Tin Processing Co.

National Labor Relations Board - Board Decisions

Dec 20, 1948

80 N.L.R.B. 1369 (N.L.R.B. 1948)

In the Matter of TIN PROCESSING CORPORATION, EMPLOYER and OIL
WORKERS INTERNATIONAL UNION, CIO, PETITIONER
Case No. 16-RC-191.-Decided December 20,1948
DECISION
AND
DIRECTION OF ELECTIONS
Upon an amended petition duly filed, hearing in this case was held
at Texas City, Texas, on August 6, 1948, before James R. Webster,
hearing officer. At the hearing, the Employer and the intervening Tin
Smelter Workers Union, Local No. 23198, AFL, herein called the
Tin Smelters, moved individually and jointly to dismiss the petition
and to strike the intervention of Lodge 1446, International Associa-
tion of Machinists, herein called the Machinists, on various grounds."
The hearing officer reserved ruling on these motions to the Board.2
For the reasons hereinafter stated the several motions of the Employer
and the Tin Smelters made at the hearing and following the hearing,
are hereby denied. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. The Em-
ployer's request for.oral argument is hereby denied, as the record and
briefs, in our opinion, adequately present the issues and the positions
of the parties.
i The Tin Smelters moved to strike the intervention of the Machinists upon the ground
that it was improperly seeking to establish units and represent employees therein by a
means other than that provided for in Section 9 (c) (1) of the Act as set forth in the
Board's Rules and Regulations . It is contended that the rules provide for the raising of
the question of representation of employees in a specified unit only by means of a petition
duly filed under this section . We find no merit to this contention. We have customarily
allowed the issue of craft severance to be raised by intervention and proper showing of
interest in the units sought without the necessity of filing a separate petition covering
the craft group. Furthermore , the date of signing authorization cards submitted in sup-
port of a showing of interest , like other relative issues, is solely a matter of administrative
determination and not subject to collateral attack at the hearing . Matter of Noblitt-
Sparks, Inc., 76 N. L. R. B. 1230.
' There was also reserved to the Board, the hearing officer 's motion to incorporate as
part of the record for the purpose of showing the history of collective bargaining in this
plant, a number of prior Board proceedings involving employees of the Employer. Since
the Board takes judicial notice of prior proceedings before it, there is no necessity to
incorporate such prior proceedings to establish the fact of bargaining history. The motion
to incorporate is therefore denied. See Matter of Bethlehem Steel Corp ., 30 N. L. R. B.
1006 ; Matter of Wichita Transportation Corporation , 73 N. L . R. B. 1070.
80 N. L . R. B., No. 212.
1369
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members. *
Upon the entire record in the case the National Labor Relations
Board finds :
1. The Employer is engaged in commerce within the meaning of the
National Labor Relations Act.
2. The labor organizations named herein claim to represent em-
ployees of the Employer.
3. The question concerning representation :
Among the grounds urged by the Employer and the Tin Smelters
as basis for a motion to dismiss the petition was an allegation that the
CIO Organizing Committee, which organization is not in compliance
with section 9 (f), (g) , and (h) of the Act, was using the named
Petitioner as a "front" to circumvent the provisions of that Section
of the Act. The Employer and Tin Smelters point to the fact that
the organizing campaign was conducted by the CIO Organizing Com-
mittee, and that but for the fact that neither the Steel Workers nor
the Mine, Mill and Smelter Workers is in compliance with the pro-
visions of Section 9 (f), (g), and (h) of the Act, either of those
unions, in preference to the Petitioner, would have been the logical
organization to file a petition in this proceeding. In support of this
contention, the Employer and Tin Smelters urge the fact that both
the original and the amended petition were signed by Robert Oliver,
State Director, CIO Organizing Committee; it is, therefore, con-
tended that the CIO Organizing Committee is the real party in in-
terest. We note, however, that demand for recognition was made by
the International Representative, Oil Workers International Union,
and that unrebutted testimony indicates that the State Director, CIO
Organizing Committee, has been given written authority to sign peti-
tions on behalf of the Oil Workers International Union, the Petitioner
in this proceeding. In addition thereto, all membership application
cards presented by the Petitioner to the Board to establish the sub-
stantiality of interest in the present case were made out in the name
of the Oil Workers International Union. These facts would tend to
establish that the named Petitioner is the real party in interest 3 Fur-
thermore, the fact that the Petitioner contemplates establishing a local
*Reynolds, Murdock , and Gray.
