Mississippi River Fuel Corp.

National Labor Relations Board - Board Decisions

Jan 20, 1958

119 N.L.R.B. 1371 (N.L.R.B. 1958)

MISSISSIPPI RIVER CHEMICAL CO. - 1371
The question of whether the statutory construction urged by the General Counsel
would better than any other effectuate the policies of the Act is one, however, that
is not for me to decide The fact remains that the General Counsel's position has
no present support in Board precedent, while that of the Respondents, which would
require the dismissal of the complaint, is not only consistent with at least one pos-
sible and not necessarily implausible construction of the statute, but is reinforced
by an authoritative rule and regulation of the Board. Of course, the Board need
not be a slave to its own rules, and should be free to alter a rule if in the light
of additional learning and experience it becomes convinced that some other rule
would better effectuate the purposes of the Act But where, as here, a rule embody-
ing a statutory construction does not necessarily do violence to the language of the
Act, is one that was promulgated contemporaneously with the passage of the Act
by those entrusted with the responsibility of its administration, and has stood unchal-
lenged for almost 10 years, it should not be overturned even by those authorized
to do so, except for cogent reason 32 As for me, an agent of the Board, there is
no choice As long as the published rule remains unchanged, I must regard it as
having the force of law, binding on me, and, I think, on the General Counsel no
less. Consequently, as Section 102 72' of the Board's Rules and Regulations and
Section,, 101.28 of its Statements of Procedure, Series 6, as amended, are here clearly
controlling, and command dismissal of this proceeding, the Respondents' motions to
disiitiss the complaint are hereby granted upon that ground
It is so ordered.
in its industry , and one , moreover , whose work has been endorsed by the Joint Con-
gressional Committee as a successful effort to effectuate a legislative purpose See , Report
of the Joint Committee on Labor-Management Relations pursuant to LMRA, Section 403,
80th Cong, 2d sess , part 1, at p 19 (Mai 15, 1948 ) , ,,bad Final Report at p 58
2 Norwegian N'atrogen Company v U. S , 288 U S 294, 815, U if. v. American Trucksng
Assocsataony 310 U 9, 534, 549
Mississippi River Chemical Co. Division of Mississippi River
Fuel Corp. ' and International Union of Operating Engineers,
AFL-CIO, Petitioner
Mississippi River Chemical Co. Division of Mississippi River
Fuel Corp. and Oil, Chemical and Atomic Workers, Interna-
tional Union, AFL-CIO, Petitioner. Cases Nos 141-RC-3222 and
14 IIC3275. January 20,1958
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Henry G. Carlson,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.2
1 The name of the Einployei appears as amended at the hearing
a 1be hearing officei , over the objection of the International Union of Operating En-
gineers, AFL-CIO, herein called the Operating Engineers, permitted Oil, Chemical and
Atomic Workers , International Union, AFL-CIO, herein called the OCAW, to intervene
in Case No 14-RC-3222 for the purposes of opposing a unit of maintenance and boiler-
house operators and asserting that a production and maintenance unit is the only appro-
priate unit At the hearing, the OCAW requested that its name appear on the ballot for
any unit or units that the Board found appropriate. On September 26, 1957, the OCAW
filed its own petition (Case No i4-RC-3275) seeking the same production and mainte-
nance unit which it, previously urged appropriate at the hearing on July 29, 1957 On
October 25 , 1957 , the Operating Engineers filed with the Board a motion to revoke the
notice, of hearing and dismiss the petition in Case No. 14 C-3275, which was denied by
119 NLRB No. 165.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Operating Engineers and OCAW are labor organizations
within the meaning of the Act and claim to represent certain em-
ployees of the Employer.'
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. The Employer is engaged in the manufacture of chemical fer-
tilizer at Crystal City, Missouri. The Operating Engineers seeks to
represent the maintenance employees and boilerhouse operators in
separate units or, in the alternative, the maintenance employees and
boiler operators in a single unit. The OCAW seeks to represent a
unit of production and maintenance employees. The Employer con-
tends that a unit of production and maintenance employees is the
only appropriate unit. There is no history of collective bargaining.
The Employer employs approximately 35 maintenance employees.
These employees are under the direct supervision of the general and
assistant general maintenance foremen, who report to the coordinat-
ing engineer. These maintenance employees perform general main-
tenance work such as pipework, welding, and electrical work on high
voltage lines and tear down and repair production equipment. The
record shows the production employees perform running maintenance
on their machinery such as touching up with paint and installing
new valves, meters, and other parts and, during major breakdowns
the Board. On November 4, 1957, a hearing was conducted on the OCAW's petition in
Case No. 14-RC-3275 ; the Operating Engineers intervened therein and renewed its motion
to dismiss the petition on the grounds that ( 1) the OCAW petition in Case No. 14-RC-3275
stated that no other labor organization was an interested party; ( 2) the OCAW's petition
is supported by a showing of interest obtained subsequent to the time of the hearing in
Case No. 14-RC-3222 ; and (3 ) this is a posthearing intervention . We find no merit in
contention number 1. As the Operating Engineers was served with notice of hearing and
intervened in Case No . 14-RC-3275 , we find that it was not prejudiced by the OCAW's
failure to state that it was an interested party. As to contentions number ( 2) and (3),
the OCAW properly filed a petition supported by a sufficient showing of interest for the
broader unit . Nepa Division of Fairchild Engine and Airplane Corporation , 88 NLRB 99,
