United States Potash Co.

National Labor Relations Board - Board Decisions

Oct 3, 1945

63 N.L.R.B. 1379 (N.L.R.B. 1945)

In the Matter of UNITED STATES POTAS.FI COMPANY (N. S. L.) and
INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS,
LOCAL 415, CIO
Case No. 16-R-1345.-Decided October 3, 1945
Messrs. James M. Stagner and 7'. M. Cramer, of Carlsbad, N. Mex.,
for the Company.
Mr. T. D. Smotherman, of Carlsbad, N. Mex., for the C. I. O.
Mr. Charles Mulholland, of Dallas, Tex., Mr. R. H. Miller, of
Phoenix, Ariz., and Mr. D. C. Johnson, of Carlsbad, N. Mex., for the
Machinists.
111r. Arthur B. Lopez, of Albuquerque, N. Mex., and Messrs. George
L. Reece and Juan L. Alvarado, of Carlsbad, N. -Mex., for the Chemical
Workers.
Mr. V. J. Cox, of Dallas, Tex., and Mr. L. F. Rillos, of Carlsbad,
N. Mex., for the Electrical Workers.
Mr. Maurice M. Miller, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Union of Mine, Mill
and Smelter Workers, Local 415, CIO, herein called the C. I. 0.,
alleging that•a question affecting commerce had arisen concerning the
representation of employees of. United States Potash Company
(N. S. L.), Carlsbad, New Mexico, herein called the Company,' the
National Labor Relations Board provided for an appropriate hearing
upon due notice before Glenn L. Moller, Trial Examiner. Said hear-
ing was held at Carlsbad, New Mexico, on June 5,1945. The Company;
the C. I. 0.; the International Associatiton of Machinists, Local Lodge
Number 1124, affiliated with the A. F. of L.,,herein called the Ma-
chinists; International Chemical Workers Union, A. F. of L., Local
Number 167, herein called the Chemical Workers; and International
i On the petition and other formal papers the Company was incorrectly designated as
the United States Potash Company.
63 N. L. R. B., No. 212.
662514-46-vol 63-88 - 1379
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, Local Union 643, A. F. of L.,
herein designated as the Electrical Workers, appeared and partici-
pated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues.
At the close of the hearing the representative of the Machinists
moved that the petition be dismissed, on the ground that its contract
with the Company operated as a bar to any present determination of
representatives. The Trial Examiner referred this motion to the
Board. For the reasons set forth hereinafter, the motion is denied.
The Trial Examiner's rulings made at the hearing are free from preju-
dicial 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 United States Potash Company (N. S. L.) is a New Mexico
corporation with offices in New York City and Carlsbad, New Mexico.
It operates a potash mine and refinery at separate locations in the
vicinity of Carlsbad, New Mexico; the refinery is the only operation
involved herein.
The Company annually produces finished products valued in excess
of $1,000,000, of which approximately 99 percent is shipped from its
New Mexico operations to points outside the State of New Mexico.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Union of Mine, Mill and Smelter Workers, Local 415,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company.
International Association of Machinists, Local Lodge Number 1124;
International Chemical Workers Union, Local Number 167; and In-
ternational Brotherhood of Electrical Workers, Local Union 643,
all affiliated with the American Federation of Labor, are labor organi-
zations admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Early in May 1945, by letter and telephone, the C. I. O. requested
recognition from the Company as the exclusive bargaining representa-
tive of the Company's production and maintenance employees. This
request was denied. The Company has taken the position that it will
UNITED STATES POTASH COMPANY (N. S. L.) 1381
not accord such recognition to the C. I. O. until that organization has
been certified by the Board in an appropriate unit. The Machinists
contends that its unsigned contract with the Company for the current
year, now in the process of negotiation, should be considered as a bar
to the present proceedings.
