Hercules Powder Co.

National Labor Relations Board - Board Decisions

Nov 2, 1945

64 N.L.R.B. 700 (N.L.R.B. 1945)

In the Matter of HERCULES POWDER COMPANY and INTERNATIONAL AS- SOCIATION OF MACHINISTS , LODGE #839, A. F. OF L.; INTERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND HELPERS OF AMERICA , LOCAL #554, AFL; UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, LOCAL UNION No. 865, A. F. OF L.; BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, LOCAL 1169, A. F. OF L; INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L., LOCAL 885; INTERNATIONAL UNION' OF OPERATING EN- GINEERS, LOCAL 467, AFL. Cases Nos. 10-R-1420, 10-R-1458, 10-11-1.480, 10-R-1481, 10-R-1485, 10-R-1489, and 10-R-1,504.-Decided November 2, 1945 Messrs. A. H. Reu and Arthur Langmeier, of Brunswick, Ga., for the Company. Mr. H. Ralph Smith, of Brunswick, Ga., Mr. Dale 0. Reed, of Atlanta, Ga., and Mr. R. Lee Corley, of Conley, Ga., for the IAM. Mr. C. K. Curry, of Brunswick, Ga., for the Boilermakers. Messrs. L. W. Bennett and R. L. Landon, of Brunswick, Ga., for the Carpenters. Messrs. Il. R. Hendrick and S. D. Herndon, of Brunswick, Ga., for the Painters. Mr. B. L. Brannen, of Brunswick , Ga., for the Teamsters. Mr. George W. Perry, of Brunswick, Ga., for the Engineers. Mr. W. C. Buchanan, of Brunswick, Ga., and Mr. L. L. Dick, of St. Petersburg, Fla., for the Electrical Workers. Mr. H. A. Bradley, of Akron, Ohio, for the Chemical Workers. Mr. George L. Googe, of Atlanta, Ga., for the AFL. Mr. Donald Frank, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by International Association of Machin- ists, Lodge #839, A. F. of L., herein called the IAM; International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Local #554, AFL, herein called the Boilermakers, United Brotherhood of Carpenters and Joiners of America, Local Union No. 64 N. L. R B., No. 120. 700 HERCULES POWDER COMPANY 701 865, A. F. of L., herein called the Carpenters; Brotherhood of Painters, Decorators and Paperhangers of America, Local 1169, A. F. of L., herein called the Painters; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., Local 885, herein called the Teamsters; and International Union of Operat- ing Engineers, Local 467, AFL, herein called the Engineers, alleging that questions affecting commerce had arisen concerning the representation of employees of Hercules Powder Company, Bruns- wick, Georgia, herein called the Company, the National Labor Rela- tions Board provided for an appropriate consolidated hearing upon due notice before T. Lowry Whittaker, Trial Examiner. The hearing was held at Brunswick, Georgia, on June 26, 27, and 28, 1945. The Company, the IAA, the Boilermakers, the Carpenters, the Painters, the Teamsters, the Engineers, the International Chemical Workers Union, A. F. of L., Chemical Workers Local 22660 and auxiliary Local 22839, herein called the Chemical Workers, International Broth- erhood of Electrical Workers, Local 1430, AFL, herein called the AFL, 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. At the hearing, the Company moved the dismissal of the petitions. For the reasons stated in Section III, infra, the motion is hereby denied. 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE COMPANY Hercules Powder Company is a Delaware corporation, operating 30 plants in the United States, including a plant at Brunswick, Georgia, 1 The AFL and the Chemical Workers intervened , not for the purpose of participating in an election or seeking a unit determination , but in order to protect their interests in certain of the Company ' s employees . Pattern Makers League of North America , International Brotherhood of Blacksmiths , Drop Forgers & Helpers, International Molders & Foundry Workers Union of North America, United Association of Plumbers & Steamftters of the United States and Canada , and Metal Trades Council of the American Federation of Labor were served with Notice of Hearing , but did not appear or participate at the hearing. After the close of the hearing, the Board received from Brunswick Plumbers & Steam Fitters Local 177, United Association of Plumbers & Steam Fitters of United States and Canada, AFL , herein called the Plumbers , a letter in the nature of a motion , requesting in essence that the Plumbers be substituted for the IAM as petitioner in Case No. 10-R-1485, and pursuant thereto , be substituted for the TAM on any ballot resulting from the IAM's petition in that case . The Board also received letters of the same date from the IAM and from the Chemical Workers, consenting to and requesting approval of the Plumbers' motion. All parties to this proceeding received copies of that motion , and no. objections thereto have been received . The notion is hereby granted, without prejudice to the IAM 's petition in Case No 10-R-1420 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the sole operation of the Company involved in this proceeding. At that plant the Company is engaged in the manufacture of naval stores and derivatives. In the past year, purchases of raw materials by the Company for use at the Brunswick plant were in excess of $1,000,000, of which approximately 40 percent was shipped to it from points out- side the State of Georgia. In the past year, this plant's finished products were valued in excess of $1,000,000, of which between 90 and 95 percent was shipped from it to points outside the State of Georgia. