Ethyl Corp.

National Labor Relations Board - Board Decisions

May 10, 1946

67 N.L.R.B. 1324 (N.L.R.B. 1946)

In the Matter of ETHYL CORPORATION and INTERNATIONAL CHEMICAL
WORKERS UNION, AFL
Case No. 15-R-1501.-Decided May 10, 1946
Messrs. M. E. Pettegrew and C. V. Porter, of North Baton Rouge,
La., for the Company.
Messrs. Jack Hague and Frank Lantrip, of Baton Rouge, La., and
Mr. E. R. Moffett, of Houston, Tex., for the Union.
Miss Helen Hart, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by International Chemical
Workers Union, AFL, herein called the Union, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Ethyl Corporation, Baton Rouge, Louisiana, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Lewis Moore, Trial Ex-
aminer. The hearing was held at Baton Rouge, Louisiana, on Febru-
ary 18,1946. The Company and the Union appeared and participated.
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 hearing, the Company made two separate motions to
dismiss the petition. The Trial Examiner referred these motions to
the Board. For reasons set forth in Sections III and IV, infra, the
motions are denied. The Trial Examiner's rulings made at the hear-
ing 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
Ethyl Corporation, a Delaware corporation, is engaged in the manu-
facture of general chemical products at two plants located respectively
at Baton Rouge, Louisiana, and Deep Water, New Jersey. The Baton
67 N. L. R. B., No. 176
1324
ETHYL CORPORATION 1325
Rouge plant is the only one involved in this proceeding and it produces
sodium, chlorine, and tetraethyl lead. During the 5-month period
prior to the hearing, the Company purchased raw materials for the
Baton Rouge plant valued in excess of $2,000,000, of which about 80
percent was shipped to this plant from points outside the State of
Louisiana. During the same period, the total production of this plant
exceeded $4,000,000, of which approximately 60 percent was trans-
ported to points outside the State of Louisiana.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Chemical Workers Union is a labor organization,
affiliated with the American Federation of Labor, admitting super-
visory employees of the Company to membership.'
0
III. THE QUESTION CONCERNING REPRESENTATION
On October 11, 1945, the Union filed its amended petition in the
instant proceeding without first requesting recognition from the Com-
pany as the exclusive bargaining agent of the employees it now seeks
to represent.' However, the Company stated at the hearing that it
would not recognize the Union as the representative of its supervisory
employees; therefore, it is immaterial whether or not the question of
representation actually arose prior to the hearings
The Company contends that the supervisory personnel, which the
Union alleges constitutes an appropriate unit, are not "employees"
within the meaning of the Act, but have "employer" or managerial
status. On several previous occasions, the Board has found foremen
and comparable supervisors to be "employees" within the Act's defini-
tion.4 The courts have concurred with the Board in this holding,5
and have agreed that foremen have a dual aspect under the definitions
of "employer" and "employee" established in the Act. A foreman is
' The Union stated at the hearing that, if the Board directs an election and the Union
Is found to represent a majority of employees in the unit, it will charter an affiliated local
authorized to represent foremen or supervisory employees only.
2 The Company admitted in its brief that the Union, by a letter dated March 30, 1945,
had sought recognition of E I. du Pont de Nemours and Company, the corporation which
had owned the sodium and tetraethyl lead divisions prior to September 15, 1945. The
Company has assumed both du Pont contracts executed with District 50, United Mine
Workers of America which represents the rank and file employees in the tetraethyl lead
and sodium divisions, and, under a separate contract, the plant protection employees ; it
also assumed the contract of the Cooperative Bargaining Agency of Baton Rouge, which
represents the rank and file employees in the ethyl chloride division.
$ See Matter of Houston Blow Pipe and Sheet Metal Works, 53 N. L. It. B. 184.
4Matter of Boss Manufacturing Company, et at, 56 N. L R. B. 348, and Matter of
Packard Motor Car Company, 61 N L. R B. 4
6N. L. R B v. Armour and Company, 154 F (2d) 570 (C. C. A. 10), November 5,
1945, and N. L. R B. v Skinner and Kennedy Stationery Company, 113 F. (2d) 667
(C. C. A. 8).
