Sid Richardson Carbon Co.

National Labor Relations Board - Board Decisions

Aug 1, 1972

198 N.L.R.B. 637 (N.L.R.B. 1972)

SID RICHARDSON CARBON CO. 637
Sid Richardson Carbon Company and International
Union of Operating Engineers, Local 279,
AFL-CIO. Case 16-CA-4468
August 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 24, 1972, Trial Examiner. William J.
Brown issued the attached Decision in this proceed-
ing. Thereafter, the Charging Party filed exceptions
and a supporting brief, and the Respondent filed an
answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
hearing briefs were received from the General Counsel and
the Company and have been fully considered. On the
entire record herein and on the basis of my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings and evidence establish that the Company,
a corporation organized and existing under and by virtue
of the laws of the State of Texas, during the 12-month
period preceding issuance of the complaint herein, manu-
factured, sold, and distributed at its carbon plant located
some 12 miles west of Odessa, Texas, carbon black
products valued in excess of $50,000 and shipped to States
outside Texas and to foreign countries . I find, as the
Company concedes, that it is an employer engaged in
commerce within the purview of Sections 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, in accordance with the pleadings and evidence,
that the Union is a labor organization within the purview
of Section 2(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the Act, came on to
be heard at Odessa, Texas, on January 19, 20, and 21, 1972.
The underlying charge of unfair labor practices had been
filed on August 26, 1971, by the above-indicated Charging
Party, hereinafter sometimes referred to as the Union, and
the complaint herein was issued November 30, 1971, by the
General Counsel of the National Labor Relations Board,
acting through the Board's Regional Director for Region
16. It alleged, in addition to jurisdictional matter, that the
above-indicated Respondent, hereinafter sometimes re-
ferred to as the Company, engaged in unfair labor
practices affecting commerce within the purview of Section
8(a)(1) and (5) and Section 2(6) and (7) of the Act. The
Company's duly filed answer admits the jurisdictional
allegations of the complaint and denies the commission of
the unfair labor practices alleged therein.
At the hearing the parties appeared and participated, as
noted above, with full opportunity to present evidence and
argument on the issues. Subsequent to the close of the
i Big Spring is approximately 58 miles from Odessa
2 The channel method of producing carbon black appears to involve
III. THE UNFAIR LABOR PRACTICES
Collective bargaining among employees of the Company
in the unit here involved had its origin in a 1946 election
and the subsequent certification of the International Union
of Operating Engineers as representatives of production
and maintenance employees of United Carbon Company
at that Company's Odessa operation. The employees
participating in the election did not include technical
employees. Subsequently, in another election conducted by
the Board in 1962, the Union was certified as representa-
tive of employees of the Company, which had in the
interim purchased the plant at Odessa, in a unit described
as "employees of the Research and Development Labora-
tory" at the Odessa plant. In March, 1963, a decertification
petition was filed respecting the unit and the Union
disclaimed any interest in the unit resulting in the dismissal
of the petition and the consequent unrepresented status of
employees in the research and development segment of the
Company's operations.
In 1966 the Company installed at Odessa a full-size
furnace reactor comparable to the production facilities at
the Company's Big Spring operation.' The Big Spring
operation has at all material times been a channel plant,
i.e. the carbon black is produced by the burning of natural
gas on channels.2 This is contrasted to the Odessa
operation which is that of a furnace or reactor type in
which oil feed stocks are burned in a furnace to make the
carbon black. The Odessa operation started apparently as
a "pilot plant" with a single furnace which was moved
from Big Spring and was supplemented by two additional
furnaces by late 1967, also removed from Big Spring.
In 1966 the Union filed a grievance under its agreement
substantial air pollution effects . The furnace type operation, on the other
hand, is relatively free of pollutants.
198 NLRB No. 95
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
covering the channel plant at Big Spring protesting the
hiring of new employees to work in the research and
development assignments at Odessa. The Company denied
the grievance on the basis that the Odessa furnace
operations were experimental only and the Union protest
terminated at that stage. In 1970 the Union filed a
grievance protesting the Company's use of a pilot plant
employee's work in pulling black, a task traditionally that
of the channel plant employees. The Company acceded to
the Union's position and agreed to make no further such
assignments.
Early in 1971, the Company notified the Union that the
channel plant was to be shut down and employees, except
those of the shipping department, laid off. Thereupon the
Union demanded recognition as representative of jobs
remaining at the Odessa operation, viz., shipping plus
research and development employees. The Company