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act, and we so find. II. THE ORGANIZATIONS INVOLVED The American Federation of Labor and each of its affiliates in- volved herein, International Association of Machinists, Lodge #839; International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Local #554; United Brotherhood of Carpenters and Joiners of America, Local Union No. 865; Brotherhood of Paint- ers, Decorators and Paperhangers of America, Local 1169; Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, of America, Local #885; International Union of Operating Engineers, Local 467; International Chemical Workers Union, 'Chemical Workers Local 22660 and auxiliary Local 22839; Interna- tional Brotherhood of Electrical Workers, Local 1430, Brunswick Plumbers & Steam Fitters Local 177, United Association of Plumb- ers & Steam Fitters of United States and Canada, are labor organiza-' tions admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to any of the peti- tioning organizations involved herein as the exclusive bargaining representative of its employees on the ground that its employees are covered by its current contract with the American Federation of Labor. Upon the existence of that contract, the Company bases its motion to dismiss the petitions in this proceeding. In view of the fact that that contract will expire on December 31, 1945, less than 2 months from the date of this Decision, we find that the contract is not a bar to a present determination of representatives, and we have denied the motion to dismiss.2 2 The contract between the AFL and the Company, made in 1941, was signed, additionally, by the Federal Locals 22660 and 22839, the predecessor locals of the Chdmical workers locals involved herein. Those Federal Locals took certain action prior to the contract automatic-renewal date in 1944 which the petitioning unions assert resulted in termination of the contract. In light of the above, we find it unnecessary to determine whether or not that contract is in effect . The position of the AFL seems to be that the contract is not a bar HERCULES POWDER COMPANY 703 A statement of a Board agent, introduced into evidence at the hearing, indicates that each of the petitioning labor organizations represents a substantial number of employees in the unit it seeks.$ We find that questions affecting commerce have arisen concern- ing the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The petitioning unions and the intervening Engineers seek certain maintenance craft units the composition of which is discussed here- inafter. The Company's position is that none of the units sought is appropriate because of a collective bargaining history upon a plant wide, production and maintenance basis. We regard the his- tory of collective bargaining as extremely persuasive in determining the unit pattern, but we think that factor is overbalanced by other considerations in this case. Here, the union which previously rep- resented the production and maintenance employees has relinquished jurisdiction of the craft groups and has notified the Company that it no longer desires to represent them. Moreover, no other union seeks to represent those employees in a plant-wide production and main- tenance unit, with the result that to refuse them recognition of their craft status for the purpose of representation would amount to denying them any representation whatsoever. Under similar circumstances we have held that bargaining history on a plant-wide basis does not preclude our establishment of the but that it is nevertheless still in effect. Therefore, an AFL representative moved at the hearing that any certifications of representatives which result from the Direction of Elec- tions herein be deemed amendments to the "certification" of the AFL through which it became exclusive bargaining agent for the Company's employees in 1937. However, the AFL was never certified by the Board, as the 1937 designation was the result of a consent election. Moreover, the petitioners in the present case are seeking to alter the unit of employees which the AFL has represented and to represent these employees in new and separate units. The AFL's motion is hereby denied. Any such amendment or recertifica- tion would be wholly inappropriate. 