Victor Chemical Works

National Labor Relations Board - Board Decisions

Aug 26, 1943

52 N.L.R.B. 194 (N.L.R.B. 1943)

In the Matter Of VICTOR CHEMICAL WORKS and UNITED CONSTRUCTION
WORKERS , DIVISION OF DISTRICT 50, U. M. W. A.
Case No. R-5791.-Decided August 26, 1943
Pope & Ballard, by Mr. B. B. Vedder, of Chicago, Ill., for the
Company.
Mr. Roy M. Peck, of Hammond, Ind., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION-OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Construction Workers, Division
of District 50, U. M. W. A., herein called the Union, alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Victor Chemical Works, Chicago Heights, Illi-
nois, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Robert
T. Drake, Trial Examiner. Said hearing was held on July 26, 30,
and August 2, 1943, at Chicago Heights, Illinois, and on August 3,
1943, at Chicago, Illinois. The Company and the Union appeared,
participated, and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bear-
ing 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 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
Victor Chemical Works has its principal office at Chicago, Illinois,
and operates, plants at Chicago Heights, Illinois, and at Nashville
and Mt. Pleasant, Tennessee. The Chicago Heights plant is the only
52 N L. R. B, No. 30.
194
VICTOR CHEMJiCAL WORKS 195
plant directly involved in this proceeding. The Company is engaged
in the manufacture of phosphoric acids, phosphates, and oxalic and
formic acids. The Company sells and distributes its products and
other chemical compounds. The Company uses raw materials consist-
ing,of phosphorus, coal , lime, and caustic. During 1942, the Com-
pany purchased for use at its Chicago Heights plant raw materials
valued in excess of $100,000, of which more than 50 percent by value
was purchased and shipped to the plant from points outside Illinois.
During the same period the Company, manufactured products at
this plant valued in excess of $100,000, of which more than 50 percent
by value was shipped to points outside Illinois. In 1942, the Com-
pany's sales from its plants exceeded $12,000,000.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
United Construction Workers, Division of District 50, U. M. W. A.,
is an unaffiliated labor organization, admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On January 8, 1943, the Union asked the Company for recogni-
tion as exclusive bargaining representative of employees at the Chi-
cago Heights plant. On January 12 the Company suggested that
the matter be referred to the Board, and thereafter the Union filed
a petition for investigation and certification of the Company's em-
ployees. On January 25 the Company and the Union entered into
an agreement for a consent election among employees in a unit which
the parties agreed was appropriate for the purposes of collective
bargaining, and on February 11 and 12 the Regional Director con-
ducted the election. The Union received a minority of votes cast
and thereafter filed objections to the conduct of the election. The
Regional Director sustained the Union's objections and voided the
results of the election.
Under the terms of the consent election agreement, the Regional
Director was empowered to conduct at his discretion, a new election
at a time, date, and place to be determined by him. The Regional
Director did not order a new election held. The Company contends
that under these circumstances the Board should not entertain the
petition filed herein. We find no merit in this contention. On March
23 the Union filed charges, alleging that the Company had engaged
in unfair labor practices in violation of the Act. On March 24 the
Union filed the instant petition., The Union and the Company dis-
i On the same day the Union filed a waiver to protest any election held as a result of
the instant petition on the ground set forth in its charges filed against the Company.
549875-44-vol. 52-14
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agree with respect to the inclusion of certain employees in the bar-
gaining unit. The Union seeks a resolution of this issue by the Board.
Under these circumstances, we find that the consent election agree-
ment and the election held pursuant thereo do not constitute a bar
to an immediate investigation-and determination of representatives,
pursuant to the petition filed herein.2
A statement prepared by the Regional Director and introduced into
evidence at the hearing and a revised statement prepared by the Trial
Examiner and read into the record at the hearing indicate that the
Union represents a substantial number of employees in the unit herein
found appropriate.3
We find that a question has arisen concerning the representation of
employees of the Company, within the meaning of Secion 9 (c) and
Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Company and the Union agree that hourly paid production
and maintenance employees of the Company at the Chicago Heights
plant, including hourly paid employees in the laboratories, janitors,
cooks, and truck drivers' helpers,4 but excluding salaried employees,
superintendents, foremen, office and clerical employees, employees in
the engineering department, and plant guards, should be included in
the bargaining unit. The Company and the Union disagree with
respect to the inclusion in the unit of truck drivers, assistant foremen,
working foremen, and key men.5 The Union would exclude truck
drivers, assistant foremen, and working foremen from the unit. The
Company would include them. The Union would exclude' certain
key men from the bargaining unit. The Company contends that all
key men should be included in the unit or that key men, as a class, -
should be excluded from the unit.