8 Matter of Mississippi Products , Inc., 78 N. L. R. B. 873 ; Matter of McGraw-Curran
Lumber Co ., Inc., 79 N, L. R. B. 705.
TIN PROCESSING CORPORATION 1371
if it wins the election does not nullify the conclusion that it is entitled
to maintain the present proceeding in its own behalf.'
The Employer and Tin Smelters further urge a contract bar with
respect to the present proceeding. The Employer and the Tin Smelt-
ers have negotiated collective bargaining agreements since 1942,
covering a production and maintenance unit which was established
as a result of a consent election conducted under the auspices of the
Board. The most recent contract between the Employer and the Tin
Smelters covering the employees involved herein was for a period of
one year from August 7, 1947. This contract provided for its auto-
matic renewal thereafter from year to year in the absence of notice
by either party at least 30 days prior to the termination date, of a
desire to change or terminate the contract.
The Employer and Tin Smelters contend that since neither party
thereto gave notice to the other of a desire to terminate or alter the
contract, the contract was automatically renewed by operation of its
own terms and is, therefore, a bar to a determination of representatives.
It appears, however, that by letter dated June 5, 1948, the Petitioner
herein demanded recognition as bargaining representative of certain
employees of the Employer,5 and thereafter filed its petition before the
automatic renewal date, thus preventing the automatically renewed
contract from operating as a bar to the present proceeding.,,
We find that 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.
4. The appropriate unit :
The Employer and the intervening Tin Smelters are in substantial
agreement with the Petitioner that the unit should consist of all pro-
duction and maintenance employees including laboratory employees
and leadmen, but excluding all office and clerical , administrative,
executive, and professional employees, plant protection employees, all
supervisors and employees of the Electrical Department and the Pipe
I The Board has held that whether or not a local union is established, and whether or
not its officers will comply with the Act is conjectural and too premature to warrant con-
sideration. Matter of Granite Textile Mills, Inc., 76 N. L. R. B. 613; Matter of Oppen-
heim Collins d Co., Inc., 79 N. L. R. B. 43.
5 The Employer's reply to the Petitioner's demand was to the effect that the manager,
who handled industrial relations, was out of the city. Thereafter, the Petitioner filed its
petition herein on June 15, 1948, and its amended petition on June 23, 1948. After the
hearing, the Employer moved to dismiss the petition on the ground that it had not refused
the recognition demanded by the Petitioner prior to the filing of the petition and prior
to the hearing. This motion was based on the principles set forth in Matter of Advance
Pattern Company, 79 N. L. R. B. 209. For the reasons set forth in the majority opinion in
Matter of Advance Pattern Company, 80 N. L. R. B. 29, the motion is hereby denied.
6 Matter of Firestone Tire and Rubber Company, 76 N. L. R. B. 226, and cases cited
therein.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department. The intervening Machinists seeks the severance from the
production and maintenance unit of four groups which it claims are
appropriate craft units. The units requested consist of: (1) All
inside and outside machinists classified on the pay-roll as machinists,
their helpers, apprentices, and oilers working under the supervision of
the machine shop foreman, and including all employees engaged in the
erection, assembling, dismantling, maintaining, and/or repairing of
machinery by the Employer but excluding supervisors and all other
employees; (2) All auto mechanics, truck mechanics, heavy-duty
mechanics employed in the auxiliary repair shop, including tool crib
attendants, repairmen classified on the pay-roll as machinists but ex-
cluding supervisors and all other employees; (3) All truck drivers
excluding supervisors and all other employees; (4) All boiler firemen
and their helpers, excluding supervisors and all other employees.
