Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

May 14, 1954

108 N.L.R.B. 870 (N.L.R.B. 1954)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MONSANTO CHEMICAL COMPANY and ASSOCIATED GUARDS
OF THE UNITED STATES, Petitioner. Case No. 39-RC-734.
May 14, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clifford W.
Potter, hearing officer. The hearing officer' s rulings made at
the hearing are free from prejudicial error and are hereby
affirmed. I
Upon the entire record in this case , 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 employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
The Employer's Texas City, Texas , plant is alone involved in
this proceeding. In 1943 the Galveston Building and Construction
Trades Council, AFL, which' was the Intervenor' s original
name, was certified as bargaining representative of the
Employer's production and maintenance employees at this
plant, excluding guards. In 1946 this labor organization filed a
petition seeking to represent separately the Employer' s plant
guards and on November 18, 1946, as the result of a Board-
directed election,' it was certified as their bargaining repre-
sentative . Thereafter , the plant guards were included by the
parties in the same collective-bargaining agreement with the
production and maintenance employees . In 1950 the Galveston
Building and Construction Trades Council changed its name to
Galveston Metal Trades Council--the present name of the
Intervenor herein . The Employer continued to deal with, and
recognize , the Intervenor and did not request that it obtain new
certifications or amendments to the certifications due to the
change of name.
The Petitioner, an independent guard union , seeks a separate
unit of the Employer' s guards . The Employer contends that its
current contract with the Intervenor, which is effective until
June 13, 1954, and which includes the guards in the bargaining
unit with production and maintenance employees , is abar to this
proceeding . In its brief, the Employer asserts thatthe Board's
decisions in the American Dyewood' and Sonotone4 cases
support its view. The Petitioner in its brief contends that the
'Galveston Metal Trades Council, herein called the Intervenor, was permitted to intervene
in this proceeding upon the basis of its current contract with the Employer.
'Monsanto Chemical Company , 71 NLRB 11.
SAmerican Dyewood Company, 99 NLRB 78,
4Sonotone Corporation, 100 NLRB 1127.
108 NLRB No. 121.
MONSANTO CHEMICAL COMPANY 871
instant case is almost identical to, and controlled by, our
recent decision in Nash Kelvinator .5 We agree with the
Petitioner.
In American Dyewood , the petitioner sought a production and
maintenance unit excluding guards and urged that the inter-
venor ' s contract with the employer covering production and
maintenance employees was not a bar because it included
several guards . The Board held the contract a bar as the unit
represented by the intervenor was otherwise appropriate,
although it contained this fringe category of employees--
guards- -which the Board , if called upon to make a decision
initially, could not have included. The Board' s rationale for
this decision was that , as a matter of policy, the coincidental
inclusion of the small group of guards in the broad overall unit
did not warrant disruption of the stable bargaining relationship
which had been established by the employer and the intervenor
for the production and maintenance employees . Similarly, in the
Sonotone case , where the Board had certified a unit of production
and maintenance employees including guard-watchmen whom the
parties had stipulated were not guards, the Board held that the
contract barred a petition for the production and maintenance
employees , despite the . fact that it was later determined that
the guard-watchmen were guards.
These cases differ substantially from the instant one. Thus,
here , as in Nash Kelvinator, the Petitioner is seeking the very
category of fringe employees which should not have been
included in the otherwise appropriate overall unit and holding
the contract not a bar as to the guards will not disturb the
existing bargaining relationship between thq Employer and
Intervenor with respect to the broad unit of production and
maintenance employees . Moreover , while Section 9 (b) (3) of
the Act merely forbids the Board itself from establishing as
appropriate a unit containing guards as well as other employ-
ees, in our opinion , finding the contract no bar here gives
recognition to the basic intent of Congress in enacting the
section , that is , that guards should not be included in the same
unit with other employees . Indeed , it was for this reason that in
the Sonotone case, the Board sua sponte amended the certifica-
tion involved therein to exclude the guard-watchmen, when the
evidence introduced into the record showed these employees
were , in fact , guards. In view of the foregoing , we find that the
Intervenor ' s contract with the Employer is no bar to this pro-
ceeding.
4. We find that all guards at the Employer's Texas City,
Texas , plant , including guard sergeants , 6 but excluding all other
employees , the chief of plant guards , and all supervisors as
defined in the Act, constitute a unit appropriate for the purposes
5 Nash Kelvinator Corporation, 107 NLRB 644.
6 The parties stipulated that guard sergeants are not supervisors within the meaning of the
Act.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining within the meaning of Section 9 (b) (3)
of the Act.
[Text of Direction of Election omitted from publication.]
Member Murdock dissenting:
For reasons of both policy and precedent, I am constrained
to disagree with my colleagues' direction of an election in this
case. The majority opinion directs an election among guards
who are now included in abroader unit covered by a collective-
bargaining contract which has not expired. Because the Board's
previous decisions and its well-known policy of encouraging
stability of bargaining relationships are in conflict with this
determination of the majority, I would, instead, dismiss the
petition on the ground that the contract between the Employer
and the Intervenor is a bar to the instant petition.
