite workers, employees in these
departments were excluded from the contract on the ground that such employees in the
pulp and paper industry were "traditionally" represented by the Paper Makers.
,542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, there is no question that the Employer knew of its representa-
tive interest, and that a petition, supported by an appropriate showing
in a unit of production and maintenance employees, was in fact filed
by the Paper Makers on December 9, 1954, at 2: 30 p. m. In such
circumstances , and apart from other considerations, we find that the
December 9, 1954, agreement cannot operate as a bar to a present
determination of representatives.' Accordingly, we find 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. In Case No. 39-RC-874 the Paper Makers seeks a plantwide unit
of production and maintenance employees.. In Case No. 39-RC-875
the Council seeks separate units of powerhouse and maintenance em-
ployees, or, in the alternative, a single unit of these employees. The
IBEW seeks separate units of powerhouse employees, electricians, and
instrument men. The Pulp and Sulphite Workers, the Paper
Workers, and the Employer agree that only a plantwide unit of pro-
duction and maintenance employees is appropriate, and that the nar-
rower units sought by the Council and the IBEW are inappropriate.
The Employer manufactures pulp and paper in a series of build-
ings comprising its recently constructed plant in Evadale, Texas.
The plant employing some 300 production and maintenance employees
is organized on a divisional or departmental basis, apparently along
traditional lines in the pulp and paper industry. As the plant is new,
there is no history of collective bargaining.
The maintenance unit : The general overall supervision of the plant
is vested in the executive vice president and general manager. The
.physical upkeep and maintenance of the plant and the operations of
the powerhouse is the primary responsibility of the plant engineer.
Subordinate responsibilities are delegated to a number of departmen-
tal supervisors. There are approximately some 85 employees ' em-
ployed in the maintenance department and the powerhouse unit. The
7 7 Associated Food Distributors , Inc, 109 NLRB 574 . Cf. Campbell Soup Company, 109
NLRB 518.
Member Murdock would find the December 9, 1954, agreement no bar on the ground that
it covers an inappropriate unit. The contract purports to cover a production and main-
tenance unit ; however, it excludes from that unit the production employees in the beater
room , paper machine, and finishing and shipping department . By thus excluding em-
ployees whose interests are the same as those of employees included , the contract unit
does not conform with the Board's standards of appropriateness . Moreover, the Inappro-
priateness of the contract unit is admitted by the Pulp and Sulphite Workers in its brief
to the Board wherein it states :
Our position , however, is that the only unit appropriate is a unit of all production
and maintenance employees . . . . We make no claim that the employees covered by
the agreement of December 9 constitute a unit appropriate for bargaining.
Accordingly , as Member Murdock would find that the agreement of December 9, 1954, be-
tween the Employer and the Pulp and Sulphite Workers covers an inappropriate unit and
therefore is no bar, he finds it unnecessary to pass on the adequacy of the representation
,claim made by the Paper Makers on December 9, 1954
EAST TEXAS PULP & PAPER COMPANY 543
mechanical maintenance work is performed under separate supervi-
sion of the master mechanic, the electrical supervisor, and the instru-
mentation supervisor. The main body of maintenance employees,
which includes machinists, millwrights, pipefitters, carpenters, paint-
ers, and welders are under the immediate control of the master me=
chanic and the assistant master mechanic. Although the Employer
classifies maintenance employees as service mechanics grades A and
B, or helpers A and B, rather than by the more customary craft classi-
fications, the evidence establishes that most of the employees in the
maintenance department were hired initially because they possessed
a basic craft skill rather than because of general all-round utility.8
Considerable testimony was offered by the Employer, much of it
disputed, to show that maintenance employees were hired with the
understanding that they were expected to perform other work which
they were capable of performing and that in fact maintenance em-
ployees had performed production work while production employees
had done maintenance work. Such testimony was offered for the pur-
pose of showing that the maintenance employees here were not the
conventional group of employees to whom separate representation is
accorded. In our opinion, however, it is evident on the record as a
whole that the maintenance work performed by these employees con-
stitutes their normal routine job ass ggmnents, and that they spend
the major part of their working time in the performance of such
maintenance work. We are therefore of the opinion that the main-
tenance employees possess interests distinct from those of the produc-
tion employees, which interests are sufficient to warrant their estab-
lishment in a separate unit, where, as here, there is no collective-bar`
gaining history on a broader basis and there is no evidence of such in-
tegration as would destroy the homogeneity of the group. We find,
therefore, that the employees in the maintenance department may
constitute a separate appropriate unit if they so desire.'
Contrary to the contentions of the Employer and the labor organ-
izations opposing the separate representation of the maintenance em-
ployees, the right to such separate representation is not contrary to
principles of the American Potash case, 107 NLRB 1418. It is clear
that the "traditional union" test urged upon us as a basis for denying
separate representation to the maintenance employees, and to the craft
groups, in this case was made applicable by the Board in the Ameri-
can Potash case only to situations where a petitioner seeks to sever
a craft or a traditional departmental group from a broader unit in the
8It also appears that at a time of application or hire, employees were informed by the
Employer that because of the smallness of the maintenance section they would be required
to perform some, or a variety of, duties other than those utilizing their basic skills as the
case might require.
