Freeport Sulphur Co.

National Labor Relations Board - Board Decisions

Dec 29, 1945

65 N.L.R.B. 21 (N.L.R.B. 1945)

In the Matter of FREEPORT SULPHUR COMPANY and INTERNATIONAL
UNION OF OPERATING ENGINEERS , LOCAL 450, AFL
Case No. 16-R-1342.-Decided December 09, 1945
Vinson, Elkins, Wee'ins, and Francis, by Messrs. C. E. Bryson and
Warren J. Dale, both of Houston, Tex.; Cllr. Thomas R. Vaughan,
of New York City; Mr. D. T. McIver, of New Orleans, La., and Mr.
E. H. McFarland, of Freeport, Tex., for the Company.
Mr. W. M. Askin.s, of Houston, Tex., and Mr. L. C. Patton, of Free-
port, Tex., for the Engineers.
Messrs. Edward R. Moffatt, Robert D. Collins, and J. I. Dickson,
all of Freeport, Tex., and Mr. Olivero Romero, of Brazoria, Tex.,
for the Chemical Workers.
MMMr. C. A. West, of Houston, Tex., for Locals 195, 128, 130, 716,
and 213.
Mr. Angelo J. Fhmzara, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Operating
Engineers, Local 450, AFL, herein called the Operating Engineers,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Freeport Sulphur Company, Free-
port, Texas, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Lewis Moore, Trial Examiner. The hearing was held at Freeport,
Texas, on June 30, 1945. Pursuant to an order issued by the Board
on September 26, 1945, the record herein was reopened and a further
hearing was held before Earl Saunders, Trial Examiner, at Freeport,
Texas, on October 10, 1945. At the first hearing, International
Chemical Workers Union, Local No. 19, A. F. of L., herein called the
Chemical Workers, moved to intervene over the objection of the
Operating Engineers. The Trial Examiner allowed the Chemical
Workers to participate in the hearing but reserved ruling on the
65 N L. R. B., No. 5. 21
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion for the Board. At the reopened hearing, the Trial Examiner
denied the joint motion to intervene made by Pipe Fitters Local 195,
AFL; Local 128, International Association of Machinists, AFL;
Local 716, International Brotherhood of Electrical Workers, AFL;
,International Brotherhood of Painters, Decorators and Paper Hang-
ers of America, Local 130, AFL; and Carpenters Local 213, AFL.
In view of our dismissal of the petition hereinafter, we find it un-
necessary to rule on the aforesaid motion of the Chemical Workers
or to pass upon the propriety of the Trial Examiner's ruling on the
joint motion to intervene. The Company, the Operating Engineers,
,and the Chemical Workers appeared and participated at the first
hearing; only the Company and the Operating Engineers appeared
and participated at the reopened hearing.' All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. All other rulings of
the Trial Examiners made at the hearings are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
After the close of the reopened hearing, the Company and - the
Operating Engineers moved, without objection, that certain correc-
tions be made in the transcript of testimony in this proceeding. The
motion is hereby granted.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE CO31PANY
Freeport Sulphur Company is engaged in the mining, shipping, and
marketing of sulphur. We are here concerned with its Hoskins Mound
plant near Freeport, Texas, where it conducts mining operations.
During the year 1943, the Company mined and shipped from its Hos-
kins Mound plant sulphur valued in excess of $1,000,000, more than 80 .
percent of which represented shipments to points outside the State
of Texas.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 450, affiliated
with the American Federation of Labor, is a labor organization admit-
ting to membership employees of the Company.
I The record shows that the Chemical workers was served with notice of the reopened
hearing.
FREEPORT SULPHUR COMPANY 23
International Chemical Workers Union, Local No. 19, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE ALLEGED APPROPRIATE UNIT
The Operating Engineers seeks a unit composed of only those opera-
tion and production employees of the Company at its Hoskins Mound
plant who are specifically enumerated in Board Exhibit No. 1A,2
excluding maintenance, clerical, plant protection, supervisory em-
ployees, and all other employees not listed on the exhibit. The Com-
pany and the Chemical Workers contend, on the other hand, that the
appropriate unit consists of all production and maintenance employees
as determined by the Board in a prior decision.'
The Hoskins Mound plant is divided into five separate departments,
riz, power plant, field, shipping, service and mechanical, and admin-
istrative. The Company has classified the employees in these depart-
ments into seven groups' with respect to the degree of supervisory
authority they possess. The Operating Engineers'has accepted these
classifications as substantially correct and it has agreed with the
Company that those in Groups I through V are supervisors within the
Board's customary definition' Of the remaining employees in Groups
VI and VII, about 314 in number and comprising approximately 70
different industrial classifications, the Operating Engineers seeks to
represent only about 120 employees Who fall within approximately 34
job titles, and work in the power plant, field, shipping, and service
and mechanical departments.
The proposed unit, which does not satisfy the requirements of a
craft or a departmental unit, is, in our opinion, open to the serious
objection that it does not comprise a clearly identifiable group of
