Lion Oil Co.

National Labor Relations Board - Board Decisions

May 13, 1947

73 N.L.R.B. 982 (N.L.R.B. 1947)

In the Matter of LION OIL COMPANY, CHEMICAL DIVISION, EMPLOYER
and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONER
Case No. 15-R-2004.-Decided May 13,1947
Messrs. Jeff Davis and B. L. Allen, both of El Dorado, Ark., for
the Employer.
Messrs. Joe. P. Rhodes and Med. Harbison , both of El Dorado,
Ark., for the Petitioner.
Mr. John W. Carlton, of New Orleans , La., and Mr. W. H. Winko,
of Shreveport , La., for the Intervenor.
Mr. Arthur Christopher , Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at El
Dorado, Arkansas, on December 10, 1946, before Jerome A. Reiner,
hearing officer. At the hearing, the Intervenor moved to dismiss
the petition, which motion the hearing officer referred to the Board
for disposition. For reasons stated in Section III, infra, the motion
is denied. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in the case,' the, National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Lion Oil Company, a Delaware corporation, is engaged in the
manufacture of ammonia, ammonium nitrate, and related products
at its plant in El Dorado, Arkansas. Annually, the Employer pur-
chases raw materials worth more than $50,000, of which 80 percent
is shipped to its plant from points outside the State of Arkansas.
1 Subsequent to the hearing, the Board granted the joint motion of the Employer and the
Petitioner to correct the record in certain respects , no opposition having been filed by the
Intervenor ; which was duly notified of the Board 's intention to grant the application if no
cause for denial were shown by January 10, 1947.
73 N. L. R. B, No. 186.
982
LION OIL COMPANY 983
Annually, the Employer manufactures and sells finished products
valued in excess of $50,000, of which 80 percent is shipped to points
outside the State.
We find that the Employer is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
International Association of Machinists, herein called the Inter-
venor, is a labor organization, claiming to represent employees of the
Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of the janitors, porters, maids, and laborers
employed at its El Dorado, Arkansas, plant, contending that all these
employees, with the exception of approximately 13 who are attached
to its office and service section, are embraced within the production
and the skilled maintenance units which were established as a result
of earlier Board proceedings and are presently represented by the
Petitioner and the Intervenor, respectively.2 The Intervenor also
asserts that its prior certification 3 and that of the Petitioner 4 and
an existing contract between the Intervenor and the Employer are
bars to this proceeding.
Approximately 7 years ago operations commenced at the El Dorado
plant which, at that time, was operated by the Lion Chemical Corpo-
ration, a wholly owned subsidiary of the Employer, under a contract
with the United States Government. On February 7, 1944, the Board
established two separate units at the Lion Chemical Corporation's
El Dorado plant, composed of skilled maintenance employees on the
one hand, and production employees on the other," and as a result
2 As is later shown, the Employer's operations are divided into 3 sections production,
maintenance, and office and service. Of the 59 employees sought by the Petitioner, 15 are
attached to the production section, 31 are attached to the maintenance section , and 13 are
attached to the office and service section
8 Matter of Lion Oil Company, Case No. 15-R-1560
Matter of Lion Chemical Corporation, Case No 15-R-1039
Matter of Lion Chemical Corporation, 54 N. L. R. B 1124, in its Decision the Board
found that ( 1) all maintenance employees ( maintenance employees were designated on
the Employer 's pay roll as head mechanics , senior mechanics , mechanics , senior helpers,
and helpers ), including garage mechanics , and helpers engaged in the installation, main-
tenance, and repair of machinery and equipment , head mechanics , senior mechanics , mechan-
ics, junior mechanics , senior helpers, and helpers , but excluding all supervisory employees
within the meaning of the Board 's customary definition, and all other employees ; and
(2) all production employees , excluding maintenance employees, guards, employees in the
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of that proceeding the Petitioner was certified that same year as
collective bargaining representative for the employees in the produc-
tion unit, subsequently entering into a contract with the Employer
covering the employees in this unit. On May 13, 1946, the Govern-
ment terminated its contract with the Lion Chemical Corporation,
and on that date the Employer became the lessee of the plant, retaining
the same working staff. Several days later the Employer and the
Petitioner executed an interim agreement under the terms of which
the parties adopted the previous contract between the Petitioner and
the Employer's subsidiary. Thereafter, during August 1946, the
Petitioner and the Employer executed a new contract, which, with
later amendments, was to remain in effect for a period of 1 year,
and contained a 60-day automatic renewal clause. It covered a pro-
duction unit, embracing all production, operating, and chemical
employees of the Employer.
On July 9, 1946, pursuant to a "Stipulation For Certification Upon
Consent Election" executed by all parties involved herein, the Board,
in Case No. 15-R-1560, certified the Intervenor as collective bargain-
ing representative for all maintenance employees in the Employer's
El Dorado plant, including garage mechanics and helpers engaged in
the installation, maintenance and repair of machinery and equipment,
head mechanics, senior mechanics, mechanics, junior mechanics, senior
helpers and helpers, but excluding all supervisory employees within
the meaning of the Board's customary definition, and all other em-
ployees. This unit was the same as that established by the Board
in 1944. On July 29, 1946, the Intervenor and the Employer executed