3 The Field Examiner reported that the IAM, the Carpenters, and the, Painters submitted, respectively, 23, 0, and 7 application-for-membership cards dated between October 1944 and May 1945 ; that all of the names on the cards appeared on the Company's pay roll of April 1945, which contained the names of 25, 12, and 9 employees, respectively, in the units sought by the IAM, the Carpenters, and the Painters. The Field Examiner reported that the Boilermakers, the Plumbers, the Teamsters, and the Engineers submitted certified lists, dated in April and May, 1945, of employees who had signed application-for-membership cards; that the lists contained 13, 14, 5, and 14 names, respectively, of employees on the pay roll of April 1945, which contained the names of 23, 30, 12, and 16 employees, respectively, in the units sought by the Boilermakers, the Plumbers, the Teamsters, and the Engineers The Electricians submitted 8 authorization cards, 7 of which bore the signatures of persons whose names appeared on the pay roll of April 23, 1945, which contained the names of 9 employees in the unit sought by the Electricians The Chemical Workers and the AFL rely on the AFL's contract as proof of their interest herein. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed craft units.4 We are of the opinion that the purposes of the Act will thus be best effectuated in this case by the establishment of craft units. A. The IAM's unit; Case No. 10-R-14,-O The IAM seeks a unit of machinists, machinist helpers, day mill- wrights, shift millwrights, millwright helpers, and the millwright reliefman. The machinists and helpers have their headquarters in a machine shop, and are under the supervision of craft foremen. The record reveals that the classification of millwright is a misnomer. These employees are, in essence, machine repairmen, as they are as- signed to duty in the mill room areas, where they are engaged in the repair and maintenance of hogs, shredders, conveyors, and other mill room equipment. The shift millwrights spend up to 30 percent of their time in the inspection of the mill room machinery and the obser- vation of the work performed at those machines. They are not, how- ever, supervisory employees within our usual definition. It is clear that they are, like the other millwrights, primarily maintenance employees. The millwrights have little, if any, interests in common with the machinists and their helpers. They are under different supervision than the machinists, have separate places for the storage of their tools, and do not come into frequent contact with the machinists due to the considerable distance between the places where their work is per- formed. We see no persuasive reason for including the machinists and the millwrights in a single unit together. On the other hand, it is clear that each category of employees constitutes a homogeneous, skilled, and easily identifiable group performing maintenance duties, and may properly comprise a separate bargaining unit. We find, therefore, that (a) all the Company's machinists and machinist help- ers and (b) all the Company's day millwrights, shift millwrights, mill- wright helpers, and the millwright reliefman, excluding foremen and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute separate units appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. 4 See Matter of Allied Mills, Inc., Plant # 1, 57 N L R B . 1807 , Matter of E I. du Pont de Nemours & Company, Morgantown Ordnance Works , 55 N L. R B 699 ; Matter of Gen- eral Two and Rubber Company , 55 N L. R. B. 250 ; Matter of General Foods Corporation, Corn Mill Division , 54 N L R B 596 HERCULES POWDER COMPANY 705 B. The Boilermakers' unit; Case No. 10-R-1 .58 The Boilermakers seeks a unit of all the Company's boilermakers, boilermaker helpers, the rigger, and rigger helpers. The Company makes no objection to the composition of this unit, and the record reveals that these employees constitute a homogeneous craft with com- munity of interests. These employees compose the conventional main- tenance unit of this craft. We find that all the Company's boiler- makers, boilermaker helpers, the rigger, and rigger helpers, excluding foremen 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 mean- ing of Section 9 (b) of the Act. C. The Carpenters ' unit; Case No. 10-R-1480 The Carpenters seeks a unit of all the Company's carpenters, car- penter helpers , and the pattern maker. The pattern maker receives the same rate of pay, is under the same supervision , and works in the same building as the carpenters . He shares the carpenters ' machine tools and , when he is not engaged in pattern making, spends his time at regular carpentry work. We believe that the community of interest in all conditions of employment between the pattern maker and the carpenters is thus clearly demonstrated . The Company makes no, objection to the composition