Hooker Electrochemical Co.

National Labor Relations Board - Board Decisions

Jul 24, 1947

74 N.L.R.B. 618 (N.L.R.B. 1947)

In the Matter of HOOKER ELECTROCHEMICAL COMPANY, EMPLOYER and
UNITED ASSOCIATION OF JOURNEYMEN PLUMBERS AND STE, AMFITTERS
OF THE UNITED STATES & CANADA, LEAD BURNERS LOCAL UNION No.
677, AFL, PETITIONER
Case No. 3-R-1407.-Decided July 24,1947
Franchot, Runals, Cohen, Taylor c Mallam, by Mr. William G.
Shoemaker, Jr., of Niagara Falls, N. Y., and 11Ir. Ansley Wilcox, II,
of Niagara Falls, N. Y., for the Employer.
Mr. Ivan D. Carter, of Niagara Falls, N. Y., and Mr. James V.
Stillwell, of Buffalo, N. Y., for the Petitioner. '
Messrs. Earl W. Brydges and John Burden, of Niagara Falls, N. Y.,
for the Intervenor.
Mr. Robert J. Freehling, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Niagara
Falls, New York, on March 3, 7, and 10, 1947, before Francis X.
Helgesen, hearing officer. At the hearing, the Employer and Niagara
Hooker Employees' Union, herein called the Intervenor, moved to
dismiss the petition filed in the instant case on various grounds. The
hearing officer referred these motions to the Board. For the specific
reasons stated hereinafter, the motions are hereby denied.
Upon the entire record in the case,' the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Hooker Electrochemical Company, a New York corporation with
its principal office and place of business in Niagara Falls, New York,
is engaged in the manufacture of chlorine, caustic soda and other
chemicals at its Niagara Falls plant. In 1946, over $1,000,000 worth
1 The transcript of the hearing has been corrected in accordance with the stipulation of
the parties.
74 N. L. R. B., No. 121.
618
HOOKER ELECTROCHEMICAL COMPANY 619
of the raw materials used by the Employer at this plant was received
from sources outside the State of New York. During the same period,
the Employer shipped to customers outside the State over $1,000,000
worth of finished products manufactured at this plant.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
The Intervenor is an unaffiliated labor organization, claiming to
represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On January 26, 1944, and, again, on August 17, 1945, following
consent elections conducted by the Board, the Intervenor was desig-
nated by the Regional Director as the collective bargaining representa-
tive of employees in a unit embracing, inter alia, virtually all the
employees involved herein. Since July 1, 1944, the Employer and
the Intervenor have entered into a number of collective bargaining
agreements covering the employees in that unit. The most recent
contract between these parties was executed on March 11, 1946, to
"continue in effect for one (1) year ending March 10, 1947, and there-
after for successive periods of one (1) year, unless terminated by
either party, by serving on the other party between February 1 and
February 15 in any year, written notice of intention to terminate the
same. . . ." No such notice of termination was served during the
period from February 1 to 15, 1947. On October 14, 1946, the Peti-
tioner filed its petition in the instant case.
The Intervenor asserts that, in view of the automatic renewal of its
1946 contract by the failure of the parties to serve notice thereunder,
such agreement bars an election at this time to the same extent as a
contract for an original period of 2 years. In this connection, the
Intervenor apparently relies on the principle enunciated in the Reed
Roller Bit case,2 namely, that a contract of 2 years' duration will
normally preclude a determination of representatives until shortly
before its terminal date. The Employer takes no position on this
question.
We find no merit in the Intervenor's contention. It is clear from
the language of the duration clause that the contract in issue was
intended to extend for a period of 1 year, subject to automatic renewals
2 Matter of Reed Roller Bat Company, 72 N. L. R. B. 927.
620 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
for annual periods thereafter. And, as we ha\^e recently pointed
out, the Board has continued to hold, in cases subsequent to the Reed
Roller Bit decision and involving contracts similar to the instant one,
that the filing of a petition during the initial 1-year term, but before
the operative date of the automatic renewal clause, operates to remove
the contract as a bar to a current determination of representatives.3
Accordingly, inasmuch as the petition in this case was timely filed,
we find that the existing contract cannot constitute a bar to an election
at this time.
We find that a question affecting commerce has arisen concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT ; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit composed of all lead burners and their
apprentices, at the Employer's Niagara Falls, New York, plant, in-
cluding the lead shop group leader, but excluding lead burner helpers.4
The Employer and the Intervenor contend that, in view of the past
history of collective bargaining, and of other factors detailed below,
only a broad unit of all production and maintenance employees is
appropriate. In the event the Board establishes a less comprehensive
unit in the nature of that sought by the Petitioner, the Employer and
the Intervenor would include the lead burner helpers and would ex-
clude the lead shop group leader.