a 1-year collective bargaining contract encompassing all the Em-
ployer's skilled maintenance employees in the unit mentioned above,
which contained a 60-day automatic renewal clause.
With respect to the contention that the prior certifications of the
Petitioner and the Intervenor constitute a bar to this proceeding, it is
clear that the employees sought herein by the Petitioner were not
included in the units covered by those certifications. The unit of
skilled maintenance employees in which the Intervenor was certified
by the Board on July 9, 1946, was the same as that which the Board
found appropriate in its Decision and Direction of Elections of Feb-
ruary 7, 1944, and neither that unit nor the unit of production
employees in which the Petitioner was certified as a consequence of the
1944 proceeding, included the employees sought herein. We, therefore,
Chemical department , office and clerical employees , non-working foremen , and all super-
visory employees within the meaning of the Board's customary definition , constituted units
appropriate for the purposes of collective bargaining . The employees here sought are
neither skilled maintenance nor production workers.
LION OIL COMPANY 985
find that the prior certifications of the Petitioner and the Intervenor
do not constitute bars to this proceeding."
The record discloses that none of the janitors, porters, maids, and
laborers sought by the Petitioner are included within any of the wage
classifications in the existing contract between the Intervener and the
Employer. At the hearing the Employer's representative stated that
it had not been contemplated by any of the contracting parties that
any of these employees were to be included within the coverage of
either the wage classification scale of the Employer's contract with the
Intervenor or that of the contract between the Employer and the
Petitioner. None of these workers have been bargained for under the
contracts between the Employer and the Petitioner, nor is there any
evidence that any of them have been bargained for under the contract
between the Employer and the Intervenor. It is clear that a contract
does not constitute a bar to a determination of representatives with
respect to employees who are not embraced by its terms.7 Accordingly,
we find that the contracts between the Intervenor and the Employer
and the Petitioner and the Employer do not constitute bars to a present
determination of representatives."
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 Petitioner seeks a unit consisting of all janitors, porters, maids,
and common and semi-skilled classified laborers of the Employer's
El Dorado, Arkansas, plant, including railway laborers, but exclud-
ing all supervisory employees and all other employees. The Inter-
venor contends that the requested unit is inappropriate, and argues
that these employees are included within the established production
and skilled maintenance units presently represented by the Petitioner
and the Intervenor, respectively. The Employer also takes the posi-
tion that the proposed unit is inappropriate, and urges that the 31
employees within the classifications sought by the Petitioner who
are attached to the Employer's maintenance section should be included
in the skilled maintenance unit represented by the Intervenor; that
the 15 workers within the same classifications who are attached to the
production (operating) section should be included in the production
unit represented by the Petitioner; and that the remaining 13 em-
• In any event the Petitioner's certification , now approximately 3 years old, could not
operate as a bar.
Matter of Todd-Pacific Shipyards, Inc., 60 N. L. R. B. 26.
We reject the Intervenor 's contention that the petition in this case was not timely filed.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees within these classifications who are attached to the office and
service section 9 should be included in either the skilled maintenance
or production unit, but, in any event, should not constitute a separate
unit.
There are 59 employees in the proposed unit, who, as shown above,
are distributed among the 3 main sections of the Employer's plant :
the production (operating), maintenance, and office and service sec-
tions. These employees work 40 hours a week and it appears that
all are paid on the basis of a similar wage schedule. They perform
similar duties such as cleaning plant buildings, cooling towers, sal-
vaged material and other equipment; digging ditches; removing
trash from buildings and grounds; cleaning and lubricating auto-
mobiles and trucks; mowing lawns; trimming hedges; and related
work. None performs any work that requires substantial skill or
training. It appears that all employees in the classifications sought,
because of their functions and working conditions have similar prob-
lems and interests which differ substantially from those of employees
in other classifications. In view of these facts, we are of the opinion
that the janitors, porters, maids, and the common and semi-skilled
laborers have a close community of interest and should constitute
a separate appropriate unit.
Accordingly, we find that all janitors, porters, maids, and common
and semi-skilled classified laborers of the Employer's El Dorado,
Arkansas, plant, including railway laborers, but excluding all super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, and all other employees, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Lion Oil Company, Chemical
Division, El Dorado,,Arkansas, 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 Fifteenth 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
9 It does not appear that any employees in the office and service section are represented
by a labor organization.
10 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.
LION OIL COMPANY 987
Rules and Regulations-Series 4, among the employees in the unit
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 Oil Workers International
Union, CIO, or by International Association of Machinists, for the
purposes of collective bargaining, or by neither.