Allied Chemical & Dye Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1951

96 N.L.R.B. 1374 (N.L.R.B. 1951)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SEMET-SOLVAY DIVISION, ALLIED CHEMICAL & DYE CORPORATION and
UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CONGRESS OF
INDUSTRIAL ORGANIZATIONS, PETITIONER. Case No. 9-RC-1056.
November 7, 1951
Supplemental Decision and Direction
On February 15, 1951, pursuant to a Decision and Direction of Elec-
tion 1 issued by the Board on January 22, 1951, an election by secret
ballot was conducted under the direction and supervision of the Re-
gional Director for the Ninth Region. Upon completion of the elec-
tion, a tally of ballots was issued and duly served by the Regional
Director upon the parties concerned. The tally reveals that of ap-
proximately 257 eligible voters, 245 cast valid ballots, of which 125
were cast for the Petitioner and 120 were against the Petitioner.
Seven ballots were challenged. No objections to the conduct of the
election were filed within the time provided therefor.
As the challenged ballots were sufficient in number to affect the re-
sults of the election, the Regional Director, pursuant to the Board's
Rules and Regulations, conducted an investigation and, on April 26,
1951, issued and duly served upon the parties a report on challenged
ballots. In his report, the Regional Director recommended that the
challenges to the ballots of James E. White, W. T. Robinson, Henry
E. Deskins, Newton Wileman, Benjamin F. Spradlin, Ernest Brown,
and Robert W. Mittendorf be overruled. Thereafter, the Petitioner
filed timely exceptions to the Regional Director's recommendations as
to all seven ballots. On May 23, 1951, the Board directed that a hear-
ing be held on all the issues raised by the challenges and exceptions
and directed the hearing officer to resolve credibility issues and to
make findings of fact and recommendations to the Board as to the
disposition of the challenges.
Thereafter, a hearing was held on June 20, 21, and 22, 1951, before
William Naimark, hearing officer. The Employer and the Petitioner
appeared and participated. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on the
issues, was afforded the parties.
On August 9,1951, in accordance with the Board Order, the hearing
officer issued and duly served upon the parties his report. The hear-
ing officer found that White, Robinson, Deskins, Wileman, and Sprad-
lin were not supervisors within the meaning of the Act, at the time
of the election. He also found that Brown exercised supervisory
' Unpublished.
96 NLRB No. 203.
SEMET-SOLVAY DIVISION, ALLIED CHEMICAL & DYE CORPORATION1375
'authority only sporadically during 1950 and was eligible to vote in
the election. The hearing officer further found that Mittendorf, while
performing his work as a draftsman or his other duties in the engi-
neering department or in the laboratory, was not a professional em-
ployee within the meaning of the Act. He recommended that the
challenges to all seven ballots be overruled. The Petitioner filed
timely exceptions to the hearing officer's report, and thereafter, by
special leave of the Board, the Employer filed a reply brief in opposi-
tion to the Petitioner's exceptions.
The Board 2 has reviewed the rulings made at the hearing by the
hearing officer and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
hearing officer's report, the Petitioner's exceptions, the Employer's
reply brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the hearing officer.3
The Petitioner contends that the hearing officer erred in crediting the
testimony of several witnesses. A hearing officer in a proceeding such
as this, like a Trial Examiner in an unfair labor practice case, has
the advantage of seeing and hearing the witnesses and we attach great
weight to his credibility findings. We do not overrule them except
where the preponderance of all the relevant evidence convinces us
that he is incorrect. No such conclusion is warranted in this case.4
Accordingly, we shall overrule the challenges to all seven ballots and
direct that they be opened and counted.
Direction
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Semet-Solvay Division, Allied
Chemical & Dye Corporation, the Regional Director for the Ninth
Region shall, pursuant to the Rules and Regulations of the National
Labor Relations Board, within ten (10) days from the date of this
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and Mem-
bers Houston and Murdock.]
a In its exceptions , the Petitioner asserts that the hearing officer misconstrued its posi-
tion as to the eligibility of Mittendorf . Although the Petitioner challenged Mittendorf as
a professional employee it now concedes that he is not a professional employee but, never-
theless, should be held ineligible to vote because he is a technical employee . The record
clearly shows that Mittendorf, during the time of the election and several months prior
thereto, spent the majority of his time in the performance of draftsman duties. As the
Employer and the Petitioner at the original hearing in this proceeding stipulated the
inclusion of draftsmen and no persuasive reason has been advanced for holding that such
agreement is not binding upon the Petitioner, we have adopted the hearing officer's recom-
mendation that the challenge to Mittendorf 's ballot be overruled . See Oliver Machinery
Company, 93 NLRB 731.
' See American Twine h Fabric Corporation,. 91 NLRB No . 168. See also Colonial Shirt
Corporation, 96 NLRB No . 104; Standard Dry Wall Products, Inc., 91, NLRB 544; N. L.
R. B. Y. Universal Camera Corp ., 190 F. 2d 429 (C. A. 2).
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Direction open and count the challenged ballots of James E. White,
W. T. Robinson, Henry E. Deskins, Newton Wileman, Benjamin F.
Spradlin, Ernest Brown, and Robert W. Mittendorf, and shall there-
after prepare and cause to be served upon the parties a supplemental
tally of ballots, including therein the count of these challenged
ballots.
WESTERN EQUIPMENT COMPANY and INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE No. 1712, AFL, PETITIONER
WESTERN EQUIPMENT COMPANY and INTERNATIONAL UNION OF OPER-
ATING ENGINEERS, LOCAL No. 370, AFL, PETITIONER
WESTERN EQUIPMENT COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL No. 983, AFL, PETITIONER. Cases Nos. 19-RC-824,19-RC-
825, and 19-RC-862. November 8, 1951
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Daniel J. Harrington, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel. [Chairman Herzog and Members Houston and
Murdock].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.2
i International Union of Operating Engineers , Local No. 370, AFL, herein called the
Operating Engineers, moved to dismiss the intervention by International Association of
Machinists , Local Lodge No. 1712, AFL, herein called the IAM, in Case No. 19-RC-825,
on the ground of surprise . By Its Intervention in Case No. 19 -RC-825, the IAM seeks to
represent the employees covered by its separate petition In Case No . 19-RC-824. As the
Operating Engineers was served with a consolidated notice of hearing, its motion Is denied.
2 The Operating Engineers urges a current contract between the Employer and Pocatello
(Idaho ) Building Trades Council as a bar to the IAM's petition and to its intervention
based on the Operating Engineers ' petition in Case No . 19-RC-825. The Operating En-
gineers is party to this contract as a member of the Pocatello Building Trades Council.
As the Operating Engineers itself raised a question concerning representation as a peti-
tioner herein, its own contract assertedly covering the employees involved cannot now bar
the proceeding . We therefore find it unnecessary to pass upon the sufficiency of the con-
tract as a bar to the IAM's petition.
96 NLRB No. 204.