General Chemical Co.

National Labor Relations Board - Board Decisions

Oct 19, 1945

64 N.L.R.B. 357 (N.L.R.B. 1945)

In the Matter of GENERAL CIIEMICALI COMPANY and INTERNATIONAL
CHEMICAL WORKERS UNION, LOCAL 25, A.F. or L.
Cases Nos. 20-R-1360 and 00-R-1390.-Decided October 19, 1945
Pillsbury, Madison cC Sutro, by Messrs. Marshall P. Madison and
Melvin E. Menser, of San Francisco, Calif., and Mr. L. C. Snyder,
of Port Chicago, Calif., for the Company.
Messrs. Harvey E. Howard, O. L. Farr, Stanley A. McMillan, C. C.
Rector, Arthur Franceschi, Francis W. Kenney, of Port Chicago,
Calif., for the Union. -
Mr. Herman Goldberg, of counsel to the Board.
DECISION
AND -
DIRECTION OF ELECTIONS
, STATEMENT OF THE CASE
Upon separate petitions duly filed by International Chemical Work-
ers Union, Local 25, A. F. of L., herein called the Union, alleging
that questions affecting commerce had arisen concerning the repre-
sentation of employees of General Chemical Company, Nichols, Cali-
fornia, herein called the Company, the National Labor Relations
Board consolidated the cases and provided for an appropriate hearing
upon due notice before Robert E. Tillman, Trial Examiner. The
hearing was called at San Francisco, California, on June 28, 1945.
The Company and the Union appeared and 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 rulings made at the hearing are free from, prejudicial er-
ror and are hereby affirmed. All parties filed briefs which have been
considered by the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
General Chemical Company, a New York Corporation, has its prin-
cipal office in New York City. The only plant concerned in this pro-
64 N. L . R. B., No. 66.
357
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceeding is located at Nichols, California, where the Company is
engaged in the manufacture of chemical products. During the year
1944; the Company manufactured at its Nichols, California, plant,
,finished products having a value in excess of $100,000, of which more
than 10 percent-was shipped to points outside the State of California.
During the same period, raw materials having a value in excess of
$100,000 were used at the Nichols plant, of which more than 25 percent
was shipped to the plant from points outside the State of California.
The Company concedes that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Chemical Workers Union, Local 25, A. F. of L., is a
labor organization admitting to membership 'employees of the
Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On March 27, 1945; the Union made an oral request of the Company
for recognition as the collective bargaining representative of the Com-
pany's laboratory employees. At a joint conference held in the Re-
gional Office of the Board on May 3, 1945, the Union made a similar
request with respect to the Company's plant-protection personnel.. In
both instances, the Company suggested that the Union follow the pro-
cedure provided by the' National Labor- Relations Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union `represents a substantial number of
employees in-the units found herein to be appropriates,
We find that questions /affecting commerce have 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. TIIERAPPROPRIATE UNITS
The Union seeks the following units : (1) all plant-protection per-
sonnel of the, Company, including the relief-plant-protection em-
ployee; 2 and (2) all laboratory employees of the -Company; including
the assistant chief chemist, the senior control chemists, the junior an-
alyst,, the junior laboratory assistants, and the junior draftsman,
but excluding the chief chemist. The Company opposes the establish-
ment of such units for reasons hereinafter discussed.
' The Field Examiner reported that in the plant-protection unit in which there were four
employees the Union submitted three application -for-membership cards ; and that in the
laboratory unit in which there were seven employees the Union submitted six application-
for-membership cards. -
2 These emploS ees are classified by the Company as "watchmen .', - - , , ,
GENERAL CHEMICAL COMPANY
The plant-protection unit
359'
r
'The Company has in its employ two full-time salaried plan't-protec-
tion employees, one full-time hourly paid plant-protection employee,-
and one part-time relief, hourly paid plant-protection employee. One'
salaried plant-protection employee and the full-time hourly paid
plant-protection employee work from 4 : 00 p. in.. to 12: 00 p. in. The"
other salaried plant-protection employee works from 12: 00 p. in. to
8: 00 a. in., and the part-time employee works 3 days a week relieving-
the other plant-protection personnel and 3 days a week in production.
