Mallinckrodt Chemical Works

National Labor Relations Board - Board Decisions

Dec 28, 1966

162 N.L.R.B. 387 (N.L.R.B. 1966)

MALLINCKRODT CHEMICAL WORKS 387
Mallinckrodt Chemical Works, Uranium Division and Interna-
tional Brotherhood of Electrical Workers, Local -1, AFL-
CIO, Petitioner . Case 11-RC-4564. December 28, 1966
DECISION AND ORDER
On July 1, 1963, the Regional Director for Region 14 issued a
Decision and Direction of Election in the above-entitled proceeding.'
In accordance with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended, the Employer
filed a timely request for review of the Regional Director's Decision,
which was considered together with a statement in opposition filed
by the Petitioner. Thereafter, on September 19, 1963, the National
Labor Relations Board granted review, stayed the election, and
remanded the proceedings for the purpose of taking evidence on all
issues, including the craft status of the requested employees, the tra-
ditional representative status of the Petitioner, and the degree of
integration of the Employer's operations.2 Subsequently, a hearing
was held before a duly designated Hearing Officer, whose rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. After the hearing was closed, the parties timely filed briefs
in support of their respective positions.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act, as amended, and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. No question affecting commerce exists concerning the represen-
tation of certain employees of the Employer within the meaning of
Sections 9(c) (1) and 2(6) and (7) of the Act for the following
reasons:
Petitioner seeks a unit composed of: All instrument mechanics,
their apprentices and helpers in the Employer's instrument depart-
ment at the Weldon Spring, Missouri, location. Although the Peti-
tioner has asserted at the hearing and in its brief that it seeks sev-
erance of the instrument mechanics as a "functionally distinct and
homogeneous traditional departmental group" and not as a craft-
' The Independent Union of Atomic workers' motion for intervention, based upon its
then current contract with the Employer for the production and maintenance employees,
was granted without objection by the Hearing Officer in the initial hearing directed by the
Regional Director.
20n October 11, 1963 , the Petitioner moved for reconsideration , asserting it sought a
departmental unit as opposed to a craft unit. The motion was denied on October 17, 1963.
162 NLRB No. 48.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a contention upon which it based its motion for reconsideration of
the Board 's order granting review-it has also, on the record and in
its brief , asserted its willingness to "go along with any other unit
that the Board may determine to be appropriate."
The Employer 's Operations
The Employer is engaged at Weldon Spring in the purification of
uranium ore and the manufacture of uranium metal under a cost
plus fixed fee contract with the Atomic Energy Commission. It is
the single facility contracting with AEC whose production process
fully embraces the step-by-step extraction of uranium from its adul-
terated ores and converting it into a finished product in the form of
solid metals , ultimately to be used by AEC and the Department of
Defense.
The Employer's uranium division occupies a 200-acre tract consisting
of between 40 and 50 buildings, staffed by about 560 employees. Of
these, fully half are guards, supervisors , professional , technical, and
clerical employees . The remaining production and maintenance unit
is comprised of 130 production operators and approximately 150
maintenance employees of which 12 are instrument mechanics, the
classification which Petitioner seeks to sever . At the remand hearing,
the Employer established that its production process is highly com-
plex and that its capital equipment required an expenditure upward
of $25 million . Ina great part of the Employer's operation, which
is continuous , the product progresses through a closed-pipe system.
Most waste and scrap materials are recirculated through the system,
ultimately to be consumed in the fabrication of uranium in designated
shapes. No other end product is produced, and no intermediate prod-
ucts are stored or merchandised. Yet, it is possible to, and the plant
does, shut down on weekends and holidays. When the process is re-
commenced after a planned shutdown, there is some loss in product
integrity until such time as the proper balance is achieved among the
several systems. An unplanned shutdown necessitated by an opera-
tional failure could result in several days' production loss. Not sur-
prisingly, many of the processes involve the handling of highly
volatile, explosive , and inflammable materials, at which times special
precautions must be taken.
A great part of the Employer's production process is instrumen-
tally controlled by electrical , mechanical , thermostatic, and pneumatic
devices . Thus, for example, raw materials are channeled through the
system by means of electrical or mechanical limit switches. The
temperature of ovens and closed pipes is controlled by valves and
other regulators. In the process of extracting the pure uranium, flow,
temperature , density , interphase control, and level control are all
MALLINCKRODT CHEMICAL WORKS 389
regulated by instruments, mostly pneumatic, situated on a control
panel. In the evaporation process , the triple effect evaporator, which
operates continuously, is also regulated by means of a console. At the
hydrofluorination stage, a panel board is utilized to control and regu-
late temperature, flow of hydrofluoric acid and hydrogen, the feed
rate of uranium trioxide, and the rotational speed of screw reactors.
It was also testified that any manual operation presently utilized is
being replaced so that eventually the entire process will be instru-
mentally controlled.
Coordination of the Instrument Mechanics
in the Production Process
It is the principal function of the instrument mechanic to make
adjustments and alterations on improperly operating instruments so
that the production process may continue unimpeded. Close to three-
fourths of the repairs performed by the instrument mechanics occur
at the place of the breakdown, that is, on the production line. While
the job requirements of operator and instrument mechanic are clearly
defined and do not overlap, the operator is required to work with and
does assist the mechanic in order to permit a speedy repair and the
continuation of production. It is also necessary that the activities
between the two be coordinated so that the operator may read the
panel and relay the reading to the instrument mechanic. The operator
also manually operates the instrument in order to see that it is
functioning properly. We conclude from the foregoing, that the
instrument mechanics role in the Employer's production process is
uniquely and integrally a part upon which the production flow is
dependent.
Instrument Mechanics as Craftsmen
The instrument shop is set apart physically from other depart-
ments at Weldon Spring. In charge of the 12 instrument mechanics
is a foreman who reports directly to the superintendent of the instru-
ment department. The superintendent in turn is responsible to the
department manager. The instrument mechanic is identified by the
blue hat which he must wear.
