Rohm & Haas Co.

National Labor Relations Board - Board Decisions

Oct 14, 1965

155 N.L.R.B. 227 (N.L.R.B. 1965)

ROHM & HAAS COMPANY 227
A systems and procedures analyst has a weekly salary of $119.10
to $134.85. Under the Petitioner's contract, labor grade 9 receives a
weekly salary in the range of $118.23 to $131.48.
The work described above was not performed by any employees of
the Employer prior to 1963, when the Employer began to prepare for
the installation of the 1440 computer. The five employees sought by
the Petitioner operate the 1440 computer only to test, clarify, or correct
programs which they have devised. Thereafter, the console operator
runs the program as a routine matter. If the console operator encoun-
ters any problems, he checks with the person who devised the program.
Since the systems and procedures analysts, and the assistant, elec-
tronic data processing and planning employees, are engaged in work
that is completely new to the plant, namely, devising procedures and
systems for the newly acquired 1440 computer, they are not engaged
in work which was previously performed at the time of the certification
in 1951; it appears that the Petitioner did not claim to represent or
attempt to bargain for these employees during the contract negotiations
in August 1964, sometime after the jobs involved in this proceeding
were established. Considering these factors, along with the differences
in their job function, responsibilities, and use of initiative and judg-
ment from that of employees in the clerical unit, we find, upon the
entire record, that the systems and procedures analysts and the assist-
ant, electronic data processing and planning employees, cannot be
regarded as an accretion to the existing clerical unit.5 We shall there-
fore deny the Petitioner's motion to amend the certification and shall
dismiss the instant proceeding. In view of our dismissal for the above
reasons, we find it unnecessary to decide whether Moretti and Turner
are supervisors within the meaning of the Act, or whether the systems
and procedures analysts, and assistant, electronic data processing and
planning employees, are professional or technical employees.
[The Board dismissed the petition for clarification of unit.]
5 General Iron Work8 Co., 150 NLRB 190; Aluminum Company o f America, 146
NLRB 929.
Rohm & Haas Company and United Industrial Workers of North
America of the Seafarers International Union of North Amer-
ica, Atlantic, Gulf, Lakes & Inland Waters District, AFL-CIO.
Case No. 4-CA-3598. October 14, 1965
DECISION AND ORDER
On July 26, 1965, Trial Examiner Sidney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 25.
212-809-66--vol. 155-16
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Brown, Fanning, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error. The rulings are hereby
affirmed. The Board has considered the Trial Examiner's Decision,
the exceptions and brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings,' conclusions, and
recommendations.
[The Board adopted the Trial Examiner's Recommended Order.]
' As the petition was filed on October 22, 1964, rather than 1965 as appears in section A
of the Trial Examiner's Decision we hereby correct this obviously inadvertent error.
TRIAL EXAMINER'S DECISION
On March 18 , 1965 , United Industrial Workers of North America of the Seafarers
International Union of North America, Atlantic, Gulf, Lakes & Inland Waters Dis-
trict , AFL-CIO, herein called the Union , filed charges against Rohm and Haas
Company, Philadelphia , Pennsylvania , herein called the Respondent . On April 6,
1965, the General Counsel l issued a complaint alleging that since on or about
February 23, 1965, the Respondent has refused to bargain collectively with the
Union as the bargaining representative of its employees in an appropriate unit,
although the Union had, prior thereto, been certified by the Regional Director 2 as
the exclusive bargaining representative of the employees in the said unit. It is
alleged that this conduct violated Section 8 (a)(1) and (5) of the National Labor
Relations Act, as amended , 61 Stat . 136, herein called the Act. Thereafter the
Respondent filed an answer admitting that the Union had requested the Respondent
to bargain collectively but denying that the unit was appropriate for purposes of
collective bargaining and denying that the Respondent had any obligation to bargain
with the Union.
Upon due notice , a hearing was held before Trial Examiner Sydney S. Asher, Jr.,
on May 13, 1965, in Philadelphia , Pennsylvania . All parties were represented and
participated fully in the hearing. After the close of the hearing the Respondent filed
proposed findings of fact and conclusions of law , which will be disposed of herein.
Upon the entire record in this case 3 and in Case No. 4-RC-6140, I make the
following:
FINDINGS OF FACT
The complaint alleges, the answer admits, and it is found that the Respondent is,
and at all material times has been , an employer engaged in commerce as defined in
I The term General Counsel as used herein refers to the General Counsel of the National
Labor Relations Board and his representative at the hearing.
