The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Nov 25, 1969

179 N.L.R.B. 719 (N.L.R.B. 1969)

-THE, DOW. CHEMICAL CO -
Oyster Creek ." Division , The Dow Chemical
Company; Petitioner-,and Boiler Makers " Union;
Local No. 682 ; Bricklayers Union, Local No. 1;
Carpenters Union, Locals Nos . 213 and+.526;
Electricians Union Local No. 716 ; Insulators
Union , Local No. 102 ; Machinists Union, Local
. No. 128 ; Operating Engineers . Union, -Local No.
564; Painters Union , ,Local No. 1848 ; Pipefitters
Union , Local No. 390 ; Teamsters Union, Local
No., 968,
Texas Division ,. The Dow 'Chemical Company,
Petitioner and Boiler Makers Union , Local-.No.
682; Bricklayers Union ; Local No. 1; Carpenters
. Union ,, Locals Nos . 213: and ' 526; Electricians
Union , Local No. 716 ; Insulators Union.-Local
No. 102 ; Machinists Union; ,Local- No. 128;
Operating Engineers Union,.. Local No. 564;
Painters Union; , Local No. -1848; Pipefitters
Uniori ,^ Local ' No. 390 ; Teamsters Union, Local
No. 968 . Cases 23-RM-222 and 23-UC=35"
November 25, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS'
,FANNING"AND JENKINS F
Upon separate petitions 'duly ' filed pursuant to
Section 9(b) ' arid' (c) of the, National 'Labor
Relations Act, as amended, a consolidated hearing
was held before John !P'. Cearley, Hearing .Officer.
Following 'the hearing ' and 'pursuant to Section
1'02.67 of the National Labor Relations Board Rules
and ' Regulations and," Statements 'of Procedure;
Series 8, as 'amended, these cases were transferred to
the National 'Labor Relations Board for-decision by
direction o,f the Regional Director for Region 23.
Briefs have been filed by the Employer-Petitioners
and the Uriions. ' - "
Pursuant 'io the provisio`ris of 'Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with these cases to a three-member
panel
The Board has reviewed the 'Hearing' Officer's
rulings made at the hearing ,and finds that they are
free `from prejudicial- ' error:' ' They are hereby
affirmed"
Upon the 'entire 'record in' these cases, iricluding
the' briefs filed by'the "parties ,'the"Board finds:
1. The Employer is 'engaged in commerce' within
the meaning of -the Act, "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'represeiiiat'ion of certain employees
of"the Employer within the; meaning of Sections
9(c)(1) and 2 ) the 'Act, fo(6) and (7 of r the following
reasons: '
719
The Employer is a Delaware corporation engaged
in= the manufacture and sale of a variety of plastics,'
metals, and organic : and- inorganic chemicals
throughout the United States and`the world. The
manufacturing operations in• the United States ' have,'
in the past , been divided into four divisions : , Texas
Division ; Midland Division , Western Division;, and,
Louisiana Division :- Each of these divisions produces
a variety of products and comprises many different
plants carrying out their ' operations . There is'
considerable "variance in the sizes of these divisions.