Instrument mechanics are classified as Trainee , Class B, A, and
Special. Progression is by merit and does not occur automatically. In
hiring instrument mechanics, the Employer seeks experienced
mechanics so that hiring does not normally occur at the trainee or
lowest level. The top graded instrument mechanic is responsible for
the evaluation, installation, modification, calibration, maintenance,
and dismantling of electronic, electrical pneumatic, mechanical, and
hydraulic instruments. His work may be performed on temperature
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
controllers, scales, pressure relief valves, gas valves, transducers,
Foxboro pneumatic equipment, dust detectors, alarm systems, level
controls, vacuum gauges, pressure gauges, monometers, test equip-
ment, vacuum tube voltmeters, and electrometers. Instrument
mechanics do only the work described above and begin their day by
reporting to their own shop where they receive assignments from
their foreman. At the end of their workday they return to the instru-
ment shop. Most of the instrument mechanics spend between 50 and
60 percent of their working day away from the instrument shop, and
some of them are gone as much as 80 or 90 percent of the time. The
instrument mechanic has his own equipment which includes the fol-
lowing : Wheatstone bridge, tube testers, perometers, potentiometers,
frequency meters, resistance boxes, vacuum pumps, temperature
baths, and draft gauges. Although there is no special apprenticeship
program for instrument mechanics, the record shows that the
Employer, when hiring instrument mechanics, seeks men with several
years of industrial instrumentation background. When hired, the
instrument mechanic is placed in one of the four classifications main-
tained by the Employer for instrumentation and, based on merit
ratings, he progresses into higher rated classifications in accordance
with his skill and experience. Only a top merit rated mechanic moves
into the special classification. Normally it takes from 31/2 to 4 years
to advance from the lowest to the highest classification. At the time
of the hearing, all of the instrument mechanics involved were either
in the A or the special classification.
It is clear from the foregoing that the instrument mechanics are
skilled workmen who work under separate supervision, and we find
that the instrument mechanics constitute an identifiable group of
skilled employees similar to groups we have previously found to be
journeymen or craft instrument mechanics.,
Whether Petitioner Qualifies as a Traditional
Representative of Instrument Mechanics
As indicated above, this case was remanded in part for the taking
of evidence on whether Petitioner qualifies as the traditional repre-
sentative of skilled instrument mechanics. The record discloses that
although Petitioner did not as of the time of the hearing represent
any instrument mechanics in separate craft units, it did number,
among its members, employees performing duties similar to those
regularly assigned to the instrument mechanics in this case. Peti-
tioner is also a party to collective-bargaining agreements which
8 Union Carbide Corporation Chemicals Division , 156 NLRB 634; Marinette Paper Com-
pany, 127 NLRB 1319; Rayonier, Inc., 110 NLRB 1191 ; Jefferson Chemical Company, 98
NLRB 805.
MALLINCKRODT CHEMICAL WORKS 391
assign the exclusive performance of instrumentation work to employ-
ees classified as electricians. Petitioner is a party to one collective-
bargaining agreement which provides for the maintenance of an
apprenticeship program for training electricians in certain functions
which, in this case, are performed by the Employer's instrument
mechanics. Twelve members of Petitioner have taken courses in
instrumentation work presented at a St. Louis high school; the
course, however, was not confined solely to instruction in all the
various types of instrument work, but appears to have placed pri-
mary emphasis on work of the electrician craft. In addition to the
foregoing, Petitioner relies upon the fact that its parent organization,
International Brotherhood of Electrical Workers, AFL-CIO, has
often participated in proceedings and has been granted representa-
tion rights for separate units of instrument mechanics.
The foregoing, in our view, falls short of establishing that Peti-
tioner qualifies as a traditional representative of instrument
mechanics of the kind involved in this case. However, for reasons
stated below, we do not now view the Petitioner's failure to satisfy
the traditional representative test as it has developed since the
American Potash decision as in itself a decisive ground for dismissal.
Reconsideration of the American Potash Doctrine
Petitioner, relying on its showing that the instrument mechanics
are craftsmen and on its claim that it qualifies as a traditional repre-
sentative of such craftsmen, contends it has met the requirements
set forth in the American Potash decision 4 for obtaining a craft
severance election. On the other hand, the Employer, though not
receding from its contention that the instrument mechanics are not
true craftsmen and that the Petitioner is not, in any event, the tradi-
tional representative of such mechanics, argues that the American
Potash decision improperly makes the question of severance turn
solely on affirmative findings with respect to the above issues, ignor-
ing many other relevant and weighty considerations. In this latter
respect, the Employer places particular emphasis on the fact that the
American Potash decision precludes, for all practical purposes, con-
sideration of the duration and character of the representation which
craft employees have received while being represented in a more inclu-
sive unit, and completely rules out any consideration of the effect that
integration of the functions of the craft employees involved in the
proceeding with the overall production processes of the employer
may have on the Board's unit determination. With respect to both
points, the Employer urges that to the extent the American Potash
4 American Potash ,& Chemical Corporation, 107 NLRB 1418.
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision forbids realistic consideration of bargaining history and inte-
gration of the craft employees' functions in the production process
unless the case involves one of the so-called National Tube industries,5
it is plainly discriminatory in application and requires reversal.
We believe there is much force to the Employer's arguments and
contentions, and we have undertaken in this and other cases a review
of our present policies regarding severance elections.
At the outset, it is appropriate to set forth the nature of the issue
confronting the Board in making unit determinations in severance
cases. Underlying such determinations is the need to balance the
interest of the employer and the total employee complement in main-
taining the industrial stability and resulting benefits of an historical
plantwide bargaining unit as against the interest of a portion of such
complement in having an opportunity to break away from the his-
torical unit by a vote for separate representation. The Board does
not exercise its judgment lightly in these difficult areas. Each such
case involves a resolution of "what would best serve the working man
in his effort to bargain collectively with his employer, and what
would best serve the interest of the country as a whole." e It is within
the context of this declared legislative purpose that Congress has del-
egated to the Board the obligation to determine appropriate bargain-
ing units. We do not believe that the Board can properly, or perhaps
even lawfully, discharge its statutory duties by delegating the per-
formance of so important a function to a segment of the affected
employee body. Thus, we accept the court's view in Pittsburgh Plate
Glass that "the Board was not authorized by . . . [the Act] to sur-
render to anyone else its statutory duty to determine in each case the
appropriate unit for collective bargaining." (Ibid.)