of the unit sought. We find that all the Company's carpenters , carpenter helpers, and the pattern maker, ex- cluding foremen 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, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. D. The Painters ' unit; Case No. 10-R-1481 The Painters seeks a unit of all the Company's painters and painter helpers. The Company makes no objection to the composition of this unit. It is the conventional unit of the craft, with homogeneity of activity , a common place of work, and common supervision. We find that all the Company 's painters and painter helpers, excluding fore- men and all other supervisory employees with authority to hire, pro- mote, 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 mean- ing of Section 9 (b) of the Act. 670417-46-vol 64 46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Plumbers' unit; 5 Case No. 10-R-1485 The Plumbers seeks a unit of all the Company's pipe fitters, shift pipe fitters, and pipe fitter helpers. Although the Chemical Workers objected to the composition of this unit at the hearing, its objections were withdrawn when the Plumbers proposed that it be substituted for the IAM as the petitioner in this case. The Company makes no objection to the composition of the proposed unit. We believe that this is the conventional unit for these employees and that the record reveals a community of interest among the employees involved. We find, therefore, that all the Company's pipe fitters, shift pipe fitters, and pipe fitter helpers, excluding foremen and all other supervisory ,employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively rec- ommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. F. The Teamsters ' unit; Case No. 10-R-1489 The Teamsters seeks a unit of all the Company 's truck drivers, load- shed truck drivers, loadshed laborers , and storeroom keepers. All of these employees are engaged in the handling , transportation, and stor- age of the Company's supplies , maintenance equipment , and products. The truck drivers dispose of refuse and haul maintenance materials and equipment throughout the Company area. One is engaged in hauling raw materials and finished products to and from shipping points and the Company area. The loadshed truck drivers haul resins in the storage area and spend a small amount of time in disposal of refuse. The loadshed laborers work in the storage yards and on the railroad cars, loading and unloading drums, and storing finished prod- ucts in containers. In general they work in conjunction with the load- shed truck drivers, and in some instances drive around on the trucks, picking up the refuse to be dumped . The storeroom helpers receive and handle supplies such as pipes , valves, and fittings needed for the, repair and maintenance of the plant . Although there is variance in the wages of these employees , and they are not all under the same supervision , we believe that their community of interest in working conditions is sufficiently demonstrated. We find that all the Com- pany's truck drivers, loadshed truck drivers , loadshed laborers, and storeroom helpers, excluding foremen and the chief storekeeper and all other supervisory employees with authority to hire, promote, dis- a See footnote 1, supra. HERCULES POWDER COMPANY 707 charge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. G. The Engineers' unit; Case No. 10-R-1504 The Engineers seeks a unit of all the Company's engineers, engine room oilers, the power house reliefman, water tenders, and Diesel (crawler) and electric crane operators. The engineers divide their time between the power house and the boiler room, where the oilers and water tenders work. The Company contends that the engineers, oilers, reliefman, and water tenders are production employees who should not be included in a craft unit because the Company sells some of its power to the Georgia Power Co., because only a part of the time of these employees is spent in the repair and maintenance of the power- producing equipment, and because the Company's own products and by-products are used in producing that power. We find no merit in this contention. The sale of power to an outside consumer is incidental to the main purpose in the Company's production of power, i. e., the supplying of heat, steam, and electricity for the operation of the plant. Power house and boiler room employees are clearly engaged in a main- tenance and not a production phase of the Company's activities. The Company contends, moreover, that the crane operators should not be included in a craft unit, on the grounds that they are produc- tion workers and that the two types of crane operators have no com- munity of interest which would warrant their inclusion in the same unit. The Diesel crane operators operate roving cranes on trucks, unloading materials shipped into the plant