The Company has maintained collective bargaining relations with
the Machinists since 1938. On April 5, 1943, the part es entered into
an agreement to remain in full force and effect until May 31, 1944,
subject to automatic renewal from year to year thereafter, in the
absence of notice by either party at least 30 days prior to the anni-
versary date, of a desire to terminate or modify the agreement.' A
supplementary agreement which substantially modified the aforesaid
contract was executed on July 14, 1944. By its terms, the 1943 agree-
ment, as modified, was extended to May 31, 1945, with substantially
similar provisions for automatic renewal thereafter.
On April 12, 1945, the Machinists -notified the Company by letter
of its desire to modify this agreement. On May 5, after several con-
ferences, the parties prepared a "Memorandum of Negotiations,"
which detailed the extent of their agreement on matters theretofore
discussed, and listed the proposals regarded by the Company as mat-
ters which would require War Labor Board action. This memo-
randum was not signed. Although the contract between the Company
and the Machinists expired by its terms on May 31, 1945, the Com-
pany has continued to operate under the agreement.
The Machinists maintains that the memorandum of May 5 repre-
sents a complete agreement on all proposals embodied in the letter
of April 12. Even if this view is accepted, the memorandum has not
been signed by the parties, and we have consistently held that an
unsigned contract is not a bar to a determination of representatives?
Accordingly, we find that the "Memorandum of Negotiations" pre-
pared by the parties on May 5 does not constitute a bar to*the present.
proceeding.
A statement of a Board agent, introduced into evidence at the
hearing, indicates that the C. I. O. represents a substantial number
of employees in the unit hereinafter found appropriate.3
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
9 Matter of Air Reduction Sales Company, 57 N. L . R. B. 1604 ; Matter of Escor, Inc.,
46 N L. R. B 1035.
8 The Field Examiner reported that the C. I. O. submitted 99 membership cards, all of
which bore apparently genuine original signatures ; that the names of 81 persons appearing
on the cards were listed on the Company's pay roll of May 15, 1945, which contained the
names of 313 employees in the appropriate unit. Two of the cards were dated in January
1945, 6 in March 1945, 31 in April 1945, and 37 in May 1945, while 5 were undated. In
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The C. I. 0., the Machinists, and the Chemical Workers agree
gdnerally that the appropriate unit for collective bargaining should
comprise all' employees covered by the 1943 contract between the
Company and the Machinists. This bargaining unit, in substance,
consists of all production and maintenance employees at the Com-
pany's refinery, including unloading bosses, warehousemen, and
watchmen, but excluding professional, administrative and managerial
service employees, office and clerical workers, chemists, engineers, sur-
veyors, guards, chief electricians, laboratory chiefs, master mechanic,
foremen, and all other supervisory employees above the rank of crew
leader 4 The Electrical Workers seeks a unit composed of all employ-
ees in the electrical maintenance department and powerhouse of the
Company's refinery, except for supervisory employees. The Company
takes the position that all job classifications excluded from the existing
bargaining unit should continue to be excluded from any unit or units
established as a result of this proceeding, but takes no position with
respect to the issue raised by the request of the Electrical Workers.
Collective bargaining at the Company's refinery has been conducted
on the basis of a plant-wide unit since 1938. The record indicates,
however, that the Electrical Workers had members among the elec-
trical maintenance employees of the Company prior to that year, and
that the Company had dealt informally with spokesmen for this craft
group prior to the date on. which, it- accorded exclusive recognition
to the Machinists. Thereafter, despite the inception of collective
bargaining on a plant-wide basis, the electrical maintenance em-
ployees successfully maintained their identity as a group. Employees
transferred to this work from other departments of the refinery have
been permitted to transfer their union membership to the Electrical
Workers, and all persons' now employed as maintenance electricians
are members in good standing of that organization. At various
times since 1938, the Electrical Workers has been accorded repre-
view of the maintenance -of-membership provisions in the contract between the Company
and the Machinists , we believe the showing of the C I 0 to be adequate
The Electrical Workers submitted 19 authorization cards , all of which bore apparently
genuine original signatures . The names of 18 persons appearing on the cards were con-
tained in the aforesaid pay roll The cards were dated in May 1945.