The cohesiveness and special interest of a craft or departmental
group seeking severance may indicate the appropriateness of a bar-
gaining unit limited to that group. However, the interests of all
employees in continuing to bargain together in order to maintain
their collective strength, as well as the public interest and the inter-
ests of the employer and the plant union in maintaining overall
plant stability in labor relations and uninterrupted operation of inte-
grated industrial or commercial facilities, may favor adherence to the
established patterns of bargaining.
The problem of striking a balance has been the subject of Board
and congressional concern since the early days in the administration
e National Tube Company, 76 NLRB 1199; Permanente Metals Corporation, 89 NLRB
804; Corn Products Refining Company, 80 NLRB 362; Weyerhaeuser Timber Company, 87
NLRB 1076. See also American Potash & Chemical Corporation. supra, 1422.
6 N L R B. v. Pittsburgh Plate Glass Company, 270 F 2d 167, 173 (C.A 4), cert. denied
361 U.S 943.
MALLINCKRODT CHEMICAL WORKS 393
of the Wagner Act. In the American Can decision,'' the Board
refused to allow craft severance in the face of a bargaining history
on a broader basis. The so-called American Can doctrine was not,
however, rigidly applied to rule out all opportunities for craft sever-
ance.$ Nevertheless, when Congress amended the Wagner Act in
1947 by enactment of the Taft-Hartley Act, it added a proviso to
Section 9(b), stating in pertinent part :
The Board shall . . . not . . . (2) decide that any craft unit is
inappropriate on . . . the ground that a different unit has been
established by a prior Board determination, unless a majority
of the employees in the proposed craft unit vote against sepa-
rate representation.
Though the legislative history indicates that this proviso grew out of
congressional concern that the American Can doctrine unduly
restricted the rights of craft employees to seek separate representa-
tion, it is equally clear that Congress did not intend to take away
the Board's discretionary authority to find craft units to be inappro-
priate for collective-bargaining purposes if a review of all the facts,
both pro and con severance, led to such result. Thus, as stated in
Senate Report No. 105 on S. 1126, submitted by Senator Taft:
Since the decison in the American Can case (13 NLRB 1252),
where the Board refused to permit craft units to be "carved out"
from a broader beginning unit already established, the Board,
except under unusual circumstances, has virtually compelled
skilled artisans to remain part of a comprehensive plant unit.
The committee regards the application of this doctrine as inequi-
table. Our bill still leaves to the Board discretion to review all
the facts in determining the appropriate unit, but it may not
decide that any craft unit is inappropriate on the ground that
a different unit has been established by a prior Board determi-
nation.° [Emphasis supplied.]
'American Can Company, 13 NLRB 1252. See also Pressed Steel Car Company , Inc., 69
NLRB 629.
8 See for example Bendix Aviation Corporation , 39 NLRB 81; Aluminum Company of
America, 42 NLRB 772; General Electric Company (Lynn River Works and Everett Plant),
58 NLRB 57; Remington Rand , Inc., 62 NLRB 1419; United States Potash Company, 63
NLRB 1379; International Minerals and Chemical Corporation , 71 NLRB 87s; Food
Machinery Corporation, 72 NLRB 483 . Sometimes severance was denied because of bargain-
ing history and other factors . See for example Packard Motor Car Company, 63 NLRB 317 ;
Tamiami Trail Tours , Inc., 74 NLRB 918.
61 Leg. Hist. 418 ( 1947). A statement by Senator Taft on the floor of the Senate is to the
same effect : "In effect I think it [ Section 9 ( b)(2)] gives greater power to the craft units
to organize separately. It does not go the full way of giving them an absolute right in every
case ; it simply provides that the Board shall have discretion and shall not bind itself by
previous decision , but that the subject shall always be open for further considera-
tion. .. ... 93 Cong . Rec. 3950-52; 2 Leg. Hist. 1009 (1947).
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This conclusion is further buttressed by the fact that the House bill
provisions 10 making the granting of severance mandatory were
rejected by Congress in favor of the present provision which, as
Senator Taft described it above, requires the Board to exercise its
"discretion to review all the facts."
Shortly after the enactment of Section 9 (b) (2), the Board, in the
National Tube case, dismissed a craft severance petition filed on
behalf of a group of bricklayer craftsmen who were employed in the
basic steel industry. After an exhaustive analysis of the section and
its legislative history, the Board concluded that: "(1) the only
restriction imposed by Section 9(b) (2) is that a, prior Board deter-
mination cannot be the basis for denying separate representation to
a craft group; (2) under the language of the statute there is nothing
to bar the Board from considering either a prior determination or the
bargaining history of a particular employer as a factor, even if not
controlling, in determining the appropriateness of a proposed craft
unit; (3) there is nothing in either statute or legislative history to
preclude the Board from considering or giving such weight as it
deems necessary to the factors of bargaining history in an industry,
the basic nature of the duties performed by the craft employees in
relation to those of the production employees, the integration of
craft functions with the overall production processes of the employer,
and many other circumstances upon which the Board has customarily
based its determination as to the appropriateness or inappropriate-
ness of a proposed unit." The bricklayer unit was there found to be
inappropriate because of the existence of such a pattern and history
of bargaining in the basic steel industry and because the functions of
the craft bricklayers were intimately connected with the basic steel
production process which was highly integrated in nature 11 In subse-
quent cases,12 the same grounds were.relied upon for denying the for-
mation of craft units in the wet milling, basic aluminum, and lumber-
ing industries.
In the American Potash decision, the Board, in effect, reversed the
National Tube decision as to both the proper construction of Section
10 See H,R 3020, § 9 (f) (2), 1 Leg. Hist. 188-189 See also Hearings before the Senate
Committee on S. 55, etc., 80th Cong. lot Sess., pp. 1007, et seq. (1947), for a proposal by
the president of the American Federation of Labor which would have made the establish-
ment of craft units mandatory unless the craft employees rejected separate representation.
