The Mathieson Alkali Works

National Labor Relations Board - Board Decisions

Feb 11, 1942

38 N.L.R.B. 1084 (N.L.R.B. 1942)

In the Matter of THE MATHIESON ALKALI WORKS and DISTRICT 50,
UNITED MINE WORKERS OF AMERICA
Case No. R-3374. Decided February 11, 1942
Jurisdiction : ammonia soda manufacturing industry.
Investigation and Certification of Representatives : existence of question : re-
fusal of Company to grant petitioner's request for recognition, stipulated ;
election necessary.
Unit Appropriate for Collective Bargaining : all production employees and em-
ployees engaged in the maintenance of production properties and equipment,
including laboratory test employees, water tenders, and caustic finishers,
but excluding supervisory and community service employees, watchmen,
guards, office employees, and all other laboratory employees.
Mr. William A. Stuart, of Abingdon, Va., and Mr. L. P. Collins,
of Marion, Va., for the Company.
Mr. Bernard Borah, of Knoxville, Tenn., for the United.
Mr. Roby C. Thompson, of Abingdon, Va., for the Association.
Mr. Frederic B. Parkes, 92nd, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
On October 21, 1941, District 50, United Mine Workers of Amer-
ica, herein called the United, filed with the Regional Director for
the Fifth Region (Baltimore, Maryland) a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of employees of The Mathieson Alkali Works, Saltville, Vir-
ginia, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On November 18, 1941, the National -Labor Relations Board, herein
called 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 November 27 and December 1, 1941, respectively, the Regional
Director issued a notice of hearing and a notice of postponement
38 N. L. It. B., No. 204.
1084
THE MATHIESON ALKALI WORKS 1085
of hearing, copies of which were duly served upon the Company,
the United, and Saltyille-Mathieson Employees' Association, herein
called the Association, a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to notice,
a hearing was held on December 5 and 6, 1941, at Marion, Virginia,
before Lester M. Levin, the Trial Examiner duly designated by the
Chief Trial Examiner. The Company, the United, and the Asso-
ciation were represented and participated in the hearing. Full
opportunity to, be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all
parties. During the course of the hearing, the Trial Examiner made
various rulings on motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. On January 10, 1942, the United filed
a brief, and on January 12, 1942, the Company and the Association
each filed a brief. The Board has considered all briefs.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Mathieson Alkali Works, a Virginia corporation, is engaged
in the manufacture and sale of ammonia soda and related by-products,
at Saltville, Virginia. The Company maintains executive offices in
New York City and also operates branch plants at Lake Charles,
Louisiana, and Niagara Falls, New York. From the ammonia soda
the Company manufactures and processes soda ash, caustic soda, bi-
carbonate of soda, fused alkalies, and carbon dioxide ice. The Com-
pany owns approximately 7,000 acres of land in and around Saltville.
The Saltville operations, involved in this proceeding, cover approxi-
mately 1,000 acres, including a gypsum mine, limestone quarry, and
salt brine wells.
In 1940, the Company manufactured approximately 200,750 tons
of finished products having a gross value of more than $1,000,000,
of which approximately 80 percent were shipped to points outside
the State of Virginia. Although limestone salt and gypsum rock
are the principal raw materials used by the Company, its operations
are dependent upon other commodities, all of which, with the ex-
ception of coke and coal, are purchased and shipped from concerns
located in States other than the State of Virginia. In 1940, the
purchase of such raw materials necessary to the Company's Virginia
operations exceeded $400,000 in value. The Company employs ap-
proximately 950 employees at its Saltville operations.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company admits that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting employees of the Company to membership.
Saltville-Mathieson Employees' Association is an unaffiliated labor
organization admitting employees of the Company to membership.
III. THE QUESTION CONCERNING REPRESENTATION
The Company, the United, and the Association stipulated at the
hearing that prior to filing its petition, the United had informed the
Company of its claim to represent employees of the Company, but
that the Company had refused to recognize the United as representa-
tive of such employees, and accordingly that a question concerning
representation exists.
Statements of the Regional Director introduced into evidence at
the hearing show that the United and the Association each represents
a substantial number of employees in the unit hereinafter found
to be appropriate.'
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
i The United submitted 416 application cards to the Regional Director who reported that
84 were dated in 1937 , 17 were dated in 1938, 7 were dated in 1939 , 2 were dated in 1940, 3
were dated between January and March 1941, 11 were dated between April and June 1941,
233 were dated between July and September 1941 , 47 were dated during October and No-
vember 1941 , and 12 were undated. The Regional Director reported that all the signatures
were apparently genuine and that 331 signatures were the names of persons on the Com-
pany's pay roll of October 31, 1941.