rejected the Union's request and the Union filed the charge
herein.
The Company continued to recognize the Union as the
collective-bargaining representative of employees of the
channel black unit3 and the question presented is as to
whether or not it is entitled to recognition as representative
of furnace plant employees remaining at the Odessa
operation, i.e. shipping department employees plus em-
ployees in the research and development classifications. It
is claimed by General Counsel that they are an accretion to
the recognized unit . The Company's refusal to accord
recognition to the group rests on the factor that the Board
has previously certified research and development employ-
ees as a separate unit.
As noted above, the Union, as early as 1966, attempted,
through the grievance procedures of the existing contract,
to secure recognition respecting the jobs involved in the
Odessa furnace plant. The Company rejected these
grievances on the ground that the Odessa furnace opera-
tion was not a commercial production operation but rather
a research and development pilot plant. The Union failed
to take timely steps to secure compulsory arbitration of the
issues involved.
It appears from the testimony of Union Representative
Brazel that, as early as 1966, the Company explained, in
response to union inquiries concerning the Odessa furnace
plant, that the Company's principal objective in its
establishment was to examine possibilities of making new
types of carbon black. At that time union members were
doing the work at the Odessa furnace operation involved in
printing bags, storing the product, and pulling the black;
they were denied the tasks involved in operating the
controls. The company position that the Odessa furnace
was experimental only was reasserted in the 1967 bargain-
ing discussions.
In the 1971 negotiations, the Union again attempted to
secure company recognition of employees of the furnace
plant and specifically sought the inclusion in the contract
of furnace employees in the existing recognized unit. The
company position was that the furnace plant was experi-
mental and not a production operation and therefore not a
part of nor an accretion to the recognized unit.
I find the evidence to preponderate in favor of the
conclusion that at all material times the operations of the
pilot furnace plant were oriented toward research and
experimentation and that , although a carbon black product
was produced and disposed of by sale , the pilot plant, in
the company design , fit into research and experimentation
rather than into commercial production . In this connection
I credit the testimony of T. A . Ruble , the company vice
president in charge of research and development, that the
function of the pilot plant is essentially experimentation
and that his objective is to keep production of carbon
black at an • absolute minimum. It also appears from
Ruble 's testimony that the Company would prefer a
situation in which no product resulted from the pilot plant
operation . Further, it appears from the credited testimony
of Production Manager Boardman that sales of the pilot
plant production are made as sales of offgrade goods.
The General Counsel contends that the furnace plant
operations at Odessa constitute an accretion to the
recognized channel black unit there . In this connection
there appears to have been instances of interdepartmental
borrowing of equipment on one or two occasions but
otherwise evidence is wanting to show a community of
interest among the two groups and it appears from a
stipulation of the parties that there are substantial
differences in working conditions between the technicians
of the research and development group on the one hand
and the production employees of the channel plant on the
other . Thus it appears that technicians of the research and
development department receive sick leave at the rate of 5
days each 6 months to a maximum of 60 days; production
unit employees , on the other hand, receive 7 days each 6
months to a maximum of 56 days. A technician on sick
leave can receive up to 80 percent, while a production and
maintenance unit worker receives a maximum of 75-
percent base pay; reporting hours and shift schedules differ
between the two groups; technicians , unlike production
workers , have no grievance and arbitration procedure; the
two groups use different washroom facilities; the groups
have different training programs , different purchasing
agents , and different rates of pay.
Under all the circumstances of this case , it cannot be
concluded that the evidence preponderates in favor of the
conclusion that the Company has engaged in the unfair
labor practices alleged in the complaint. I recommend that
the complaint herein be dismissed.
On the basis of the foregoing findings of fact and upon
the entire record in this case I make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the purview
of Section 2(5) of the Act.
3. The evidence does not preponderate in favor of the
conclusion that the Company has engaged in the unfair
labor practices alleged in the complaint.
3 The agreement covering the employees of the channel black operation recognize the Union for bargaining respecting the few remaining employees,
expired on June 30, 1971. After the expiration the Company continued to all in the shipping department
SID RICHARDSON CARBON CO. 639
RECOMMENDED ORDER conclusions of law, it is recommended that the complaint
herein be dismissed.
On the basis of the foregoing findings of fact and