11 This decision was basically an affirmation of earlier decisions in Geneva Steel Company,
57 NLRB 50 and 67 NLRB 1159; and Tennessee Coal, Iron and Railroad Company, 39
NLRB 617. Similarly, the Corn Products Refining decision reaffirmed an earlier decision
involving the same company, reported at 60 NLRB 92 Thus, the doctrine known as the
National Tube doctrine had its origin in decisions decided prior to the amendments. The
doctrine applies to new plants as well as old plants in the industries involved, and precludes
the initial establishment of craft units as well as the severance of such units. See Kaiser
Alami-nnm ct Chemical Corp., 119 NLRB 695.
12 See cases cited in footnote 5.
MALLINCKRODT CHEMICAL WORKS 395
9(b) (2) and the propriety of denying craft severance on the basis
of integrated production processes in an industry where the prevail-
ing pattern of bargaining is industrial in character.
As to the first, the Board stated [107 NLRB at 1422, 1423] :
... we find that the intent of Congress will best be effectu-
ated by a finding, and we so find, that a craft group will be
inappropriate for severance purposes in cases where a true craft
group is sought and where, in addition, the union . . . is one
which traditionally represents that craft.
All that we are considering here is whether true craft groups
should have an opportunity to decide the issue for themselves.
We conclude that we must afford them that choice in order to
give effect to the statute. [Emphasis supplied.]
As to the second, the Board stated [107 NLRB at 1421-22] :
... we feel that the right of separate representation should not
be denied members of a craft group merely because they are
employed in an industry which involves highly integrated pro-
duction processes and in which the prevailing pattern of bar-
gaining is industrial in character. We shall, therefore, not extend
the practice of denying craft severance on an industrywide basis.
It is apparent that the decision in American Potash was predicated
in substantial part on the view that Section 9(b) (2) virtually fore-
closes discretion and compels the Board to grant craft severance.
This view represented an almost diametrically opposite construction
of the statute from that adopted by the Board in National Tube. On
the basis of what has already been indicated herein respecting the
legislative history of the section, we believe the revised construction
of the statute adopted in American Potash was erroneous, a belief
apparently shared by the Court of Appeals for the Fourth Circuit: 13
The Board was right [in the National Tube decision], in reach-
ing the conclusion that the addition of subsection 2 of § 9(b)
created no ambiguity. An amended § 9 (b) does not strip the
Board of its original power and duty to decide in each case what
bargaining unit is most appropriate ... In effect it frees the
Board from the domination of its past decisions and directs it
to re-examine each case on its merits and leaves it free to select
that unit which it deems best suited to accomplish the statutory
purposes. . . . Congress clearly did not command the Board, as
it could have done, to establish a craft bargaining unit whenever
13 N.L.R.B. v. Pittsburgh Plate Glass Co., 270 P.2d 167, 172-173.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested by a qualified craft union, or relieve the Board of its
duty to consider the interests of the plant unions and wishes of
the employees who desire to bargain on a plantwide basis. The
amended section expressly requires the Board to decide in each
case what unit would be most appropriate to effectuate the over-
all purpose of the Act to preserve industrial peace.
Rejecting, as we do, the statutory interpretation on which the
American Potash decision is premised, and recognizing that Ameri-
can Potash itself constituted a change in the applicable criteria, we
now consider whether the tests laid down in the American Potash
case nevertheless permit a satisfactory resolution of the issues posed
in severance cases. We find that they do not. American Potash estab-
lished two basic tests : (1) the employees involved must constitute a
true craft or departmental group, and (2) the union seeking to carve
out a craft or departmental unit must be one which has traditionally
devoted itself to the special problems of the group involved. These
tests do serve to identify and define those employee groups which
normally have the necessary cohesiveness and special interests to
distinguish them from the generality of production and maintenance
employees, and place in the scales of judgment the interests of the
craft employees. However, they do not consider the interests of the
other employees and thus do not permit a weighing of the craft
group- against the competing interests favoring continuance of the
established relationship. Thus, by confining consideration solely to
the interests favoring severance, the American Potash tests preclude
the Board from discharging its statutory responsibility to make its
unit determinations on the basis of all relevant factors, including
those factors which weigh against severance. In short, application of
these mechanistic tests leads always to the conclusion that the inter-
ests of craft employees always prevail. It does this, moreover, with-
out affording a voice in the decision to the other employees, whose
unity of association is broken and whose collective strength is weak-
ened by the success of the craft or departmental group in pressing
its own special interests.
Furthermore, the American Potash decision makes arbitrary dis-
tinctions between industries by forbidding the application of the
National Tube doctrine to other industries whose operations are as
highly integrated, and whose plantwide bargaining patterns are as
well established, as is the case in the so-called National Tube indus-
tries. In fact, the American Potash decision is inherently inconsistent
in asserting that ". . . it is not the province of this Board to dictate
the course and pattern of labor organization in our vast industrial
complex," while, at the same time, establishing rules which have that
very effect. Thus, American Potash clearly "dictate[s] the course
MALLINCKRODT CHEMICAL WORKS 397
and pattern of labor organization" by establishing rigid qualifica-
tions for unions seeking craft units and by automatically precluding
severance of all such units in National Tube industries.
It is patent, from the foregoing, that the American Potash tests
do not effectuate the policies of the Act. We shall, therefore, no
longer allow our inquiry to be limited by them. Rather, we shall, as
the Board did prior to American Potash, broaden our inquiry to
permit evaluation of all considerations relevant to an informed deci-
sion in this area. The following areas of inquiry are illustrative of
those we deem relevant :
1. Whether or not the proposed. unit consists of a distinct and
homogeneous group of skilled journeymen craftsmen performing the
functions of their craft on a nonrepetitive basis, or of employees con-
stituting a functionally distinct department, working in trades or
occupations for which a tradition of separate representation exists 14
2. The history of collective bargaining of the employees sought
and at the plant involved, and at other plants of the employer, with
emphasis on whether the existing patterns of bargaining are pro-
ductive of stability in labor relations, and whether such stability will
be unduly disrupted by the destruction of the existing patterns of
representation.
