McCarthy Chemical Co.

National Labor Relations Board - Board Decisions

Sep 20, 1949

86 N.L.R.B. 14 (N.L.R.B. 1949)

In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and
OIL WORKERS INTERNATIONAL UNION. CIO, PETITIONER
In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and
LOCAL UNION No. 195, UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, AFL, PETITIONER
In the Matter of MCCARTHY CHEMICAL COMPANY, EMPLOYER and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL
UNION No. 479, AFL, PETITIONER
Cases Nos. 39-RC-66, 39-RC-69, 39-RC-86, 39-RC-68, 39-RC--80,
. and 39-RC-81, respectively.Decided September 20,1949
DECISION
AND
DIRECTION OF ELECTIONS
Upon separate petitions duly filed, a hearing in the above consoli-
dated cases was held before James P. Wolf, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
-error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Reynolds and Gray].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
1 Before the hearing, the Oil Workers moved to dismiss the petitions of the Pipefitters
and the IBEW on the ground that a collective bargaining contract between it and the
Employer is a bar to these proceedings . We find no merit in this contention . The contract
between the Oil Workers and the Employer executed on July 1, 1948 , provides that the
contract "shall be in effect for one ( 1) year from July 1, 1948 , until July 1, 1949, and
thereafter from year to year, subject to amendment or termination by said parties after
July 1, 1948 [ 1949], upon sixty ( 60) days notice to the other ." We find that the contract
is one terminable at will after July 1, 1949 , and therefore is not a bar . Accordingly, the
motion is hereby denied . Matter of Jacobsen Mfg. Co., 82 N . L. R. B. 1404.
The Pipefitters also filed a "Motion to Intervene and Dismiss ," which is in fact a
motion to intervene in Case No . 39-RC-69. The hearing officer properly granted this
motion.
86 N. L . R. B., No. 4.
14
McCARTHY CHEMICAL COMPANY 15
2. Oil Workers International Union, CIO, the Petitioner in Cases
Numbered 39-RC-66 and 39-RC-69, herein called the Oil Workers;
Local Union No. 195, United Association of Journeymen and Ap-
prentices of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL, the Petitioner in Cases Numbered 39-RC-
68 and 39-RC-86, herein called the Pipefitters ; and International
Brotherhood of Electrical Workers, Local Union No. 479, AFL, the
Petitioner in Cases Numbered 39-RC-80 and 39-RC-81, herein called
the IBEW, are labor organizations claiming to represent employees
of the Employer 2
3. Questions affecting commerce exist concerning the representa-
tion of the employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate units; the determination of representatives:
The unit contentions:
The Oil Workers seeks to represent separate units of (1) operating,
maintenance and laboratory employees, and (2) office and clerical
workers. The Pipefitters desires a unit of pipe fitters, pipe-fitting
welders, and helpers. 3 The IBEW urges a unit of electricians and
electricians' helpers.
The Employer agrees that the operating, maintenance, and labora-
tory unit sought by the Oil Workers is appropriate. It takes no posi-
tion with respect to the office and clerical unit sought by the Oil
Workers, but would defer any election for that group until some future
date, on the ground that it is planning to expand its office and clerical
staff when it achieves full production in the chemical plant.
Both the Employer and the Oil Workers assert that the units sought
by the Pipefitters and the IBEW are inappropriate, allegedly because
2 After the hearing , District Lodge No . 31, International Association of Machinists,
herein called the IAM , filed a "Motion to Intervene and Reopen the Record ." It asks
the Board to establish a separate unit of machinists and machinists ' helpers or, in the
alternative , to reopen the record to enable it to prove the appropriateness of its proposed
unit. It asserts that it was not notified and had no knowledge of the present proceedings
until after the close of the hearing . In support of this motion , it submitted authorization
cards signed by 8 of the 21 employees in the proposed unit. All the cards were signed before
the date of the hearing.