2 The term Regional Director as used herein refers to the Regional Director for Region 4.
a On June 7, 1965, as result of a stipulation of the parties , the transcript was corrected
in certain specific respects . In addition to the corrections made at that time, page 1 of
the transcript is now corrected by striking from the last line thereof the words "General
Counsel" and substituting therefor the words "Charging Party."
ROHM & HAAS COMPANY 229
the Act, and its operations meet the Board's jurisdictional standards; 4 and that the
Union is, and at all material times has been, a labor organization within the meaning
of the Act.
A. The appropriate unit
The complaint alleges that, at all material times, the appropriate unit consisted
of the following:
All powerhouse employees employed in the plant at 5000 Richmond Street, Phila-
delphia, Pennsylvania, including the powerhouse operators, water system operators,
utility operators, powerhouse firemen, shift operating engineers, and coal unloaders,
but excluding all other employees, including instrument mechanics, guards, and
supervisors as defined in the Act.
On October 22, 1965, the Union filed with the Board a petition in Case No. 4-RC-
6140, seeking to represent the employees in the powerhouse at the Respondent's
Philadelphia plant, with certain inclusions and exclusions. At the hearing which
ensued, the Respondent took the position that the unit sought by the Union was
inappropriate. On December 3, 1964, the Regional Director issued his Decision
and Direction of Election in which he found appropriate the unit described above.
Thereafter, on December 28, 1964, the Respondent timely filed with the Board a
petition for review of Regional Director's Decision and Direction of Election, in
which it attacked the Regional Director's unit determination as "clearly erroneous."
Apparently as alternative relief, the Respondent requested: "If there is any issue as
to the integrated character of the [Respondent's] operations at Bridesburg and else-
where, we respectfully request that this case be remanded so that additional evidence
may be adduced." The Union then filed with the Board a motion in opposition to
request for review. Thereafter, on January 7, 1965, the Board denied the Respond-
ent's request for review of Regional Director's Decision and Direction of Election
on the ground that "it raised no substantial issues warranting review."
In its answer in the instant case the Respondent avers "that the Board in making
its unit determination failed to follow the criterion established in the American
Potash case ...; that the Board ... has failed in its statutory duty and its obligations
under its own regulations of making a complete investigation of every petition for
representation; . . . and . . . the decision in fact rested and was controlled by the
extent to which the Union had organized the employees of the Respondent." The
answer further alleges that the unit established by the Board "was not a unit appro-
priate for collective bargaining purposes within the meaning of Section 9(b) of
the Act."
In the hearing before me the Respondent did not proffer any newly discovered or
previously unavailable evidence material to the issues herein. It is well established
that, absent newly discovered evidence, the issues raised and determined in the
prior representation proceeding may not be relitigated in the complaint proceeding.
I am therefore bound by the determination of the Regional Director, which was
affirmed by the Board.6 Accordingly, in agreement with the General Counsel, I
find that the unit described in the complaint is, and at all material times has been,
appropriate for collective-bargaining purposes within the meaning of Section 9(b)
of the Act.
4 The Respondent is, and at all material times has been, a Delaware corporation engaged
in the production of chemicals and chemical supplies and operates a plant in Philadelphia,
Pennsylvania. During the year prior to April 6, 1965, the Respondent shipped products
valued at more than $50,000 from its plant in Philadelphia, Pennsylvania, directly to
destinations outside the Commonwealth of Pennsylvania.
5 Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146; N.L.R.B. v. West Ken-
tucky Coal Company, 152 F. 2d 198 (C.A. 6), rehearing denied February 11, 1946;
N.L.R.B. v. Moss Amber Mfg. Company, 264 F. 2d 107 (C.A. 9) ; N.L.R.B. v. Air Control
Products of St. Petersburg, Inc., 335 F. 2d 245 (C.A. 5) ; S. D. Warren Company, 150
NLRB 288; Frisch's Big Boy Ill-Mar, Inc., 151 NLRB 454; Salerno-Megowen Biscuit
Company, 152 NLRB 604; Checker Cab Company and its Members, 153 NLRB 651; and
Graphic Arts Finishing Co., Inc., 153 NLRB 1327.