3. The extent to which the employees in the proposed unit have
established and maintained their separate identity during the period
of inclusion in a broader unit, and the extent of their participation
or lack of participation in the establishment and maintenance of the
existing pattern of representation and the prior opportunities, if any,,
afforded them to obtain separate representation.
4. The history and pattern of collective bargaining in the industry
involved.
5. The degree of integration of the emloyer's production processes,
including the extent to which the continued normal operation of the
production processes is dependent upon the performance of the
assigned functions of the employees in the proposed unit.
6. The qualifications of the union seeking to "carve out" a sepa-
rate unit, including that union's experience in representing employ-
ees like those involved in the severance action.15
14 We are not in disagreement with the emphasis the American Potash decision placed
on the importance of limiting severance to true craft or traditional departmental groups,
nor do we disagree with the admonitions contained in that decision as to the need for strict
adherence to these requirements . Our dissatisfaction with the Board ' s existing policy in this
area stems not only from the overriding importance given to a finding that a proposed unit
is composed of such employees, but also to the loose definition of a true craft or tradi-
tional department which may be derived from the decisions directing severance elections
pursuant to the American Potash decision
15 With respect to this factor , we shall no longer require , as a sine qua non for severance,
that the petitioning union qualify as a "traditional representative " in the American Potash
sense The fact that a union may or may not have devoted itself to representing the special
interests of a particular craft or traditional departmental group of employees is a factor
which will be considered in making our unit determinations in this area.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the nature of the issue posed by a petition for severance,
the foregoing should not be taken as a hard and fast definition or an
inclusive or exclusive listing of the various considerations involved
in making unit determinations in this area. No doubt other factors
worthy of consideration will appear in the course of litigation.16 We
emphasize the foregoing to demonstrate our intention to free our-
selves from the restrictive effect of rigid and inflexible rules in mak-
ing our unit determinations. Our determinations will be made only
after a weighing of all relevant factors on a case-by-case basis, and
we will apply the same principles and standards to all industries 17
Turning to the facts of this case, we conclude that it will not effec-
tuate the policies of the Act to permit the disruption of the produc-
tion and maintenance unit by permitting Petitioner to "carve out" a
unit of instrument mechanics. Our conclusion is predicated on the
following considerations.
The Employer is engaged in the production of uranium metal. It
is the only enterprise in the country which is engaged in all phases
of such production. All of its finished product is sold to the Atomic
Energy Commission. Continued stability in labor relations at such
facilities is vital to our national defense.
The Employer produces uranium metal by means of a highly inte-
grated continuous flow production system which the record herein
shows is beyond doubt as highly integrated as are the production
processes of the basic steel, basic aluminum, wet milling, and lumber-
ing industries. The process itself is largely dependent upon the
proper functioning of a wide variety of instrument controls which
channel the raw materials through the closed-pipe system and regu-
late the speed of flow of the materials as well as the temperatures
within different parts of the system. These controls are an integral
part of the production system. The instrument mechanics' work on
such controls is therefore intimately related to the production process
itself. Indeed, in performing such work, they must do so in tandem
16 We are in a period of industrial progress and change which so profoundly affect the
product, process , operational technology , and organization of industry that a concomitant
upheaval is reflected in the types and standards of skills, the working arrangements, job
requirements , and community of interests of employees . Through modern technological
development , a merging and overlapping of old crafts is taking place and new crafts are
emerging . Highly skilled workers are, in some situations , required to devote those skills
wholly to the production process itself , so that old departmental lines no longer reflect a
homogeneous grouping of employees.
11 To the extent that American Potash forecloses inquiry into all relevant factors, and to
the extent that it limits consideration of the factors of industry bargaining history and in-
tegration of operations to cases arising in the so-called National Tube industries, it i,
overruled . To the extent that the decisions in National Tube Company, supra , Permaneute
Metals Co., supra, Corn Products Refining Company , supra , Weyerhaeuser Timber Company.
supra, and decisions relying thereon , may be read as automatically foreclosing craft or
departmental severance or the initial formation of such units in unorganized plants in the
industries involved, they are hereby overruled.
MALLINCKRODT CHEMICAL WORKS 399
with the operators of the controls to insure that the system continues
to function while new controls are installed, and existing controls
are calibrated, maintained, and repaired.
The instrument mechanics have been represented as part of a pro-
duction and maintenance unit for the last 25 years. The record does
not demonstrate that their interests have been neglected by their
bargaining representative. In fact, the record shows that their pay
rates are comparable to those received by the skilled electricians who
are currently represented by the Petitioner, and that such rates are
among the highest in the plant. The instrument mechanics have their
own seniority system for purposes of transfer, layoff, and recall.
Viewing this long lack of concern for maintaining and preserving a
separate group identity for bargaining purposes, together with the
fact that Petitioner has not traditionally represented the instrument
mechanic craft, we find that the interests served by maintenance of
stability in the existing bargaining unit of approximately 280 pro-
duction and maintenance employees outweigh the interests served
by affording the 12 instrument mechanics an opportunity to change
their.mode of representation.
We conclude that the foregoing circumstances present a compelling
argument in support of the continued appropriateness of the exist-
ing production and maintenance unit for purposes of collective bar-
gaining, and against the appropriateness of a separate unit of instru-
ment mechanics. In reaching this conclusion, we have not overlooked
the fact that the instrument mechanics do not constitute an identifi-
ablegroup of skilled journeymen mechanics, similar to groups the
Board heretofore has found entitled to severance from an overall
unit. However, it appears that the separate community of interests
which these employees enjoy by reason of their skills and training
has been largely submerged in the broader community of interests
which they share with other employees by reason of long and unin-
terrupted association in the existing bargaining unit, the high degree
of integration of the employer's production processes, and the inti-
mate connection of the work of these employees with the actual
uranium metal-making process itself.18 We find, accordingly, that
"Nor have we overlooked the fact that the Employer's powerhouse employees and elec-
tricians have been permitted to sever themselves from the existing unit. Ilowever, in direct-
ing a severance election for the powerhouse employees, the Board noted that these em-
ployees worked in locations segregated from work locations of other employees, and that
the powerhouse employees had virtually no daily contact with other employees See 76
NLRB 1055. We do not regard our decision in the instant case as being necessarily incon-
sistent with this previous action of the Board. In directing a severance election for elec-
tricians , a majority of the participating Board Members expressly refused to consider the
effect or weight to be given to the integrated nature of the Employer's operations or to the
existence of an industrial pattern of bargaining in the "chemical" industry . See 129 NLRB
312. For reasons already noted , we can give no precedential weight to this decision.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unit sought by the Petitioner is inappropriate for the purposes
of collective bargaining . We shall, therefore , dismiss the petition.