The Employer, at its Niagara Falls plant, employs approximately
1,000 production and maintenance workers and, of these, about 212
are assigned to its maintenance and repair department. This depart-
ment, which is headed by a master mechanic, is divided into various
shops, including the machine, welding, pipe, carpentry, masonry,
electrical, weights and measures, and,lead shops. The lead shop per-
sonnel consists of the lead shop group leader, who reports directly to
the master mechanic, and the apprdximately 11 lead burners, their
apprentices, and helpers.
The lead shop employees perform all lead burning duties required
by the Employer.5 They spend a portion of their time working in the
lead shop, which occupies one section of a large room that also houses
the sheet metal workers of the welding shop. During the balance of
3 Matter of General Electric Company, 74 N L R B 415, and cases cited therein
4 This unit , in terms of the Employer's lead shop job classifications , embraces , in addi-
tion to the lead shop group leader , six lead burners A and B, and one lead burner C, but
excludes , as helpers , two lead burners C and two lead burner helpers.
5 However, other production and maintenance employees are also engaged in "lead work",
such as forming lead into shapes by melting, rather than by burning , and installing fabri-
cated lead parts.
HOOKER ELECTROCHEMICAL COMPANY 621
their time, they are employed on lead burning projects throughout the
Employer's plant. It appears that, in the performance of their duties,
the lead shop employees work in close contact with the other pro-
duction and maintenance emloyees; that they are hourly paid, simi-
larly to the production and maintenance workers, and punch the same
clock; that they are normally recruited from the production and
maintenance personnel; and that they receive substantially all their
lead burning training within the plant. However, it further appears
that the lead shop employees are clearly distinguishable from the other
production and maintenance employees. Thus, the lead shop em-
ployees are, in general, highly skilled craftsmen, work under sepa-
rate Immediate supervision,o and are among the highest paid employees
in the plant.' It is therefore apparent that the establishment of the
employees engaged in lead burning as a separate collective bargaining
unit is feasible.8
The Employer and the Intervenor, however, in arguing that only
a broad production and maintenance unit is appropriate, point to the
history of collective bargaining on a plant-wide basis and to various
activities by the lead shop employees with respect to the Intervenor.
The record indicates, in this connection, that, in January 1944, and,,
again, in August 1945, consent elections were conducted under Board
auspices in a unit comprising, generally, all non-supervisory produc-
tion and maintenance employees of the Employer.9 In neither in-
stance was a request made by any of the participating labor organi-
zations for a self-determination election among the employees in-
volved herein. Following each election, the Intervenor was desig-
nated by the Regional Director as the bargaining representative of
the employees in the broad production and maintenance unit and,
since July 1, 1944, the Employer and the Intervenor have entered into
several collective bargaining agreements covering these employees.io
The lead shop employees have enjoyed benefits, such as wage in-
creases, under the collective bargaining agreements executed by the
6 See discussion of the lead shop group leader , infra.
Although there appears to have been a substantial interchange of employees between
the lead shop and the remaining plant operations in the past , the Employer ' s representative
testified at the hearing that no change in the present lead shop personnel is contemplated,
except possi b ly the addition of two more employees.
8 Cf. Matter of National Aniline Division , Allied Chemical and Dye Corporation, 71
N. L It B 1217 , and cases cited therein
9 In the January 1944 election , the Intervenor alone participated , however , in the August
1945 election , the names of District 50, United Mine Workers of America , Local 12924,
and of United Gas , Coke and Chemical Workers, CIO, Hooker Local 2581 , also appeared
on the ballot.
10 Although the Employer has actually been in collective bargaining relationships with
various employee -representatives on a plant -wide basis since 1919, the July 1 , 1944, agree-'
ment marked the first formal written collective bargaining contract entered into by the
Employer with any representative of its workers.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intervenor and the Employer, and have suggested clauses to be incor-
porated in these agreements. In addition, it appears that the lead
shop employees participated in the organizing of the Intervenor and
have been members thereof; that they have processed their grievances
through the Intervenor's shop stewards; and that a lead shop em-
ployee, later transferred to other plant duties, served for a short time
as an alternate shop steward in the repair and maintenance
department.
