Olin Corp.

National Labor Relations Board - Board Decisions

May 28, 1940

23 N.L.R.B. 1281 (N.L.R.B. 1940)

In the Matter of OLIN CORPORATION , LIBERTY POWDER COMPANY DIVI-
SION and UNITED EXPLOSIVE WORKERS OF AMERICA, LOCAL No. 1,
INDEPENDENT LABOR ORGANIZATION
Case No. R-1822.-Decided May 28, 1940
Explosives Manufacturing Industry-Investigattion of Representatives : contro-
versy concerning representation of employees ; rival unions; parties agree election
necessary to determine which union if any has right to represent employees-
Unit Appropriate for Collective Bargaining : stipulated ; all hourly paid employees,
exclusive of a chemist , supervisor , and clerical employees ; miscellaneous laborers
who devote most of their time to work as independent contractors or as em-
ployees of independent contractors excluded because not engaged in sufficient
work as employees of Company to have a substantial interest in conditions of
employment of regular hourly paid employees-Representatives : eligibility to
participate in choice : employee on leave of absence to continue studies, reemploy-
ment by Company uncertain , excluded from employees eligible to vote-Election
Ordered
Mr. Robert H. Kleeb, for the Board.
Messrs. Thorp, Bostwick, Reed & Armstrong, by Mr. Donald W.
Elbert, of Pittsburgh, Pa., for the Company.
Mr. Dean D. Sturgis, of Uniontown, Pa., for Local No. 1.
Mr. Eugene Crayton, of Lemont Furnace, Pa., for Local No. 133.
Miss Mary Metlay, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 30, 1939, United Explosive Workers of America,
Local No. 1, Independent Labor Organization, herein called Local
No. 1, filed with the Regional Director for the Sixth Region (Pitts-
burgh, Pennsylvania) a petition and on April 1, 1940, an amended
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of Olin Corporation, Liberty
Powder Company Division,' Mount Braddock, Pennsylvania, herein
1 The Company was incorrectly designated in the formal papers as Olin Corporation,
Liberty Powder Division. The designation was corrected by amendment at the hearing.
23 N. L. R B., No. 132.
1281
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Company, and requesting an investigation and certification
of representatives pursuant to Section 9 (c) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. On April 13, 1940,
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 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 April 23, 1940, the Regional Director issued a notice of hear-
ing, copies of which, together with copies of the amended petition,
were duly served upon the Company, upon Local No. 1, and upon
United Powder and High Explosive Workers of America, Local No.
133, affiliated with the American Federation of Labor, herein called
Local. No: • 133, a labor organization claiming to represent employees
directly affected by the investigation. Pursuant to notice, a hearing
was held on May 2, 1940, at Uniontown, Pennsylvania, before Madi-
son 'Hill, the Trial Examiner duly designated by the Board. The
Board, the Company, and Local No. 1 were represented by counsel,
Local No. 133 by its representative, and all participated in the hear-
ing. 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 several 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Olin Corporation, Liberty Powder Company Division, is a division
of Olin Corporation, a Maryland corporation maintaining its prin-
cipal office in East Alton, Illinois. The Company is engaged in the
manufacture of explosives at Mount Braddock, Pennsylvania. The
principal raw materials used by the Company are nitric and sulphuric
acid, sodium nitrate, ammonium nitrate, glycerin, ethylene and glyco,
wood pulp, soda ash, calcium carbonate, ammonium sulphate, and
paraffin. During the year 1939 the Company purchased more than
5,000,000 pounds of these raw materials, approximately 97 per cent
of which were shipped to the Company from points outside the Com-
monwealth of Pennsylvania. During the same year the Company
manufactured more than 5,000,000 pounds of dynamite, 52 per cent
OLIN CORPORATION 1283
of which were shipped to points outside the Commonwealth of
Pennsylvania.
For the purposes of the proceeding the Company admits that it is
engaged in commerce, within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Explosive Workers of America, Local No. 1, Independent
Labor Organization, is an unaffiliated labor organization admitting
to its membership all production and maintenance employees of the
Company, excluding clerical and supervisory employees.
United Powder and High Explosive Workers of America, Local No.
133, is a labor organization affiliated with the American Federation of
Labor. It admits to its membership all production and maintenance
employees of the Company, excluding clerical and supervisory
employees.
