The Permanente Metals Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1942

45 N.L.R.B. 931 (N.L.R.B. 1942)

In the Matter of THE PERMANENTE METALS CORPORATION and FEDERA-
TION OF ARCHITECTS , ENGINEERS , CHEMISTS AND TECHNICIANS,
CHAPTER No . 25, C. I. O.
Case No. R-44125.-Decided November 30, 194
Jurisdiction : magnesium producing industry.
Investigation and Certification of Representatives : existence of question: 're-
fusal to accord recognition to petitioner because of existing exclusive bargain-
ing contract with rival organization ; contract no 'bar to, when employees
purportedly included were in fact not covered; election necessary.
Unit Appropriate for Collective Bargaining : all laboratory employees , including
sample boys , gas analysts , and stenographers , but excluding supervisors, per-
mitted to determine whether they should constitute a separate unit or part
of industrial unit embraced by existing exclusive bargaining contract with
intervening organization.
Mr. Harry F. Morton and Mr. Todd Inch, of Oakland, Calif., and
Mr. Gordon Johnson, of San Francisco, Calif., for the Company.
` Glads'ein, "Grossman, Margolis c -Sawyer, by, Mr.',Bertram Edises,
of Oakland, Calif., for the C. I. O.
Mr. Charles J. Janigian, of San Francisco, Calif., for the A. F. of L.
Miss Viola James, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon' petition duly filed by Federation of Architects, Engineers,
Chemists and Technicians, Chapter No. 25, affiliated with the Con-
gress of Industrial Organizations, herein called the C. I. 0., alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of The Permanents Metals Corporation, Los
Altos, California, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before William B. Esterman, Trial Examiner. Said hearing was held
at San Francisco, California, on October 6, 15, and 19, 1942. The
Company, the C. I. 0., and Building, and Construction Trades Depart-
ment, Metal Trades Department, and International Federation of
Technical Engineers, Architects acid Draftsmen Union, Local 89, all
45N L R B., No. 137
931
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliated with the American Federation of Labor, and herein collec-
tively called the A. F. of L., appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
On November 2, 1942, the Coinpany and the A. F. of L. filed briefs,
and on November 10, 1942, the C. I. O. filed a brief, all of which the
Board has considered. In their briefs, the Company and the A. F.
of L. moved to dismiss the petition on substantially the same grounds:
(1) that an existing contract between the Company and the A. F. of L.
is a bar to an election, and (2) that the unit sought by the C. I. 0. is
not appropriate. For the reasons appearing herein, the motions are
hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Permanente Metals Corporation is a Delaware corporation,
qualified-to transact business in the State of California. In California
the Company has operations involving both shipbuilding and the pro-
duction of magnesium. The shipbuilding division constructs ships
for the United States Government. The magnesium division owns
and operates several magnesium plants, one of which is the plant at
Permanente, California, whose employees are involved herein. From
April to October 1942, approximately 25 percent of the Company's
purchases used in the production of magnesium and magnesium alloys
was shipped from points outside the State of California. During the
same period approximately 15 percent of the Company's sales were
made and delivered to purchasers outside the State of California.
Each percentage exceeds in money value $100,000. The Company
concedes, and we find, that it is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Federation of Architects, Engineers, Chemists and rfechniciansi
Chapter No. 25, affiliated with the Congress of Industrial Organiza-
tions, and Building and Construction Trades Department, Metals
Trades Department, and International Federation of Technical Engi-
neers, Architects and Draftsmen Union, Local 89, all affiliated with
the American Federation of Labor, are labor organizations,'each ad-
mitting- to membership employees of the Company.
THE PERMANENTE METALS CORPORATION
III. THE QUESTION CONCERNING RIWRESENTATION
933
On or about July 28, 1942, the C. I. O. requested recognition as the
bargaining agent for laboratory employees of he Company employed
at the Permanente magnesium plant. The Company refused on the
grounds that its contract with the A. F. of L. is a bar.
On September 11, 1941, the Company and the A. F. of L. entered
into a,master contract,' to be in effect for the duration of the war or
for a period of 2 years, whichever is the longer. The contract, which
was introduced into evidence at the hearing, is apparently intended
to be a closed-shop contract, and it provides that all employees covered
by it must be members of one of the A. F. of L. unions which are
parties to the contract.. Examination reveals that the terms of the
contract do not clearly cover the laboratory employees of the Com-
pany's Permanente magnesium plant, who are the employees involved
herein. From the record it is apparent, however, that the laboratory
employees are not members of any A. F. of L. union, nor has their
dismissal been sought by the A. F. of L. as it could have been, if they
are covered by the contract. Moreover, after the contract had been
executed, the A. F. of L. unsuccessfully sought to organize the labora-
tory employees, and negotiations were begun toward including the
laboratory employees by the addition of a supplement to the contract.
These negotiations were still pending at the ,time the petition was
filed herein. These facts make it clear, and we-find, that the contract
does not operate as a bar to the present proceeding.