6The last sentence of Section 102.67(f) of the Board's Rules and Regulations, Series 8,
as amended, reads "Denial of a request for review shall constitute an affirmance of the
regional director's action which shall also preclude relitigating any such issues in any
related subsequent unfair labor practice proceeding." The Respondent maintains that
this is contrary to the Administrative Procedure Act. However, as a Trial Examiner, I
must decline to determine the validity of Board rules. Compare Wood, Wire and Metal
Lathers International 'Union, et at. (Acoustical Contractors Association of Cleveland),
119 NLRB 1345.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Union 's majority status and demand, and the Respondent 's refusal
The election in Case No. 4-RC-6140 was held on January 20, 1965. The tally
of ballots shows that of approximately 22 eligible voters, 12 cast ballots in favor of
the Union and 10 cast ballots against the Union ; there were no challenged or void
ballots. On January 28, 1965, the Regional Director certified the Union as the exclu-
sive representative of all employees in the above-described unit. It is accordingly
found that the Union was selected on January 20, 1965, by a majority of the employees
in the unit described above as their representative for the purposes of collective bar-
gaining, and that since January 28, 1965, by virtue of Section 9(a) of the Act, it has
been , and is now , the exclusive representative of all such employees for the purposes
of collective bargaining.
The complaint alleges, the answer admits, and it is found, that on or about Janu-
ary 29, 1965, the Union requested, and since that time has continued to request, the
Respondent to bargain collectively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, as the exclusive
collective-bargaining representative of all employees in the above-described unit. At
the hearing the parties stipulated, and it is found, that on or about February 23, 1965,
the Respondent refused, and since that date has continued to refuse, to bargain col-
lectively with the Union as the exclusive collective-bargaining representative of all
employees in the above-described unit. It is concluded that this refusal violated
Section 8(a)(1) and ( 5) of the Act.
C. Disposition of Respondent's proposed findings of fact
Proposed findings of fact Nos. 1, 4, 5, 6, and 7 are denied on the ground that there
is no showing that such alleged facts are new, newly discovered, or were unavailable
to the Respondent at the time of the representation proceeding. Proposed findings of
fact Nos. 2, 3, and 10 are denied as immaterial. Proposed findings of fact Nos. 8 and
9 are denied on the ground that the Respondent has already called these matters to the
attention of the Board (see page 2 of its petition for review of Regional Director's
Decision and Direction of Election in Case No. 4-RC-6140). Proposed finding of
fact No. 11 is denied on the ground that there is no proof that the Board acted
"summarily" in Case No. 4-RC-6140. Proposed finding of fact No. 12 is denied on
the ground that there is no proof that the Board, in aplying standards of unit determi-
nations, acts "without valid reasons therefor." Proposed finding of fact No. 13 is
denied as untimely; the Regional Director's alleged failure to rule on the Respondent's
assertion regarding the extent of organization should have been called to the Board's
attention in the representation proceeding. The Respondent is accordingly precluded
from raising this issue here. Proposed finding of fact No. 14 is denied as containing
a misstatement of the law set forth in Section 102.67(b) and (f) of the Board's Rules
and Regulations, series 8, as amended. Proposed finding of fact No. 15 is granted
and it is accordingly found that Section 9(c)(1) of the Act places upon the Board
the responsibility for making an investigation in representation cases. Proposed find-
ing of fact No. 16 is denied as an attempt to relitigate a matter previously ruled upon
by the Board in the representation proceeding.
Upon the basis of the above findings of fact and upon the entire record in this case
and in Case No. 4-RC-6140, I make the following:
CONCLUSIONS OF LAW
1. Rohm and Haas Company is, and at all material times has been , an employer
within the meaning of Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Industrial Workers of North America of the Seafarers International
Union of North America, Atlantic, Gulf, Lakes & Inland Waters District , AFL-CIO,
is, and at all material times has been, a labor organization within the meaning of
Section 2(5) of the Act.
3. All powerhouse employees employed in the plant at 5000 Richmond Street,
Philadelphia, Pennsylvania , including the powerhouse operators , water system oper-
ators, utility operators , powerhouse firemen, shift operating engineers , and coal
unloaders , but excluding all other employees, including instrument mechanics , guards,
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
4. On January 28, 1965, the Union was, and at times since then has continued to
be, the exclusive bargaining representative of all employees in the unit described above
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act.
ROHM & HAAS COMPANY 231
5. By refusing on and after February 23, 1965, to bargain collectively with the
Union as the exclusive representative of all employees in the aforesaid unit, the
Respondent has engaged in and is engaging in unfair labor practices within the
mean of Section 8 (a) (5) of the Act.
6. By the conduct described above, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
7. The above-described unfair labor practices tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce, and constitute
unfair labor practices affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
8. The proposed conclusions of law submitted by the Respondent are denied for
the following reasons: Proposed conclusion of law No. 1 is untimely; the matter
should have been called to the Board's attention in the Respondent's petition for
review of Regional Director's Decision and Direction of Election in Case No.