Texas ' Division ,) employs 6 , 500' workers ; Midland,
9,000 ; Western , 1;000; and Louisiana , 800. These'
divisions are under the direction of •J. M . Leathers,
Director of Operations for the , U.S. - area, , who is
located at • -corporate headquarters ' in Midland,'
Michigan. In. 1967, the Oyster Creek Division,
which is the center : of dispute in the present -case,`
was, established - by the Employer -. to. produce lone'
basic product , vinyl chloride '. It -is ' , located
approximately l,4/2'miles from the two - main Texas
Division plant complexes in the Brazosport ; Texas'
area. ' .' . ;
The . 10 Unions - involved in this) case are
representatives of bargaining unit employees - at, the'
Texas Division plants. Beginning - in November -1968,
these Unions demarided, recognition , as bargaining'
representatives- of the employees at the Oyster Creek
Division, whom the Unions considered to,be part of
the units already - in existence at the Texas Division.,
They claimed that , Oyster Creek was- simply • an
addition to the :existing , facilities' of the Texas
Division . The Employer refused recognition on' the
ground ' ' that Oyster Creek is a." separate
manufacturing facility and should . not be treated' as
an accretion. •
The Oyster Creek Division filed a petition on
January 6 , 1969,-Case 23 - RM-222, for an election
among the ' employees claimed • by the Unions at,
Oyster. Creek .. However , the Unions , in requesting
recognition as bargaining representatives . for the
employees at Oyster Creek, had requested ' only that
the latter be recognized as belonging to the existing
units • at'the Texas Division . There 'beingsno request
to represent the :employees at, Oyster .. Creek in' a
separate unit, we find that no question concerning
representation has been raised in Case 23 - RM-222,
within the meaning of Section 9(c)(1) of the Act,
and, accordingly ; we shall dismiss the petition.. . .
The Texas Division , has filed a petition, in • Case
23-UC=35; requesting that the. Texas Division
bargaining , units be clarified so as to expressly
exclude all employees of the Oyster Creek Division.
The Unions argue that Oyster Creek is actually an
accretion to the Texas Division. .
The Texas Division -is composed of some, ' but not
all, of the Employer ' s production and research
facilities in the Brazosport , Texas, area . Within the
Division are two sprawling '.chemical 'complexes,
referred to as Plants A and B, which are operated as
a single ' unit although located nearly. 3 miles apart;
179 NLRB No. 128
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two reservoirs, about 6 and 9 miles west of Plant B;
two salt domes, about 3 miles, respectively, north
and south of Plant B; and a small maintenance
department, which maintains the property of the
Division, 3 miles west of Plant B. , Other facilities
partially or completely owned by Dow, and located
no more than 5 miles from Plant B, but not a part
of the Texas Division, are the Brazos Oil and Gas
Division storage facilities; the Stevens Tract, which
is being mined for salt and which is jointly operated,
by the Texas and Brazos Divisions; the Dow
Airplane Department, which provides airplane
services to Dow; Dow Bioproducts Division, engaged
in animal research; Dow Badische, a joint venture,
which produces chemical products and is adjacent to
Plant B; and Ethel-Dow, also a joint venture
chemical manufacturer, which is located within the
boundaries of Plant A. The Oyster Creek Division is
on a site which is approximately the midpoint of the
3-mile distance between Plants A and B of the
Texas Division. Also located in the area near and
between Plants A and B are plants of four firms
unrelated to Dow: Red Barn Chemical Company, A.
P. Green Fertilizer, Nalco Chemical Company, and
Lavino.
The Texas Division employs approximately 6,500
people, of whom approximately 4,000 are in the
bargaining units represented by the 10 Unions
involved here. The Division has more than 20
production facilities producing a large number of
chemical products, including vinyl chloride. The
Oyster Creek Division is scheduled to produce
primarily vinyl chloride, and will employ
approximately 125 employees. At present, there are
about 100 persons at Oyster Creek, of whom about
62 are alleged to be in the Unions' existing
bargaining units.
The production facilities of Oyster Creek are
separate from those of the Texas Division. Other
than the common pipelines, discussed below, the
only shared facilities are the Texas Division's canals,
which are also used by other companies in- the
Brazosport area. The sea water canal and waste
water disposal canal are used by Dow Badische,
Ethyl-Dow, and the U.S. Government Saline Water
Plant. The fresh water reservoirs are used by Dow
Badische, A.P. Green, Nalco, Lavino, and Shell Oil.
There is also complete administrative separation
between the Texas and Oyster Divisions. Like the
Texas, Louisiana, Midland, and Western Divisions,
Oyster Creek is directed by a general manager who
reports to the Director of Operations for the U.S.
area. Oyster Creek has its own controller, services
manager, employee relations manager, and general
office staff. There are no administrative facilities or
personnel used commonly by Oyster Creek and
Texas.