We hereby grant the motion of the IAM to the following extent : As the question of the
appropriateness of the unit sought by the IAM was not raised at the hearing , it is impossi-
ble to resolve this question on the basis of the present record . We shall administratively
advise the Regional Director for the Sixteenth Region to conduct a further hearing for the
purpose of determining the appropriateness of the unit . However, we shall not delay
the present elections , but shall permit the employees in the alleged machinists craft unit
to vote in the production and maintenance voting group , upon the condition that their
votes be impounded . If we later determine that a machinists unit is appropriate , we shall
not count the impounded ballots. If we find that the proposed unit is inappropriate, we
shall direct that they be opened and counted . Cf. Matter of J. I. Case Company, $1
N. L. It. B. 651.
8 The Pipefitters also sought to Include apprentices . However, the Employer does not
have any apprentices.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees proposed to be included in these units are not members
of a craft. The Pipefitters and the IBEW contend that the plant-
wide unit sought by the Oil Workers is inappropriate, because it in-
cludes employees in the categories sought by them.
The Employer's operations:
The Employer operates two plants, known as the Absorption plant,
and the Chemical plant, on a 40-acre plot of land. The Absorption
plant processes natural gas from which it manufactures various pe-
troleum products. The Chemical plant, which is not yet in full pro-
duction,4 processes residual natural gases obtained from the Absorp-
tion plant into various products used principally in the manufacture
of plastics.
Operations at both plants are integrated and coordinated under the
over-all supervision of a plant manager, who is assisted by a super-
intendent of operations and a superintendent of maintenance. Opera-
ting employees may be interchanged between the two plants as the
needs of the Employer require. There is a single maintenance de-
partment which serves both plants. The maintenance department is
functionally subdivided into a machinist section, a carpenter section,.
an instrument men section, a pipe fitters and welders section, and an
electrician section. The units sought by the Pipefitters and the IBEW
involve, respectively, employees in the pipe fitters and welders section,
and the electrician section of the maintenance department.
Bargaining history:
The Employer is the successor to Absorption Plant, Inc., which
operated the Absorption plant from 1946, until January 1949. In
January 1949, the Employer corporation was formed. All assets of
the Absorption Plant, Inc., were transferred to the Employer-which.
has operated the Absorption plant since that date. On February
10, 1948, as the result of a consent election, the Oil Workers was certi-
fied as bargaining representative for all operating and maintenance
employees at the Absorption plant. A contract between the Oil
Workers and Absorption Plant, Inc., was executed on July 1, 1948.5
The Employer, as successor to Absorption Plant., Inc., has considered
itself bound by the terms of this contract. Both contracting parties
regard the contract as also covering employees in the Chemical plant.
4 The Chemical plant is being operated on an experimental basis at the present time.
When certain technical problems are solved, commercial operation of the plant will be
commenced. Although the Employer is unable to say when it will begin to produce
commercially, it has installed all machinery necessary for commercial production and has
recruited a full complement of employees. These employees will perform the same duties
in the commercial operation of the Chemical plant as they now perform during the experi-
mental phase.
" It is this contract which we have held not to be a bar.
McCARTHY CHEMICAL COMPANY 17
The proposed production and maintenance unit:
As previously stated, the Oil Workers desires a unit of production
and maintenance employees at both the Absorption and Chemical
plants. None of the other parties objects to this unit, except that
the Pipefitters and the IBEW would exclude pipe fitters and elec-
tricians. The unit proposed by the Oil Workers is a conventional
one and may be appropriate, depending on the outcome of the elections
directed hereinafter.
The proposed pipe fitters unit:
The 18 pipe fitters, pipe-fitting welders and helpers whom the Pipe-
fitters would establish as a separate unit, constitute the pipe fitters and
welders section of maintenance department. Under the supervision
of the foreman in charge of this section, these employees perform
skilled pipe fitting and welding maintenance work on pipes, boilers,
and valve heads. They are not interchanged with other employees
in either the operations or the maintenance department and are the
only employees performing pipe fitters work. Before being hired,
they are required to demonstrate a high degree of skill as pipe fitters
and welders. We find that these employees comprise a craft group
and may, if they so desire, constitute a separate appropriate unit.6
The proposed electricians unit:
The electricians, whom the IBEW would represent in a separate
unit, comprise the electricians section of the maintenance department.
