National Lead Co.

National Labor Relations Board - Board Decisions

Sep 30, 1941

35 N.L.R.B. 1075 (N.L.R.B. 1941)

In the Matter Of NATIONAL LEAD COMPANY (TITANIUM DIVISION) and
LOCAL 12212, GAS, COKE & CHEMICAL DIVISION, DISTRICT No. 50,
UNITED MINE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O.
Case No. R-0958.-Decided September 30, 1941
Jurisdiction : pigment manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to union until certified by the Board ; craft unions
whose unit contentions not unheld permitted upon request to appear on ballot ;
election necessary.
Unit Appropriate for Collective Bargaining : industrial unit comprising all em-
ployees including eight working foremen but excluding executives, salaried
foremen, watchman, supervisory employees, and all other salaried employees ;
separate units for employees sought to be represented by various craft unions
held inappropriate
Mr. Harry O. Smith and Mr. Robert E. Moloney, of St. Louis, Mo.,
for the Company.
Mr. George N. Craig, of Brazil, Ind., for District No. 50.
Mr. Russell L. Davis, of St. Louis, Mo., for the Machinists.
Mr. H. P. Koenig, of St. Louis, Mo., for the Electrical Workers.
Mr. P. J. Hickey, of St. Louis, Mo., for the Steamfitters. -
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 25, 1941, Local 12212, Gas, Coke & Chemical Division,
District No. 50, United Mine Workers of America, affiliated with the
C. I. 0., herein called District No. 50, filed with the Regional Director
for the Fourteenth Region (St. Louis, Missouri) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of National Lead Company (Titanium Divi-
sion), St. Louis, Missouri, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National 'Labor Relations Act, 49 Stat. 449, herein
called the Act. On August 29, 1941, the National Labor Relations
Board, herein called the Board, acting pursuant to Section 9 (c) of the
Act and Article III, Section 3, of National Labor Relations Board
35 N. L R B, No. 198.
1075
451270-42-vol 35--69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rules and Regulations-Series 2, as amended , ordered an investigation
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On August 30, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, upon District
No. 50 , and upon International Association of Machinists , District
No. 9, herein called the Machinists, International Brotherhood of
Electrical Workers , Local No . 1, herein called the Electrical Workers,
and United Association Steam, Gas, Refrigeration Service Fitters
and Pipe Fabricators , Local No . 562, herein called the Steamfitters,
labor organizations claiming to represent employees of the Company.
Pursuant to notice , a hearing was held on September 2, 1941, at St.
Louis, Missouri , before King Derr, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Company and District No.'
50 were represented by counsel and the Machinists , the Electrical
Workers and the Steamfitters by their representatives. All partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner made rulings on motions and on objections to the
admission,of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that -no prejudicial errors were committed.
The rulings are hereby affirmed. The Company and District No. 50
thereafter filed briefs which have been considered by the Board.
Upon the entire record in the case, the Board makes the following ;
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Lead Company, a New Jersey corporation, maintains
plants, offices, and warehouses throughout the United States. We
are here concerned only with its plant located at the junction of
the Mississippi River and River Des Peres, St. Louis County, Mis-
souri, in which plant the Company is engaged in the manufacture
or processing of titanium barium pigments and titanium calcium
pigments and in the sale and distribution of these products. The
raw materials used by the Company are principally coal, sulphur,
pyrite, barytes, lime and ihnenite. During the year 1940 the Com-
pany used more than $500,000 worth of such materials, in excess of
40 per cent of which was shipped to the plant from points outside
the State of Missouri. During the same period the aggregate value
of the finished products of the Company was more than $1,000,000.
In excess of 90 per cent of such products was shipped by the Com-
pany to points outside the State of Missouri.
NATIONAL LEAD COMPANY
II. THE ORGANIZATIONS INVOLVED
1077
Local 12212, Gas, Coke & Chemical Division, District No. 50,
United Mine Workers of America, affiliated with the C. I. 0.; In-
ternational Association of Machinists, District No. 9; International
Brotherhood of Electrical Workers, Local No. 1, and United Asso-
ciation Steam, Gas, Refrigeration Service Fitters and Pipe Fabri-
cators, Local No. 562, all affiliated with the American Federation of
Labor, are labor organizations admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
District No. 50 began to organize employees of the Company in
January 1941. On March 15, 1941, it filed a petition for investiga-
tion and certification which the Board thereafter dismissed because
the unit sought was found inappropriate.,' On August 23 and 25,
1941,' District No. 50 requested that the Company bargain with it as
the representative of its employees in the unit which it now claims
is appropriate. The Company refused the request until District No.