[The Board dismissed the petition.]
MEMBER FANNING, dissenting :
Although I join my colleagues in reviewing and revising the
Board's craft severance policies," I find myself in disagreement with
them as to the circumstances in which it will effectuate the policies
of the Act to deny skilled craft employees the opportunity to break
away from industrial units in order to protect their special interests
through separate representation. I deem it desirable to set forth
with some particularity the considerations which will henceforth
guide me in making unit determinations in severance cases.
First, however, I wish to stress my rejection of the plain implica-
tion in the majority opinion that the American Potash doctrine
necessarily precludes the Board from exercising its statutory respon-
sibility to make informed determinations as to whether employees
in a proposed craft unit may constitute an appropriate bargaining
unit in a particular case. As I view the true craft and traditional
representative tests set forth in American Potash, they were intended
to ensure that employees belonging to certain crafts, trades, or occu-
pations, with a tradition of separate organization, may adhere to
that tradition notwithstanding their past inclusion in a broader unit,
where they seek representation by a union which has traditionally
devoted itself to representing the interests of such employes. In
short, I have always viewed the American Potash doctrine as an
attempt to protect the legitimate interests of skilled as well as indus-
trial employees and the craft and industrial unions which tradition-
ally represent such employees. It would seem initially that this object
could be accomplished through the application of relatively easily
administered tests which are premised on the recognized fact that
skilled employees share a community of interests deriving from their
special skills, training, and functions which may be separate and
distinct from the community of interests of less skilled employees.
Administrative simplicity does not, however, justify decision by
rote, and to the extent that the American Potash doctrine may appear
to be based on a conclusion that Section 9(b) and the second proviso
thereto compel. the Board to grant craft severance in all cases,20 it has
a tendency to dilute the force of considerations weighing against
severance. This tendency is strengthened by the strictures against
extension of the National Tube doctrine to industries with integrated
production processes and patterns of employee representation com-
10 See my concurrence in Mallinckrodt Chemical Works, Uranium Division, 129 NLRB
312, 315, footnote 3 (1960).
10 N.L.R.B. v. Pittsburgh Plate Glass Co., 270 F.2d 167, 172 (C.A. 4).
MALLINCKRODT CHEMICAL WORKS 401
parable to those existing in the four "favored" industries. I am
satisfied, therefore, that a restatement of our policy is indicated at
this time.
Section 9 (b) of the Act directs the Board to make its unit deter-
minations on a case-by-case basis and lists craft units as well as plant
units as being presumptively appropriate for purposes of collective
bargaining. In 1947, Congress enacted a proviso to Section 9 (b)
which declared
Provided, That the Board shall not . . . (2) decide that any
craft unit is inappropriate for such purposes on the ground
that a different unit has been established by a prior Board
determination, unless a majority of the employees in the pro-
posed craft unit vote against separate representation ... .
I think it manifest from the language of Section 9(b) and the pro-
viso under consideration that Congress did not enact into law the
requirement that craft employees always be given an opportunity
to vote for separate representation. It is also apparent, however, that
the wording of the proviso did not in any way dilute the strength
of the presumption running in favor of the appropriateness of craft
units, whether that issue is presented in a severance case or in one
involving the initial organization of the employees involved. In
these circumstances, and as craft units are but one of the kinds of
units listed in Section 9(b), I deem it appropriate to go to the legis-
lative history of the proviso to ascertain the congressional intention
embodied therein. My study of such history convinces me that,
although Congress rejected the concept that craft employees have
the absolute right to bargain separately, Congress also intended to
strengthen and protect the right of craft employees to organize on a
separate basis, notwithstanding their inclusion in a broader unit.
Senator Taft, speaking on the Senate floor during the debate on the
bill, could not have been more explicit :
In the third place we have provided further protection for craft
unions. Today the situation is that when a new plant is orga-
nized the Board ordinarily permits the craft members of that
plant to vote as to whether they will have a special craft union
or join a general plant union. The Board has followed the desires
of the craft unit on that question. But if at the time of the first
certification a craft unit is not organized, or if no action is
taken, and if by default they are all included in a plant union
which is certified to the Board, the Board has taken the position
that after 1 year of such bargaining no craft union will be
recognized or given an opportunity to be heard in connection
with establishing a craft unit. [Emphasis supplied.]
264-04T-67-vol. 162-27
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All this bill does is to provide that such a previous finding
shall not have that effect, and that if a year later the craft people
want to form a separate union they shall have the same con-
- sideration at that time as they would have had if they had
taken that action when the plant was first organized. In effect
I think it gives greater power to the craft units to organize
separately. It does not go to the full way of giving them an abso-
lute right in every case; it simply provides that the Board shall
have discretion and shall not bind itself by previous decision;
but that the subject shall always be open for further considera-
tion by the Board. [Emphasis supplied.] 21
The Senate Report on the bill is to the same effect :
...' Generally speaking, in plants which have not been orga-
nized the Board has provided for craftsmen to vote in a separate
unit and thus secure representation of their own if the vote
reflects that desire (Globe Machine and Stamping Company, 3
NLRB 294). Where a company has already been organized,
however, the Board does not apply this doctrine unless it is con-
sistent with prior bargaining history. Since the decision in the
American Can case (13 NLRB 1252), where the Board refused
to permit craft units to be "carved out" from a broader bar-
gaining unit already established, the Board, except under
unusual circumstances, has virtually compelled skilled artisans
to remain part of a comprehensive plant unit. The committee
regards the application of this doctrine as inequitable. Our bill
still leaves to the Board discretion to review all the facts in
determining the appropriate unit, but it may not decide that
any craft unit is inappropriate on • the ground that a different
unit has been established by a prior Board determination.22
I conclude from the foregoing that Congress intended the Board
to apply to all industries essentially the same principles in making
unit determination in severance cases as it applies in nonseverance
cases,23 and that Congress rejected the American Can philosophy
that the mere fact that craft employees had been included in a
broader unit is a sufficient basis for determining that such employees
could not constitute an appropriate bargaining unit, " unless a major-
ity of the employees in the proposed craft unit vote against separate
representation." Perhaps there are valid policy reasons for a different
21 93 Cong . Rec. 3950-52 , 2 Leg. Hist. 1009 ( 1947).
