National Lead Co.

National Labor Relations Board - Board Decisions

Jun 17, 1941

32 N.L.R.B. 697 (N.L.R.B. 1941)

In the Matter of NATIONAL LEAD COMPANY (TITANIUM DIVISION) and
GAS, BY-PRODUCT, COKE & CHEMICAL WORKERS, LOCAL No. 12212,
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Case No. R-2514.-Decided June 17, 1941
Jurisdiction : pigment manufacturing industry.
Practice and Procedure : petition dismissed where no appropriate' unit within
scope of petition.
Mr. Harry C. Smith, of St. Louis, Mo., for the Company.
Mr. Herman Edelsberg, of Washington, D. C., for the United.
Mr. Eugene M. Purver, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On March 15, 1941, Gas, By-Product, Coke & Chemical Workers,
Local No. 12212, District 50, United Mine Workers of America, herein
called the United, filed with the Regional Director for the Fourteenth
Region (St. Louis, Missouri) a petition alleging that a question affect-
Ingcommerce had arisen concerning the representation of employees
of National Lead Company (Titanium Division), St. Louis, Missouri,
herein called the Company, and requesting an investigation and certif-
ication of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, 49, Stat. 449, herein called the Act. On April
24, 1941, the National Labor Relations Board, herein tallied the Board,
acting pursuant to Section 9 (c) of the Act, and Article III, Section
3, of National Labor Relations Board Rules and Regulations-Series
2, as amended, ordered an investigation and authorized) the Regional
Director to conduct it and to provide for an appropriate, hearing upon
due notice.
On April 28, 1941, the Regional Director issued a notice _of hearing,
copies of which were duly served upon the Company and. the United.
Pursuant to notice, a hearing was held on April 29, 1941, at St. Louis,
Missouri, before L. N. D. Wells, Jr., the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Company and the .United
32 N. L. R. B., No 126
697
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were represented and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues were afforded both parties. During
the course of the-hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no prej-
udicial errors were committed. The rulings are hereby affirmed.
On May 12, 1941, the Company field a brief which the Board has
considered.
Upon the entire record in the case the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Lead Company is a New Jersey corporation, maintain-
ing plants throughout the United States. The only plant of the
Company with which we are here concerned is located at the junction
of the Mississippi River and River DesPeres, St. Louis County, Mis-
souri. The Company is engaged there in the manufacture or proc-
essing of titanium barium pigments and titanium calcium pigments,
and in the sale and distribution of said products. In excess of 90
per cent of the finished products manufactured or processed at this
plant during 1940, valued at over $1,000,000 were sold and shipped
by it to points outside the State of Missouri.
H. THE ORGANIZATION INVOLVED
Gas, By-Product, Coke & Chemical Workers, Local No. 12212, Dis-
trict 50, United Mine Workers of America, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
III. THE APPROPRIATE UNIT
The United contends that the appropriate unit consists of "all
production and operating employees of the Company engaged in
operations beginning with the mixing of raw materials and including
all production operations including packers, sanitary crew, and
sample carriers, exclusive of supervisory, office, maintenance, ship-
ping, construction and temporary employees." The Company asserts
that the appropriate unit consists of "all production and mainte-
nance employees except executives, -salaried, clerical, watchmen, and
supervisory employees."
The Company and the United agree that the appropriate unit
should not include executive, salaried, clerical, and supervisory em-
NATIONAL LEAD COMPANY 699
ployees, and watchmen. The unit desired by the Company differs
from that requested by the United in that it would include certain
employees, namely, electricians, millwrights, blacksmiths, carpenters,
machinists, 'pump packers, lead burners, oilers, pipe fitters, sheet-
metal workers, painters, riggers, brick masons, concrete finishers,
welders, powerhouse and waterworks employees, shipping employees,
crane operators, and common -laborers.
The Company's, operations involve the processing of raw materials
such as pyrite, barytes, and ilmenite into pigments. These raw mate-
rials are received at the plant, where they are either dumped, or
unloaded by crane operators or common laborers, and thereafter dis-
tributed to the processing departments by common laborers. The-
United would exclude crane operators and common laborers from
its unit. At the processing departments the materials are converted
into the finished products by the operators, who form the bulk of the
employees in the unit alleged to be appropriate by the United.
Sample carriers work in conjunction with the operators. They de-
liver samples of materials in various stages of manufacture to the
laboratory, compute the amount of material to be added to a solution
by operators to effect a precipitation, and perform other similar du-
ties. The United would include them within its unit. The sanitary
crew also works in the pigment manufacturing departments. These
employees maintain "good housekeeping" in such departments, per-
form the common labor required, and, from time to time, act as relief
or substitute operators. The United would include the sanitary
crew within its unit. When the processing of the raw materials is
completed, packers "measure, sack, and pack" such products and
transport them to the shipping room. The shippers then ship the
products from the plant. The United asks that the packers be in-
cluded in the unit and the shippers excluded.
In addition to the foregoing classes of employees, the Company
employs other persons not directly engaged in handling raw mate-
rials, goods in process, or finished products. These persons are the
maintenance employees, engaged in the maintenance and repair of
plant and machinery, the powerhouse employees, the waterworks em-
ployees, and the construction employees, who were employed tempo-
rarily at the time of the hearing. The United seeks the exclusion
of all such employees from the unit. , I
There is no collective bargaining history at the Titanium Division
of the Company, the only division here involved. In 1932 and 1937
efforts to organize the employees on _ a plant-wide 1 basis by labor
1 The record is not clear as to what employees , if any, were excluded during these organ-
izing campaigns.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizations other than the United proved abortive . On February
17, 1941 , the United began to organize the employees within the Tita-
nium Division. The United limited its organizing campaign to the
employees within the unit it now contends is appropriate. Other
employees , which the United now seeks to exclude from the unit, are
eligible to membership , but the United has not attempted to organize
