Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1943

48 N.L.R.B. 43 (N.L.R.B. 1943)

In the Matter of CERTAIN-TEED PRODUCTS CORPORATION and ORDER OF
RAILWAY C9NDUCTORS
In the Matter Of CERTAIN-TEED PRODUCTS CORPORATION and BROTHER-
HOOD OF LOCOMOTIVE ENGINEERS
In the Matter of CERTAIN-TEED PRODUCTS CORPORATION and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN &
HELPERS, A. F. OF L., LOCAL #577
In the Matter Of CERTAIN-TEED PRODUCTS CORPORATION and FEDERAL
LABOR UNION #23272, AFFILIATED WITH A. F. OF L.
Cases Nos. R-4795 through R-4798 respectively.-Decided March, 15,
1943
Jurisdiction : ordnance manufacturing industry.
Investigation and Certification of Representatives : existence of question : refusal
to accord unions. recognition because of claim that Board was without jurisdic-
tion and units proposed were inappropriate; intervening labor organization
which did not appear by counsel at the hearing but claimed to represent
employees within one of the units, accorded place on ballot; election necessary.
Units Appropriate for Collective Bargaining : (1) employees engaged as switch-
ing foremen, switchmen, and student switchmen; (2) locomotive engineers,
firemen, and helpers, operating Diesel locomotives; (3) drivers of automotive
and 'tractor equipment.
Practice and Procedure : petition of one of the labor organizations involved dis-
missed when unit proposed was found inappropriate and it had not made a
substantial showing of representation in the proposed unit.
Mr. E. A. Simpson, of Amarillo, Tex., for the Company.
Mr. H. R. Taylor, of Amarillo, Tex., for the Conductors.
Mr. J. A. Kowalski, of Emporia, Kans., for the Engineers.
Mr. Phil Taylor, of Amarillo, Tex., for the Teamsters.
Messrs. Arvil Inge and W. W. Finch, both of Amarillo, Tex., for the
Federal Local.
Mr. David V. Easton, of counsel to the Board.
DECISION
DIRECTION OF ELECTIONS
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by Order of Railway Conductors, herein
called the Conductors,- Brotherhood of Locomotive Engineers, herein
48 N. L. H. B., No. 10.
43
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the Engineers, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers, Local Union #577, herein called the
Teamsters, and Federal Labor Union #23272, affiliated with the A. F.
of L., herein called the Federal Local, alleging that questions' affecting
commerce had arisen concerning the representation of employees of
Certain-Teed Products Corporation, Pantex Ordnance Plant, Ama-
rillo, Texas, herein called the Company, the National Labor Relations
Board consolidated the cases and provided for an appropriate hearing
upon -due notice before' Elmer Davis, Trial Examiner. Said hearing
was, held at Amarillo, Texas, on January 21, 22, and 23, 1943. The
Company, the Conductors, the Engineers, the Teamsters, and the Fed-
eral Local appeared, participated, and were afforded full opportunity
to be heard, to examine and' cross-examine witnesses, and to introduce
evidence bearing on the issues. -Brotherhood of Railroad Trainmen,
.herein called the B. R. T., moved to intervene and requested permis-
sion to file a brief; it did not appear by counsel at the hearing. In its
motion to intervene, the B. R. T. moved to dismiss the petition of the
Conductors on the ground that it was premature. The Trial Examiner
granted the motion of the B. R. T. to intervene and the request to file
a brief. He reserved ruling on the motion to dismiss the petition of
the Conductors for the Board. The Company moved to dismiss all
petitions on the ground that the Board does not have jurisdiction in
this proceeding inasmuch as the Company is not engaged in interstate
commerce, and also, that the units sought by the petitioners are inap-
propriate. The Trial Examiner reserved "rulings on these motions for
the Board. For reasons appearing below, the motion of the B. R. T.
to dismiss the petition of the Conductors, and the motions of the Com-
pany to dismiss the petitions of,the Conductors, the Engineers, and the
Teamsters, are denied; the motion of the Company to dismiss the peti-
tion of the Federal Local is granted. The Trial Examiner's rulings
made at the- hearing are free from prejudicial error and are hereby
affirmed.
The Company, the B. R. T., the Conductors, and the Engineers, filed
briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Certain-Teed Products Corporation is a Maryland corporation
licensed to do business in Texas, with its principal offices at Chicago,
Illinois. It is normally engaged in the manufacture, sale, and distri-
bution of building materials and roofing, with plants -in 10 States and
distributing outlets in every State. In addition to its normal opera-
CERTAIN-TEED PRODUCT'S CORPORATION 45
tions; it operates Linder a prime contract with the United States Gov-
ernment the Pantex Ordnance Plant, Amarillo, Texas, with which we
are concerned herein.
