Kolker Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 16, 1961

130 N.L.R.B. 1394 (N.L.R.B. 1961)

1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices by attempting to have-
employees leave the plant by an exit which would prevent them from coming into-
contact with union organizers known to be in the area.
[Recommendations omitted from publication.]
Kolker Chemical Corporation ' and Paint, Varnish & Allied'
Products , Local Union #1310 , B. of P.D. & P. of A., AFL-CIO,`
Petitioner
Kolker Chemical Corporation and International Union of Operat-
ing Engineers , Local 68, AFL-CIO,' Petitioner . Cases Nos..
22-RC-983 and 22-RC-992. March 16, 1961
DECISION, ORDER, 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-
Richard W. Coleman, hearing officer. The hearing officer's rulings.
made at the hearing are free from prejudicial error arid-are hereby
affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board'.
has delegated its powers in connection with these cases to it three-
member panel [Members Rodgers, Leedom, and Fanning].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.4
3. A question affecting commerce exists concerning the representa-
tion 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. 22-RC-983, the Painters seeks a unit of production
and maintenance employees at the Kolker Chemical Corporation 5'
plant. The Employer agrees that a production'and maintenance unit.
1 The name of the Employer appears as amended at the hearing.
Herein called Painters.
Herein called Operating Engineers.
On December 9, 1960, subsequent to the close of the hearing, District 50, United'
Mine Workers of America , herein called District 50 , filed a petition in Case No . 22-RC-
1071 , seeking to represent the employees here involved . Thereafter, on December 14,
1960, District 50 moved to intervene in these proceedings , alleging that it received no.
notice of the hearing As we are administratively satisfied that District 50 's card show-
ing is both adequate and timely for the purposes of intervention , the motion to intervene-
is granted . Accordingly, as District 50 indicated it desired to withdraw its petition upon,
the granting of its motion, we shall dismiss the petition in Case No. 22-RC-1071.
r Hereinafter referred to as Kolker.
130 NLRB No. 131.
KOLKER CHEMICAL CORPORATION 1395
is appropriate, but contends that any such unit should also include the
employees of Doremus Chemical Works, Inc.,' a subsidiary corpora-
tion. In Case No. 22-RC-992, the Operating Engineers seeks a sepa-
rate unit of boiler firemen at the Kolker plant. The Employer takes
the position that these firemen should be included in the overall unit
of production and maintenance employees. District 50, the Inter-
venor, desires to appear on the ballot in any unit or units the Board
finds to be appropriate. There is no history of bargaining for either
group of employees.
Case No. 22-RC-983: The record shows that Doremus was origi-
nally formed as a holding company for the assets of Kolker, but in the
fall of 1959 Doremus began the erection of a plant which will produce
and supply chlorine to Kolker for the chemical operations of the
Kolker plant. Doremus was expected to be operational in December
1960. According to Charles Kolker, executive vice president of both
corporations, Doremus will continue operations until July 1, 1961, at
which time Doremus will cease to exist as a separate corporate entity
and its assets and operations will be assumed by Kolker. The stock
of Doremus is now held entirely by Kolker. Both corporations have
the same corporate officers and the same business location. Kolker
handles all sales, purchases, and financing for Doremus. Although
the corporations have separate payrolls, Kolker provides Doremus
with a weekly payroll check for its employees. On occasion, employ-
ees of Kolker perform duties at the Doremus plant. All employees
of both corporations are hired by Kolker and all share the same em-
ployee benefits.
In view of the foregoing, we find that Kolker and Doremus consti-
tute a single employer for the purposes of the Act.' Accordinigly, we
find that a unit comprising employees at both plants is appropriate.
As the Petitioner has indicated a desire to go to an election in what-
ever unit the Board finds appropriate in Case No. 22-RC-983, and as
we are administratively satisfied that the Petitioner has an adequate
showing of interest in the unit found appropriate, we shall direct an
election in that unit.
Case No. 22-RC-992: Only Kolker maintains a powerhouse which
is located in a separate building and which also houses certain mainte-
nance employees. However, the powerhouse is physically separated
from the rest of the building by firewalls. The firemen are all em-
ployed by Kolker, and are licensed boiler-operators. They work on
an around-the-clock schedule, performing the usual powerhouse duties.
They are under the immediate supervision of the plant engineer, who
also supervises the maintenance employees assigned to the building.
On occasions, when there are two firemen assigned to a particular
e Hereinafter referred to as Doremus.