employees appropriate for the purposes of collective bargaining.
2Included therein are the following industrial classifications hag sewing machine opera-
tor, blacksmith hammer operator , relay station bleed -water operator , pump operator, box-
car loader operator, boxcar loader operator assistant, conveyor operator, diesel-brown hoist
oiler , dragline operator , hoist operator , dredge leverman , dragline relief operator, hoist
relief operator , hoist fireman, derrick man , dredge mechanic, dredge roustabout , dredge
slush operator , driller, first fireman, second fireman, generator and compressor operator,
high pressure pump operator , dredge high pressure pump operator , limehouse operator,
pilot plant operator, fig helper , sulphur well operator helper , sulphur n ell operator , tractor
operator ( heavy ), tractor operator (light), truck winchman , water filter plant operator,
and weighbagger operator
3See Matter of Freeport Sulp hur Company, 57 N L R B 1756 No election was held
among the Company 's employees in the unit therein found appropriate because the peti-
tioner withdrew its petition , subsequent to the issuance of the Board's Decision and
Direction of Election . There has not been any collective bargaining predicated upon that
unit finding
4 Company Exhibits 1A and III.
6 Since the Chemical Workers did not appear at the reopened hearing at which time
the exhibits bearing the classifications were submitted , its position on this matter is not
known.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aside from the exclusion of all craftsmen in order to avoid jurisdic-
tional disputes with other similarly affiliated unions, the Operating
Engineers would exclude from its proposed unit certain employees
who perform comparable and interrelated tasks and have interests in
common with the group sought. Thus, for example, it would exclude
the greater operator in the service and mechanical department, but
would include all other persons operating machines 6 in that and
other departments; it would omit from the unit the meter mechanic
and the auto mechanics in the power plant and service and mechanical
departments, respectively, but would include in the unit the dredge
mechanic in the field department; similarly, it seeks to exclude the
limehouse operator helper in the service and mechanical department,
but wishes to include the limehouse operator himself; nor does there
appear to be any justification for its desire to exclude vat builders, the
sulphur samplers, the winchman, the breakman, the powderman, and
second-hand warehousemen whose work and interests are allied with
those of operation and production employees. In addition, the Oper-
ating Engineers desires to exclude the office clerk, the warehouse clerk,
the warehouse clerk relief, and the warehouse clerk relief, junior, all of
whom work in the administrative department and are, in our opinion,
production clericals, a category of employees customarily included
in a production and maintenance unit unless the parties agree to their
exclusion.7
Moreover, the record reveals that the Company's operations at its
Hoskins Mound plant are well integrated, that common hours of work
prevail, that employee benefits are uniformly and commonly admin-
istered, and that there is considerable employee interchange among
virtually all the employee categories with the exception of the crafts-
men. In this latter connection, it appears that, from August 16 to
August 31, 1945, the Company assigned 107 of the 314 employees in
Groups VI and VII to one or more different jobs, and during such
temporary assignment at least 46 of these employees worked at jobs
both within and without the proposed unit. During this same period,
of the approximately 94 helpers in Groups VI and VII, most of whom
the Operating Engineers would exclude, the Company shifted 41
helpers to other job classifications principally in the unit sought.
Accordingly, under all the circumstances, we are persuaded that
the proposed unit of the operating Engineers constitutes a hetero-
° These include the operators of the generator and compressor , high pressure pump , boiler
feed pump, dredge high pressure pump, dredge slush pump, pilot plant, sulphur well, relay
station bleed-water. tractor (heavy), tractor (light), bag sewing marline, boxcar loader,
convevor, hoist , weighbagger , blacksmith hammer , draglme, water filter plant, and
limehouse
7 See Matter of Rockford Sari Products Co, 62 N L R B 1430
C)
FREEPORT SULPHUR COMPANY 25
geneous group incapable of precise definition, and that it is, there-
fore, inappropriate for the purposes of collective bargaining.
IV. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since, as we have held in Section III, above, the bargaining unit
sought by the Operating Engineers is inappropriate for the purposes
of collective bargaining, we find that no question affecting commerce
has arisen concerning the representation of employees of the Company
within the meaning of Section 9 (c) of the National Labor Relations
Act. We shall, therefore, dismiss the petition.
ORDER
Upon the basis of the above findings of fact and the entire record
in the case, the National Labor Relations Board hereby orders that
the petition for investigation and certification of representatives of
employees of Freeport Sulphur Company, Freeport, Texas, filed by
International Union of Operating Engineers, Local 450, affiliated
with the American Federation of Labor, be, and it hereby is,
dismissed.
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