9 St. Regis Paper Company, 104 NLRB 411 ; American Can Company , 112 NLRB' 509;
Shoreland Freezers , Inc., 108 NLRB 723: Sahering Corporation , 107 NLRB 1540.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
face of substantial history of collective bargaining on a broader
basis.io
As indicated above, the Council and the IBEW seek a separate unit
of powerhouse employees 11 and the IBEW seeks separate units of
electricians and instrument men.
The powerhouse employees: There are approximately 20 power-
house employees who work under the supervision of the powerhouse
supervisor and subordinate shift engineers. They are classified as
turbine operators, boiler operators, water tenders, and laborers. They
perform the customary duties associated with their classifications, all
being concerned with the operations of the Employer's steam boiler
and generator in the powerhouse, and the proper treatment of water
used in the mill processes. There is no evidence of interchange with
employees in other departments. Under the circumstances, we find
that the powerhouse employees constitute a group to which the Board
customarily accords separate representation. We find therefore that
the employees in the powerhouse may, if they so desire, constitute a
separate appropriate unit,12 or they may, with equal propriety, be in-
cluded in a unit of maintenance employees, or in a unit of production
and maintenance employees.
The electricians: There are approximately 9 employees who at pres-
ent work on rotating shifts of 12 hours each under the immediate
supervision of the electrical supervisor. These electricians are classi-
fied as service mechanic A or B.13 Like other service mechanics
similarly graded, A electricians receive $2.32 an hour, and B electricians
received $2.09 an hour. They have their own electrical shop, which
is a fenced-off portion of the general machine shop area, where electri-
cal tools and testing instruments, customarily used by electricians, are
kept.
The Employer generates its own current at a voltage of 13,800
volts. Additional current is purchased from a local utility. This
latter current is brought into the plant at 69,000 volts and must be
reduced to the plant's voltage of 13,800 volts before the combined
current can be transformed into still lower voltages and fed, through
electrical switch gears, into individual controllers and motors. Be-
fore being transformed into lower voltages, the current generated at
the plant is conducted through underground conduits to a number of
electrical substations. These substations are located in fenced-off
areas and because of the high voltages transmitted no employees
other than the electricians enter the substation enclosures.
w Mock, Judson, Voehrsnger Company of North Carolina, Inc., 110 NLRB 437; Camp-
bell Soup Company, 109 NLRB 518, 521; New England Confectionery Company, 108
NLRB 728, 730.
"Although commonly referred to as the powerhouse, this department appears on the
organizational chart in evidence as the steam and water department.
19 St. Regis Paper Company, supra ; Rayonier, Inc, 110 NLRB 1191.
22 At present there are 0 grade A and 3 grade B electricians.
EAST TEXAS PULP & PAPER COMPANY 545
The maintenance and repair of the substations, the underground
conduits, the powerhouse electrical equipment, the 700'or more electri-
cal motors, ranging in size from a fraction of a horsepower to one
of 750 horsepower, and all other electrical equipment and installations
in the plant are performed by the electricians. Where mill processes
cannot be shut down, the electricians are called upon to work on "hot"
lines, and the work must be performed with the use of special protec-
tive equipment and tools customarily used by members of the electrical
craft. Although the Employer maintains no apprenticeship system,
nor apparently contemplates establishing one, the employees, hired to
perform electrical maintenance work, were hired on the basis of ex-
perience.14
Although electricians have; on occasion, worked as part of a com-
posite crew, cooperating on a single project, there is no evidence that
as members of such crew they have performed any work other than
electrical work; nor does the record show there has been any inter-
change of electricians with employees in other departments.
In view of the foregoing facts and the evidence in the record as a
whole, we are satisfied that the electricians, although classified as serv-
ice mechanics, make use of all of the skills ordinarily associated with
the electricians craft. In such circumstances, we find that the elec-
tricians constitute an identifiable skilled and homogeneous craft group
which may, if they so desire, be separately represented, represented as
a part of an overall maintenance group, or as part of a broad produc-
tion and maintenance unit.l5
The instrument men: There are two class A instrument mechanics
and one helper employed in the maintenance group under the imme-
diate supervision of the instrumentation supervisor from whom they
receive their daily assignments. The Employer maintains a separate
instrument shop with tools and equipment necessary for the repair of
the instruments. The work of these employees is confined entirely to
the maintenance and repair of instruments, and such work takes them
to all sections of the plant including the powerhouse. There is no
evidence of interchange with employees of other departments.
In view of the fact that the instruments are essentially electrical
requiring electrical skill in their repair, we are of the opinion that the
interests of the instrument men are sufficiently allied to those of the
electricians to warrant their inclusion in the same unit. Accordingly,
we shall establish a single voting group of these employees. 16
14 Thus, 1 employee testified that he had had 11 years of electrical experience in a paper
mill before coming to work with the Employer and stated that grade A electricians are
called upon to perform all electiical work requited in any pact of the plant, apparently,
without any close supervision ; B electricians were required to work under close super-
vision.
