Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

Sep 24, 1946

71 N.L.R.B. 11 (N.L.R.B. 1946)

In the Matter of MONSANTO CHEMICAL COMPANY, EMPLOYER and
GALVESTON BUILDING AND CONSTRUCTION TRADES COUNCIL AND
AFFILIATED UNIONS, PETITIONER
Case No. 16-R-1840.-Decided September 04,1946
Mr. H. K. Eckert, of Texas City, Tex., for the Employer.
Mr. B. A. Gritta, of Galveston, Tex., for the Petitioner.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Galveston,
Texas, on July 30, 1946, before Elmer T. Davis, hearing officer. The
hearing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Monsanto Chemical Company, a Delaware corporation, is engaged
in manufacturing styrene for synthetic rubber at Texas City, Texas.
At the Texas City plant, the only plant involved in this proceeding,'
the Employer uses three principal raw materials, benzol, propane, and
aluminum chloride. During the 12-month period ending June 30,
1946, the Employer purchased benzol valued at $1,125,000, of which
98 percent came to the plant from points outside Texas. All propane
and aluminum chloride were purchased within the State. During the
same period the Employer purchased miscellaneous equipment and
supplies, valued at $900,000, of which 90 percent was purchased out-
side Texas. During the same period the Employer manufactured at
its plant styrene valued at $6,500,000, of which 85 percent was shipped
to points outside Texas.
i The plant is operated by the Employer for the Reconstruction Finance Corporation
71 N. L. R. B., No. 4.
11
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of guards at its Texas City, Texas, plant,
contending (1) that guards are not employees under Section 2 (3) of
the Act; (2) that guards were excluded from the unit found appro-
priate for production and maintenance employees at the plant repre-
sented by the Petitioner and its afliliates,2 and therefore may not be
represented by the Petitioner; and (3) that guards may not properly
be included in any unit appropriate for bargaining purposes or repre-
sented by a labor organization for bargaining purposes. We find no
merit in these contentions, which have already been passed upon by
the Boards Once it is found that' plant guards are "employees," a
conclusion with which our colleague agrees, we doubt whether this
Board has the power to tell such employees that, under the Act as
written, it would be proper for them to be represented by another
labor organization but not by the Petitioner. The Act speaks of
representatives of the "employees' own choosing," not of our choosing.4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find that guards 5 at the Employer's Texas City, Texas, plant,
including the guard sergeants but excluding the guard captain and
all other supervisory employees with authority to hire, promote, dis-
2 Matter of Monsanto Chemical Company, 63 N. L. R. B. 789.
3 Matter of Dravo Corporation , 52 N. L. R. B. 322; Matter of E. C. Atkins and Com-
pany, 56 N. L. R. B. 1056, both decided by Board Members Reilly and Houston. On May
31, 1946, the United States Circuit Court of Appeals for the Seventh Circuit (Chicago)
denied the Board's petition for enforcement of its Order in the Atkins case, holding that
militarized plant protection employees were not "employees" within the meaning of Sec-
tion 2 (3) of the Act On August 20, 1946, a petition for certiorari was filed in the Su-
preme Court of the United States, seeking review of this holding . The present majority
sees no occasion to depart from Board precedents unless and until the Supreme Court has
had an opportunty to pass on the question.
4 Matter of Jones & Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66
N. L it. B. 386.
5 The Employer's guards have the usual duties of plant protection employees. They
were militarized on August 21, 1942, and demilitarized on September 20, 1945.
9 The parties agree, and we find, that the guard sergeant has no supervisory authority
within our customary definition.
MONSANTO CHEMICAL COMPANY 13
charge, discipline, or otherwise effect changes in the status of employ-
ees, or effectively recommend such action, constitute a unit appropriate
f or the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Monsanto Chemical Company,
Texas City, Texas, 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 Sixteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, 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 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 Galveston Building and Construction Trades Council and Affiliated
Unions, for the purposes of collective bargaining.
MR. 'TAMES J. REYNOLDS, JR., dissenting :
It is clear from the record that the duties of the employees constitut-
ing the appropriate unit in this case are monitorial as well as custodial
in nature. In addition to the usual function of protecting plant prop-
erty, these individuals are required (1) to detect, prevent, and report
violations of plant rules by other employees, and (2) to maintain
and restore order among the employees. It is with respect to these
monitorial duties that I am concerned.
I believe it to be inconsistent with the purposes of the Act for this
Board to take action which may result in the certification as representa-
tive of employees performing monitorial duties of that union which
presently represents the rank and file employees over whom the moni-
torial function must be exercised.
I hold to the conviction that in the administration of the Act, it is
the affirmative duty of this Board to avoid encouraging the creation
of relationships which are inherently unsound industrial relations
practice. While I construe it to be the duty of the Board to provide
the processes whereby workers may designate collective bargaining
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing in an atmosphere free of coer-
cion and undue employer influence, I believe it to be the collateral
duty of the Board, in effectuating the purposes of the Act, to consider
with great care the impact upon labor-management relations of any
collective bargaining procedure upon which we place the imprimatur
of the Board. In my opinion, the certification of the Petitioner would
result in the establishment of an insoluble incongruity since it serves
to place the monitorial employees, entrusted with the duty of reporting
the misconduct of fellow union members, in the anomalous position of
having to serve conflicting loyalties. Were the duties of the employees
here involved exclusively custodial in character, I would find no objec-
tion to the granting of this petition.
While I agree with my colleagues that these guards are employees
within the meaning of the Act, and while I believe they may properly
be represented by a labor organization having neither legal nor fac-
tual association with the Petitioner, I do not agree that the Board
lacks the authority to decline to use its processes where they would
so patently effectuate results incompatible with the policies of the
Act.'
For the reason°stated above, I am constrained to disagree with my
colleagues in granting the petition before us.
° Section 9 ( c) of the Act states , "whenever a question affecting commerce arises con-
cerning the representation of employees , the Board may investigate such controversy and
certify to the parties , in writing , the name or names of the representatives that have been
designated or selected" ( emphasis supplied). I construe the language of this Section
of the Act to be permissive rather than mandatory , hence, the Board may utilize reason-
able discretion in proceeding with an investigation in any case . In N. L . R B v. Indiana
& Michigan Electric Company , at at ., 318 U . S 9, the Supreme Court so interpreted Section
10 of the Act , which uses the word "empowered" instead of "may ," stating "The Board
has wide discretion in the issue of complaints . . . It is not required by the statute
to move on every charge ; it is merely enabled to do so. It may decline to be so imposed
upon or to submit its processes to abuse."