area on railway cars, for storage, and later reloading materials on other railway cars to be transported to the point of production in the plant. The electric crane operators operate stationary cranes, unloading lumber from railway cars and placing it on conveyor belts in the mill rooms, at the place where production is to begin. We are of the opinion that the crane operators are maintenance employees who have a community of inter- est in employment conditions sufficient to warrant their inclusion in a single unit. Furthermore, craft units of engineers and crane opera- tors are uncommon.' We find, therefore, that all the Company's engineers, engine room oilers, the power house reliefman, water tend- ers, and Diesel and electric crane operators, excluding foremen and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action, constitute a unit appropri- 6 See Matter of Manganese Ore Company , 54 N. L. R. B. 1192. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. H. The Electricians' unit The Electricians seeks a unit of all the Company's electricians and electrician helpers. The Company makesiio objection to the composi- tion of the unit. It is the traditional craft unit. We find that all the Company's electricians and electrician helpers, excluding foremen and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employ- ees, or effectively recommend such action, constitute a unit appropri- ate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. i V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question- concerning representatives which has arisen be resolved by elections by secret ballot among the employees in each of the nine appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections 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 Relations 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 Hercules Powder Company, Brunswick , Georgia, separate elections 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 Tenth 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 following units found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding 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 elec- tions, and all supervisory employees with authority to hire, promote, HERCULES POWDER COMPANY 709 discharge, discipline, or otherwise effect changes in the, status of, em- ployees or effectively recommend such action : 1. All the Company's machinists and machinist helpers, to deter- mine whether or not they desire to be represented by International Association of Machinists, Lodge #839, A. F. of L., for the purposes of collective bargaining. 2. All the Company's day millwrights, shift millwrights, millwright helpers, and the millwright reliefman, to determine whether or not they desire to be represented by International Association of Machin- ists, Lodge #839, A. F. of L., for the purposes of collective bargaining. 3. All the Company's boilermakers, boilermaker helpers, the rigger, and rigger helpers, to determine whether or not they desire to be repre- sented by International Brotherhood of Boilermakers, Iron Ship- builders and Helpers of America, Local #554, AFL, for the purposes of collective bargaining. 4. All the Company's carpenters, carpenter helpers, and the pattern maker, to determine whether or not they desire to be represented by United Brotherhood of Carpenters and Joiners of America, Local Union No. 865, A. F. of L., for the purposes of collective bargaining. 5. All the Company's painters and painter helpers, to determine whether or not they desire to be represented by Brotherhood of Paint- ers, Decorators and Paperhangers of America, Local 1169, A. F. of L., for the purposes of collective bargaining. 6. All the Company's pipe fitters, shift pipe fitters, and pipe fitter helpers, to determine whether or not they desire to be represented by Brunswick Plumbers & Steam Fitters Local 177, United Association of Plumbers & Steam Fitters of United States and Canada, AFL, for the purposes of collective bargaining. 7. All the Company's truck drivers, loadshed truck drivers, loadshed laborers, and storeroom keepers, to determine whether or not they de- sire to be represented by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., Local 895, for the purposes of collective bargaining. 8. All the Company's engineers, engine room oilers, the power house reliefman, water tenders, and Diesel and electric crane operators, to determine whether or not they desire to be represented by International Union of Operating Engineers, Local 467, AFL, for the purposes of collective bargaining. 9. All the Company's electricians and electrician helpers, to deter- mine whether or not they desire to be represented by International Brotherhood of Electrical Workers, Local 1430, AFL, for the purposes of collective bargaining. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Elections.