The Chemical Workers submitted at the hearing a sworn list of members in good stand-
ing employed at the Company ' s refinery The list bore the names of 108 persons
The Machinists, which also submitted 44 authorization cards, relies upon its contractual
relationship with the Company as proof of its interest.
* The Chemical Workers stated at the hearing that it would have no objection to the
establishment of separate craft units for machinists and electricians , if the Board found
such units to be appropriate for collective bargaining There is, however , no request before
us for the establishment of a separate unit for machinists.
At the close of the hearing, the C. I 0 suggested that four separate multi-department
units be established if the Board does not find the single unit described above to be appro-
priate. There is nothing in the record to support this alternative request.
UNITED STATES POTASH COMPANY (N. S. L.) 1383
sentation as a group on bargaining committees selected by the Ma-
chinists. The 1943 contract between the Company and the Ma-
chinists designates the Electrical Workers and Federal Labor Union
No. 22253 as organizations entitled to require maintenance of mem-
bership among the Company's employees upon the same terms as the
designated bargaining agent.
In summation, it appears that the maintenance electricians have
displayed evidence of group consciousness by preserving their identity
as a craft organization throughout the entire period of plant-wide
bargaining, and by insisting that the designated bargaining agent
recognize their right to function as a separate group in collective bar-
gaining with the Company. Under the circumstances, we are of the
opinion that these employees have not participated in the plant-wide
bargaining between the Company and the Machinists to such an extent
as to lose their identity as a craft group. Accordingly, we find that
the maintenance electricians may constitute a separate bargaining
unit, or be merged in a single unit of production and maintenance
employees .5 We shall, therefore, make no present determination of
the appropriate unit or units as affecting the electrical maintenance
employees, but shall reserve our finding in this matter pending the
result of the separate elections which we shall hereinafter direct.
Our determination as to the scope of the bargaining unit or units will
then depend, in part, upon the desires of the -employees as expressed
in the elections hereinafter directed.
There remain for consideration the request of the Electrical Work-
ers for the inclusion of powerhouse employees in any separate unit
that may be established for electricians, and certain in2idental prob-
lems of inclusion or exclusion affecting the broader unit for which
the other organizations contend.
Powerhouse employees: The Company operates a powerhouse to
provide power for the mine and the refinery, at which it employs
water tenders, firemen, and operators. Of these three groups, the
operators are the only employees who handle electrical equipment,
since they operate the switchboard which controls the flow of power
produced. Although a maintenance electrician makes regular routine
inspections of the electrical equipment in the powerhouse, and may,
upon occasion, relieve an operator for short periods, there is no other
evidence of functional integration between these two groups of em-
ployees. The powerhouse employees have been an integral part of the
plant unit since 1938, and'there is no evidence that they have ever been
associated with the maintenance electricians in the earlier efforts of
the latter to preserve their identity as a craft group. We shall in-
clude powerhouse employees in the broad production and mainte-
5 See Matter of Standard Oil Company of New Jersey ( Louisiana Division ), 61 N. L. R. B.
1344, Matter of General Electric Contpanfj (Lynn River and Everett Plant), 58
N. L. R. B 57.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nance unit, and exclude them from any electricians' craft unit which
may be found appropriate after the elections directed herein s
Clean-up boss: The record indicates that this employee keeps the
time of the men in his crew, and spends all of his time directing them.
He has been included in the unit covered by all prior contracts. While
the Company and the Machinists have now agreed to exclude this
employee from the coverage of their contract,' the Company has never
considered him to be a part of its supervisory force. Although per-
mitted to attend supervisors' meetings, he has never done so and the
Company accords no greater weight to his recommendations with
respect to personnel than it accords to the recommendations of a
journeyman with respect to his helper. The Company takes no posi-
tion with respect to the status of this employee. We shall include him
in the broad production and maintenance unit.
