The Victory Chemical Co.

National Labor Relations Board - Board Decisions

Feb 28, 1945

60 N.L.R.B. 997 (N.L.R.B. 1945)

In the Matter of HAROLD D. FARBER , WILLIAM DEAN, BERNARD KINCI
THOMAS PATTERSON , AND SIMON FARBER, CO -PARTNERS , D/B/A THE VIC-
TORY CHEMICAL COMPANY and INTERNATIONAL BROTHERHOOD OF FIRI.-
MEN AND OILERS, LOCAL 253, A. F. L.
In the Matter of HAROLD D. FARBER, WILLIAM DEAN, BERNARD KING,
THOMAS PATTERSON, AND SIMON FARBER, CO -PARTNERS , D/B/A THE
VICTORY CHEMICAL COMPANY and INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 907, A. F. L.
In the Matter of HAROLD D. FARBER , WILLIAM DEAN, BERNARD KING,
THOMAS PATTERSON, AND SIMON FARBER, CO -PARTNERS , D/B/A THE
VICTORY CHEMICAL COMPANY and UNCTED GAS, CODE AND CHEMICAL
WORKERS, C. I. 0., INTERNATIONAL BROTHERHOOD OF FIREMEN AND
OILERS, LOCAL 253, A. F. L., AND INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 907, A. F. L.
Cases Nos. 3-R-914, 3-R-930, and 3-RE-13, respectively. Decided
February 28, 1945
Mr. Sidney B. Pfeifer, of Buffalo , N. Y., for the Company.
Mr. Charles R. Miller, of Buffalo, N . Y., for the Firemen and Oilers.'
Mr. Wilmer Danat, of Buffalo, N. Y., for the Operating Engineers.
Messrs. John Boyd and Charles McCullough, of Niagara Falls,
N. Y., for'the CIO.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by International Brotherhood of
Firemen and Oilers, Local 253, A. F. L., herein called the Firemen and
Oilers, International Union of Operating Engineers, Local 907,
A. F. L., herein called the Operating Engineers, and Harold D. Farber,
William Dean, Bernard King, Thomas Patterson, and Simon Farber,
co-partners, doing business as The Victory Chemical Company,,
Buffalo, New York, herein called the Company, each alleging that a
I Name corrected to conform to the evidence.
60 N. L. R. B., No. 170.
997
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question affecting commerce had arisen concerning the representation
of employees of the Company, the National Labor Relations Board
consolidated the cases and provided for an appropriate hearing upon
due notice before Milton A. Nixon, Trial Examiner. Said hearing
was held at Buffalo, New York, on January 15 and 24, 1945..-The
Company; the Firemen and Oilers, the Operating Engineers, and
United Gas, Coke and Chemical Workers, C. I. 0., herein called the
CIO, appeared and participated.2 All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file briefs
with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Victory Chemical Company, a partnership, is engaged in the
manufacture of chemical compounds for naval warfare at its two
plants ,in Buffalo, New York-one located on Elk Street, herein re-
ferred to as the Elk plant, and the other on Leslie Street, herein re-
ferred to as the Leslie plant. During 1944, the Company purchased for
use at its plants raw materials valued in excess of $250,000, of which
more than 75 percent was shipped from points outside the State of
New York. During the.sanie period, products finished at these plants
were valued in excess of $500,000, of which more than 75 percent was
shipped to points outside the State.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen and Oilers, Local 253, and
International Union of Operating Engineers, Local 907, both affiliated
with the American Federation of Labor, are labor organizations ad-
mitting to membership employees of the Company.
United Gas, Coke and Chemical Workers, affiliated with the Con-
gress of Industrial Organizations, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTIONS CON CERNING REPRESENTATION
The Company has refused to grant recognition to any union as the
exclusive bargaining representative of certain of its employees until
2 Although duly served with Notice of Hearing , Associated welders of western New York,
Inc., did not appear.
THE VICTORY CHEMICAL COMPANY 999,
such union has been certified by the Board in an appropriate unit. The-
CIO, asserting that, as a result of a card check, it has been recently
designated by a United States Commissioner of Conciliation as the
representative of the production and maintenance employees at the-
Company's two plants, contends that this proceeding is thereby barred..