The Oyster Creek facility. is intended to be what
is described as "a self-contained, highly automated,
balanced, nonexpandable, high volume production
unit." The three separate components are designed
to be balanced units which will produce only salable
products with a minimum amount of by-products.
They will obtain the raw materials ' needed from
outside sources and will produce the intermediates
they need.
Unit I, already in the start-up stage, produces
vinyl chloride monomer. The production occurs in
three phases, the first of which involves the use of
chlorine. Unit II, also in, the start-up stage, is
designed to produce the approximate amount of
chlorine- needed by Unit I. In the course of this
production, , unit II will also produce, as a
byproduct, a salable grade of ` 50 percent caustic.
Unit III, now in the engineering stage, will produce
acetone and phenol.
,In comparison with these three units, Texas
Division contains about 60 production units. The
dollar value of the Texas Division facilities is about
$600,000,000, as compared with $40,000,000 for
Oyster Creek.
A factor to be considered in determining whether
there is'an accretion in this case is the interchange
of products between the Texas and Oyster Creek
Divisions. It should be noted, to begin with, that the
Texas Gulf Coast area is filled with different
chemical producers and that there is a network of
pipelines, called the "spaghetti bowl," which tie in
dozens of these plants. There are also numerous
tie-ins by tank trucks and rail cars . Dow's U S.
Operations Manager testified that the Company had
considered" locating the new division at other places,
such as Brownsville and Corpus Christi, but had
finally decided that the availability of the pipeline
network, and all other factors, made the present
location the most desirable. Traditionally, a large
percentage of the production' of Dow divisions is
transferred to other Dow divisions, with 50 percent
of the Texas Division production being. so
transferred. - Less than 5 percent of the Texas
Division's production is destined for Oyster Creek,
essentially all of this product being ethylene, which
is one of the basic ingredients of vinyl chloride.
Transfers between Dow divisions are called
"interdivisional transfers." These transactions are
recorded by using the same documents used to
record sales to outside customers.
During the present start-up stage at Oyster Creek,
there have been a great many transfers of products
between Oyster Creek and Texas which, the
Company asserts, are only of a temporary nature.
Chlorine is being transferred to Oyster Creek until
Unit II's caustic evaporators are "onstream" and
operating. The chief product of Oyster Creek is
vinyl chloride, and while all of it is eventually to be
sold and shipped directly to outside customers, some
has been transferred from Oyster Creek to Texas.
This transfer is occasioned by the fact that the
Texas Division is the "technology center" for this
product. Each technology center is located in one
division of Dow, but provides assistance to any
other division on matters such as quality checks for
THE DOW CHEMICAL CO.
other divisions during . their start-up phases.
Therefore, Oyster Creek has transferred vinyl
chloride to Texas for this purpose, but this is now
completed. .
Ethylene dichloride is an intermediate produced in
the processing of vinyl chloride, which Unit I
produces in this instance. During the start-up phase,
EDC is being produced at a greater rate then can be
used at Oyster Creek, and the excess is being
shipped to the Texas Division. Under normal
operation, the units should be balanced, so that only
the amount of EDC actually used will be produced.
If there is any excess, it will be sold. Cell effluent,
another unavoidable byproduct, is produced from
the chlorine cells and is being transferred to the
Texas Division. When Unit II is completed, it will
contain caustic evaporators which will convert the
cell effluent into caustic soda.
Certain products will continue to be received by
Oyster Creek from Texas Division after Oyster
Creek is fully operative. Oyster Creek will continue
to obtain ethylene, one of the base products in
making vinyl chloride, from Texas Division. This
gas is received by tying into the pipelines connecting
Plants A and B of the Texas Division, which are in
turn tied into the spaghetti bowl. The Texas
Division produces ethylene, but also purchases it
from outside companies. The Texas Division has not
increased its ethylene capacity in order to serve
Oyster Creek, and the ethylene used by Oyster
Creek at a given time may be produced by Texas
Division or by an outside supplier. Oyster Creek
also obtains electricity from Texas and, while Unit
II will have its own generator, a small amount of
electricity will always be purchased from Texas.