The Employer opposes the units sought by the Machinists, urging
that the tin smelting industry in the United States ° is comparable to
the basic steel industry and as such should fall under the principles
announced in the National Tube Company case." It is urged that the
Board erred in ordering an election in Cases Nos. 16-R-2418 and
16-R-2425 s allowing craft severance elections for separate groups of
electricians and pipefitters employed by the Employer.io
The Employer's production operations under the supervision of the
Plant Superintendent are carried on in several buildings consisting of
three departments, i. e., Ore Storage and Ore Dressing, Roasting and
Leaching, and Smelting and Refining. The maintenance departments
under the supervision of the Maintenance Engineer service the produc-
tion operation and consist of the following departments, each under
the supervision of a foreman : Auxiliary, Pipefitters, Machinists, Rig-
gers, Welders, Electricians, Carpenters, and Painters. A few
employees from each maintenance department are assigned directly to
each of the three production departments at all times. The other
employees from each department are assigned in gangs to handle
specific jobs.
The Board has determined that separate craft maintenance units
in the basic steel industry may not be established because, unlike the
usual craft maintenance employees whose work on production equip-
T The Employer is engaged as managing agent in the refining of tin on behalf of the
Reconstruction Finance Corporation at the latter's Longhorn Tin Smelter plant in Texas
City, Texas, and claims that this is the only tin smelter in operation within the confines
of North America.
8Matter of National Tube Company, 76 N. L. R. B. 1199.
G Matter of Tin Processing Corporation, 78 N. L. R. B. 96.
'D In support of this contention the Employer relies upon Matter of Geneva Steel, 76
N. L. R. B. 150, and Outboard Marine c6 Mfg. Co., 66 N. L. R. B. 1142 , and in this con-
nection made its request for oral argument hereinabove referred to.
TIN PROCESSING CORPORATION 1373
ment occurs for the most part at irregular intervals, the craft main-
tenance employees in the basic steel industry are engaged in a definite
program of replacing and repairing on regular succeeding occasions
the instrumentalities used in the continuous production of basic steel,
and that their functions are therefore intimately connected with the
steelmaking process itself. However, the principle announced in the
National Tube Company case, supra, is an exception to the general
Board policy and is based on the high degree of integration of main-
tenance craftsmen with the production employees in the basic steel
manufacturing process. It does not appear that a similar situation
exists in the tin processing industry. On the contrary, it appears here
that substantially all employees in each craft group generally remain
in the maintenance divisions from which they are sent out in crews
to work wherever the occasion may arise, in much the same manner as
general maintenance crews in most industries. We therefore conclude
that the facts in the instant case do not warrant a finding that any craft
maintenance employees herein are an inseparable part of the over-all
production unit.
The character of the units proposed by the Machinist8
The Tin Smelters oppose the units sought by the Machinists upon
the ground that such units are not true crafts but merely heterogeneous
groups of maintenance employees, and that such units are based solely
on the "extent of organization," a factor to which the Board may no
longer give controlling weight by reason of Section 9 (b) (2) of the
Act. More specifically, the Tin Smelters contend that a true craft
unit of machinists in this plant would be one identical to the unit of
machinists set forth in the agreement for a consent election 11 held on
August 5, 1947 12 in a unit consisting of "all machinists and machinist
maintenance mechanics, including heavy duty mechanics, automobile
mechanics, instrument repairmen, leadmen, helpers and apprentices."
It is further contended that oilers are not a part of the machinists
craft.
The journeymen machinists, their helpers and apprentices, under
the supervision of the machine shop foreman, perform the usual duties
required of such employees. Another group classified as machinists,
u Case No. 16-R-2328.