On September 15, 1944, the CIO and the Company signed a written
memorandum, wherein they stipulated to negotiate a contract after
the CIO "had had a card check certified by a responsible government
agency." On September 29, 1944, at the request of these parties, a
United States Conciliation Commissioner at Buffalo checked the au-
thorization cards submitted by the CIO against a pay roll supplied
by the Company, and reported that of 113 cards submitted, 92 were
"satisfactory," 20 were "thrown out due to quits," and 1 card was
"blank." 3 Manifestly, this card check does not establish that the
CIO was selected by a majority of the Company's employees in an
appropriate and clearly delineated; unit' We are not persuaded
that a present determination of representatives is precluded.5
A statement of a Board Field Examiner, introduced into evidence
at the hearing, and a statement of the Trial Examiner made on the
record at the hearing, indicate that each of the labor organizations
involved herein represents a substantial number of employees in the
unit it claims to be appropriate.' -
We find that questions affecting commerce have arisen concern-
ing the representation of employees of the Company, within the
meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The Firemen and Oilers seeks a unit of all production and mainte-
nance employees at the Company's Leslie plant, including laboratory
3 This is the sum and substance of the Conciliation Commissioner 's report upon which
the CIO relies to establish its alleged designation as the bargaining representative of the
employees at the Company ' s two plants.
4 At the time of their contract negotiations following the card check , it appears that
the CIO and the Company were in dispute with respect to the inclusion of engineers in
the bargaining unit, the CIO claiming that they were included , and the Company insisting
that they were not. -
It further appears that no notice of the card -check proceeding was given to the Operating
Engineers , although the CIO, and apparently the Company , were aware that, prior thereto,
the Operating Engineers was actively engaged in organizing engineers at the Leslie plant.
5 The CIO ' s request that the Board certify it on the basis of the Conciliation Commis-
sion's card check is, accordingly , denied.
8 The Field Examiner reported that the Firemen and Oilers submitted 17 authorization
cards bearing the names of persons listed on the Company 's pay roll of December 2, 1944,
which contained the names of 30 employees in the unit the Firemen and Oilers alleges to
be appropriate
The Trial Examiner stated on the record that the Operating Engineers submitted three
authorization cards bearing the names of persons listed on the Company's pay roll of
December 2, 1944 , which contained the names of three employees in the unit the Operating
Engineers alleges to be appropriate.
The Trial Examiner also stated on the record that the CIO submitted 51 authorizatiop
cards bearing the names of persons listed on the Company ' s pay roll of December 2, 1944,
which contained the names of 103 employees in the unit the CIO alleges to be appropriate.
1000 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
technicians,7 but excluding engineers, and official clerical and super-
visory employees. The Operating Engineers requests a unit of
engineers at the Company's Leslie plant.' The CIO opposes the
formation, of the units sought by the Firemen and Oilers and the
Operating Engineers, and urges,that only a single, two-plant unit
comprising all non-supervisory production and maintenance em-
ployees' is appropriate. The Company assumes a neutral position.