They are supervised by an electrician foreman, have a shop of their
own, and spend all their time performing electrical maintenance work
on high voltage lines and plant equipment. They do not interchange
with other employees. All of the present electricians have served
apprenticeships with other employers and, in addition, have from 5
to 10 years' experience as maintenance electricians. We find that the
electricians are a craft group and may, if they so desire, constitute a
separate appropriate unit.?
As the electricians and pipe fitters may either constitute separate
units or be included in a production and maintenance unit, we shall
make no unit determinations for any of these three groups of em-
ployees, until we have first ascertained the desires of the pipe fitters
and electricians, as expressed in the elections directed hereinafter. If
a majority of the employees in the pipe fitters voting group vote for
Pipefitters, or a majority of the employees in the electricians voting
group vote for the IBEW, the members of that group will be taken to
have indicated their desire to constitute a separate appropriate, unit.
'Matter of Alamo Refining Company , 82 N. L . R. B. 1227; Matter of Procter and Gamble
Manufacturing Company, 78 N. L. R. B: 1054.
7 Matter of Aluminum Company of America, 83 N. L. R. B. 398.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The proposed office and clerical unit:
The office and clerical unit urged by the Oil Workers consists of
stenographers, file clerks, bookkeepers, and pay-roll clerks. The office
staff is located in a separate section of Absorption plant. The Em-
ployer does not argue that the proposed unit is inappropriate, but
contends that no election should be held until the Chemical plant is
in full production, at which time it expects to increase its office staff.
However, the Employer was unable to state when full scale production
will occur, or the extent to which the office staff will be enlarged by
the expansion. Under these circumstances, we do not believe that an
election for the present employees in this group should be postponed.,,
Accordingly, we find that all office and clerical employees of the
Employer at its Winnie, Texas, plants, excluding supervisors as de-
fined in Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.9
We shall direct elections by secret ballot among the following groups
of employees at the Employer's Winnie, Texas, plants, excluding from
each ' group guards, professional employees, and supervisors as de-
fined in the Act.
(1) All operating maintenance and laboratory employees, excluding
maintenance pipe fitters, pipe-fitting welders and their helpers, and
maintenance electricians and their helpers.
(2) All maintenance pipe fitters, pipe-fitting welders and helpers.
(3) All maintenance electricians and helpers.
(4) All office and clerical employees.
As previously indicated, we shall make no unit determination
as to the employees in voting groups (1), (2), and (3) until after the
elections.
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, elections by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
voting groups described in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Elections, including employees who did not work
during said pay-roll period because they were ill or on vacation or
8 Matter of J. I. Case Company, 80 N. L . R. B. 217.
9 The record discloses that Judy Turner, the secretary to the plant manager , is not a
confidential employee . We shall Include her In the unit.
McCARTHY CHEMICAL COMPANY 19'
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections, and also excluding employees
on strike who are not entitled to reinstatement, to determine :
(a) Whether or not employees in voting groups (1) and (4) desire
to be represented, for purposes of collective bargaining, by Oil Work-
ers International Union, CIO.
(b) Whether employees in voting group (2) desire to. be repre-
sented, for purposes of collective bargaining, by Oil Workers Interna-
tional Union CIO, or by Local Union No. 195, United Association of
Journeymen and Apprentices of the Plumbing & Pipe Fitting Indus-
try of the United States and Canada, AFL, or by neither; and
(c) Whether employees in voting group (3) desire to be repre-
sented, for purposes of collective bargaining, by Oil Workers Interna-
tional Union, CIO, or by International Brotherhood of Electrical
Workers, Local No. 479, AFL, or by neither.