The Pantex Ordnance Plant is an ammunition facility which was
built and is wholly owned by the United States Government. The
Company operates said plant under the supervision of the Ordnance
Department. The plant receives the component parts of aerial bombs,
loads and finishes them, and then delivers them to the Ordnance De-
partment, which directs the shipment. The raw materials used in
these operations originate primarily in States other than Texas, being
brought to the plant by rail and truck: The Company is paid a fixed
fee for the operation of the plant, and has no authority to order raw
materials or ship finished products; these operations are under the
control of the Ordnance Department. The pay roll of the Company
is in excess of $50,000 weekly. The Company contends that it is not
engaged in interstate commerce within the meaning of the National
Labor Relations Act. However, in view of the foregoing, we find that
the Company is engaged in commerce within the meaning of the Act.'
II. THE ORGANIZATIONS INVOLVED
Order of Railway Conductors, Brotherhood of Railroad Trainmen,
and Brotherhood of Locomotive Engineers are unaffiliated labor or-
ganizations, admitting to membership employees of the Company.
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers, Local Union #577 and Federal Labor Union #23272,
are both labor organizations affiliated with the American Federation
,cf Labor, admitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Company refuses to recognize any of the petitioning unions un-
less they are certified by the Board. These refusals are based upon its
contentions that (a) the Company is not engaged in .interstate com-
merce, and (b)' a plant-wide unit is the appropriate one.2
Statements of the Field Examiner, introduced into evidence at the
hearing indicate that the Conductors, the L+'ngineers, and the Teamsters
each represent a substantial number of employees in the units claimed
1 See Matter of United States Cartridge Company and International Brotherhood of
Electrical Workers, Local Union No. 1, A. F. of L.., 42 N. L. R. B. 191, citing N. L. R. B.
v. Fainblatt, 306 U S 601.
2 The Company, at the hearing, withdrew a further objection to recognizing the Team-
sters and Engineers based on the claim that less than 50 percent of the employees in the
units proposed by these unions had been hired.
The B. R T., in its motion to intervene , also moved to dismiss the petition of the
Conductors as premature . The motion is denied , as the record does not support the con-
tention of the B. R. T.
r
46 DEICISIONS OF NATIONAL LABOR RELATIONS BOARD
by each and hereinafter found appropriate.3 A further statement of
the Field Examiner introduced into evidence, indicates that the Federal
Local does not represent a substantial number of employees in the unit
which it seeks as appropriate.'
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the mean ing-
V Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNITS
The Company alleges that the appropriate units should be plant-
wide; for this reason, it contends that the units sought by all peti-
tioners herein are inappropriate.
The Conductors, in their original petition, sought a unit comprised
of yard conductors, yard brakemen or switchmen, engine foremen,
and helpers. At the hearing, it amended its petition to conform with
the testimony therein, and now seeks to represent a unit comprised of
switching foremen, switchmen, and student switchmen, these being
the classifications used by the Company to describe the unit originally
sought by the Conductors. The B. R. T. did not raise any question
with regard to the appropriateness of the unit sought by the Con-
ductors. The duties of the employees sought by the Conductors are
much the same as those of yardmen employed in a railroad terminal.
They handle the switching, couple cars, set hand brakes, give necessary
signals, flag crossings, and attend to all matters necessitated by their
switching activities. We have heretofore on several occasions found
that the unit sought by the Conductors, under its more common no-
menclature, constituted an appropriate unit.5 We find that a unit con-
sisting of all employees of the Company engaged as switching fore-
men, switchmen, and student switchmen, constitute a unit appropriate
8 The Field Examiner reported" that the Conductors submitted a petition signed by 59 26
percent of the employees in a unit hereinafter found appropriate, appearing upon the pay
roll of the Company of October 12, 1942. All signatures were apparently genuine and
original The B. R. T ; although claiming an interest in this unit, submitted no evidence
to the Field Examiner in support thereof, its claim of interest is set forth in its motion
to intervene, wherein it alleges that it represents six employees in the unit hereinafter
found appropriate
The Field Examiner reported that the Engineers submitted authorization cards bearing
apparently genuine oiigmal signatures signed by 91.66 percent of the employees on the
pay roll of the Company of December 31, 1942, in the unit hereinafter found appropriate.
The Field Examiner reported that the Teamsters submitted application cards bearing
apparently genuine original signatures signed by 50 percent of the employees on the pay
roll of the Company of June 16, 1942, in a unit hereinafter found appropriate.
'The Field Examiner reported that on the basis of a spot-check the Federal Local
submitted application cards bearing apparently genuine original signatures signed by
appioximately 22 3 percent of the employees on the pay roll of the Company of January
16, 1943, in the unit for which it petitions
5 See Matter of Inspiration Consolidated Copper Company and Brotherhood of Railroad
Tiasnmen, 44 N L. R B. 1160 at 1175 ;.Matter of.Atlas Powder. Company and-Brotherhood
of Rary oad Ti aanmen, 42 N. L. R. B. 127. -
CERTAIN-TEED PRODUCTS CORPORATION 47
for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act.e
The Engineers originally sought a unit comprising all locomotive
engineers and firemen operating Diesel locomotives. At the hearing it
amended its petition to include helpers. These persons constitute the
Engineer crews of the Diesel locomotives, the only type of locomotive
used by the Company, which operate within the plant. The Company
,contends that this group 'and those in the units sought by the Conduc-
tors should be integrated, and pointed to the fact that the Company
expects a certain degree of interchangeability between the two. How-
ever, the record does not disclose any instance where such interchange-
ability had occurred, and the Company's manager of the Rail Trans-
portation Division, admitted that it would never ask any employee
within the Conductor's unit to operate a locomotive. We have, on
several occasions, found that employees within the above-mentioned
classifications constitute an appropriate unit.? In view of the fore-
going, we find that all employees of the Company engaged as locomo-
tive engineers, firemen, and helpers, operating Diesel locomotives,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
The Teamsters contends that all employees engaged as drivers of
automotive and tractor equipment constitute an appropriate unit.