The Association submitted to the Regional Director the following evidence of its claim
to represent 528 of the Company 's employees ; ( 1) a typewritten list of the membership
of the Company 's employees who had paid their dues in the Association for the year 1941-
1942, to which the president of the Association had sworn in respect to•the correctness of
the paid membership ; and (2 ) original powers of attorney dated in November 1941, from
521 members of the Association appointing the Association as the collectiva bargaining
agent of the signers. There are approximately 800 employees within the unit found below
to be appropriate.
THE MATHIESON ALKALI WORKS
V. THE APPROPRIATE UNIT
1087
The United contends that all production employees and employees
engaged in the maintenance of production properties and equipment,
excluding supervisory , clerical , laboratory , and technical employees,
watchmen and guards , and employees engaged in occupations of com-
munity or employee service, such as house maintenance , store, filling
station, hotel , hospital , and farm employees , constitute a unit appro-
priate for the purposes of collective bargaining . The Association
and the Company contend that all employees of the Company at
Saltville, Virginia , except those engaged in a supervisory capacity,
constitute an appropriate unit.
A. The disputed classifications
The Company and the Association would include, and the United
would exclude the following classifications of employees from the unit :
Company service employees. It appears that Saltville, an incor-
porated town with a mayor and council, is for the most part owned
by the Company. Approximately 90 percent of its 2,800 inhabitants
are employed by the Company. In addition to the buildings com-
prising its physical plant in Saltville, the Company owns, maintains,
and operates a hotel, hospital, general store with three branches, and
filling station.
Although the hotel is operated primarily for the convenience of
unmarried employees and visiting officials of the Company, it is
nevertheless a public hotel, accommodating any person stopping in
Saltville. The hotel employs 6 weekly wage employees, including
maids, waiters, and a chef.
A small hospital is maintained for the benefit of employees, but
on occasion patients who are not employees of the Company are
admitted. Five nurses and two orderlies are employed at the hos-
pital on a monthly salary basis and work under the supervision of
the chief surgeon, who has the authority to hire and discharge
hospital employees subject to the approval of the general manager.
Thirty-three employees are engaged in the operation of the Com-
pany's main store in Saltville and three branch stores at Allison
Gap, North Holston,2 and the old quarry. A gasoline filling station
is operated in conjunction with the main store. The store depart-
inent employees embrace janitors, watchmen, truck drivers, pharma-
cist, bookkeepers, and clerks. They are the only employees of the
Company who are not paid by the genral office. They are paid by
2 The Company 's gypsum property located at North Holston has been leased to another
company, but the Company has continued to operate the store , servicing employees engaged
in the North Holston gypsum operations.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and are subject to the supervision of the store manager. The stores
are operated with a working fund, separate and distinct from the
capital structure of the Company's other operations.
The house department employs 13 hourly paid workmen engaged
in the general maintenance of the houses and business buildings
owned by the Company in and around Saltville. The house depart-
ment has a separate office and shop, located about one-half mile from
the main plant office. In addition to these employees, during the
summer months three or four temporary employees are hired to
repair fences and buildings on the farms owned by the Company.3
In urging the inclusion of these employees in the unit, the Com-
pany and the Association rely on the past bargaining history. They
contend that in October 1937, shortly after the Association was
organized, the Company by letter recognized the Association as the
exclusive bargaining agency for the Company's employees. How-
ever, the letter was not introduced into evidence, nor was any other
document introduced to show that the Association has been granted
exclusive recognition. Admittedly, the Company and the Associa-
tion have not entered into a formal written contract recognizing the
Association as the exclusive bargaining representative. The Com-
pany and the Association claim that they have negotiated agree-
ments since 1937 concerning chiefly wages and hours.4 While the
bargaining history is an important factor in the determination, of
the unit, we are not satisfied that the history in the instant proceed-
ing has been of such a character as to warrant the inclusion of the
community service employees in a unit of production and mainte-
nance employees.5 We shall accordingly exclude community service
employees from the unit.
Watchmen guard the Company's plant but not the town itself.
None carries guns. They are supervised by three guards, whom the
parties agree should be excluded from the unit. We shall exclude
the watchmen and guards from the unit." .
Office employees comprise 18 monthly paid clerks and stenogra-
phers and 2 office janitors who are hourly paid. These employees
work at the Company's main offices at Saltville, in a building apart
3 The Association and the United agree that the farm employees should be excluded from
the unit.
