United States Metals Refining Co.

National Labor Relations Board - Board Decisions

Mar 14, 1951

93 N.L.R.B. 795 (N.L.R.B. 1951)

UNITED STATES METALS REFINING COMPANY 795
4. We find, in agreement with the parties, that all employees em-
ployed by the Employer in its dredging, construction, and repair work,
excluding executives, office employees, and supervisors as defined in
the Act, constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
UNITED STATES METALS REFINING COMPANY and JAMES A. POTASH,
PETITIONER . Case No. 4-RD-54. March 14, 1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before E. Don Wilson, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner, an employee of the Employer, asserts that the
International Union of Mine, Mill & Smelter Workers Local 837,
herein called the Intervenor, is no longer the representative under
Section 9 (a) of the Act of the employees in the Employer's chemi-
cal laboratory. The Intervenor, a labor organization, is the certified
and currently recognized bargaining representative of the employees
involved.
3. The present contract between the Employer and the Intervenor
was executed on November 1, 1950, and contains provisions applicable
to the employees in the chemical laboratory. The Intervenor con-
tends that the foregoing contract is a bar to an election at this time.
We find no merit in this contention. As the petition was filed before
the execution of the November 1, 1950, contract, we find that the con-
tract is not a bar to this proceeding.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit:
1 Stamford Wall Paper, Inc., 92 NLRB 1173.
93 NLRB No. 127.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Petitioner seeks a- decertification election in a unit consisting
of all employees in the Employer's chemical laboratory, excluding
all "hourly and supervisory employees." The Intervenor contends
that in the light of past bargaining history, the existing plant-wide
unit, including the chemical laboratory employees, is alone appropri-
ate, and that the unit sought to be decertified is inappropriate. The
Employer is engaged in the smelting and refining of copper ores,
concentrates, blisters, and other copper materials at its plant located
in Carteret, New Jersey, the only plant involved in this proceeding.
On November 5, 1945, the Board, pursuant to the agreement of
the parties, found appropriate the following separate units of em-
ployees at the instant plant : (1) All hourly paid production and main-
tenance and clerical employees and (2) salaried employees in the
chemical and metallurgical laboratories.2 On December 18, 1945,
the Intervenor was certified as representative of these units. A single
contract covering the employees in both these units was executed by
the Employer and the Intervenor on February 18, 1946, the contract
expiring June 30, 1947. Another such "master contract" was executed
on July 1, 1947, expiring June 30, 1948.
On July 1, 1948, the Employer and the Intervenor entered into a
1-year contract, divided into two parts as follows : (1) A main con-
tract which recognized the Intervenor as the exclusive representative
of all the employees in the units described above, including the em-
ployees in the chemical and metallurgical laboratories, and contained
substantive provisions applicable to all such employees, and (2) a
supplemental contract containing special provisions applicable only
to the employees in the chemical and metallurgical laboratories.
On October 27, 1949, the Employer and Intervenor executed another
1-year contract in two parts, patterned after the 1948 contract. How-
ever, the Intervenor while continuing to represent the chemical labo-
ratory employees waived all rights to act as bargaining representa-
tive for the metallurgical laboratory employees under this and sub-
sequent contracts. The chemical laboratory employees, however, were
covered by both parts of the 1949 contract, as in the case of the 1948
contract. The November 1, 1950, contract, in addition to provisions
applicable to the production, maintenance, and clerical employees,
contains special provisions applicable only to the employees in the
chemical laboratory. These provisions do not, however, appear in
a separate contract but are integrated with the main contract.
This bargaining history demonstrates that, although the Board's
1945 decision set up two separate units, there has been a merger of
the two units into one bargaining unit. From the beginning the
2 United States Metals Reining Company, 64 NLRB 727.
UNITED STATES METALS REFINING COMPANY 797
parties have negotiated their contracts for production and mainte-
nance employees, plant clericals, and laboratory employees on a broad
over-all basis. The fact that special provisions for the chemical
laboratory employees have sometimes appeared in separate, supple-
inentary agreements, negotiated at the same time as the main agree-
ment, does not alter our view that bargaining has, on the whole, been
on a plant-wide basis.3 The question is therefore presented whether
the chemical laboratory employees may be severed from the plant-
wide unit despite the foregoing bargaining history.
There are some 16 or 17 departments in the Employer's Carteret,
New Jersey, plant, of which the chemical laboratory constitutes 1 de-
partment. The record shows that, among other things, the chemical
laboratory runs tests to determine the qualitative contents of samples
taken from the production lines. The chemical laboratory is located
in a separate building from the rest of the plant and is under separate
immediate supervision. It appears that varying degrees of skill are
required of the chemical laboratory employees. One employee, the
research chemist, holds a 'doctor of philosophy degree in chemistry,
while several others are unskilled workers. The Board has held that
work of the type performed by the chemical laboratory employees in
the instant case is primarily technical in nature.4
Absent formal bargaining history on a plant-wide basis, the Board
has sanctioned the establishment of separate units of technical em-