15 St. Regis Paper Company, supra.
le Thiokol Chemical Corp., 113 NLRB 547; Buick Division, General Motors Corpora-
tion Jet Plant, 105 NLRB 488, 489, and cases cited. Cf . International Paper Company,
94 NLRB 500, 504.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, we shall direct elections by secret ballots
among the following groups of employees at the Employer's Evadale,
Texas, plant, excluding from each voting group the employees in the
other voting groups, except as affected by the pooling provisions,
office clerical employees, professional employees, watchmen, guards,
and supervisors as defined in the Act :
(a) All powerhouse employees, including turbine operators, boiler
operators , water tenders, and laborers.
(b) All electricians and instrument men, classified as service me-
chanics and their helpers, under the, respective supervision of the
electrical supervisor and instrumentation supervisor.
(c) All maintenance employees, classified as service mechanics, the
service mechanic leadman, helpers, and laborers under the supervision
of the master mechanic and the assistant master mechanic.
(d) All production employees.
If a majority of the employees in voting group (a) or (b) select
the IBEW, which is seeking to represent them separately, those em-
ployees will be taken to have indicated their desire to constitute a
separate bargaining unit, and the Regional Director conducting the
election is instructed to .issue a certification of representatives to the
IBEW for such unit, or units, which the Board in such circumstances,
finds to be appropriate for the purposes of collective bargaining.
However, if a majority of the employees in voting group (a) or (b)
do not vote for the IBEW, such group or groups will first be appropri-
ately included in the unit with the employees in voting group (c) and
their votes will be pooled with those in voting group (c)."
If a majority of the employees in voting group (c), pooled if neces-
sary, select the Council, those employees will be taken to have indi-
cated their desire to constitute a separate bargaining unit, and the
Regional Director conducting the election is instructed to issue a cer-
tification of representativeg to the Council for such unit, which the
Board, in such circumstances, finds to be appropriate for the purposes
of collective bargaining.
However, if a majority of the employees in voting group (c) do
not vote for the Council which is seeking to represent them in a sepa-
rate unit, such group will be appropriately included in the same unit
with the employees in voting group (d) and their votes will be pooled
1'7 If the votes are pooled, they are to be tallied in the following manner : The votes for
the IBEW , shall be counted as valid votes , but neither for nor against the Council which
is seeking to represent these employees in the more comprehensive maintenance group ; all
other votes are to be accorded their face value . Although the Council also seeks a separate
unit of powerhouse employees , in view of the fact that it is also requesting an overall
maintenance unit , of which the powerhouse employees are an appropriate part (Schering
Corporation, supra ) we shall not certify the Council for such separate unit in the event
it obtains a majority of votes cast therein , but shall permit the Council to represent them
only as part of the broader maintenance unit it seeks.
THIOKOL CHEMICAL CORPORATION 547
with those in voting group (d) ,18 and the Regional Director conducting
the election is instructed to issue a certification of representatives to
the union selected by a majority of the employees in the pooled pro-
duction and maintenance group, which the Board, in such circum-
stances, finds to be appropriate for the purposes of collective bargain-
ing.
[Text of Direction of Elections omitted from publication.]
CHAIRMAN FARMER took no part in the consideration of the above
Decision and Direction of Elections.
Is If the votes are pooled , they are to be tallied in the following manner : The votes for
the unions seeking separate units shall be counted as valid votes , but neither for nor
against the unions seeking to represent the more comprehensive production and mainte-
nance unit; all other votes are to be accorded their face value whether for representation
by a union seeking the more comprehensive group or for no union.
Thiokol Chemical Corporation (Longhorn Division ) and Local
Union No . 324 of The International Brotherhood of Electrical
Workers,' Petitioner
Thiokol Chemical Corporation (Longhorn Division ) and Interna-
tional Chemical Workers Union, AFL,2 Petitioner
Thiokol Chemical Corporation (Longhorn Division ) and Plumb-
ers and Steamfitters, Local No. 301 , AFL,' Petitioner . Cases Nos.
16-RC-1632, 16-RC-1633, 16-RC-1661, 16-RC-1665, and 16-RC-
.1666. August 10, 1955
DECISION AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before J.
Howard Stark, 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 Employer is a Delaware corporation, with plants in several
States, engaged primarily in the manufacture of chemicals and syn-
thetic rubber. The Employer's Longhorn Division (Karnack, Texas)
operation is the only operation of the Employer` involved here. There,
the Employer, under a cost-plus-fixed-fee contract with the United
States Government, provides the maintenance for a "mothballed"
TNT plant, and also maintains and operates a rocket propellant plant.
The legal title to these plants, all equipment and materials used, and
all products manufactured, is at all times vested in the Government.
1 Herein called the IBEW.
2 Herein called the Chemical Workers
8 Herein called the Plumbers. The Plumbers name appears as amended at the hearing.
113 NLRB No. 59