However, as we have already indicated, the employees engaged in
lead burning constitute a true craft group, and these employees have
never been previously granted an opportunity to participate in a self-
determination election. In addition, it appears that, although bar-
gaining has proceeded on a plant-wide basis in other electrochemical
plants in the city of Niagara Falls itself, bargaining in the chemical
industry generally has been conducted through craft groups similar
to that sought by the Petitioner herein, both in the vicinity of Niagara
Falls 11 and elsewhere in the United States 12
Under these circumstances, we are of the opinion that the Employ-
er's lead burning employees should be accorded an opportunity at the
present time of indicating whether they desire to be represented in
a craft union or to remain a part of the existing production and main-
tenance group 13 We shall, therefore, make no final unit determina-
tion at this time, but shall be guided by the desires of these employees
as expressed in the election directed hereinafter. If, at this election,
the employees in the voting group set forth below select the Petitioner,
they will be taken to have indicated their desire to constitute a sepa-
rate unit for the purposes of collective bargaining; however, if, at this
election, they select the Intervenor, they will be taken to have indi-
cated their desire to be bargained for as part of the existing produc-
tion and maintenance unit.
We come now to a discussion of the lead shop group leader and
of the lead burner helpers, concerning whose inclusion in the voting
groups the parties are in disagreement :
Lead shop group leader: This individual spends from 25 to 50 per-
cent of his time directing the work of the approximately 11 lead shop
employees; and, during the balance of his time, he performs work
similar to that of the other lead burners. The record indicates that
he is hourly paid, receiving approximately 5 cents an hour more than
his highest paid subordinate; that he has authority effectively to rec-
11 See Matter of National Aniline Division, Allied Chemical and Dye Corporation, foot-
note 8, supra, and Matter of E. I. du Pont de Nemours and Company, 66 N. L. R. B. 545.
12 See Matter of P I. du Pont (Crasselli Division), 65 N L R. B. 390, and Matter of
National Lead Company , 63 N L R B. 903.
13 Cf. Matter of National Aniline Division, Allied Chemical and Dye Corporation, footnote
8, supra.
HOOKER ELECTROCHEMICAL COMPANY 623
ommend the hire, discharge, promotion, and change of status of his
subordinates; and that individuals classified as group leaders were
specifically excluded from the production and maintenance unit for
which the Intervenor was designated by the Regional Director both
in 1944 and 1945. In view of the foregoing, and upon the entire
record in the case, we are of the opinion that the lead shop, group
leader is a supervisory employee and we shall, therefore, exclude him
from the voting group.
Lead burner helpers: There are presently four lead shop employees
performing the duties of "lead burner helpers." 14 These individuals
are permanently assigned to the lead shop, where they work as com-
mon laborers, scraping, cutting, and preparing the lead for burning,
and serving generally as handymen in the shop. They are subject
to conditions of employment similar to those of the lead burners and
their apprentices. Moreover, they are selected and trained by the
Employer with the expectation that they will ultimately be advanced
to the more skilled capacities, and almost all the lead burners and
their apprentices presently embraced in the voting group began their
work in the lead shop as helpers. Under the circumstances, we are
of the opinion that the lead burner helpers have interests closely akin
to those of the lead burners and their apprentices, and we shall, there-
fore, include the lead burner helpers in the voting group.
Accordingly, we shall direct an election by secret ballot among all
lead burners, their apprentices and helpers, at the Employer's Niagara
Falls plant, excluding the lead shop group leader, and all other super-
visory employees, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTION 15
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Hooker Electrochemical Com-
pany, Niagara Falls, New York, 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 Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Sections 203.55 and 203.56, of National Labor Relations Board Rules
14 Two of these employ ees, Nowacki and Lewis , are classified as "lead burner helpers,"
and the remauung two, Buhr and Irish , are designated as "lead burners C " Inasmuch
as the record indicates that Buhr and Irish perform substantially the same duties as
those performed by the helpers, we shall consider these four employees together as "lead
burner helpers."
15 Any participant in the election herein may, upon its prompt request to, and approval
thereof by, the Regional Director, have its name removed from the ballot.
755420-48-vol 74-41
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Regulations-Series 4, among the employees in the voting group
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 vacation or temporarily laid off, and in-
cluding employees in the armed forces of the United States who pre-
sent themselves in person at the polls, but excluding those employees
who have since quit or'been discharged for cause and have not been
rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by United Association of Jour-
neymen Plumbers and Steamfitters of the United States & Canada,
Lead Burners Local Union No. 677, AFL, or by Niagara Hooker Em-
ployees' Union, for the purposes of collective bargaining, or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.