Texas also sells electricity to four other consumers
in the area. Additionally, Brazos River water and
brine will be obtained from the Texas Division,
which also sells water to four other area plants.
Other products will be transferred from Oyster
Creek to the Texas Division. Unit II will produce
approximately 1,800,000 pounds of chlorine gas per
day, but Unit I only requires 1,600,000 pounds for
its use. The excess will be sold to Texas, or if Texas
does not need it, Unit II's production of chlorine
will be curtailed. At the time of the hearing,
however, Texas had been purchasing all of Oyster
Creek's excess. The excess of 200,000 produced by
Oyster is minimal in comparison with Texas' own
production of 10,000,000 pounds of chlorine a day.
It appears that the chlorine produced by Unit II is
not segrefated and separately transferred to Unit I,
but rather is discharged into a common . pipeline
which runs from Plant A to B, together with other
chlorine produced by units of the Texas Division.
Unit I then draws from this pipeline. However, it
also seems clear that Unit II was designed to supply
the approximate needs of Unit I. Caustic soda will
be sent to Texas for shipment to customers. Certain
undesirable byproducts, such as methyl chloride, will
be sent to the Texas Division, where they will be
721
salvaged along with byproducts created by the Texas
Division itself.
While the interchange between Texas and Oyster
Creek appears to be extensive, the evidence-does not
show that this relationship is much different from
interchanges between Texas and other Dow divisions
or other companies. This whole area of Texas is
noteworthy for the tie-in of lines and the interchange
of products between related and competing
producers, and the Texas Division is a supplier to
many of these other companies as well as to other
divisions of Dow.
The Unions urge, in support of their argument for
finding an accretion, that the Oyster Creek Division
is similar to the "Little Gem" facility in the Texas
Division, which also produces vinyl chloride.' The
Company does not dispute that the processes at the
two facilities are essentially the same, but they argue
that the organizational and managerial structure of
the Texas Division made it difficult for Dow to
make this sort of self-contained, high-volume unit
sufficiently separate so as to conduct managerial
experiments and ascertain the cost and profit data
desired. Consequently, Oyster Creek was
deliberately established as a separate entity to meet
these needs.
The Unions contend, however, that the
Employer's true concern was over problems of craft
jurisdiction, and that it was specifically to avoid
these problems that Oyster Creek was established.
This contention points up a key difference between
the two divisions -' Oyster Creek's use of the
"technician" concept, which is relatively new to the
industry.
In comparison with the 123 job classifications at
Texas Division, there are only three production and
maintenance classifications at Oyster Creek, namely;
technicians, process technicians, and senior
technicians.' Under this system, technicians perform
all the production and maintenance operations in the
unit to which they are assigned, rotating among
various jobs at regular intervals. Originators of this
program claim that it is designed to stimulate
interest among employees and to make the most
effective use of employee time. The concept is
presently in use at a Shell plant near Brazosport, a,
Humble plant in California, and a• plant in Dow's
Louisiana Division.
'Vinyl chloride is, also produced in the Louisiana Division
The job descriptions are as follows
Technician - "Under close supervision PERFORMS repairs on
manufacturing equipment and facilities including housekeeping , with varied
activities in other areas of manufacturing DRIVES lift trucks and
OPERATES automatic pipe threaders, welding equipment and other
related repair equipment TRAINS to become process technician " This
work includes performing analytical work , such as running lab samples,
taking samples , and testing them for specifications
Process Technician - "Under supervision PERFORMS all phases of
process control in manufacturing operations and related functions including
mechanical repairs, product loading and product analyses ASSISTS in
training of technicians "
Senior Technician - "Under supervisory guidance, PERFORMS all
phases of process control in manufacturing operations and related
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At Oyster Creek, the production unit may' be said
to be the basic division (with each of the three units
being considered a , production unit).. , Each
production unit is itself responsible for the full range
of operations ' - process, maintenance, and
laboratories = and is headed , by a production
manager. Unlike the Texas Division,, there are no.
separate • service departments outside. of the
production unit. The technician is permanently
assigned to, a production unit and, at any,given time,
will • be - assigned to either the unit operation
(process) or repair crew within that unit . Generally,
the. technician. will start by working in the repair
crew for several months and, then will, be rotated,
into process; where he will continue to be rotated
from one operation to another, including,
production;, laboratory',, and a storage work.