12 There is no implication in Section 9 (b) (2) of the Act or in Board Decisions that
a craft group is entitled to only one opportunity to express its desires as regards separate
representation . While the Board has on occasion considered as a factor to be considered
in directing a craft severence election , the lack of a previous opportunity for an expression
of desire regarding separate representation , it is not an indispensable prerequisite to
directing a craft severance election . See Matter of Mergenthaier Linotype Company,
80 N. L. R. B. 132.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their helpers and apprentices, who do machine repair work in the
auxiliary repair shop under the supervision of the auxiliary foreman,
also perform highly skilled machine work. 13 Likewise the group of
instrument repairmen although under the supervision of the foreman
of the Electrical Department, are classified as machinists, and do
machinist maintenance repair work on electrical panels and equip-
ment.'' Although the machinists in the three groups mentioned above
are under separate immediate supervision, they are under the common
ultimate supervision of the Maintenance Engineer. Furthermore
they perform similar duties requiring the same high degree of skill
and are all a part of the same traditional craft to whom the Board
has customarily granted the opportunity of separate representation.
Because the proposed machinists and mechanics units sought by the
Machinists, respectively, comprise only a segment of a craft group pos-
sessing similar skills and performing comparable work, we find that
such units are not appropriate for the purposes of collective bargain-
ing under the meaning of Section 9 (b) of the Act 15 We find, how-
ever, that three groups consisting of machinists under the supervision
of the machine shop foreman, machinists under the supervision of the
auxiliary repair shop foreman and machinists known as instrument re-
pairmen, their leadmen, helpers and apprentices, may constitute an
appropriate unit.
The oilers, on the other hand, follow a regular schedule of lubri-
cating all moving parts in the plant. In this plant they are not ma-
chinists but unskilled men who have been trained by the Employer in
all phases of proper oiling. Although they are under the same super-
vision as the shop machinists, the oilers are not a part of the machinists
craft nor do they possess mechanical skills comparable to those of the
machinists.,,' Accordingly, we shall exclude the oilers from the ma-
chinists group.
The Employer opposes the separate unit of truck drivers requested
by the Machinists upon the ground that their function is actually a
part of the production department. These employees are engaged in
loading, hauling, and unloading materials for and between the several
operational departments on plant property exclusively. In this pro-
" Although members of this group have been referred to by the Machinists as automo-
tive and truck mechanics , their duties are not limited to the repair of trucks or other
garage work, but are largely concerned with the repair of heavy duty machinery and
hydraulic equipment
The Board in Matter of Tin Processing Corporation, 78 N. L . R. B. 96, determined
that instrument repairmen are not a part of the electrical craft and excluded them from
the electrical department group in which an election was directed in that proceeding.
'5 See Matter of J. L . Shiely Company, 80 N. L. R. B. 119.
14 Matter of Western Electric Company, Inc., 67 N . L. R. B. 977 ; Matter of Edison Gen.
eras Electric Appliance Company, Inc., 50 N. L. It. B. 387.
TIN PROCESSING CORPORATION 1375,
cess they operate gasoline and electric battery driven lift trucks of a•
type which are not used on highways. Labor crew employees without
previous experience are trained in from 6 hours to 2 weeks to perform
this type of work for which chauffeur's licenses are not required.
While we have on occasions permitted separate representation for
truck drivers who constitute a traditional homogeneous group of skilled
employees, the truck drivers herein concerned have duties too closely
associated with those of production employees to warrant their being
separately represented apart from the production employees 17 Ac-
cordingly, we find that the proposed unit of truck drivers is inappro-
priate for purposes of collective bargaining.
As previously noted, the machinists also seek a unit of boiler firemen
and their helpers. The boiler firemen and their helpers tend the.
pumps, gauges, and various controls of two isolated waste heat boilers
and perform other related duties. The boiler firemen and helpers are
a well defined homogeneous group to which the Board has customarily
accorded the right of separate representation.18 Accordingly, we be-
lieve that the boiler firemen and helpers may in the present instance
constitute an appropriate unit.
The Board will, however, make no unit determination until it has
further ascertained by separate elections the desires of these and other
employees in the voting groups described below19 If, in these elec-
tions, a majority of the employees in any voting group select the Ma-
chinists, they will have been taken to have indicated their desire to
constitute a separate bargaining unit. If, on the other hand, the
majority of those employees in any voting group select either the
Petitioner or the Tin Smelters, they will be taken to have indicated
their desire to remain a part of the existing production and mainte-
nance unit.