22 S.R . No. 105 on S. 1120, 1 Leg. Hist . 417-418 ( 1947).
xi I therefore join my colleagues in modifying American Potash to the extent it may be
read as foreclosing consideration of all relevant factors in cases arising outside the so-called
National Tube industries , and in overruling the National Tube decision , and decisions
relying thereon , to the extent that they may be read as automatically foreclosing separate
craft or traditional departmental representation in the industries involved See footnote 17
of the majority opinion herein.
MALLINCKRODT CHEMICAL WORKS 403
approach; if so, that judgment must be made by Congress, and not
by this Board.
I believe that the effectuation of congressional intention in this
area can best be achieved by placing upon the parties who would
deny separate representation to craft employees, the burden of dem-
onstrating that the separate community of interests normally pos-
sessed by craftsmen has become submerged in the larger community
of interests of the employees in the broader unit.
For my part, I do not believe that such burden is met merely by a
showing of a bargaining history on a broader basis, no matter how
long it has endured. I believe there must be a showing that bargain-
ing history has, because of the nature and quality of the representa-
tion afforded' craft employees, contributed to a strengthening of
their ties and interests with those of the other employees, or that
the history and pattern of representation in the industry involved
is one of plantwide, rather than craft or departmental representa-
tion. Although I believe that this latter factor may militate against
craft representation in the industry, I shall, nevertheless, permit
such separate representation where it is necessary to free a small
group of skilled craftsmen from a bargaining structure in which,
because of their minority position, their legitimate special interests
have been subordinated to the interests of the majority of unskilled
employees.
Similarly, I am not persuaded that the fact that craft employees
work in close association with other employees in operating and
maintaining a highly integrated production system necessarily
destroys their right to seek representation in a separate unit. I.recog-
nize, however, that the separate identity of craft employees may be
destroyed, or their separate community of interests submerged in
the broader community interests shared by all employees in the
plant, in particular circumstances. For example, where the exigen-
cies of a particular integrated production system are such as to
require of craft employees : direct participation in the production
process itself ; the repetitive performance of routine tasks at more or
less fixed work stations along the assembly line or channel of flow ;
or the acquisition of special skills in addition to those acquired in
the course of normal training and experience in their craft, in order
to enable them to work on their employer's specialized equipment;
I believe it fair to conclude that the equities weigh in favor of main-
taining the existing pattern of representation.
In making unit determinations in this area, I shall continue to give
careful consideration to evidence which derogates from a finding
that employees are true craftsmen."' Additionally, I shall continue
P' See for example American Hard Rubber Company, a Divi8ion of Amerace Corporation,
142 NLRB 988.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to consider a petitioning union's status as a traditional representa-
tive of the craft employees involved as a factor weighing in favor of
severance. Finally, I shall give consideration to the attempts of the
craft employees to maintain their separate identity despite their
inclusion in a broader unit, including consideration of the past
opportunities, if any, which have been afforded them to obtain 'such
representation.
I shall endeavor to apply the foregoing policy in the conviction
that Congress intended the Act to be administered in such a way as
to foster collective bargaining on both a craft and industrial unit
basis. I have no intention of encouraging a multiplicity of bargain-
ing units and a corresponding fragmentation of bargaining relation-
ships. Nor, on the other hand, do I intend to impose on industry and
labor a requirement that collective bargaining invariably occur in
the broadest possible unit suggested by the bargaining history of a
particular company. I intend to apply the full scope of congressional
policy as completely and accurately as I can with due regard to the
needs and desires of the employees who are the intended beneficiaries
of our statute, the necessities of effective collective bargaining,
including the needs of management and unions, and the require-
ments of national interest.
Turning to the facts of this case, I find that the Employer and
the Intervenor have not met the burden of proving that instrument
mechanics should be denied the opportunity to obtain separate repre-
sentation by Petitioner. Thus, the record demonstrates, in the words
of the majority opinion, that:
... the instrument mechanics are skilled workmen who work
under separate supervision and we find that the instrument
mechanics constitute an identifiable group of skilled employees
similar to groups we have previously found to be journeymen
or craft instrument mechanics.
This conclusion is fully warranted by the record herein. Thus, like
the electricians whose unit is found appropriate in the companion
Dupont case, 162 NLRB 413, issued this date, the instrument
mechanics are separately supervised and work from a shop separate
from other departments at the Employer's premises. They report to
this shop at the start of their workday and return there at the end of
the day. The instrument mechanics have their own, highly special-
ized equipment, and their work tasks require the exercise of the tra-
ditional skills of the-instrument mechanic craft. Although almost
75 percent of the repairs performed by the instrument mechanics
occur on the production line, and though their work is intimately
related to the successful operation of the Employer's uranium pro-
duction process, the job requirements of the instrument mechanics
MALLINCKRODT CHEMICAL WORKS 405
and production operators "are clearly defined and do not overlap."
Nor can it be found that the nature and extent of the instrument
mechanics' duties in the production areas negate their craft status,
for in DuPont, over 90 percent of the electricians' working time is
spent in production areas in coordination with the tasks of produc-
tion operators.
