Certain-Teed Products Corp.

National Labor Relations Board - Board Decisions

Jan 7, 1941

28 N.L.R.B. 915 (N.L.R.B. 1941)

In the Matter Of CERTAIN -TEED PRODUCTS ' CORPORATION and INTERNA-
TIONAL LONGSHOREMEN 'S & WAREHOUSEMEN 'S UNION, LOCAL 1-6
Case No. R-1966.-Decided January 7, 1941
Jurisdiction : building products manufacturing industry._
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; contract no bar to, where the Com-
pany was put on notice of the representation claims of a rival union and of its
filing a petition while the matter of negotiating a new contract was- in
abeyance ; election necessary.
Unit Appropriate for Collective Bargaining : all hourly paid production and
maintenance employees of the Company , excluding supervisory and clerical
employees.
Tinning cC DeLap by Mr. T. H. DeLap, of Richmond, Calif.,'for
the Company.
Gladstein, Grossman, Margolis cfi Sawyer, by Mr. Norman Leonard,
of San Francisco, Calif., for the I. L. W. U.
Mr. Ralph Coffey, of Oakland, Calif., for the Paper Makers.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 3, 1940, International Longshoremen's & Warehousemen's
Union, Local 1-6, herein called the I. L. W. U., filed with the Re-
gional Director for the Twentieth Region (San Francisco, Califor-
nia) a petition, and on July 5, an amended petition, alleging that a
question affecting commerce had arisen concerning the representation
of employees of Certain-Teed Products Corporation, Richmond, Cal-
ifornia, herein called the Company, and requesting an investigation
and certification of representatives pursuant to Section 9 (c) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
On July 6, 1940, the National Labor Relations Board, herein called
the Board, acting pursuant to Section, 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 2, as amended, ordered an investigation and authorized
28 N. L. R. B., No. 140.
915
413597-42-vol. 28-59'
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On July 18, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the I. L. W. U.
and the International Brotherhood of Paper Makers, Richmond
Local No. 334, A. F.- of L., herein called the Paper Makers, a labor
organization claiming to represent employees directly affected by the
investigation. On July 24, 1940, International Brotherhood of Team-
sters, Chauffeurs, Stablemen and Helpers of America, General Truck
Drivers and Helpers Union, Local 315, was also served with a copy
of the notice of hearing. Pursuant to notice, a hearing was held on
July 26 and July 29, 1940, at San Francisco, California, before Earle
K. Shawe, the Trial Examiner duly designated by the Board. The
Company, the I. L. W. U., and the Paper Makers were represented by
counsel; all participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing, on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
On August '5 and August 19, 1940, respectively, the Paper Makers
and the I. L. W. U. filed briefs with the Board.
On November 12, 1940, the I. L. W. U. executed an instrument
waiving the objection it had made at the hearing to the inclusion of
four employees in the appropriate unit. We hereby incorporate said
waiver of objection into the record and make it a part thereof.
Upon the entire record 'in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Certain-Teed Products Corporation is a Maryland corporation,
having its principal office in New York City. At its plant located
in Richmond, California, the only portion of its operations herein
involved, it is engaged in the manufacture and sale of asphalt roofing
and allied building products. During 1939 the sales of products
manufactured at the Richmond plant amounted to $1,766,000, of
which approximately $441,500 represented sales outside the State of
California. Raw materials purchased by the Company during the
same period for use in the Richmond plant amounted to $818,334, of
which approximately $321,000 represented purchases and shipments
to the Richmond plant from outside the State of California. The
CERTAIN-TEED'PRODUCTS CORPORATION 917
Company concedes that it is engaged in commerce within the meaning
of the Act.
H. THE ORGANIZATIONS INVOLVED
International Longshoremen's & Warehousemen's Union, Local 11-6,
is a labor organization affiliated with the Congress of Industrial
Organizations. It admits to membership hourly paid production and
maintenance employees of the Company, excluding supervisory and
clerical employees.
International Brotherhood of Paper Makers, Richmond Local No.
334, is a labor organization affiliated with the American Federation
of Labor. It admits to membership hourly paid production and
maintenance employees of the Company, excluding supervisory and
clerical employees.