50 was certified by the Board.
There was introduced in evidence a statement by the Regional
Director which iiwlicates that District No. 50, the Machinists, the
Electrical Workers, and the Steamfitters each represent a substantial
number of employees in the unit which each contends is
appropriate.'
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States
1 Matter of National Lead Company ( Titanium Division ) and Gas, By-Product, Coke and
Chemical Workers Local 12212, District 50, United Mine Workers of America , 32 N L R. B. 697
2 The Regional Director 's statement shows that District No. 50 submitted 670 author-
ization cards , and that 654 of the names thereon appear on the Company ' s pay roll of
August 23 , 1941 There are about 770 employees in the unit sought by District No 50
The Machinists submitted 54 authorization cards. Fifty -two of the names thereon appear
on the above -mentioned pay roll There are approximately 85 persona in the unit alleged
by the 'Machinists to be appropriate The Electrical Workers submitted 26 authorization
cards , 24 of which bore names appearing on the pay roll of August 23, 1941. There are
approximately 30 persons in the unit claimed by the Electrical Workers The Steam-
fitters, submitted 27 authorized cards , all of which bore names appearing on the August23,
1941, pay roll of the Company . It does not appear how many persons are in the unit
sought by the Steamfitteis
1 078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tends' to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
District No. 50 and the Company contend that an appropriate unit
should consist of all employees of the Titanium Division of the
Company, including the eight working foremen employed in the acid
plant, but excluding executives, salaried foremen, watchmen, super-
visory employees, and all other salaried employees.
The Machinists wish to represent machinists, millwrights, mill-
wright helpers, and apprentices, excluding supervisory employees
with the right to hire and discharge, except those using the tools
of the trade. There are 12 shop machinists and a toolroom man
who work in the machine shop; and 34 millwrights, the same number
of helpers, and 4 apprentices who work throughout the plant.
The Electrical Workers desire to represent electricians and main-
tenance electricians and helpers, including the foreman in charge
of these employees.
The Steamfitters, although represented during the early part of
the hearing, presented no evidence and made no contention with
respect to the unit they desired. Their representative left the hearing
without making any explanation concerning his departure.
The Company's Titanium Division is an integrated operation in-
volving the processing of certain raw materials into pigments. All
the employees work in a number of buildings and in the yard of one
plant property. Most of the employees whom the craft unions seek
to represent apparently work as maintenance employees, but there
are a number of other maintenance employees, engaged as carpen-
ters, pump packers, lead burners, oilers, sheet-metal workers, painters,
riggers, brickmasons, and welders, whom no craft union seeks to
represent and who fall into the unit claimed appropriate by Dis-
trict No. 50. As far as the record shows, only the 12 shop machinists
and the toolroom man work in a separate shop in the plant. The
millwrights repair plant equipment and install new equipment
throughout the plant. The machinists build pumps, after castings
are received from sources outside the plant, do machine work, set
up equipment, inspect vacuum pumps and air -compressors, and per-
form mechanical work on pumps and metal-cutting machines. The
electrical workers take care of repairs on electric motors, wiring,
lights, 'conduits, insulators, etc. The Steamfitters are engaged in
erection of pipes and in maintenance and demolition work which
includes laying out, cutting, and threading pipe.
Although there is little history of union organization at the Ti-
tanium Division, it appears from the record that in 1932 an attempt
NATIONAL LEAD COMPANY 1079
was made by a Federal Labor Union, affiliated with the American
Federation of Labor, to organize the Titanium Division on an indus-
trial basis, and that in 1937 another union made an abortive attempt
to organize the plant on an industrial basis. As previously stated,
in March 1941 District No. 50 filed a petition with the Board re-
questing a unit smaller than that it now seeks. The petition was
dismissed because of the inappropriateness of the unit sought.
Thereafter, according to the testimony of its field representative,
District No. 50 "did carry on collective bargaining for all of the
employees" of the Titanium Division, "taking up grievance matters or
wages, hour and working conditions." Neither at the time District
50 filed its prior petition nor when it filed ' the petition here under
consideration had the craft unions organized any of the Company's
employees. The craft unions have never requested the Company to
recognize them as representatives of bargaining units or to bargain
with them on behalf of any of the employees they now claim to
represent. District No. 50 introduced in evidence a statement of 46
employees, about half of whom were identified as employees who
would fall within the units claimed by the craft unions, in which
they stated, "We do not want to be represented by any organization
until a settlement has been reached. Therefore we ask that our
names be withdrawn from any and all files pertaining to this case."