The Company's operations at its Chicago Heights plant are di-
vided into two main divisions, the production, maintenance, and
service departments and the laboratories. The first named division
2 Cf Matter of United Carbon Company , Inc , 7 N L R B 598
'3 The Union submitted 317 authorization cards, all of which bear apparently genuine
signatures Of these cards, 230 bear the names of employees on the pay roll of March 28,
1943, which listed 621 employees within the bargaining unit proposed by the Union. Of
these 230 cards, 19 are undated , 3 are dated in January , 3 in March , 1 in July , 1 in August,
8 in October , 111 in November , and 67 on December 1942; and 15 were dated in January
and 2 in February 1943
During the course of the hearing , the Trial Examiner checked the cards submitted by the
Union against the pay roll of July 18 , 1943, and found that 196 cards submitted by the
union bore names of employees on the pay roll of July 18, 1943, which listed 620 employees
in the unit proposed by the Union
There are approximately 650 employees in the appropriate bargaining unit
4 Truck drivers ' helpers are yard employees who load and unload trucks,
5 Employees in these disputed categories were included in the unit in the consent election
agreement , noted above.
VICTOR CHEMICAL WORKS 197
is under the general supervision of a plant superintendent. - The
production department is divided into four, administrative units,
Plants A, B, C, and the Shipping Department, each of which has
an administrative head. The maintenance or mechanical depart-
ment is under a mechanical superintendent. It includes the pipe,
carpenter, electric, machinery, and lead shops, wherein skilled work-
ers and helpers perform the craft work which the shop names re-
spectively indicate, a power plant, a truck department, and a yard
department. The lead shop includes one lead burner and two
helpers; all other shops include a foreman, craftsmen, and helpers.
A foreman is in charge of the yard; the power plant in charge of
a chief engineer. The service department includes the stores, the
engineering department, and the offices. The laboratories are under
the supervision of the chief chemist and his assistants. The great
majority of employees in the laboratories are non-professional em-
ployees who have routine duties under trained supervision. In the
several departments, shops, and subdivisions of the Company's plant
are foremen, assistant and working foremen, and certain responsible
and skilled employees called key men.
Truck drivers: The Union would exclude the three truck drivers
from the bargaining unit. The Company would include them.
Truck drivers are not restricted to activities within the Company's
plant or yard. They constitute a fringe group. The Union does
not wish to represent any of them. Under these circumstances, we
shall exclude them from the bargaining units
Assistant foremen: The Company lists seven employees as assistant
foremen. Three of them, Irvin Umland, L. Schellenberg, and Elwyn
Duncan, are assistant foremen on different shifts in Plant C, one of
the three production units of the Company's operations. An assist-
ant superintendent of the plant is in charge of, Plant C. Four sal-
aried foremen serve under him. Assistant foremen spend about 50
percent of their time actively working and the remainder of their
time directing 7 or 8 employees. These' employees are operators of
power-driven machines. In Plant C there are in all 94 production
employees. Milton Weber is assistant foreman in the yard and
spends about 50 percent of his time working and the remainder of
his time directing gangs, of 4 or more men in general yard work.
There are approximately 55 yard employees under the direction of
the yard foreman and Weber. Ross Smith works in the Aluminum
Formate Department and has two regular helpers. He assists in
training new employees and keeps records. Leslie Nelson, in charge
'The record is not entirely clear as to the relative status of three truck drivers, one of
whom the Company calls a key man, and the Union a foreman Since we are excluding
truck drivers from the bargaining unit, it is immaterial that we make any further determina-
tion with respect to the relative status of the three truck drivers.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Drying Department, has 3 or 4 regular assistants. He re-
ports production to the Oxalic Department and keeps time records
so that proper charges may be made to customers and proper credit
for time worked may be awarded to employees. The Union contends
that Smith and Nelson are properly classed as "key men," a category
more particularly discussed below. Both Smith and Nelson have
some prestige among employees in the plant. The Company classes
them as assistant foremen, and we shall so consider them. Foremen
are salaried employees. Assistant foremen are hourly paid and enjoy
the vacation and other privileges of hourly paid production and
maintenance workers. They do not have the authority to hire or
discharge employees under their supervision. They may recommend
discharge. According to the Company, all employees have the priv-
ilege of recommending discharge. The Company admits that the
weight given to such recommendations depends upon the employment
status of the recommending employee. Since the name "assistant
foreman" connotes a superior rank among production workers and
since it appears that these 4 employees have a substantially higher
rank than employees with whom they work, we shall exclude all
assistant foremen from the bargaining unit.