Laboratory employees: One of the Company's employees currently
classified as a junior operator, has been assigned to professional work
in the laboratory and will shortly be reclassified as a chemist. The
Machinists wishes him to be included in the production. and main-
tenance unit until such time as his classification is formally altered;
the Chemical Workers agrees. The C. I. O. desires his exclusion, while
the Company takes no position on this matter. Inasmuch as this
employee is now performing the work of a chemist, and will be accorded
a classification as such in the immediate future, we shall exclude him
from the production and maintenance unit.
We shall direct that separate elections by secret ballot be held among
the employees in each of the voting groups described below 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.
1. All electrical maintenance workers at the Company's refinery,
excluding the electrical superintendent and all 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 Electrical Workers, Local Union 643,
A. F. of L.; by International Union of Mine, Mill and Smelter
Workers, C. I. 0.; by International Association of Machinists, Local
Lodge Number 1124; by International Chemical Workers Union,
A. F. of L., Local Number 167,8 for the purposes of collective bargain-
ing, or by none of these organizations.
° See Matter of The American Hardware Corporation, 61 N. L. R. B. 1242 ; cf. Matter of
Phelps Dodge Corporation, United Verde Branch, 56 N. L. It. B 1560
7 The agreement was reached because of a W. L. B. ruling that this worker's pay be cut,
or that he be excluded from the scope of the bargaining unit.
S Since the Chemical Workers stated at the hearing that it had no objection to the estab-
lishment of the separate unit requested by the Electrical Workers but did not indicate
UNITED STATES POTASH COMPANY (N. S. L.) 1385
2. All remaining production and maintenance employees at the
Company's refinery, including the clean-up boss, unloading bosses,
warehousemen, and watchmen, but excluding professional, adminis-
trative and managerial service employees, office and clerical workers,
chemists,9 engineers, surveyors, guards, chief electricians, laboratory
chiefs, master mechanic, foremen, and all other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action.
As previously indicated, we shall make no final determination at
this time with respect to the appropriate unit or units, pending the
outcome of these elections.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National
Labor Relations Board Rules and Regulations-Series 3, as
amended, it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with United
States Potash Company (N. S. L.), 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 Sixteenth Region, acting in this
matter as agent for the National Labor Relations Board, and sub-
ject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the following groups of employees of the Company,
who were employed during the pay-roll period immediately preceding
the date of this Direction, including employees who did not work
during 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 any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of the elections :
1. All electrical maintenance workers at the Company's refinery,
excluding the electrical superintendent and all supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
whether it desired to participate in any separate elections which the Board might order,
we shall permit the Chemical workers to participate in both of the elections which we
hereby direct. Should the Chemical workers wish to withdraw from the election directed
for electrical maintenance employees , it may do so by notifying the Regional Director of
its desire within five ( 5) days from the date of this Direction.
Arthur Dunagan shall be deemed to fall within this category.
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommend such action, to determine whether they desire to be
represented by International Brotherhood of Electrical Workers,
Local Union 643, A. F. of L.; by International Union of Mine,•Mill
and Smelter Workers, C. I. 0..' by International Association of
Machinists, Local Lodge Number 1124; by Inernational Chemical
Workers Union, A. F. of L., Local Number 167, for the purposes of
collective bargaining, or by none of these organizations;
2. All remaining production and maintenance employees at the
Company's refinery, including the clean-up boss, unloading bosses,
warehousemen, and watchmen, but excluding professional, adminis-
trative and managerial service employees, office and clerical workers,
chemists, engineers, surveyors, guards, chief electricians, laboratory
chiefs, master mechanic, foremen, and all other supervisory em-
ployees 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 rep-
resented by International Union of Mine, Mill and Smelter Workers,
'C. I. 0.; by International Association of Machinists, Local Lodge
Number 1124; by International Chemical Workers Union, A. F. of L.,
Local Number 167, for the purposes of collective bargaining, or by
none of these organizations.
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