A witness testified that the "settlement" referred to was a determina-
tion by the Board of the questions involved in the present proceeding.
District No. 50 has contracts with the Company for several of its
plants, including another plant in St. Louis, all of which are organ-
ized on an industrial basis.
We believe that on a functional basis there is no logical dis -
tinction between the employees whom the craft unions seek to rep-
resent and the rest of the employees in the plant, especially the
other maintenance employees. The employees fall into many cate-
gories but all are engaged generally in production or maintenance
work. We do not think that the persons sought to be segregated
by the craft unions constitute such coherent groups that they can
be appropriately set up as distinct bargaining units .3 Moreover,
the limited history of organization at the plant in the past, and the
history of collective bargaining with the Company at its other
plants have been upon an industrial basis . The complete absence of
any collective bargaining on -a craft basis and of any craft organi-
zations among employees in the plant until after District 50 filed
its petition herein for a plant-wide unit also indicates the inap-
3Matter of Pan American Refining Corporation and International Association of Ma-
chinists, Local No. 14J,6, of District 37, affiliated with the A F. of L., 35 N . L. R. B. 725.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
propriateness of the units now requested by the craft unions. We
find inappropriate the units requested by the Machinists, the Elec-
trical Workers, and the Steamfitters.
We find that all employees of the Titanium Division of the Com-
pany, including the eight working foremen employed in the acid
plant, but excluding executives, salaried foremen, watchmen, super-
visory employees, and all other salaried employees, constitute a
unit appropriate for the purposes of collective bargaining, and that
such unit will insure to employees of the Company the full benefit
of their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that 'the question concerning representation which has
arisen can best be resolved by holding an election by secret ballot.
The parties agreed that a current pay roll shall be used to determine
those eligible to vote. Persons eligible to participate in the election
shall be the employees in the appropriate unit who were employed
by the Company during the pay-roll period next preceding the date
of this Direction, subject to such limitations and additions as are
hereinafter set forth in the Direction.
The Machinists and Electrical Workers asked that they be certi-
fied as representatives of the employees in the units they claimed to
be appropriate. Neither expressed a desire to appear on the ballot in
the event the unit sought by District No. 50 should be found ap-
propriate. In view of our finding as to the appropriate unit, and
since the craft unions made no claim to represent any employees
other than those in the units they contend are appropriate, we shall
omit their names from the ballot. However, the Machinists, Elec-
trical Workers, and Steamfitters are all affiliates of the American
Federation of Labor, which, in some instances, organizes various
employees in an industry and then distributes the members among
the craft organizations affiliated with it. In fact, the statement of
the Regional Director discloses that the authorization cards submitted
by the Electrical Workers designate "the American Federation of
Labor and all affiliated organizations" as the representative of the
employees signing them, and the cards submitted by the Steamfitters
designate the International Association of Machinists as such rep-
resentative. We shall permit the Machinists, Electrical Workers,
and Steamfitters or any of them, or the American Federation of
Labor to appear on the ballot for the industrial unit hereinabove
found appropriate upon request made to the Board within five (5)
days from the date of this Direction.
J
NATIONAL LEAD COMPANY 1081
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CoNCLusIONs OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of National Lead Company (Titanium
Division) St. Louis, Missouri, within the meaning of Section 9 (c)
and Section 2 (6) and (7) of the National Labor' Relations Act.
2. All employees of the Titanium Division of the Company, in-
cluding the eight working foremen employed in the acid plant, but
excluding executives, salaried foremen, watchmen, supervisory em-
ployees, and all other salaried employees, constitute a unit appropri-
ate for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the National Labor Relations Act.
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 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with National Lead Company (Titanium Division), St. Louis, Mis-
souri, an election by secret ballot shall be conducted as early as pos-
sible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Di-
rector for the Fourteenth Region, acting in this matter as agent
for the National Labor Relations Board and subject to Article III,
Section 9, of said Rules and Regulations, among all employees of
the Titanium Division of the Company, including the eight working
foremen employed in the acid plant, who were employed during the
pay-roll period next preceding the date of this Direction, including
employees who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
executives, salaried foremen, watchmen, supervisory employees, and
all other salaried employees, and employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by Local 12212, Gas, Coke & Chemical Division,
District No. 50, United Mine Workers of America, affiliated with the
C. I. 0., for the purposes of collective bargaining. -