We shall direct that the questions concerning representation which
exist be resolved by separate elections by secret ballot among em-
ployees within the following voting groups :
(a) All machinists, including machinists under the supervision of
the machine shop foreman, machinists under the supervision of the
auxiliary repair shop foreman and machinists known as instrument
repairmen, their leadmen, helpers, apprentices, and tool crib attend-
,,See Matter of Astor Packing Company, 80 N. L. R. B . 302. Cf. Matter of Colonial
Stores, Inc., 78 N. L. R. B. 1254.
38 Matter of Curtiss-Wright Corp., 77 N. L. R. B. 803.
38 The voting group comprising machinists is broader than any single unit proposed
by the Machinists . However , the Machinists has expressed a willingness to represent these
employees in a unit found by the Board to be appropriate and has a substantial showing
of interest in the revised unit. See Matter of J. S. Abercrombie Company, 58 N. L. R. B.
1013.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ants, 2' but excluding oilers, supervisors and all other employees of the
Employer;
(b) All boiler firemen and their helpers, excluding supervisors and
all other employees of the Employer; and
(c) All remaining production and maintenance employees of the
Employer including laboratory employees and leadmen, but excluding
all office and clerical, administrative, executive, professional, and
plant-protection employees, the electricians and pipefitters, and all
supervisors.
5. The Employer and Tin Smelters urge, in view of the provisions
of Section 9 (c) (3) of the Act, as amended; 1 that no elections should
be conducted at this time. Thus, it is contended that the elections held
on July 28, 1948, among the electricians and pipefitters,22 pursuant to
Board Direction issued July 2, 1948, in which the Petitioner partici-
pated, were conducted in subdivisions of the unit petitioned for
herein; that pending the lapse of a 12-month period from the date of
the earlier elections, the Act specifically precludes the Board from
directing an election at this time in the production and maintenance
unit petitioned for herein or in any other subdivision thereof. The
Machinists, on the other hand, takes the position that because the ear-
lier elections were in craft units, they do not affect employees in the
plant other than those employees in the craft units involved in such
elections, and relies on Section 9 (b) as support for this position.
Inasmuch as the earlier elections were conducted for groups other
than those for whom elections are sought in this proceeding, we find
that such elections were not held in the same bargaining unit or sub-
division thereof within the meaning of Section 9 (c) (3) of the Act,
as amended . Accordingly, we find that the elections do not preclude
a present election in any unit or units which may be found appropriate
in this proceeding.
DIRECTION OF ELECTIONS 23
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with Tin Processing Corporation,
Texas City, Texas, elections 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 supervision of the Regional Director
90 Matter of J. B. Cook Auto Machine Company , Inc., 73 N . L. R. B. 249.
32 Section 9 (c) (3) of the National Labor Relations Act, as amended , provides in
part as follows : "No election shall be directed in any bargaining unit or any subdivision
within which , in the preceding twelve-month period, a valid election shall have been
held...."
" Cases Nos . 16-RC-2418 and 16-RC-2425, 78 N. L . R. B. 96.
" Any participant in the elections herein directed may, upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.
TIN PROCESSING CORPORATION 1377
for the Sixteenth Region, and subject to Sections 203.61 and 203.62
of National Labor Relations Board Rules and Regulations-Series
5, as amended, among the employees in the voting groups described in
Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the elections, and also ex-
cluding employees on strike who are not entitled to reinstatement, to
determine :
(1) Whether the employees in voting group (a) desire to be repre-
sented by Lodge 1446, International Association of Machinists, or by
Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil Workers
International Union, CIO, or by none;
(2) Whether the employees in voting group (b) desire to be repre-
sented by Lodge 1446, International Association of Machinists, or by
Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil Workers
International Union, CIO, or by none; and
(3) Whether the employees in voting group (c) desire to be repre-
sented by Tin Smelter Workers Union, Local No. 23198, AFL, or by Oil
Workers International Union, CIO, or by neither.