These employees have a small office adjacent to the main office, and
they are responsible to the works accountant. Their main duties con-
sist of patrolling the premises and performing monitorial functions.3
As to their monitorial duties, the record disclose'' that when making
their hourly rounds they see to it that the production employees are°
on the'job and that safety measures are being observed. Inasmuch as
there are no foremen ' or other supervisors during the night shifts,
they are authorized to warn production, employees -found, asleep; or
engaging in other infractions of plant rules and to send them home
for drunkenness and for insubordination. After having been warned
of infractions of plant rules if employees continue to engage in such.
violations, it is the duty of plant-protection employees to turn in a
report to the works accountant which merely states the facts and in-
cludes no recommendations. Employees guilty of wrongdoing are
reprimanded the next day by their immediate supervisor. Plant-pro-
tection employees have no power to hire or discharge. They are at-
present neither uniformed, armed, deputized, nor militarized.
The Company's contention that the-salaried plant-protection em-
ployees, because of their purported relationship to management, are-
not employees within the meaning of the Act, has been previously-
considered by the Board in other cases involving employees with-
similar duties and status, and found to be without merit.4 Further-
rnore, it is clear that these employees are not supervisory or managerial-
-personnel, for they merely have responsibilities-which are monitorial'
in character.' Insofar as the Company inferentially maintains that
membership in a union, composed in part of production and mainte-
nance employees,' may interfere with the duty which the salaried
a
I In'addition to the above-mentioned duties, one of the employees on the 4: 00 p. in. to
12 00 p in shift checks incoming and outgoing freight, as does the weighmaster who
works on the first shift, and the employee on the 12 : 00 p. in. to 8 : 00 a. m. shift "takes
care" of all production employees leaving the shift, checks time cards, and acts as first-aid
man. Since there are no foremen or other supervisors during the night shifts, the produe-
tion employees report anything amiss to the plant-protection employees who remedy the
difficulty themselves, obtain repair mechanics or telephone the department foreman.
Matter of Bethlehem Steel Company, 61 N. L. It. B. 892, and cases cited therein.
Matter of Bethlehem Steel Company, supra. '
e The Union currently represents all production'and maintenance employees of the Com-
pany's Nichols plant.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant-protection employees owe to their employer, we do not agree
that there is a necessary conflict between union membership and faith-
ful performance of duty. The Board has repeij,tedly held that a
union which represents other employees of an employer may also
represent his plant-protection personnel in a separate unit.?
The Company adverts to its long bargaining'history with the Union
covering its hourly paid production and maintenance- employees, in-
eluding the hourly paid plant-protection employees, and contends that,
for this reason, the Board should dismiss the petition in Case No.
20-R-1390 insofar as these hourly paid plant-protection employees
are concerned. The record discloses that from 1938 until September
22, 1942, the Company has recognized the Union as the representative
of its hourly paid production and maintenance employees, including
the hourly paid plant-protection workers. On September 22, 1942,
all the Company's plant-protection employees became auxiliary mili-
tary police, and the Union agreedto exclude fromthe unit those hourly
paid employees for the period of their military service. On January
3, 1944, all plant-protection employees were demilitarized. The Com-
pany contends that, as a result of the demilitarization of the hourly
paid employees, they are presently part of the production and main-
tenance unit. We'are not persuaded, however, that the asserted bar-
gaining history justifies departure from our policy of segregating
monitorial employees for collective bargaining purposes from other
workers in relation to whom they are monitorial.$
Accordingly, since both the salaried and hourly paid plant-protec-
tion employees of the Company are monitorial in relation to the other
employees of the Company, we are of the opinion that both groups
constitute a single appropriate unit.9
We find that all,plant-protection employees of the Nichols, Calif or=
nia, plant of the Company, including the relief plant-protection em-
ployees,10 but excluding all supervisory employees with. authority to
hire, promote; discharge, discipline,, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
It unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act. -
The laboratory unit
As stated above, the principal business of the Company at the Nich-
ols plant is the production of chemicals. In connection with its opera-
7 Matter of Bethlehem Steel Company , supra.
Matter of Kelsey-Haves Wheel Company, 62 N L R. B. 421.