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an "employer" when he acts in the interest of his employer, but he is
an "employee" when he acts in his own interest, as when he seeks to
improve the terms and conditions of his employment. Accordingly,
the supervisors herein considered are employees within the meaning
of Section 2 (3) of the Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found to be appropriate .6
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.
IV. THE APPROPRIATE UNIT
The Union alleges that a unit of all foremen in the Manufacturing
Department of the Company's Baton Rouge plant is appropriate.
Specifically, it seeks to represent all foremen in the engineering and
maintenance section, excluding the general foreman and the assistant
general foremen; all shift, unit, and labor foremen in the operations
section, excluding work leaders and operators; and the laundry fore-
man, patrol foreman, and shift patrol foremen in the industrial rela-
tions section. The Company takes no position regarding the inclusion
or exclusion of any specific categories, but opposes, in toto, the estab-
lishment of any supervisory unit. The Company argues, in support of
one of its motions to dismiss, that no bargaining unit is appropriate for
foremen; in addition, it contends that the Union involved in this pro-
ceeding, in particular, cannot constitute a proper bargaining agent,
because it is not independent of the bargaining agent which represents
d The Field Examiner reported that the Union submitted 81 authorization cards bearing
the names of 73 employees listed on the Company's pay roll of October 15, 1945 , that the
cards were dated March 1945 ; and that there were approximately 129 employees in the
alleged appropriate unit.
The Company contends, in support of one of its motions to dismiss, that the cards
submitted by the Union, which were dated March 1945, should not be used as a basis for
determining whether a petitioner s showing is sufficient to warrant an election, inasmuch
as the cards are out of date, and the signets were employees of du Pont rather than the
Company at the time of signing The Company further argues that the Union admitted at
the hearing that only supervisors in the sodium and tetraethyl lead divisions of the Com-
pany (which were formerly owned by E I du Pont de Neinours and Company) had signed
application cards, and that none of the cards bore the signatures of supervisors working
in the ethyl chloride division of the Company However, 73 of the employees who signed
cards in March 1945, are listed on the Company's pay roll of October 1945, which was com-
piled subsequent to the purchase of the 2 divisions formerly owned by the du Pont cor-
poration; therefore, these employees are now part of the Company's personnel We cannot
find merit in the claim that the cards do not show sufficient interest in the petitioning
union merely because there has been a change in ownership of the employer since their
execution . Furthermore , we have repeatedly held that the requirement of showing is
merely an administrative expedient adopted to enable us to determine generally whether or
not further steps in a representation proceeding are justified . This device is used by us
to approximate , not to ascertain precisely , the petitioning union's representation See
Matter of La Follette Shirt Company , 65 N. L. R. B. 952 , and Matter of Buffalo Arms
Corporation, 57 N. L. R. B. 1560.
ETHYL CORPORATION 1327
the subordinates of these foremen.7 The Company also implies that
the foremen in its Baton Rouge plant have duties and responsibilities
that place them in the position of "managerial" employees.
In a number of decisions," we have stated that the Act was intended
to encourage collective bargaining as a means of settling labor dis-
putes, whether such disputes involved foremen or other employees,
and that our power extends only to "grouping" supervisory employees
in appropriate units. Therefore, we find no merit in the Company's
position that any unit of supervisors is inappropriate.
As to the Company's second contention, a majority of the Board
recently on several occasions has refused to dismiss a petition for a
supervisors' unit filed by an affiliate of the same labor organization
which represented the same company's rank and file employees.9 A
majority of the Board" stated that the Board had no power under
the tact to limit the choice by foremen of a collective bargaining
agent to an independent, unaffiliated foremen's labor organization,
because the Act guarantees to all employees, including supervisory
employees, the right to bargain collectively "through representatives
of their own choosing, not of our choosing".,' By the same logic, we
could not refuse to entertain the petition filed in the instant proceed-
ing by an autonomous international, affiliated with the American
Federation of Labor, merely because the union representing the Com-
pany's non-supervisory employees in certain of its divisions (Dis-
trict 50, U. M. W.) is also affiliated with the American Federation
c,f Labor. We regard as salutary the expressed intention of the
Union to establish a local, authorized by its charter to represent
supervisory personnel exclusively, in the event that the Board finds a
separate unit of these employees to be appropriate.