All parties appear to agree to the inclusion of working foremen,° and
plant and stock clerks.10
As noted above, the Company is engaged in the manufacture of
chemical compounds for naval warfare. For such purposes, it op-
erates its Leslie and Elk plants, which are approximately 2 miles
apart from each other. At the Leslie plant, the initial manufactur-
ing processes are performed involving the mixing of various chemi-
cal compounds and fashioning them into small briquettes. The final
process, known as chlorination, is performed at the Elk plant. Each
plant is under the supervision of a plant superintendent. The Leslie
plant superintendent is directly accountable to the Company's part-
ners, while the Elk plant superintendent is responsible to the chief
and assistant chief of production. The plants have different pay days
and separate pay rolls, and maintain different work shifts. The little
interchange of personnel between the plants that occurs is confined to
general labor,11 and the majority of employees working in one plant
would not necessarily gain experience which would qualify them to
work in the other plant.12
The Company employs at the Leslie plant three licensed engineers
who are engaged in the usual functions of their craft. They are
-charged with the duty of furnishing necessary steam pressure for the
drying ovens and maintaining the boilers they operate. Engineers
generally receive a higher rate of-pay among the production and main-
tenance employees, and are raider the direct supervision of the Leslie
plant superintendent. ,
Considering the geographical distance between the plants, their dis-
similar working conditions, their separate supervision, the fact that
engineers comprise a skilled, holhogeneous, and well-defined group,
7 Laboiatory technicians are employed only at the Leslie plant They are non-
professional employees , generally perform routine analyses, and are among the lowest
hourly paid employees
8 There are no engineers employed at the Elk plant
° working foremen perform manual labor along with other men of the squad which they
lead and do not possess the status of supervisory employees as defined by the Board
10 Plant and stock clerks perform the customary functions of shipping and receiving
clerks.
° Interchange of maintenance employees between the two plants occurs only in case of
emergency -
12 The record discloses that the Firemen and Oilers has limited its organizing efforts to
employees at the Leslie plant.
THE VICTORY CHEMICAL COMPANY 1001
and the absence, of a history of collective bargaining, we are of the
opinion that three separate units should be established.
Accordingly, we find that the following units are appropriate for
the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
1. All production and maintenance employees at the Company's
Leslie plant, including laboratory technicians, working foremen, and
plant and stock clerks, but excluding engineers, office clerical em-
ployees, the plant superintendent, the assistant plant superintendent,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action;
.2. All engineers at the Company's Leslie plant, excluding all su-
pervisory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action; and
3. All production and maintenance employees at the Company's
Elk plant, including working foremen, plant and stock clerks, and
welders, but excluding the plant superintendent, shift superintend-
ents, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action.
Our findings, however, are without prejudice to a later application
for appropriate consolidation depending upon the results of the elec-
tions hereinafter directed, inasmuch as either a unit of production
and maintenance employees at both plants, including or excluding en-
gineers at the Leslie plant, or a unit of production and maintenance
employees at the Leslie plant., including engineers there employed, is
feasible for collective bargaining purposes.
V. THE DETERMINATION OF REPRESENTATIVES
'"re shall direct that the questions concerning representation which
have arisen be resolved by separate elections by secret ballot among
the employees in the appropriate units who were employed during
the pay-roll period immediately preceding the date of the Direction
of Elections herein, subject to the limitations and additions set forth
in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article 111, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Harold D. Farber,,
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William Dean, Bernard King, Thomas Patterson, and Simon Farber,
co-partners, doing business as The Victory Chemical Company, Buf-
falo, New York, separate elections by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Third Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees in the
units described below, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during the said pay-roll period because they were
ill or on vacation or temporarily laid off, and including employees
in the armed forces of the United States who present themselves in
person at the polls, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the elections.
1. All production and maintenance employees at the Company's
Leslie plant, including laboratory technicians, working foremen, and
plant and- stock clerks, but excluding engineers, office clerical em-
ployees, the plant superintendent, the assistant plant superintendent,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, to determine whether
they desire to be represented by International Brotherhood of Fire-
men and Oilers, Local 253, A. F. L., orby United Gas, Coke and Chem-
ical Workers, C. I. 0., for the purposes of collective bargaining, or
by neither;
2. All engineers at the Company's Leslie plant, excluding all super-
visory employees with authority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of employees, or effectively
recommend such action, to determine whether they desire to be repre-
sented by International Union of Operating Engineers, Local 907,
A. F. L., or by United Gas, Coke and Chemical Workers, C. I. 0., for
the purposes of collective bargaining, or by neither; and
3. All production and maintenance employees at the Company's
Elk plant, including working foremen, plant and stock clerks, and
welders, but excluding the plant superintendent, shift superintendents,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, to determine whether
or not they desire to be represented by United Gas, Coke and Chemical
Workers, C. I. 0.; for the purposes of collective bargaining.
MR. GERARD D. RErLLY took no part in the consideration of the
above Decision and Direction of Elections.