III. THE QUESTION CONCERNING REPRESENTATION
Collective bargaining agreements have been in effect between the
Paper Makers and the Company since July 12, 1937. - The last such
agreement, entered into on June 21, 1939, was, by its terms, to remain
in effect from July 1, 1939, to and including June 30, 1940, and auto-
matically renew from year to year thereafter unless either party gave
30 days' written notice prior to the expiration date of any year of a
desire to change or terminate the agreement. The agreement pro-
vided that any employee of the Company on the pay roll for a period
of 30 days from July 1, 1939, should become a member-of the Paper
Makers and maintain such membership in good standing therein as
a condition of continued employment.
At a meeting of the Paper Makers on or about May 7, 1940, a com-
mittee was appointed to draft a tentative contract with a view to
opening negotiations with the Company for a new contract to take
the place of the above-mentioned contract upon its expiration on
June 30, 1940. On May 28, 1940, at another meeting of the Paper
Makers, the committee submitted a tentative draft of a contract and
a motion was made and carried to open negotiations with the Com-
pany. The following day, May 29, A. E. English and C. F. Abbey,
president and secretary of.the Paper Makers, respectively, met with
J. F. Meyer, manager of the Company, and explained that the Paper -
Makers desired to open negotiations for a new contract. Meyer
stated that he understood that legal proceedings involving the Paper
Makers and another labor organization then pending in one of the
local courts prevented the Company from negotiating with the Paper
Makers relative to a new contract, and advised the representatives
of the Paper Makers to seek the advice of their attorney on this
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject.' This ended the conference. On June 3, 1940, through its
attorney, the Paper Makers secured an agreed dismissal of the court
proceeding. However, as will appear from our discussion below, the
Paper Makers made no further attempt to negotiate with the Com-
pany relative to a new contract.
The I. L. W. U. began organizational activity among employees
of the Company about April 1, 1940. On June 1, 1940, S. C. Duerte,
International Representative of the I. L. W. U., wrote a letter to
Meyer stating in substance that the I. L. W. U. represented a major-
ity of the employees in certain departments of the Company's plant,
and requesting a conference for the purpose of collective bargaining.
This letter was received by Meyer on June 3, 1940. On the same date,
Duerte met with Meyer who, in reply to Duerte's request for collective
bargaining, gave substantially the same answer he had previously
given the Paper Makers on May 29, 1940, that is, that the pending
legal proceedings prevented the Company from negotiating a col-
lective bargaining agreement. The same day of the conference with
Meyer, June 3, 1940, the I. L. W. U. filed its petition herein and the
Company was advised of this action by the Regional Director on
June 4, 1940.
On June 5, 1940, there was another meeting of Paper Makers mem-
bers. English and Abbey explained to the members why negotiations
had not been carried on with the Company relative to the new con-
tract. During the discussion that followed, some of the members
present took the position that because the Paper Makers had not
given the Company written notice of its desire to change the existing
agreement 30 days prior to its expiration date of June 30, 1940, it had
been automatically renewed. The matter was then submitted to a
vote of the body and-a majority voted that the agreement had been
automatically renewed because of the failure of the Paper Makers
to give the 30 days' written notice provided by its terms. Although
it does not appear that the Company was formally notified of the
action taken by the Paper Makers at the meeting on June '5, 1940,
Meyer testified that advice of such action was transmitted to him by
Superintendent Grimes. Meyer did not specify the date when he
received such information from Grimes, but stated that he considered
that the contract had been renewed.
There was introduced in evidence at the hearing a statement con-
cerning a check made by the Regional Director on July 20, 1940, of
the respective membership claims of the I. L. W. U. and the Paper
1 The court proceeding involved the Paper Makers and Local 315 of the International
Brotherhood of Teamsters , Chauffeurs , Stablemen and Helpers of America and is not
material to any of the issues involved in this case
CERTAIN-TEED PRODUCTS CORPORATION 919
Makers.' The Regional Director stated his check disclosed that out
of 53 names signed to authorization cards submitted to him by the
I. L. W. U., all dated April or May, 1940, 50 were those of employees
of the Company; and out of 180 names appearing on a certified list
of its membership as of June 10, 1940, submitted by the Paper Makers,
170 were those of employees of the Company.
The Paper Makers contend that there is no question concerning
representation herein because the contract was automatically renewed
when neither party thereto gave the other written notice of a desire
to change or terminate it 30 days prior to June 30, 1940; and also that
a majority of the employees are members of the Paper Makers, and
the I. L. W. U. has not made a sufficient showing of representation
authorizations from employees to warrant an investigation and deter-
mination of representatives. The I. L. W. U. resists these conten-
tions.