III. THE QUESTION CONCERNING REPRESENTATION
Local No. 1' alleges in its amended petition that the Company re-
fused to recognize it as the exclusive bargaining agent of the Com-
pany's employees prior to certification by this Board. The parties
agree that an election is necessary to determine which union, if any,
has the right to represent the employees.
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, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company, Local No. 1, and Local No. 133 agreed at the hear-
ing that the appropriate unit should consist of all hourly paid
employees exclusive of Russel Breining, a chemist, and all super-
visory and clerical employees. The names of 12 employees appear
on the pay roll as foremen'.2 These employees are not considered
2 The employees designated in the pay roll as foremen are Fank Dinsmore , Elmer Ken-
nedy, Jerry Maher, Louis Bolish, Marshall Lord, Eugene Woodall, Leslie Woodall, Elmer
Dunn , Greeley Strawser , Earl Miller , James Hawk , and Eugene Crayton.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory employees by the parties since they have no authority to
hire or discharge and perform the same duties that other employees
in their respective departments perform. We shall therefore in-
clude the foremen thus listed on the pay roll in the appropriate
unit.
The parties disagree with respect to the inclusion in the unit of
a group of six employees who are designated on the Company's pay
roll as miscellaneous laborers. Prior to January 1. 1938, the Com-
pany maintained its own trucking service for shipping its products,
employing William Baughman and another as truck, drivers. On
January 1, 1938, the Company terminated its trucking service and
entered into contracts with Baughman and John Grass respectively,
providing for the transportation of the Company's products in trucks
owned and operated by Baughman and Grass as carriers.3` I Baugh-
man employs Wilmuth Corvin, George Fuehrer, and Glenn Helms
as truck drivers in his business of transporting the Company's prod-
ucts. Grass employs Joseph Lowery. Baughman,, Grass, and their
respective employees are employed by the Company as miscellaneous
laborers and are engaged in that work, when needed by the Company,
only during such time as they are not transporting the Company's
products. They are paid by the Company for their work as miscel-
laneous laborers at an hourly rate.
The Company and Local No. 1 contend that the six employees
referred to above, are regular part-time employees, and as such,
should be included in the appropriate unit. Local No. 133 contends
that these employees do not work with sufficient regularity to be
included in the appropriate unit .4
Baughman, Grass, and their respective employees work for the
Company y as miscellaneous laborers during only a slight portion of
their time.° The major portion of their time is devoted to their
work as carriers and truck drivers. An examination of their total
earnings subsequent to the date of their employment by the Company
8 The contracts further provided that Baughman and Grass were independent contractors
and would not represent themselves to be agents or employees of the Company.
' Baughman was a member of Local No . 133 and a member of its negotiating committee
until the summer of 1939 . Local No. 133 explained that it had permitted Baughman to
remain a member after he had contracted with the Company to transport its products by
stating that at first it believed that the trucks used in transporting the Company 's products
were owned by the Company and that later it was merely negligent in failing to drop him
from its membership rolls. At the time of the hearing, Baughman was a member and
president of Local No 1.
5 Baughman and Grass continued to work for the Company as miscellaneous laborers,
subsequent to January 31, 1938. Corvin was employed by the Company in October 1939,
Fuehrer and Lowery in November 1939, and Helms in February 1940 They all worked
for Baughman or Grass several months before the Company employed them.
6 To April 1940, Corvin worked for the Company during 3 out of 10 pay-roll periods sub-
sequent to the date of his employment by it Helms worked for the Company during only
1 pay-roll period, Fuehrer during 5 out of 10 pay-roll periods, and Lowery during 9 out of
11 pay-roll periods.
OLIN CORPORATION 1285,
to April 1940 reveals that only between 7 and 24 per cent of their
total earnings were earned in their capacity as miscellaneous laborers.7
Obviously they depend for their livelihood on their earnings as
carriers and truck drivers rather than on their earnings as mis-
cellaneous laborers.
We do not believe that these men engage in sufficient work as,
employees of the Company to have a substantial interest in the con-
ditions of employment of the regular hourly paid employees. Our
practice has been to exclude from the appropriate unit those em-
ployees who devote most of their time to work other than that per-
formed by those included in the appropriate unit 8 and who depend
chiefly on sources other than their work for the employer involved
for their livelihoods Accordingly, Baughman, Grass, Corwin,.