The petition requests an election in a unit of the Employer's
guards. The majority opinion grants this election despite its
admissions that the Employer and the Intervenor have an
unexpired collective-bargaining contract covering the terms
and conditions of employment of these individuals and that
Section 9 (b) (3) "merely forbids the Board," not the parties,
from establishing a unit ,including both guards and nonguard
personnel. The reasons for the majority action are set fprth in
the opinion as being, first, the fact that the guards "should not
have been included" in the broader unit originally, and,
secondly, because finding that the contract is not a bar "gives
recognition to the basic intent of Congress" in the enactment of
Section 9 (b) (3). Both these contentions have previously been
rejected by the Board in cas es which have not, to my knowledge,
been overruled.
The Intervenor herein was certified, prior to the 1947 amend-
ments to the Act, as the representative of both the Employer's
guards and its production and maintenance employees. Those
certifications, though separate for the guards and the remainder
of the employees, were entirely valid, as was the merger of the
two certified units thereafter. The statement of the majority,
accordingly, that the guards "should not have been included"
originally is without legal substance. There is nothing in the
Act, as indeed my colleagues admit, that prohibited such action
by the Employer and the Intervenor.
Since certification as representative of these employees, the
Intervenor has bargained continuously for both guards and
production and maintenance employees to the present date. Its
current contract has not expired. The question is, accordingly,
whether this stable relationship should now be disrupted merely
because the Board, if now presented with an initial request by
the Intervenor to represent both guards and production and
maintenance employees, would not grant such a merger. The
MONSANTO CHEMICAL COMPANY 873
Board disposed of this precise question in American Dyewood
Company,' where it stated:
Section (9 (b) (3)] of the amended Act merely for-
bids the Board itself to establish as appropriate a unit
containing guards as well as other employees. It does not
impose upon the Board a duty to police every contract
voluntarily established by the parties, to determine
whether they have covered the working conditions of indi-
vidual employees whom the Board , if called upon to make
a decision , would exclude. The Board' s contract bar rule
is based upon broad policy considerations . It aims to stabi-
lize the relationship between employers and their em-
ployees ' bargaining representatives for the duration of a
reasonable contract term. The Intervenor and the Employer
are bargaining on the basis of such a contract . To disrupt
that relationship , it seems to us, should require something
more than a finding that several employees should not
have been included in an otherwise clearly appropriate
unit. We specifically do not find that guards may be
appropriately included in a production and maintenance
unit. Contrary to our dissenting colleague ' s position, we
do not believe that we are indirectly making any such
decision. We simply are not persuaded , as a matter of
overall policy, that the existence of coverage here warrants
disturbing stability by making inapplicable the Board's
normal contract bar doctrine.
In the Sonotone decision 8 which followed, the Board again
rejected the contention that contract stability should be disrupted
solely because the "certification was of a unionwhich included
certain employees who, had their status been litigated, would
have been excluded by the Board ." In that case , however, the
Board amended its certification to exclude guards because it
issued after a time when this agency could legally certify a
union as representative of both guards and production em-
ployees . Such is clearly not the situation herein for the Board's
certification of the Intervenor as representative of these guards
was entirely valid when made.
In recognition of the contrary precedent in American Dye-
wood and Sonotone , the majority opinion here seeks to distin-
guish those decisions on the ground that they did not involve a
union petitioning for a unit of guards . While it is true that the
Nash Kelvinator case ,' cited by my colleagues in this regard,
found a contract not a bar on that ground, it is clear that that
case , as well as the majority opinion herein, is in direct
7 99 NLRB 78.
SSonotone Corporation , 100 NLRB 1127.
9107 NLRB 644.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conflict with the previous decisions rather than distinguishable
from them . The mere fact that the Petitioner is seeking a unit
of guards rather than a production and maintenance unit does
not touch the essential problem as stated in American Dyewood
of whether or not the Board is to disrupt the numerous collec-
tive -bargaining contracts voluntarily established by unions and
management in an effort "to determine whether they have
covered the working conditions of individual employees whom
the Board , if called upon to make a decision , would exclude."
The Act does not call uponthis agency to do so , as the majority
admits, and I find no congressional intent in Section 9 (b) ((3) or
elsewhere for the policing and disruption of such voluntary
arrangements as arrived at herein.
For these • reasons, I would overrule the Nash Kelvinator
decision as inconsistent and in conflict with tae precedent set
forth in American Dyewood and Sonotone Cor poration. In
accord with the ruling of the latter named dec isions, would
further dismiss the petition filed herein on the ground that it
is barred by the current contract between the Employer and
the Intervenor.
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
ROADWAY EXPRESS, INC . and JESS E . CAWTHORN and
WALTER C. BUXTON
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS , WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL 823, AFL and JESS E. CAWTHORN and WALTER
C. BUXTON and RALPH E. HAYES . Cases Nos . 16-CA-662,
16-CA- 663, 16-CB-49, 16-CB - 50, and 16-CB - 51. May 18,
1954.
DECISION AND ORDER
On January 11, 1954 , Trial Examiner C . W. Wittemore issued
his Intermediate Report in these consolidated cases , finding
that the Respondents had both engaged in and were engaging in
certain unfair labor practices and recommending that they
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto . Thereafter, the Respondent Company and the Respondent
Union filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was
108 NLRB No. 123.