' A letter dated March 13, 1939 , from the president of the Association addressed to the
members of the Association ' s plant council , setting forth a list of agreements made betiNeon
the Company and the Association was the only documentary evidence in respect to the
bargaining history introduced at the hearing , although the results of the negotiations have
allegedly been reduced to writing
5 In support of their contention for the inclusion of other classifications and individual
employees appearing below , the Company and the Association rely on the past history of
collective bargaining . For the reasons previously stated, we find the history unpersuasive
E See Matter of Texas Company , Port Arthur Refinery and Oil Workers ' International
Union, Local No. 23, affiliated with the C. I . 0 , 37 N L. R B 932
THE MATHIESON ALKALI WORKS 1089
from the production plant and are engaged in duties customarily
performed by such employees. We shall exclude office employees
from the unit.
Sixteen laboratory test emp4oyees gather samples of products, raw
materials, and liquors from the plant, take them to the laboratory,
and make somewhat routine tests and analyses. Fifteen of these
employees are hourly paid and the other is monthly paid, but the
record shows that all perform the same duties. Such employees
are required to have at least a high school education, preferably
with some academic training in chemistry. In addition, there are
two salaried chemists who are engaged 'in research and other work
requiring a greater degree of technical knowledge. A stenographer
is also employed in the laboratory. The laboratory is supervised
by a chemical supervisor and a foreman.7 We shall include the 16
laboratory test employees but shall exclude other employees of the
department.8
Water tenders work in the steam and power department which
employs a total of 76 men, all under the supervision of one foreman
working on the day shift. In the absence of the foreman, the
water tenders are the senior operators in the department. The
United would exclude them on the ground that they are supervisory
employees. For each water tender there are 4 or 5 firemen and 1 fire
cleaner. Firemen are responsible for keeping steam pressure at a
required degree. Fire cleaners remove cinders. It appears that
water, tenders give orders to such employees. Water tenders keep
water in the boilers at a specified level, operate the boiler feed pumps,
watch the steam pressure, help clean boiler fires, and roll cinders.
The duties of water tenders are not supervisory to such a degree as
to warrant their exclusion from the unit. We shall accordingly
include water tenders in the unit.
Four caustic finishers are in charge of the final operation in the
manufacture of caustics, increasing the strength of the caustic to 74
or 76 percent. They feed the liquor into pots, add chemicals, heat
the mixture, control the temperature, and remove the liquor from
the kettles. The United urges the exclusion of caustic finishers on
the ground that they are supervisory employees. There are normally
two firemen working under their supervision. Two caustic finishers
act as foremen of the caustic department in the absence of the
regular foremen. We shall include caustic finishers in the unit.
'The Association does not seek to represent the two salaried chemists , chemical super-
visor, foreman , or stenographer.
See Matter of Gulf Refining Company and Federal Labor Union No. 22191, affiliated with
the American Federation of Labor, 25 N L. R. B 745.
438861-42-vol. 38-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Particular employees in dispute
The Association and the United are in disagreement as to the
supervisory status of certain employees .9 The United would exclude
the employees named below on the ground that they, on occasion,
act as foremen; the Association requests their inclusion in the unit.
Walter Swartz is the only first-class rigger employed by the Com-
pany. It appears that he acts as leader of the rigger crew, which
comprises five men, on difficult jobs. In the absence of the regular
foreman of the rigger department, Swartz acts as foreman in his
stead. Swartz is paid 13 cents more per hour than other riggers but
21 cents less than the regular rigger foreman. We shall exclude
Swartz from the unit.
Robert Hogston acts as assistant foreman in the absence of the 7
regular foremen and assistant foreman of the furnace room and mill
room. If all foremen are working, Hogston works as repair man on
water pipes. His usual rate of pay is the same as that given other
first-class repairmen, but he received 5 cents per hour more when he
acts as foreman. We shall exclude Hogston from the unit.
Stewart Moore is normally employed as a mechanic in the furnace
room, but in the absence of the regular foreman, Moore acts as fore-
man. He receives 3 cents an hour less than first-class repairmen.
We shall include Moore in the unit.
S. C. Snodgrass is normally employed as a brick mason, but acts
as foreman of the masons in the absence of the regular foreman.
However, he has had occasion to act as foreman only once in the past
three years. He is paid the same rate given the other masons. We
shall include Snodgrass in the unit.
J. M. Helton and R. J. Harris are night mechanics each working on
one of the two evening shifts. In the absence of their foremen, Lee,
who works 6 days per week from 8 a. m. to 7 p. m., Helton and Harris
are in charge of their respective shifts to the extent any first-class
mechanic is in charge. When Lee is on vacation or on sick-leave, they
act as foremen. Each has one or two helpers and a second-class
mechanic working on his shift. Harris and Helton receive the same
rate paid other first-class repairmen. We shall include J. M. Helton
and Harris in the unit.