them at this time. The United concedes that its general policy is
to organize all production and maintenance employees and that it has
a collective bargaining agreement covering all production and main-
tenance employees of the - Company at another of the Company's
plants, the St. Louis Lead & Oil Works , located nearby.
In view of the United 's general organizational policies and the fact
that it is now proposing a unit excluding certain employees , common
laborers engaged in unloading and transporting raw materials, whose
work is substantially the same as that of other employees it seeks to
include within the unit, we find that the unit requested by the United
is inappropriate for the purposes of collective bargaining.
IV. THE QUESTION CONCERNING REPRESENTATION
Since the bargaining unit sought to be established by the petition
is not appropriate , as stated in Eection III above , we find that no
question has arisen- concerning the representation of employees of
the Company in an appropriate bargaining unit.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSION OF LAW
No question concerning representation of employees of National
Lead Company (Titanium Division ), St. Louis, Missouri , within a
unit which is appropriate for the purposes of collective bargaining
has arisen , within the meaning of Section 9 (c) of the National Labor
Relations Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusion of
law, the National Labor Relations Board, hereby orders that the peti-
tion for investigation and certification of employees of National Lead
Company (Titanium Division ), St. Louis, Missouri , filed by Gas, By-
Product, Coke & Chemical Workers, Local No. 12212, District 50,
United Mine Workers of America, be , and it hereby is , dismissed.
MR. EDWIN S. SMITH, dissenting :
'I cannot agree with the decision of the majority of the Board to
dismiss the petition in this case . On all the facts I am of the opinion
NATIONAL LEAD COMPANY 701
that the unit requested by the United is appropriate for the purposes of
collective bargaining, and that the decisions of this Board compel a
finding to that effect. I' would, therefore; direct an election.
The record discloses that, irrespective of the United's general organ-
izational policies, it has only sought to organize the employees in the
unit it now contends is, appropriate. The wisdom of this policy is
indicated by the results of previous attempts to organize employees
at the Titanium Division of the Company.' In the past the Board has
consistently held that a coherent group of employees may constitute an
appropriate unit if organization has not been extended beyond that
group even though a more inclusive group would be appropriate if
organization were further advanced.3 Such decisions have been made
on the theory that wherever possible it is desirable to render collective
bargaining by employees an immediate possibility. The majority of
the Board does not depart from this theory in this case, but finds the
unit inappropriate on the ground that organization has not been
extended to a coherent group since employees doing substantially the
same work are both included in the unit and excluded from it.
The unit requested by the United includes operators engaged in
processing, and certain groups closely related to the operators
namely, sample carriers, packers, and the sanitary crew. As noted in
the main opinion the sample carriers deliver samples of materials 'in
various stages of manufacture to the laboratory, compute the amount
of material to be added to a solution by operators to effect a pre-
cipitation, and perform other similar duties. Packers "measure, sack;
and pack" finished products and transport them to the shipping room.
Employees in the sanitary crew maintain "good housekeeping" in
the pigment manufacturing departments, perform the common labor
required, and, from time to time, act as relief or substitute operators.
These employees plainly form a coherent and integrated group.
The United seeks to exclude from the unit crane operators, who
unload raw materials, common laborers, who unload raw materials,
transport them to the manufacturing departments, and occasionally
work on construction, shippers, maintenance, powerhouse, and water
works employees, and employees who were temporarily engaged in
construction work at the time of the hearing. Each of these classes
of employees are engaged in work that places them on the fringe of
the functions of employees admittedly in the unit. The majority
2 As noted in the majority opinion previous attempts by other unions to organize on a
plant-wide basis in 1932 and 1937 proved abortive . The United contends that the failure
of these organizing efforts was due to the reluctance of the classes of employees it now
seeks to exclude from the unit to accept unionism
2Matter of Foster-Grant Co., Inc. and Local No. 60, Molders Union of Leominster, affil-
iated to United Paper, Novelty and Toy Workers International Union ( C. I. 0.), 32 N, L
R B. 486, and cases cited therein.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
apparently concedes this to be so except with reference to the com-
mon laborers. These common laborers work in the yard and do not
handle goods in process 'or finished products. Occasionally they
work on construction. Other construction employees and-the main-
tenance employees are excluded from the unit. The common laborers
are .clearly a fringe group with respect to operators, sample car-
riers, and packers. While they bear some similarity to the employees
in the sanitary crew, whom the United seeks to include in the unit,
there are important differences which compel the conclusion that
they must not necessarily be grouped with the sanitary crew in an
appropriate unit, contrary to the form of organization adopted by
the employees. Thus, it will be noted that the common laborers
work in the yard as a separate group whereas the sanitary crew
works in the manufacturing departments with the other employees
sought to be included in the unit; that the employees in the sanitary
crew from time to time, act as relief or substitute operators, and
therefore have interests closely allied to the operators, who comprise
m'st of the employees in the unit requested by the United; and,
finally, that the Company itself has distinguished between these
groups by designating one as common laborers and the other as
the sanitary crew. Under the circumstances, I think it is plain that
all the groups of employees which the United seeks to exclude from
the appropriate unit are "fringe',' groups.
Since the Board consistently excludes "fringe" groups from a
unit at the request of the only labor organization involved ,4 it seems
clear to me that under the circumstances of this case the unit requested
by the United is appropriate for purposes of collective bargaining.
In my opinion such determination is essential to the preservation of
the right to self-organization.
"Fifth Annual Report of The National Labor Relations Board, pp. 70-72; Fourth Annual
Report of the National Labor Relations Board , pp 94-97; Third Annual Report of The
National Labor Relations Board, pp. 184-190; Second Annual Report of The National Labor
Relations Board, pp. 132-134.