A statement of a Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the C. I. O. represents a sub-
stantial number of employees in the unit hereinafter found to be_
appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT THE DETER_IIINATION OF REPRESENTATIVES'
At its Peril anente magnesium plant, the Company employs approx-
imately 2000 persons, of whom approximately 62 are laboratory em-
1 The parties to the contract are The Permanente Corporation and Todd-California Ship-
building Corporation , the employers , and Building and Construction Trades Department
and Metal Trades Department , A. F. of L, in behalf of 13 affiliated unions. Local 89, one
of the intervenors , suggested by the A. P. of L as the proper local for the employees
involved herein , is not a party to the contract.
2 The Field Examiner reported that the C . I. O. submitted 37 application cards dated
January to July 1942, with 1 undated , and all bearing apparently genuine original signa-
tures, and that 31 of the cards bore the names of persons listed on the Company's pay roll
of August 17, 1942 , which listed 62 persons in the unit sought by the C I 0 The A F
of L submitted no proof of representation other than its contract with the Company
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. The C. I. 0. would include in a unit all the laboratory em-
ployees except supervisors 3 whom the parties agree to exclude.
Aside from asserting that their contract is a bar, a contention we
have found to be without merit, the Company and the A. F. of L.
opposed the unit sought by the C. I. 0. on the additional ground
that the appropriate unit is a plant-wide unit consisting of a112000
employees. In the event the unit sought by the C. I. 0. is estab-
lished, the Company would also exclude sample boys, gas analysts,
and stenographers. The A. F. of L. took no position' as to these
employees.
The evidence shows that the magnesium plant, including the labora-
tory, covers a comparatively small area, and is situated in a natural
bowl reached by only one road. The laboratory is in a separate
building and is under the control of supervisors who have no super-
vision over the rest of the plant. Most of the laboratory employees
are highly skilled and educated chemists and technicians, who
use special scientific tools and equipment. They spend about
25 percent of their working time ^ in the plant in connection with
chemical problems. It also appears that tliey-are,hired by the labora-
tory supervisors and not through A. F. of L. agencies, as are the
employees covered by the contract, and that they handle their own
grievances. Evidence was introduced to show that their working
conditions and safety problems are different from the rest of the
plant, and that transfers have been few and are of a permanent nature.
In view of these circumstances, we find that the laboratory employees
may properly be considered as a separate unit.
Sample boys, gas analysts, and stenographers; There are 3 or 4
sample boys. Their duties are to collect samples of magnesium alloys
in the plant and prepare the samples for analysis. The duties of the
approximately 15 gas analysts are to analyze gases. They perform
this function both in the plant and in a laboratory-field station. The
Company would exclude both sample boys and gas analysts, ap-
parently on the ground that they are production employees because
they spend a considerable part of their time in the plant rather than
in the laboratory. The record shows that they are under the direc-
tion and control of the laboratory supervisors, and that their duties
are an integral part of the chemical work of the laboratory. The
Company, would also exclude the laboratory stenographers. It ap-
pears that their duties are confined to the laboratory, that they must
be familiar with technical language, and that they, as well as the
sample boys and gas analysts, are listed by the Company with `the
8 There are approximately six supervisors : Dr. F. D. Fowler, research director and head
supervisor of the entire laboratory ; B. Ridell , assistant research director ; 0. Smith, chief
chemist ; McLaughlin , assistant chief chemist ; H. Frantz, chief gas analyst ; and W. 0.
Wetmore, chief metallurgist.
THE PERMANENTE METALS CORPORATION 935
laboratory employees. We find that all 3 groups should be included
with the laboratory employees.
We find that all the laboratory employees at the Permanente magne-
sium plant, including sample boys, gas analysts, and stenographers,
but excluding supervisors, may properly- constitute an appropriate
unit, and we shall, direct that a separate election be held among them.
If these employees select the C. I. 0., they will constitute a separate
`unit; if they select the A. F. of L., they will thereby have indicated
their desire to be grouped with the Company's employees covered by
the A. F. of L. contract.4 We shall accordingly direct that the question
concerning representation which has arisen be resolved by an election
by secret ballot among the laboratory employees, including sample boys,
gas analysts, and stenographers, but excluding supervisors, subject to
the limitations and additions set forth in the Direction.
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 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represerita-
tives for the purposes of collective bargaining with The Permanente
Metals Corporation, Los Altos, California, 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 supervi-
sion of the Regional Director for the Twentieth Region, acting in this
matter as agent for the National Labor Relations Board, and subject
to Article III, Section 10, of said Rules and Regulations, among the
laboratory employees, who were employed during the pay-roll period
immediately preceding the date of this Direction, including sample
boys, gas'analysts, and stenographers, and any employees who did not
work during said pay-roll period because they were ill or on vacation or
in the active military service or training of the United States, or tem-
porarily laid off, but excluding supervisors and any employees who
have since quit or been discharged for cause, to determine whether they
desire to be represented by Federation of Architects, Engineers, Chem-
ists and Technicians, Chapter No. 25, affiliated with the Congress of
Industrial Organizations, or by International Federation of Technical
Engineers, Architects and Draftsmen, Local 89, affiliated with the
American Federation of Labor, for the purposes of collective bar-
gaining, or by neither.
A In that event, we shall order the petition herein dismissed.