and The Electric Auto -Lite Company, 87 NLRB 129 . At the hearing in Case No.
14-RC-3275 on October 25, 1957 , and after the close of the hearing , the OCAW and
Employer moved that petitions in Case No . 14-RC-3275 be consolidated . As the OCAW
intervened in the Case No. 14-RC-3222 and the Operating Engineers intervened in Case
No. 14-RC-3275 and they pres, nted their positions with respect to all of the issues in-
volved herein, we know of no reason why such consolidation should not be granted.
Nepa Division of Fairchild Engine and Airplane Corporation , 88 NLRB 99 . We shall
therefore consolidate Case No. 14-RC-3222 with Case No. 14-RC-3275.
8 The OCAW - was permitted to.intervene in Case No . 14-RC-3222 and the-Operating
Engineers in Case No. 14-RC-3275 .on the basis of a. showing of interest in the respective
units sought.
MISSISSIPPI RIVER CHEMICAL CO. 1373
and overhauls, work with the maintenance employees. The produc-
tion employees' primary responsibility, however, is operating pro=
duction equipment. The production employees work 3 shifts, 7 days
a 'week, unlike the maintenance employees who generally work only
days. There is no interchange between the production employees and
the maintenance employees.
The Board has consistently held that in the absence of bargaining
history, on a broader scale, maintenance employees may constitute a
separate unit. We find, contrary to the contention of the OCAW and
Employer, that the integrated nature of the Employers' operation
does not preclude the finding of a separate maintenance unit appro-
priate. Accordingly, we find that the maintenance employees con-
stitute a functionally distinct homogeneous group of employees and
may constitute a separate unit.4
The Board has customarily included boilerhouse operators in main-
tenance units where no other labor organization sought to represent
such employees separately.' In the instant case, the same labor or-
ganization is seeking to represent in separate units the maintenance
employees and boilerhouse operators. As no other labor organization
is seeking to represent the boilerhouse operators separately, we find
no cogent reason for not including the boilerhouse operators in the
maintenance unit. In accordance with the Operating Engineers' alter-
nate unit request, we shall include the boilerhouse operators in the
maintenance unit.
However, as the production and maintenance unit sought by the
OCAW is also an appropriate unit, we shall make no final unit de-
termination at this time, but shall permit the maintenance employees
including the boilerhouse operators to express their desire with re-
spect to separate representation in a self-determination election. If
the maintenance employees including the boiler operators vote for
separate representation, then the production employees will also con-
stitute a separate appropriate bargaining unit.
Accordingly, we shall direct that separate elections be conducted
for the following groups of employees at the Employer's Crystal City,
Missouri, plant :
(1) All maintenance employees, including boilerhouse operators,
but excluding all other employees, office clerical employees, guards,
professional employees, and supervisors as defined in the Act;
(2) All production employees, excluding all other employees, office
clerical employees, guards, professional employees, and supervisors
as defined in the Act.
4 United States Gypsum Company, 116 NLRB 1939, and Olin Mathieson Chemical Corpo-
ration, Olin Works, 117 NLRB 1441.
6 E. L. Dupont . de Nemours & Company ( Savannah River Plant ), 111 NLRB 649.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have found that employees in the production voting group may
also constitute an appropriate unit if the employees in the mainte-
nance voting group vote for separate representation. If employees
in the maintenance voting group do not vote for separate representa-
tion, they must be included in the production and maintenance unit.
Accordingly, if a majority of the employees in group (1) select the
'Operating Engineers as their representative, they will be taken to
have indicated their desire to constitute a separate bargaining unit
and the Regional Director conducting the election is instructed to
issue a certification of representatives to the Operating Engineers for
such unit, which the Board, under these cirmumstances, finds to be
appropriate for the purposes of collective bargaining. In the event
a majority of the employees in voting group (2) select the OCAW as
their representative, the Regional Director is instructed to issue a
certification of representatives to the OCAW for a unit of production
employees, which the Board, in these circumstances, finds to be ap-
propriate for purposes of collective bargaining. On the other hand,
if a majority in voting group (1) do not select the Operating En-
gineers, the ballots of the employees in voting group (1) will be
pooled with those of the employees' voting group (2).' If the OCAW
achieves a majority of the votes in the pooled group, the Regional
Director is instructed to issue a certification of representatives to that
labor organization for a unit of production and maintenance em-
ployees, which the Board, in such circumstances, finds to be appro-
priate for the purposes of collective bargaining.
[Text of Direction of Elections omitted from publication.]
6 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
OCAW ; all other votes are to be accorded their face value whether for the OCAW or for
no union.
Carter-Lee Lumber Company and Local 135 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. ' Case No. 35-RC-1386. January 21, 1958
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to a stipulation for certification upon consent election
executed on December 5, 1956, an election by secret ballot was con-
ducted on December 19, 1956, by the Regional Director for the Ninth
Region, among the employees in the stipulated appropriate unit. At
1 The Board has been notified by the AFL-CIO that the latter deems the Teamsters'
certificate of affiliation has been revoked by convention action. The identification of this
Union is amended accordingly.
119 NLRB No. 167.