0Matter of Bethlehem Steel Company, supra; and Matter of Kelsey-Hayes Wheel Com-
pany,supra.
10 This employee is included only with respect to his plant-protection work Matter of
Wadham's Division of Socony- Vacuum Oil Company, 54 N L R B 1164. See Matter of
Swift and Company, 58 N L R B 657 1
GENERAL CHEMICAL COMPANY 361
tions the Company has a small laboratory which is housed in its office
building, where it engages the services of a chief chemist, an assistant
chief chemist, two senior control chemists, a junior analyst, and two
junior laboratory assistants. All, with the exception of the two junior
laboratory assistants, attended coller,e and specialized in the study
of chemistry; the two junior laboratory assistants have had a high
school education. The laboratory constitutes the Company's chemi-
cal control division. As such, it is under the administrative control
of certain officials of that division both in San Francisco and in New
York City. It is also under the supervision of the works superintend-
ent at the Nichols plant and under the immediate supervision of the
chief chemist. The laboratory's principal function is the control of
quality of raw materials and finished products. This involves inspect-
ing the operation of plant processes and the testing and analyzing
of materials during every stage of production. With the exception
of the chief chemist, who mainly acts in in administrative capacity to
keep the unit functioning, all the laboratory employees are engaged
in analytical and control work. In this connection, it is their duty
to see to it that optimum operating conditions prevail and to report
any irregularities to the production foreman. When the production
foreman cannot be reached they instruct the operator how to act to
remedy the situation. To a minor degree they engage in some develop-
ment work to improve products or processes pertinent to the plant's
operations. In the course of their duties all these employees have
access to secret processes and production records which are not avail-
able to the ordinary production worker. At times certain of these
laboratory workers have met with management to discuss technical
aspects of the business. All the laboratory employees have executed
"patent agreements" with the Company.
The basis of the Company's contention, set forth in its brief, that
all the laboratory employees are supervisory employees and hence
are not employees within the meaning of the- Act, is that they are
acquainted with the Company's secret processes; that they tell pro-
duction employees to correct irregularities in production ; that they
have executed patent agreements with the Company; and that certain
of them meet regularly with management and discuss technical aspects
of the business. We agree that the laboratory employees may possess
information of a confidential nature, but this information does not
concern labor relations. Nor does it appear in the record that the mat-
ters discussed between certain of the laboratory employees and man-
agement directly pertain to labor relations. While to some extent
the laboratory employees direct the work of the production employees
and report irregularities to their foreman, they have no direct super-
vision over either the foremen or the production workers. It is clear
that they are not supervisory employees in the accepted sense, but
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely technical experts of a type frequently included in bargaining
units." Accordingly, we find that the laboratory employees of the
Company may constitute an appropriate unit.
There remains the problem as to whether or not the assistant chief
chemist, the junior analyst, and the draftsman should be included or
excluded from the unit.
Assistant Chief Chemist: This individual is in complete charge of
the laboratory in the absence of the chief chemist, who is away on
the average of 11/z days a week. There is general testimony that on
such occasions he has the same authority as the chief. He acts largely
on instructions prepared by the chief chemist, but also acts on his
own initiative. When the chief chemist is present, the assistant chief
is engaged in independent work on special tests and investigations
which require his presence in the plant proper about 90 percent of
his time. In this work, he has no assistants, or anyone under him.
On the other hand, the chief chemist, when present, is engaged almost
entirely in supervisory and administrative functions and seldom does
any laboratory work. Employees in the laboratory go to the chief
chemist when they desire time off or have a grievance. The assistant
chief is paid less than one of the senior control chemists. He has
the same vacation privileges as other laboratory employees. The
chief chemist, who testified, was unable to estimate what percentage
of the assistant chief's time was devoted to supervisory or adminis-
trative duties. The assistant chief does not regularly assign work.