Dohrmann Commercial Company and Dohrmann Hotel Supply Co., 127 NLRB 205.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift, they are sometimes required to perform various maintenance
tasks, i.e., cleaning , painting, and minor repair work. However, all
of these duties are performed in the powerhouse proper. The record
shows that the firemen have little or no contact with other employees.
Accordingly, we find that the firemen form a homogeneous and func-
tionally distinct powerhouse group, such as the Board has held may
constitute a separate appropriate unit in the circumstances of this
case.8
5. The Employer contends that an election should not be conducted
in Case No. 22-RC-983 at this time because its operations are in the
process of a substantial expansion program. At the time of the hear-
ing, the Doremus and Kolker plants employed some 76 employees in.
12 job classifications. The Employer anticipates that by April 1961,
it will employ 117 employees in 21 job classifications. We find that
the employees employed at the time of the hearing constitute a sub-
stantial and representative segment of the complement to be em-
ployed in the future, and that an election in Case No. 22-RC-983 at
this time would not be premature.9
Accordingly, we shall direct elections in the following voting groups
of the Employer's employees at the Kolker and Doremus plants in
Newark, New Jersey, excluding office clerical employees, laboratory
technicians, watchmen, guards, and all supervisors as defined in the
Act.
(1) All powerhouse employees at Kolker, excluding all other
employees. .
(2) All production and maintenance employees at Kolker and
Doremus, including shipping and receiving clerks, truckdrivers, and
janitors, but excluding all employees in voting group (1).10
If a majority of the employees in voting group (1) select the Oper-
ating Engineers, they will be deemed to have indicated their desire to
constitute a separate appropriate unit, and the Regional, Director is
instructed to issue a certification of representatives to such labor
organization for such group, which the Board, under these circum-
stances, finds to be an appropriate unit for purposes of collective
bargaining . However, if a majority in voting group (1) do not vote
for, the Operating Engineers , the ballots of the employees in such
8 Minnesota Mining & Manufacturing Company ( Irvington Varnish and Insulator Com-
pany Division ), 129 NLRB 789.
6 Edward Aaron Corporation, 125 NLRB 840.
10 Painters has indicated it does not desire to participate in the separate election among
the employees in voting group ( 1). However , because the employees in this voting group
are appropriately a part of the overall group should they reject separate representation,
and because they should be afforded an opportunity to decide whether or not they desire
to be represented in an overall unit by the Painters , we shall place the Painters on the
ballots in voting group ( 1). In the event the Painters does not desire its name be placed
on the ballot in the election in voting group ( 1), the Regional Director is instructed to
dismiss the petition in Case No. 22-RC-983. As District 50 indicated a willingness to
proceed to an election in any unit or units found to be appropriate , we shall place this
union on the ballot in voting group (1) as well.
AMERICAN AGGREGATE CO., INC. & FEATHERLITE CORP. 1397
voting group will be pooled with those of the employees in voting
group (2).11 If a majority of the employees in voting group (2) or
in the pooled group, as the case may be, vote for the Painters, or
District 50, the Regional Director is instructed to issue a certification
of representatives to such labor organization for such group, which
the Board, in the circumstances, finds to be a unit appropriate for the
purposes of collective bargaining. In all other events, the Regional
Director is instructed to issue a certification of results of the elections
as appropriate in the circumstances.
[The Board dismissed the petition filed in Case No. 22-RC-1071.]
[Text of Direction of Elections omitted from publication.]
it If the votes are pooled , they are to be tallied in the following manner : Votes for
the Operating Engineers shall be counted as valid votes, but neither for nor against the
Painters or District 50. All other votes are to be accorded their face value, whether for
representation by the Painters, or by District 50, or by no union . See Independent Linen
Service Company of Mississippi, 122 NLRB 1002, 1006.
American Aggregate Company , Inc. and Featherlite Corporation
and United Stone and Allied Products Workers of America,
AFL-CIO: Cases Nos. 16-CA-1331 and 16-CA-1338. March 17,
1961
DECISION AND ORDER
On October 18, 1960, Trial Examiner Phil Saunders issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondent
had not engaged in certain other alleged unfair labor practices and
recommended dismissal of the complaint pertaining to such alleged
unfair labor practices. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except as indicated below.'
Herein sometimes referred to as the Union.
s In its exceptions , the Respondent complains that the Trial Examiner , in determining
whether striker Nowak was offered his old job upon termination of the strike , failed to
consider a tape recording of an interview between representatives of the Respondent and
Nowak. As the tape recording contained omissions and unintelligible portions, we do not
regard it as reliable . Cf. Walton Manufacturing Company, 124 NLRB 1331 , 1333. We
130 NLRB No. 144.