' Clifford Trenary spends approximately 90 percent of his time in
first-aid work for injured employees. During the remainder of his
time he assists the assistant personnel manager in hiring employees
and in general utility work for the Personnel Department. He enjoys
a unique position at the plant.. The Union would exclude him from
the unit. The Company lists Trenary as assistant foreman. Trenary's
work clearly distinguishes him from other employees bearing this title.
We believe that he should be excluded from the unit. Since Trenary
spends the greater part of his time `as first-aid man, we shall exclude
him as such from the bargaining unit.
Working foremen: The Company employs 2 working foremen,
Ralph DeBolt and Kenneth Sawyer, both in Plant B, a production
unit of the Company's operations. Plant B is in charge of an assistant
superintendent, and 5 foremen work on shifts as his assistants. Sawyer
and DeBolt work on different shifts, and have equal authority and re-
sponsibilities. There are approximately 131 production employees in
Plant B. Sawyer and DeBolt spend an appreciable part of their time
in production work and each directs the work of approximately 12
machine operators. They are hourly paid employees. Working fore-
men have no authority to hire or discharge employees under them.
They may recommend discharge. Their status is 'clearly superior to
employees to whom they convey orders and whose work they direct.
Since the Company designates DeBolt and Sawyer as working foremen
and their title connotes supervisory rank among employees with whom
they work, we shall exclude them from the bargaining unit.
VICTOR CHEMICAL WORKS 199
Key, Men: Key men are experienced employees who work in the
several production and maintenance departments, shops, and labora-
tories of the Company's plant. They are hourly paid employees. They
are capable of training new employees in operating the machines used
in the several production processes. Some key men operate machines;
others do not. The operation of machines is effected by pressing a
switch or adjusting a valve. Less experienced employees are directed
to rely on the judgment of key men in decisions relatiig to the treat-
ment of the product in their machines. Key men relieve operators for
short periods, they make minor adjustments on machines,, and they
observe the product. Key men spend 60 to 90 percent of their time
in some type of manual production work. They spend the remaining
part of their time in instructing or directing one to six helpers, or less
experienced workers.
The Company lists 187 employees as key men. Of these, the Union
would exclude 23 from the bargaining unit and would include the
remaining employees. The Company contends that all key men should
be included in the unit as production employees and further contends
that, if the Board excludes any key men from the unit, all such em-
ployee should be excluded as a class. We do not agree with the Com-
pany's contention that the classification of employees on its pay roll
is necessarily indicative or controlling of the status of employees whose
inclusion in the unit may be in dispute. We consider the ranking of
an employee by the Company a factor, but not a decisive one, in de-
termining his relative status in the plant.
So far as the record in the instant case discloses, the relationship be-
tween key men and employees with whom they work is the relation
between a skilled worker and his helpers or between an instructor and
an inexperienced employee, whom he may be teaching. So far as the
record discloses, a key man does not make recommendations concerning
the discipline of employees under him in any other way than a skilled
-craftsman recommends disciplinary action for an insubordinate helper
assigned to work with him. The Union has extended its organiza-
tional efforts among key men of the Company. Its authorization cards
indicate that it includes as members employees in the group which it
would include and employees in the group which it would exclude from
the unit. Since all key men are production and maintenance em-
ployees,-they are as such within the classifications whom the parties
agree,to include. For these reasons, we shall make no finding with
respect to key men as a separate employment category. We shall ex-
clude from the unit "supervisory" employees, defining this term accord-
ing to our practice as employees who have authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action. In adopting this
formula, we do not intend to designate as "supervisory" experienced
employees who, as such, may effectively report insubordinate helpers
to his foreman for discipline.
200 DECISIONS OF NAT'IONTAL LABOR RELATIONS BOARD
We find that all hourly paid production and maintenance employees
of the Company at the Chicago Heights plant, including hourly paid
employees in the'laboratories, janitors, cooks, and truck drivers' help-
ers, but excluding office and clerical employees, employees of the en-
gineering department, plant guards, the first-aid men, truck drivers, all
salaried employees, superintendents, foremen, assistant foremen, work-
ing foremen, and all other supervisory employees who have authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, consti-
tute a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
of the Company in the unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of the Direction of Election herein, subject to the limitations
and additions set forth in the Direction.
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Victor Chemical
Works, Chicago Heights, Illinois, 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, under the direction and supervision
of the Regional Director for the Thirteenth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules and Regulations, among the
employees in the unit found appropriate in Section IV, above, 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 orlon 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
employees who have since quit or been discharged for cause, to deter-
mine whether or not they desire to be represented by United Construc-
tion Workers, Division of District 50, U. M. W. A., for the purposes of
collective bargaining.
CHAIRMAN MILLIs took no part in the consideration of the above
Decision and Direction of Election.
f