Although it was testified that the assistant chief has power to rec-
ommend to the chief chemist hiring and discharging of employees,
he has not in fact recommended hiringJ2 and has recommended dis-
charging only once in the past 2 years." The assistant chief has never
sent a laboratory employee home for disciplinary purposes. The last
time he recommended a promotion or wage increase was 2 years ago.
While the chief chemist is present, the assistant thief has the power
to buy materials and sign requisitions; the record, however, does not
disclose to what extent, if any, he has authority to snake financial
commitments on behalf of the Company.
It is plain that, because of the small size of the laboratory, the
extent of the supervisory duties of the chief chemist, the well defined
duties of other employees, and the fact that the assistant chief is in
the laboratory only 10 percent of his time, the assistant chief devotes
" Matter of Aluminum Company of America , et al, 61 N L R B. 1066.
32 The Company points to one incident which it considers as a recommendation. The
chief chemist communicated with a high school and through his efforts obtained two girls
to work on Saturday . Subsequently , the two girls v,ere put on full-time work by the
chief chemist after the junior analyst and the assistant chief chemist appraised their serv-
ices and found them satisfactory
is That involved the case of a woman who was hired for special work and was discharged
in less than a week after the assistant chief chemist reported to the chief chemist, who was
absent most of that time , that she was not qualified for the job
GENERAL CHEMICAL COMPANY 363
a relatively insignificant part of his day to supervisory functions.
Moreover , the record discloses that the labor turn -over in the labora-
tory is slight , discipline is seldom exercised , and the assistant chief
performs substantially the same work as other laboratory employees.
We are of the opinion that the assistant chief is not of sufficient super-
visory stature to warrant his exclusion from the unit?*
Junior Analyst: The Company appears to contend that this em-
ployee is a leader of certain employees and as such is more of a super-
visory employee than others in the laboratory . The record indicates
that she distributes work to the laboratory assistants. There is gen-
eral testimony that she can recommend the hiring and discharging
of such employees . However, no actual instance of such a recom-
mendation could be cited by the Company 's witnesses 15 Although it
was testified that she can recommend wage increases, she has never
done so. No one goes to her for time off. She is engaged about 90
percent of her time doing routine analytical work for various pro-
duction departments, control work, and important testing. The other
10 percent of her work might be deemed research. She spends not
more than 1 hour a day outside the laboratory. She and the two
laboratory assistants , junior grade , unlike the other laboratory
workers, receive overtime pay. It appears that final decisions re-
specting the status of employees are made by the chief chemist.
Under all the circumstances we are of the opinion that the junior
analyst is -not a supervisory employee within the meaning of the
Board's customary definition and we shall, therefore, include her in
the unit.
Junior Draftsman: The Company has one draftsman, an hourly
paid employee who is engaged in making drawings and blueprints of
plant equipment and apparatus . He has a desk in an office adjacent
to the laboratory. Prior to a recent fire, he shared an office with the
plant engineer who is his supervisor . Since the Company has no
other technical or- professional employees outside of its laboratory,
we shall include the junior draftsman in the unit , which will then
comprise all the technical and professional employees of the Company.
We find that all laboratory employees of the Nichols , California,
plant of the Company, including the assistant chief chemist, the
senior control chemists, the junior analyst, the junior laboratory as-
sistants , air,.;. the junior draftsman , but excluding the chief chemist,
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.
14 Matter of United States Smelting, Refining and Mining Company , 53 N L R B 84.
15 See footnote 12, supra
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Re-
lations Act, and pursuant to Article III, section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it
is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with General Chemical
Company, Nichols, California, elections by secret ballot shall be con-
ducted 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 Twentieth 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 em-
ployees in the units found appropriate in Section IV, above, who were
employed during the pay-roil 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 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
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the elections, to deter-
mine whether or not they desire to be represented by International
Chemical Workers Union, Local 25, A. F. of L., for the purpose of
collective bargaining.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Elections.