ployees 5 or of technical and professional employees.6 The Board
further has severed technical employees from existing plant-wide
units despite past bargaining history because of the special interests,
background, and functions of technical employees.'
The employees sought to be decertified in the instant case constitute
a technical group, separate physically and functionally from the pro-
duction and maintenance employees. So far as the record shows, this
group comprises all the technical employees currently represented by
the Intervenor. Accordingly, despite the past bargaining history on
a broader basis we shall permit the chemical laboratory employees an
opportunity to determine whether they wish the Intervenor to con-
tinue to represent them for the purposes of collective bargaining.
8 See United States Metals Refining Company , 88 NLRB 1079 , where the Board dismissed
a petition for a self-determination election among the plant clerical , restaurant, and
hospital employees at the instant plant finding , among other things , that despite the
supplemental agreements similar to those discussed above, bargaining had been on a
plant-wide basis.
4 Phillips Chemical Company, 83 NLRB 612; ef . E. I. Dupont de Nemours & Company,
69 NLRB 509.
5 Westinghouse Electric Corporation , 89 NLRB 8; Phillips Chemical Company, supra
6 Kelsey Hayes Wheel Company , 85 NLRB 666, 669.
7 Wodaam Corporation , 83 NLRB 335 ; E. 1. Dupont de Nemours it Company, supra.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Disputed Categories
The parties are in disagreement as.to the voting eligibility of five
gangleaders and of the chemical laboratory secretary.
The gangleaders.-The Intervenor would exclude the gangleaders
as supervisors, or, in the alternative, would exclude them as profes-
sional employees. The Employer contends that the gangleaders
should be included in the unit.
The record shows that the gangleaders generally are more highly
skilled and experienced and are somewhat better-paid than the rank-
and-file employees of the chemical laboratory. The gangleaders are
expected to transmit orders and to guide the operations of their re-
spective sections. They spend from 50 to 80 percent of their time
in performing their own work and the remainder in directing
the work of others. They have no authority to hire, fire, discipline, or
effectively to recommend such action, nor do they responsibly direct
the work of the other employees in their sections. Upon the entire
record, we find that the gangleaders are not supervisors, and we shall
include them in the unit .8
There remains the Intervenor's contention that the gangleaders
should be excluded from the unit as professional employees. We find
merit in this contention as to the spectrograph gangleader. This em-
ployee is a college graduate who has majored in chemistry and per-\
forms work requiring a much higher degree of proficiency than the
work of the other gangleaders. Twenty percent of his time is spent
in directing the work of his subordinates, 50 percent is spent in rou-
tine work, and the remaining 30 percent is spent in research and in
developing better methods for spectrograph analysis .9 The spectro-
graph gangleader requires specialized knowledge in a new field of
analytical chemistry. In the light of the foregoing facts, we find
that the spectrograph gangleader is a professional employee, and we
shall exclude him from the unit.
The secretary.-The Intervenor would exclude as a confidential em-
ployee the secretary of the chief chemist, who is in charge of the
chemical laboratory. The Employer contends that the secretary
should be included in the unit. The secretary does general clerical
work. She also takes care of time cards and types warning letters to
delinquent employees. There is no evidence that the chief chemist
has any responsibility for the determination of the Employer's labor
8H J Heinz Company, 77 NLRB 1103; Scott -Atwater Manufacturing Company, Inc.,
90 NLRB No. 9.
9 The spectrograph section tests a substance by burning it and breaking up its ore into
a spectrum. The result is photographed through a prism, which measures the radiation
of different wave lengths on a photographic plate.
C & D COAL COMPANY 799
policies , or that the secretary has access to any confidential informa-
tion pertaining thereto. Accordingly, we will include her in the
unit to
We shall direct an election by secret ballot to be held among the
employees in the chemical laboratory of the Employer's Carteret, New
Jersey, plant, including the gangleaders and the secretary, but ex-,
eluding chief chemist," the research chemist,12 the head sampler'13 the
spectrograph gangleader, guards, professional employees, and super-
visors as defined in the Act. If the employees in the foregoing voting
group do not select the Intervenor, the Intervenor will be decertified
as to them; if on the other hand, they select the Intervenor, they will
be taken to have indicated their desire to continue to be included in
the production and maintenance unit now represented by the
Intervenor. 14
[Text of Direction of Election omitted from publication in this
volume.]
Wise, Smith & Company, Inc, 83 NLRB 1019
This employee is in direct charge of the chemical laboratory . We shall exclude him
as a supervisor
'a In agreement with the parties we shall exclude this employee as a professional empl-yee
11 This employee does little , if any, work in the laboratory . In any event we shall
exclude him as a supervisor inasmuch as he responsibly directs the activities of plant
foremen.
34 Mountain States Telephone and Telegraph Company, 83 NLRB 773.
C & D COAL COMPANY AND C & D TRUCKING COMPANY and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, GENERAL TEAMSTERS' UNION No. 428,
AFL. Case No. 8-CA-360. March 15, 1951
Decision and Order
On November 22, 1950, Trial Examiner James R. Hemingway issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondents had engaged in and were engaging in certain
unfair labor practices and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ents filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Reynolds, and Styles].
93 NLRB No. 137.