The employees whom the Union now seeks to represent are dis-
tributed throughout three of the nine major sections of the Com-
pany's Baton Rouge plant. These three sections which are part of
the Manufacturing Department are: (1) engineering and mainte-
nance; (2) operations; and (3) industrial relations. The remaining
six sections of the Company are devoted to highly technical and/or
clerical operations and there are no employees classified as foremen
in those sections. The unit sought is basically one of production
P As stated in ftn . 2, supra, District 50, United Mine Workers of America, also affiliated
with the A. F. L., represents the rank and file employees in the tetraethyl lead and sodium
division
8 Matter of L. A Young Spring it Wire Corporation, 65 N. L. R B. 298 ; Matter of The
B F. Goodrich Company, 65 N. L. it. B. 294; and Matter of Simmons Company, 65
N. L. R. B. 984.
, Matter of Jones it Laughlin Steel Corporation , Vesta-Shannopin Coal Division, 66
N. L. R B. 386, Matter of California Packing Corporation , 66 N L . it. B. 1461 , and
Matter of Virginia Electric and Power Company, 66 N. L. it. B. 271.
io Messrs Herzog and Houston
" Matter of Jones it Laughlin Steel Corporation, supra
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance foremen. The shift patrol foremen and the patrol
foreman in the industrial relations section, although not precisely
production and maintenance supervisors, are concerned with the
maintenance of the Company's property through prevention of
theft; 12 thus their interests are related to those of other employees
in the unit Y3 We cannot agree with the Company's assertion that
its foremen are "managerial" employees. They have stated that
"executive employees who are in a position to formulate, determine,
and effectuate management policies" may be considered "managerial
employees." 14 We find that the foremen involved in this proceeding,
like the supervisors in the Jones do Laughlin case, are not involved in
formulating or determining company policy.
Accordingly, we find that all foremen in the engineering and main-
tenance section of the Company's Baton Rouge plant, excluding the
general foreman, and the assistant general foremen; all shift, unit
and labor foremen in the operations section, excluding work leaders
and operators; and the laundry foreman, patrol foreman, and shift
patrol foremen in the industrial relations section; and excluding all
other supervisory personnel not specifically classified as foremen, con-
stitute 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
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 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 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,
>' The plant-protection employees , including the shift patrol foremen and patrol foremen,
wear uniforms and are deputized by the Sheriff of East Baton Rouge Parish , but they are
not militarized nor armed
18 See Matter of Wilson & Company, Inc , 66 N. L . It. B. 1375.
14 Matter of Ford Motor Company (Chicago Branch), 66 N. L It. B. 1317.
15 As heretofore stated, we regard as saluting the expressed intention of the Union to
establish a local for the supervisory employees involved herein, if the Board should find a
separate unit of these employees to be appropriate. If the Union should effect such a
change in organization within the near future and so notify the Regional Director in timely
fashion, he is authorized to change the designation of the Union on the ballot in accordance
therewith.
ETHYL CORPORATION 1329
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Ethyl Corporation,
Baton Rouge, Louisiana, an election by secret ballot shall be con-
ducted 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 Fifteenth 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 em-
ployees 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 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 reinstated prior to the date of the election,
to determine whether or not they desire to be represented by Inter-
national Chemical Workers Union, AFL, for the purposes of collective
bargaining.
MR. GERARD D. REILLY, dissenting :
I am constrained to disagree with the result in this case for the
reasons set forth in my dissent in the Matter of Packard Motor Car
Company, 61 N. L. R. B. 4, as well as the additional reasons set forth
in my dissenting opinion in Matter of Jones cC Laughlin Steel Cor-
poration, Vesta-Shannopin Coal Division, 66 N. L. R. B. 386.
(92148-46-vol 67-85