Fuehrer, Helms, and Lowery shall be excluded from the appropriate.
unit.
We find that all hourly paid employees of the Company, exclusive
of Breining, supervisory and clerical employees, and miscellaneous
laborers who devote most of their time to work as independent con-
tractors or as employees of independent contractors, constitute a unit
appropriate for the purposes of collective bargaining and that said-
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.
V. THE DETERMINATION OF REPRESENTATIVES
On May 1, 1940, there were 39 employees in the appropriate unit.,
Local No. 1 and Local No. 133 have each submitted to the Regional
Director evidence of substantial membership. We find that the ques--
tion concerning representation which has arisen can best be resolved
by the conduct of an election.
The parties agreed at the hearing that the pay roll of May 1, 1940,
should be used as the basis for determining eligibility to participate.
in the election.
Local No. 133 contends that Joseph Cefaratti who appears on the
pay roll as a miscellaneous employee is ineligible to vote because he.
has not worked for the Company since January 31, 1940. Cefaratti
was employed by the Company on June 27, 1939, and worked until`
7 Baughman earned in this capacity 24 per cent of his total earnings, Grass 10 per cent,
Lowery 19 per cent, Helms 9 per cent, Fuehrer 7 per cent , and Corvin 9 per cent.
8 Cf. Matter of Lihue Plantation Company, Ltd. and Ahvkini Terminal and Waterfront-
Workers' Association , Local No. 21744, Matter of Lihue Plantation Company, Ltd. and Inter-
national Longshoremen's and Warehousemen's Union , Local No 1-35, 19 N. L. R. B 130,,
where we excluded from the appropriate unit of longshoremen , miscellaneous employees who.
devoted less than half their time to stevedoring
B Matter of Shipowners ' Association of the Pacific Coast , et el. and International Long-
shoi emen's and warehousemen 's Union, District No 1, 7 N L. R. B. 1002.
283034-41-vol 23-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 31, 1940, at which time he obtained a leave of absence in order
to complete his study of medicine. The Company stated at the hearing
that it does not intend to reemploy Cefaratti unless it has an opening
for him at the time he applies for reemployment. Moreover the Com-
pany is not certain whether Cefaratti intends to apply for reemploy-
ment. In view of the uncertainty of his reemployment with the
Company, we find that he is not entitled to participate in the choice
of a bargaining representative.
We find that all employees within the appropriate unit who were
on the Company's pay roll for the period ending May 1, 1940, includ-
ing employees who did not work during such pay-roll period because
they were ill or on vacation, and employees who were then or have
since been temporarily laid off, but excluding Joseph Cefaratti and
employees who have since quit or been discharged for cause, shall be
eligible to vote.
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 repre-
sentation of employees of Olin Corporation, Liberty Powder Company
Division, Mount Braddock, Pennsylvania, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
2. All hourly paid employees of the Company excluding Russel
Breining, supervisory and clerical employees, and miscellaneous
laborers who devote most of their time to work as independent con-
tractors or as employees of independent contractors, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the 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, 49 Stat. 449, 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 Olin Corporation, Liberty Powder Company Division, Mount
Braddock, Pennsylvania, 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 of Election, under the direction and supervision of
the Regional Director for the Sixth Region, acting in this matter as
OLIN CORPORATION 1287
agent for the National Labor Relations Board and subject to Article
III, Section 9, of said Rules and Regulations, among all hourly paid
employees of the Company who were employed during the pay-roll
period ending May 1, 1940, including employees who did not work
during such pay-roll period because they were ill or on vacation, and
employees who were then or have since been temporarily laid off, and
excluding Russel Breining, supervisory and clerical employees, mis-
cellaneous laborers who devote most of their time to work as inde-
pendent contractors or as employees of independent contractors, Joseph
Cefaratti, and those who have since quit or been discharged for cause,
to determine whether they desire to be represented by United Explo-
sive Workers of America, Local No. 1, Independent Labor Organiza-
tion, or by United Powder and High Explosive Workers of America,
Local No. 133, affiliated with the American_Federation of Labor, for
the purposes-of collective bargaining, or by neither. _