4-RC-6140. Proposed conclusion of law No. 2 is contrary to the determination of
the Regional Director in the representation proceeding, which was affirmed by the
Board Proposed conclusion of law No. 3 is contrary to the Board's determination
in the representation proceeding. Proposed conclusion of law No. 4 is contrary to
law, the cited section of the Administrative Procedure Act, 5 U.S.C.A. Section 1004,
by its very terms does not apply to "the certification of employee representatives."
Proposed conclusions of law Nos. 5, 6, and 7 constitute an attempt to relitigate in
the complaint proceeding matters which had previously beeen litigated in the repre-
sentation proceeding.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and the entire
record in this case and in Case No. 4-RC-6140, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, it is recommended that the Respond-
ent, Rohm and Haas Company, Philadelphia, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with United Industrial Workers
of North America of the Seafarers International Union of North America, Atlantic,
Gulf, Lakes & Inland Waters District, AFL-CIO, concerning wages, rates of pay,
hours, and other terms and conditions of employment, as the exclusive representa-
tive of all employees in the following unit:
All powerhouse employees employed in the plant at 5000 Richmond Street, Phila-
delphia, Pennsylvania, including the powerhouse operators, water system operators,
utility operators, powerhouse firemen, shift operating engineers, and coal unloaders,
but excluding all other employees, including instrument mechanics, guards, and
supervisors as defined in the Act.
(b) Interfering with the efforts of the above-named Union to negotiate for or
represent the employees in the above-described unit as their exclusive bargaining
agent.
2. Take the following affirmative action, which it is found will effectuate the poli-
cies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of the employees in the unit described above, and if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Philadelphia, Pennsylvania, copies of the attached notice
marked "Appendix." 7 Copies of said notice, to be furnished by the Regional Direc-
tor for the Region 4, shall, after being duly signed by a representative of the Respond-
ent, be posted by it immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
7If this Recommended Order is adopted by the Board, the words "the Recommended
Order of a Trial Examiner" shall be stricken from the notice, and the words "a Decision
and Order" shall be substituted therefor. If the Board's Order is enforced by a decree
of a United States Court of Appeals, the words "a Decision and Order" shall be stricken
from the notice and the words "a Decree of the United States Court of Appeals, Enforcing
an Order" shall be substituted therefor.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director, in writing, within 20 days from the receipt of
this Decision, what steps it has taken to comply herewith.8
8 If this Recommended Order is adopted by the Board, the words "20 days from the
receipt of this Decision" shall be stricken, and the words "10 days from the date of this
Order" shall be substituted therefor.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain with United Industrial Workers of North
America of the Seafarers International Union of North America, Atlantic, Gulf,
Lakes & Inland Waters District , AFL-CIO, as the exclusive representative of
all employees in the bargaining unit described below with respect to wages,
hours, and other working conditions , and if an understanding is reached, put
it in a signed agreement.
The bargaining unit is:
All powerhouse employees employed in the plant at 5000 Richmond
Street, Philadelphia , Pennsylvania , including the powerhouse operators,
water system operators , utility operators , powerhouse firemen, shift oper-
ating engineers , and coal unloaders , but excluding all other employees,
including instrument mechanics , guards, and supervisors as defined in the
National Labor Relations Act.
ROHM & HAAS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. 735-2612.
Steamship Trade Association of Baltimore, Inc.; Alcoa Steam-
ship Co., Inc.; American Stevedores, Inc.; Atlantic & Gulf
Stevedores , Inc.; Baltimore Stevedoring Co., Inc. ; Chesapeake
Operating Company; The Cottman Company; Fidelity Ship
Ceiling Company, Incorporated ; Robert C. Herd & Co., Inc.;
Hopkins Stevedoring Company, Inc.; Jarka Corporation of
Baltimore , Inc.; Nacirema Operating Company, Inc.; Patapsco
Ship Ceiling & Stevedoring Company; Ramsey Scarlett & Com-
pany; Terminal Shipping Company; United States Lines Com-
pany; John T. Clark & Son of Maryland, Inc.; Rukert
Terminals Corporation ; United Fruit Company and Interna-
tional Longshoremen 's Association , AFL-CIO , and Local No.
953, International Longshoremen 's Association, AFL-CIO, Peti-
tioner. Case No. 5-RC-5043. October 14,1965
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, as amended, a hearing was held before Hearing Offi-
155 NLRB No. 21.