Technicians in, process, work also. do whatever
repairs,•they can during 'the course of their work.
The -rotation among all jobs in the unit - process,
maintenance, and laboratory - will continue for the
duration of the technician's employment. Although
the Unions contend that it is impossible to train a,
single employee to be skilled in all trades, the
Employer points out that 'the goal i's,more limited
simply to train technicians to do all necessary work
that may ,be required 'on their 'particular units.
This 'program at Oyster Creek is very different
from that at' Texas Division's "Little Gem," where
the traditional craft- or classification , approach is
followed. The, 'employee at "Little- Gem" works
solely ' on the job defined by his job classification
within a' process -unit, with minor flexibility. Thus,
an employee may only perform one specific.-job,
such ' asi. "Control Operator B " As opposed to
Oyster Creek,' there - are also separate service
departments which perform their services for all of
the process 'units. . w r : ' - -1
The-technicians at Oyster Creek also take part in
a much, more-sextensive training program than 'at
Texas Division. The program is designed to last 6
mohths,••with about 450 (Unit I)-600 (Unit II),hours
spent, in the ' classroom, and the - remainder in
on=the-fob training. 'About • half. of .the classroom
instruction is•designed to, cover basic mathematics,
chemistry, repairs and the like. There was testimony
that the'!mathematics instruction' covers the use of
the slide rule and temperature 'conversions. • The
other half of the classroom instruction relates-to the
different processes on which the technicians will be
working. Use is made of a_' Carmody Trainer - a
mock-up of a production unit',that simulates the
chemical -process and allows the technician to
practice ;'making the changes in pressure -'and
temperature, and other actions, 'that - will be
necessary in actual operation. ,There, is no similar
training program at the Texas Division. -There, the
functions including mechanical repairs, product loading and ' product
analyses COORDINATES activity of other technicians and process
technicians on second and third schedules "
At present all employees are in the first category of technician
craft-type - employees, ' undergo a craft-training
program which enables. them to become journeymen
craftsmen within several years. They, have classroom.
and on-the-job training in their specific crafts, but
do not receive' instruction in general subjects;' repair,
or in_' the operation{' of process units Other
employees receive only, on-the-job training:
It., is thus obvious that there. • are significant
differences between- the , jobs.. of bargaining unit
employees in, the Texas Division and,those,at:Oyster
Creek whom the .Uni6ns•'seek,to represent by way of
accretion: By .the nature - of,*, the - functional.
organization at'Oyster Creek, the employees.,work
in a 'single process unit and are able- to rotate -among
the various jobs, both process and maintenance. The
employees at, Texas Division are; by. and large,
limited to their job, -classifications and therefore do
not'have the same range as the employees at Oyster
Creek,: The Union's argument that!, some of the
employees ' at Texas also perform general
maintenance does riot.-take note, of:-the !contractual
restrictions which prevent the unit -employees from
engaging in the range • of repairs,;.engaged in. by
technicians at Oyster-Creek. And, even if we were to
accept the Union's argument that the basic functions
of ,employees working in particular jobs at, the two
divisions are the same, , it still is , clear that, the
technicians. at Oyster Creek have a ,broader. diversity,
of -job duties. It is not disputed-that the latter rotate
among different process and repair jobs•.whereas the
Texas Division unit employees, do:not. .,• .- , .