The record thus reveals that the Employer's instrument mechanics
constitute a functionally distinct group of skilled craftsmen who
have never been afforded an opportunity to decide for themselves
whether they wish to be represented for collective-bargaining pur-
poses in a separate unit by a union which, in their opinion, will better
represent their separate interests as craft employees. Nevertheless,
this opportunity is foreclosed by the majority on three grounds:
(1) the need for stability in labor relations at the Employer's facility
which can be assured only by a continuance of the present pattern
of bargaining on a production and maintenance unit basis; (2) the
intimate relationship of the work of the instrument mechanics with
the highly integrated production process; and (3) a 25-year bar-
gaining history on a production and maintenance basis which has
included the instrument mechanics. I am not persuaded that these
reasons, objectively viewed within the, full context of this case,
justify a refusal to grant the craft unit election sought by the
Petitioner.
The record will not support the claim that maintenance of stability
in the Employer's labor relations depends on the continued inclusion
of the instrument mechanics in the production and maintenance
unit. The pattern of representation at this plant is not one based
solely on production and maintenance unit bargaining. Separate
units for licensed stationary engineers,25 powerhouse employees,28
and electricians 27 have been severed from the overall unit, and,
whether or not the majority chooses to regard the decisions establish-
ing such separate units as binding precedent, it cannot gainsay the
fact that the pattern of representation at the Employer's plant is
one of multiunit rather than single-unit bargaining. There is no
evidence in the record that such multiunit bargaining has been pro-
ductive of instability in the Employer's labor relations, or that,
generally, craft representation is an unstabilizing and disruptive
force in labor relations.28
Nor do I believe that the appropriateness of a separate unit of
instrument mechanics is negated by the degree of integration of the
Employer's production processes and the intimate connection of the
2 Mallinckrodt Chemical Works, 67 NLRB 1147.
^ Mallinckrodt Chemical Works, 76 NLRB 1055.
27 Mallinckrodt Chemical Works, 129 NLRB 312.
28 See Jones , Self-Determination and Labor Relations , 58 Mich. L Rev., 313, 335-336
(1966) for the view that craft representation is a stabilizing factor in industrial relations.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work of • these employees with actual uranium metal-making process,
particularly when this decision is viewed together with the com-
panion DuPont decision. Here, the majority finds that there has
been a sufficient blending of the functions of instrument mechanics
and production employees to destroy any separate identity or com-
munity of interests of the former. But the degree of operational
and functional integration in DuPont is at least as great as in the
instant case. Yet, in DuPont, the majority rejects the Employer's
contention that the operational and functional integration at its
plant has so blended the interests of the electricians with those of
the other maintenance and production employees that only an over-
all unit is appropriate, stating :
Integration of a manufacturing process is a factor to be con-
sidered in unit determinations. But it is not in and of itself
sufficient to preclude the formation of a separate craft bargain-
ing unit, unless it results in such a fusion of functions, skills, and
working conditions between those in the asserted craft group and
others outside it as to obliterate any meaningful lines of separate
craft identity.29
Finding "no such merger of functions, skills, and working conditions
as to erase such craft identity," the craft unit is there found to be
appropriate for purposes of collective bargaining.
If the majority's conclusion in the DuPont case is sound, and I
believe it is, it cannot in logic rely on the integration of operations at
the instant plant as a basis for finding that the instrument mechanics
have lost their separate community of interest. In any event, this rec-
ord fails to demonstrate that the integrated nature of the Employer's
production processes has resulted either in the direct utilization of
the instrument mechanics in the production process, or in the utili-
zation of these employees' skills in routine and repetitive work
at fixed stations on the channel of flow; nor has it been shown that
the instrument mechanics required additional training beyond that
normally required of craft instrument mechanics in order to enable
them to work on the various instruments and controls which regulate
the flow of raw materials through the production processes. In view
of these circumstances, and in view of the absence of evidence
demonstrating that the integrated nature of the Employer's opera-
tions has made collective bargaining on the present multiunit basis
unworkable, I cannot agree with my colleagues that integration of
the Employer's operations is a factor weighing against the appropri-
ateness of the instrument mechanics' unit in this case.
29 DuPont, supra.
HOLMBERG, INC. 407
Finally, I do not view the 25-year bargaining history for the pro-
duction and maintenance unit as supporting the finding that a
separate unit of instrument mechanics is inappropriate. Examina-
tion of that history reveals, as already noted, that other units have
been severed therefrom without noticeable loss in the collective
strength of the production and maintenance employees, and I ven-
ture the opinion that the severance of these 12 instrument mechan-
ics would not weaken the capability of the 280 production and main-
tenance employees to bargain effectively in the future. Moreover, there
is no indication in this record that the inclusion of the instrument
mechanics in the larger unit has resulted in a loss of separate identity;
indeed, the very factors cited by the majority for their conclusion
that the needs of the instrument mechanics have not been neglected
by the Intervenor also indicate that the Employer and the Intervenor
continue to recognize their separate identity and special interests.
Accordingly, in the absence of evidence compelling the conclusion
that the instrument mechanics do not, as craftsmen, share a com-
munity of interests separate and distinct from the community of
interests they share with other employees in the existing produc-
tion and maintenance unit, I believe this is a situation in which
Section 9(b) (2) contemplates that a craft unit cannot be found to
be inappropriate unless the employees in the proposed unit vote
against separate representation. I therefore, dissent from my col-
leagues' refusal to direct the election as requested by the Petitioner.
Holmberg, Inc.' and Tool-Die and Moldmakers Guild, Independ-
ent, Petitioner . Case 29-RC-209. December 28,1966
DECISION AND ORDER
On October 19, 1965, the Regional Director for Region 29 issued
a Decision and Direction of Election in the above-entitled proceed-
ing. Thereafter, in accordance with Section 102.67(c) of the National
Labor Relations Board Rules and Regulations, Series 8, as amended,
the Employer and the Intervenor, Local 1614, International Brother-
hood of Electrical Workers, AFL-CIO, herein called the First Inter-
venor, filed timely requests for review of the Regional Director's
Decision and Direction of Election on the grounds that the decision
was clearly erroneous, that the Hearing Officer committed preju-
dicial error in quashing the Employer's subpena seeking the pro-
duction of Petitioner's bargaining agreements, and that there were
' The names of the parties appear as amended at the hearing.
162 NLRB No. 53.