The Company employs drivers who operate automotive equipment to
haul material from point to point on the plant grounds. Another
group drives the tractors which are used for road work, grading, and
snow plowing. The record indicates that both groups have similar
skills and that their work differs from that of other employees of
the Company. We find, therefore, that all employees of the Company
engaged as drivers of automotive and tractor equipment constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
The Federal Local originally sought a unit comprised of production
and maintenance employees. At the hearing it amended its petition
and now alleges that a unit comprised of "all production and store
employees with' the exception of clerical and supervisory employees
in these two classifications" constitutes an appropriate unit. The
record discloses that the Federal Local seeks to include within this
unit laborers attached to the two departments, but exclude material
9 Switching foremen are not considered as supervisory employees to be excluded from
the unit, according to the Conductors This view was not contested in the record They
direct the switching and handling of cars in the reservation ; they cannot hire and dis-
charge . They woik as part of the yard group and are commonly known as yard
conductors
7 Matter of Inspiration Consoltidated Copper_ Company , supra ; Matter of Kennecott
Copper Corporation 'and Brotherhood of Loconiotsie Firemen and Engineers , 42 N L R B.
386.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checkers and dunnage carpenters who are attached to the store's de-
partment. The Federal Local includes within its membership em-
ployees not covered by craft unions affiliated with the same parent
body. In some instances it may include employees normally within
such craft organizations , but only when the craft organization has
failed to organize them, does not wish to do so, or has waived juris-•
diction over them. On the other hand, the Federal Local must relin-
quish employees who are already members if a craft organization
desires to • claim them . Craft organizations have either signified their
desire to organize employees of the Company within the group sought
in the original petition, or in all probability may do so in the future.
Because of this, the Federal Local decided to amend its petition. The
record does not disclose whether or not the unit , as sought by the
amended petition , is presently stabilized . Furthermore , and of equal
importance , the report of the Field Examiners indicates that the
Federal Local has not made a sufficiently substantial showing among
the employees in the , unit it claims to warrant an election at this time.
Therefore , we find that no question has arisen concerning the repre-
sentation of employees of the Company , engaged within the unit
sought by the Federal Local. We shall dismiss the petition of the
Federal Local.
V. THE DETERMINATION OF REPRESENTATIVES
The B. R. T., as heretofore stated, did not appear by counsel at the
hearing. Its claims of representation were not checked by the Field
Examiner. However, in its motion to intervene , it alleged that it
represented six employees within the unit sought by the Conductors
and hereinabove found appropriate . We shall accord the B. R. T.
a place on the ballot.
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the groups described below who were employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National
Labor Relations Board by section 9 (c) of the National Labor Rela-
tions Act , and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby • ,
8 See footnote 4, supra.
CERTAIN-TEED PRODUCTS CORPORATION 49
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Certain-Teed
Products Corporation , Pantex Ordnance Plant, Amarillo , Texas, sepa-
rate elections . by secret ballot shall be conducted as,soon as possible;
but not later than thirty ( 30) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Sixteenth 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 following groups of employees of
the Company who were employed during the pay=roll period imme-
diately 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 , and including employees in the,armed
forces of the United States who present themselves in person at the
polls, but excluding those who have since quit or been discharged for
cause:
1. All employees of the Company engaged as switching foremen,
switchmen , and student switchmen , to determine whether they desire
to be represented by Order of Railway Conductors , or by Brotherhood
of Railroad Trainmen , for the purposes of collective bargaining, or
by neither;
2. All employees of the Company engaged as locomotive engineers,
firemen , and helpers , operating Diesel locomotives , to determine
whether or not they desire to be represented by Brotherhood of Loco-
motive Engineers , for the purposes of collective bargaining;
3.' All employees of the Company engaged as drivers of automotive
and tractor equipment, to determine whether or not they desire to be
represented by International Brotherhood of Teamsters , Chauffeurs,
Warehousemen &- Helpers, Local Union # 577, affiliated with the Amer-
ican Federation of Labor, for the purposes of collective bargaining.
ORDER
Upon the basis of the above findings of fact, and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives
of employees of Certain-Teed Products Corporation, Pantex Ord-
nance Plant, Amarillo, Texas, filed by Federal Labor Union #23272,
affiliated with the A. F. of L., be, and it hereby is, dismissed.