' The : evidence ' also -shows. _ differences ; in
employm'ent' conditions ',for the two groups' of
employees. Technicians''receive, i a monthly! salary,
have, = a generally . different ' program,, of )fringe
benefits, - and do a not, 'punch i a, timeclock, all in
contrast- to -the system at .Texas % Division." The
pension plan for all, Dow employees,: however, is. the
same... !, . ., , , , -
-Also to be considered is the lack of transfer 'or
interchange of bargaining employees from Texas to
Oyster Creek. Almost all 'technicians were recruited
and hired, directly 'from outside of Dow :-by the
Oyster'Creek personnel office There'were only-two
exceptions to this, and that was in the-hiring 'of two
employees, who came from divisions-.of Dow, other
than- the. Texas, Division. There had been layoffs at
these plants, and these,persons were therefore hired
at Oyster Creek-. It is noted'that' some of the exempt
supervisory and managerial'personnel came directly
from the Texas 'Division. Some came from-.other
Dow: Divisions;, and others were new 'to Dow: The
Company maintains that the .Dow' supervisors, were
needed to provide' the new division with' expertise
and experience, , and that such transfers ' of
management personnel occur- frequently in. the
setting up'of'a•new facility: • - ' ' •
The_Uniori argues that many' unit employees-from
Texas Division t applied' for transfers to Oyster
Creek, ' but.- all were, turned down, and ;that' this
refusal was' disc-riminatory'. It is not within the scope
THE DOW-CHEMICAL CO. 723
of this proceeding to determine if there was
discriminatory staffing at .Oyster Creek. Such a
determination • can, be made in an unfair labor
practice proceeding .without ..affecting the result of
this case. Even if the.' Employer refused, for
union - related reasons;. to--transfer some employees
from Texas to 'Oyster Creek, `a'nd even if it' could in'
some way - be ,'established "that, , absent such
considerations, a,'substaritial, `numbe'r of employees
would have been ,so' ' ,transferred, such initial
permanent transfers, would not be determinative of
the question of whether Oyster Creek constituted an
accretion .to the Texas Division. The lack. of- a
continuing pattern of interchange of temporary
employees between', the Oyster Creek and Texas
Divisions is, however, additional support for finding
that Oyster Creek is riot an'accretion . The evidence
shows that there is no .,such "interchange and that,
excepf, for telephone - communication, between
employees: of Texas , and Oyster Creek about the
transfer of, products, there is no employee contact
between the two divisions. I • ,
Upon a' consideration-'•of' the' entire record, we
believe that the employees in the Oyster Ci•eek
Division are not'an accretion to the existing units'at
the 'Tex'as' Division. We note the classification of
employees-,at Oyster, Creek as ".technicians',' and the
resulting use, of 'them in . capacities that cross
classification .and craft lines, as opposed to the
raditional categories in, use . at, the Texast.Division.
squally as important, however, is, the fact that
Oyster Creek is a separate division, physically and
administratively, within. the larger Dow' Chemical
Company. Oyster Creek is located some distance
from the Texas Division plants and has been staffed,
below the supervisory and managerial level, entirely
with new employees. There has been no temporary
unit employee interchange between the Oyster Creek
and Texas Divisions. Oyster Creek has a separate
administrative structure, which reports directly to
corporate headquarters in Midland, Michigan, as
does the . Texas Division. The interchange of
products between Oyster Creek and Texas, while
extensive, is common to the region 'and is similar to
the close relationships shown between other divisions
and companies, both ,related and unrelated.
-It is thus clear that, as contended by the
Employer; the, appropriate: units consist of•, only the
employees,at the Texas.Division, and since the unit
descriptions, as they appear in the contracts, clearly
are,,, limited to the.. Texas, Division,, we find'' it
unnecessary to,issue an order in connection, with the
Texas Division's petition in Case 23-UC-35 for unit
clarification. W,e therefore dismiss the petition'
I
ORDER
It is hereby , ordered that the. petitions in Cases
23-RM-222 and 23-UC-35 be , and. they hereby are,
dismissed.
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