J. H. Helton is employed as a driller in the well field. The United
contends that he acts as foreman of the well field when the regular
foreman is absent. J. H. Helton denied that he ever assumed that
position and stated that the foreman of a nearby deparment acted as
6 They agree , however, that the following employees, who are not listed as foremen on
the pay roll introduced into evidence , are employed in a supervisory capacity and should
be excluded from the unit : R. B. Colley , Sr., W. J. B . Frye, J. S. Hunt, and M. D.
Ratcliff.
THE MATHIEiSON ALKALI WORKS , 1091
assistant foreman of the well field. We shall include X. H. Helton
in the unit.
Bolling J. Henderson is employed as a carpenter. The United con-
tends that he substitutes for his brother, who is the fire chief, in the
latter's absence. Apparently the fire chief has control of the fire-
fighting equipment which serves the entire community as well as the
Company's plant. Henderson sometimes drives the fire engine. He
receives the same rate paid other first-class carpenters and painters.
We shall include Henderson in the unit.
B. B. Comer acts as yardmaster in the absence of the regular yard-
master. Comer receives an additional 6 cents per hour when employed
as yardmaster. We shall exclude Comer from the unit.
G. L. Olinger is listed on the payroll as a track laborer in the yard
and testified at the hearing that he acted as section foreman in the
latter's absence. He receives an additional 11 cents per hour when
acting as section foreman. We shall exclude Olinger from the unit.
J. E. Goodman is listed on the pay roll as a drum maker. The drum
shop makes steel containers for the packing of the Company's products
preparatory to shipment. The United contends that Goodman is the
"head contractor" of the drum shop, negotiating with the Company
the piece rate to be paid for the products of the shop. Between 2 and
4 other employees work in the drum shop. Goodman receives a higher
percentage of the piece rate than do the other drum-shop employees.
We shall exclude Goodman from the unit.
S. M. Henegar, the record discloses, works part of the time as an
extra foreman, taking the place of the regular foreman of the caustic
department who is off duty one day each week and who has a yearly
vacation of 1 or 2 weeks. Henegar receives an additional 21 cents
per hour when acting as foreman. We shall exclude Henegar from
the unit.
J. M. Taylor is listed on the pay roll as a mechanic in the tramway
department. Taylor did not testify at the hearing.10 He receives the
same rate paid other mechanics and oilers. We shall include Taylor
in the unit.
We find that all production employees and employees engaged
in the maintenance of production properties and equipment at the
Company's Saltville operations, including laboratory test employees,
water tenders, and caustic finishers, but excluding supervisory 11 and
community service employees'12 watchmen, guards, office employees,
and all other laboratory employees, constitute a unit appropriate for
10 The only testimony in respect to Taylor 's work was that given by a witness for the
United who stated that he was informed by Taylor that Taylor acted as foreman of the
department in the absence of the regular foreman, who is Taylor 's brother.
n Walter Swartz , Robert Hogston, R. B. Comer , G. L. Olinger , J. E. Goodman , and S. M.
Henegar are excluded as supervisory employees.
12 Specifically, hotel , hospital , store, filling station , house department, and farm employees.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining and that such unit will insure
to employees of the Company the full benefit of their right to self-
organization and to collective bargaining and otherwise will effectuate
the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by means of an election by secret ballot. We shall
direct that those persons eligible to vote in the election shall be those
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions hereinafter set forth in the
Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of The Mathieson Alkali Works, Saltville,
Virginia, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the Act.
2. All production employees and employees engaged in the main-
tenance of production properties and equipment at the Company's
Saltville operations, including laboratory test employees; water ten-
ders, and caustic finishers, but excluding supervisory and community
service employees, guards, office employees, and all other laboratory
employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby.
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Mathieson Alkali Works, Saltville, Virginia, an election
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction of Election,
under the direction and supervision of the Regional Director for the
Fifth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 9, of said Rules
THE MATHIEiSON ALKALI WORKS 1093
and Regulations, among all production employees and employees en-
gaged in the maintenance of production properties and equipment at
the Company's Saltville operations who were employed during the
pay-roll period immediately preceding the date of this Direction,
including laboratory test employees, water tenders, caustic finishers,
and all employees who did not work during such pay-roll period
because they were ill or on vacation or in the active military service
or training of the United States, or temporarily laid off, but excluding
supervisory and community service employees, watchmen, guards,
office employees, all other laboratory employees, and employees who
have since quit or been discharged for cause, to determine whether
they desire to be represented by District 50,'United Mine Workers of
America, affiliated with the Congress of Industrial Organizations, or
by Saltville-Mathieson Employees' Association, for the purposes of
collective bargaining, or by neither.