Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

Mar 16, 1948

76 N.L.R.B. 767 (N.L.R.B. 1948)

In the Matter of MONSANTO CHEMICAL COMPANY, CLINTON LABORA-
TORIES, OAI,, RIDGE, TENNESSEE,1 EMPLOYER , and INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS, AMERICAN FEDERATION OF LABOR,
PETITIONER
Case No. 10-R-2231.-Decided March 16, 1948
Messrs. Russell R. Kramer and Porter Greenwood, both of Knox-
ville, Tenn., and Mr. Prescott Sandidge, of Oak Ridge, Tenn., for the
Employer.
Mr. Kenneth L. Scott, of Knoxville, Tenn., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Oak
Ridge, Tennessee, on April 1, 1947, before Charles M. Paschal, Jr.,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record iii the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Monsanto Chemical Company, a Delaware Corporation , is engaged
generally in the business of purchasing, manufacturing, processing,
and selling of industrial chemical products. This proceeding,is con-
cerned solely with the Government-owned plant at Oak Ridge, Ten-
nessee, known as the Clinton Laboratories, at which the Employer
processes certain materials pursuant to a cost reimbursement contract
with the United States Government.2
I The Employer's name appears as amended at the hearing.
2 The contract was originally executed by the Manhattan District , USED , of the United
States Aimy, which was later succeeded by the Atomic Energy Commission as the contract-
ing party
76 N. L R. B., No. 109.
767
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All raw materials used by the Employer are furnished by the Gov-
ernment and received by the Employer at Oak Ridge, Tennessee. A
substantial quantity of supplies and equipment of "a very substantial
value" are received by the Employer as "agent" for the Government.
A substantial quantity of all these materials is shipped to the Employer
from points outside the State of Tennessee; the remainder is delivered
to the Employer by the Government, at Oak Ridge, Tennessee. Title
to such materials never vests in the Employer although some supplies
and equipment are ordered in the name of the Employer.
The Employer produces isotopes, described as radioactive elements
which are the by-products of the main product of the Oak Ridge
operations. Title to these isotopes is in the Government. Upon ap-
proval of the Government, these isotopes are sold and delivered by
the Employer to universities, hospitals, and similar institutions for
experimental purposes. The proceeds from these sales go to the
Government. Isotope deliveries comprise between 0.10 percent and
1.00 percent of the total dollar volume of the Employer's operations.
Since August 1946, isotope deliveries averaged approximately $6,000 a
month, of which in excess of 50 percent was shipped to points outside
the State of Tennessee.
The Atomic Energy Commission through an anithorized repre-
sentative indicated on the record that the disclosure thereon of
facts relating to the operations of the Employer in interstate com-
merce would violate security regulations. However, the Board has
in its possession additional facts indicating the extent of the interstate
commerce operations at Oak Ridge, including those of the Employer,
contained in a report prepared by a special Board representative after
a complete study. The Board takes notice of these facts, which are
accessible only to the Members of the Board and its specially desig-
nated representatives, and on the basis thereof finds that the Em-
ployer's operations at Oak Ridge affect commerce within the meaning
of the Act.'
Moreover, the record facts indicated above are themselves sufficient
to establish that the Employer's operations involve a substantial in-
flow and outflow of materials from and to points outside the State of
Tennessee. A work stoppage of the Employer's laboratory would
therefore have a direct and adverse effect upon this flow of materials
in commerce. The Employer contends, however, that this flow of goods,
because title thereto is in the Government, is an administrative act and
not "commerce" within the meaning of the Act. The contention is
without merit. The movement of goods across State lines constitutes
interstate commerce whether title to such goods is vested in the Gjov-
8 See Matter of Carbide and Carbon Chemical Corporation , 73 N. L . R. B. 134.
MONSANTO CHEMICAL COMPANY 769
ernment or in private owners .4 The Employer's status here is that of
a Government contractor and not that of an agent of the Government
so as to entitle it the immunity of the Government under the Act.5
On the basis of the foregoing and all the facts before us,, we find
that the Employer's operations affect commerce within the meaning of
the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor claiming to represent employees of the Employer.
M. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
Petitioner has been certified by the Board in an appropriate unit.
The Employer contends that the employees involved herein are em-
ployees of the Government and, therefore, not employees within the
meaning of the Act. We find the contention to be without merit. The
record shows that those employees are not part of the Civil Service but
are hired directly by the Employer; that the Employer is responsible
for the direction of their work; and that the Employer, among other
things, determines their rates of pay and working conditions, controls
their tenure of employment, and pays them by its own checks albeit the
funds used for this purpose are provided by the Government. While
it appears that the Employer's authority in virtually all respects is
subject to the review and approval of the Government, which may be
attributed to obvious security reasons and the nature of the cost reim-
bursable contract, there clearly remains with the Employer an exten-
sive area of effective control over the labor policies of the Oak Ridge
laboratory and over the basic subjects of collective bargaining with
these employees.s Consequently, we are of the opinion that there is
sufficient evidence of the existence of an employer-employee relation-
ship in this case.?
° Matter of Reynolds Corporation , 74 N. L. R. B. 1622 ; Matter of Carbide and Carbon
Chemical Corporation, 73 N. L. R. B. 134; Matter of Lone Star Defense Corporation, 63
N. L. R. B . 579 ; Matter of Carl Norden, Inc., 62 N. L. R. B. 828, 837.
5 Penn Dairies V. Pennsylvania Milk Control Commission , 318 U. S. 262 ; Alabama v.
King & Boozer, 314 U S. 1.
"It is noted that the contract between the Employer and the Atomic Trades and Labor
Council, AFL, covering the Employer's production and maintenance employees , contains
provisions for seniority, grievance procedure , wages , hours, job bidding , and maintenance
of membership
r See N . L. R. B. v. Hearst Publications, Inc., 322 U. S 111 ; see also Matter of Reynolds
Corporation , 74 N. L R B. 1622, Matter of Carbide and Carbon Chemical Corporation,
73 N. L R B 134.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 ( c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In accordance with the stipulation of the parties, eve find that all
firemen and fire protection inspectors of the Employer at its" plant
at Oak Ridge, Tennessee, excluding officers and all supervisors, con-
stitute a unit appropriate for the purposes of collective bargaining
.within the meaning of Section 9 (b) of the Act."
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Monsanto Chemical Company,.
Clinton Laboratories, Oak Ridge, Tennessee, an election by secret bal-
lot shall be conducted as early as possible, but not later than thirty (30)
days from the date of this Direction, under the direction and supervi-
sion of the Regional Director for the Tenth Region, and subject to
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, among the employees in the unit found ap-
propriate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including the
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, 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, and also
excluding employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented by International
Association of Firefighters, American Federation of Labor, for the
purposes of collective bargaining.
CHAIRMAN IIERZOG took no part in the consideration of the above
Decision and Direction of Election.
B We have carefully considered the duties of the employees in the appropriate unit
herein and conclude that they are not "guards" within the meaning of Section 9 (b) (3)
of the Act.