Both the Paper Makers and the Company treated the oral notice
given by the Paper Makers representatives to Meyer on May 29, 1940,
as notice of a desire to negotiate a new agreement to replace the agree-
ment terminative on June 30, 1940.1 On June 3, 1940, while the mat-
ter of negotiating a new contract was thus in abeyance, the Company
was put on notice of the representation claims of the I. L. W. U., and
on the following day was notified that the I. L. W. U. had filed its
petition herein. Under these circumstances, we find that the con-
tract does not constitute a bar to an investigation and certification
of representatives.4 Further, in view of the provision contained in
the 1939 contract compelling membership of the employees in the
Paper Makers as a condition of continued employment, we are of the
opinion that the I. L. W. U. showing of membership among the
employees is sufficient to raise a question concerning representation.5
We find that a question has arisen concerning representation of
the employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
n The Regional Director used the Company ' s pay roll of July 20 , 1940, for this check.
a Both considered that negotiations relative to a new contract were subject only to a
determination of the effect of the pending court proceedings on the right of the Company
to enter into a new collective bargaining agreement . To remove this obstacle the Paper
Makers secured a dismissal of the court proceedings on June 3, 1940. -
4 We do not deem it necessary to decide whether or not the agreement in fact was re-
newed by the Paper Makers ' subsequent action on June 5, 1940 , rescinding its previous
intention of negotiating a new agreement.
See Matter of The George W. Borg Corporation and United Clock Workers Union, 25
N. L. R . B. 481.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Company and the unions involved agreed during the hearing
that the unit appropriate for `purposes of collective bargaining con-
sists of all hourly, paid production and maintenance employees,
excluding supervisory and clerical employees. The I. L. W. U. con-
tends;however, that 11 named employees should be excluded from
the unit, whereas the Paper Makers and the Company take the posi-
tion that said employees should be included within the unit e
The I. L. W. U. claims that H. Martin, E. Dewey, J. Anglum, L.
Outman, W. Kirkwood, A. E. English, S. Willis, R. Grice, and' J.
Romero are supervisory employees and should be excluded from the
unit. The Company and the Paper Makers contend that these em-
ployees are not supervisory employees.
H. Martin is the "lead man" in the rag-cutting room which is com-
posed of approximately 8 production employees. While Martin does
production work along with the other employees, the superintendent
gives him instructions as to the different grades and percentages of
rags to be cut and he in turn assigns work to the. other employees
of the department and instructs them as to their duties. At other
times Martin acts as relief man on any operation in the department
when he is needed. Martin is listed on the pay roll as a foreman and
paid 80 cents an hour, whereas other production employees in the
department receive only 68 cents an hour.
E. Dewey and J. Anglum; Dewey is a "lead man" on the first shift
in the Saturating and Coating Department of the Company. He is
listed on the pay roll as "Assistant Superintendent," and is paid $1.00
an hour whereas other employees in the department receive from 68 to
80 cents an hour. Although Dewey does production work along with
the other employees of the, department he has authority to shift em-
ployees from one operation to another on the roofing machine and
6 At the hearing the I . ' L W. U. requested the exclusion from the' unit of H. Martin,
G. Donaldson , A. Peters, and J. Frank on the basis that they held commissions as deputy
sheriffs and were, therefore , not eligible for membership in the I. L W U. An additional
objection was made by the I . L. W. U. to the inclusion of H Martin within the unit on
the ground that he is a supervisory employee . After the hearing, as stated supra, the
I. L.'W.- U. withdrew its objection to the inclusion of the four employees within the unit
because of their being commissioned as deputy sheriffs, but did not withdraw its objection
to the inclusion of H. Martin on the other ground stated . Accordingly ,- G. Donaldson,
A. Peters, and J. Frank will be included within the unit and the status of Martin will be
discussed below along with that of the other employees sought to be excluded by the
I. L. W. U. on the ground of their alleged supervisory status.
CERTAIN-TEED PRODUCTS CORPORATION 921
give them orders as to the work to be done. He has been with the
Company for 20 years and knows every operation of the roofing ma-
chine and, like Martin, frequently acts as a relief man wherever
needed in the department. Anglum is the "lead man" on the second
shift in the Saturating and Coating Department. His duties and
authority on this shift are substantially the same as Dewey's on the
first shift. Anglum is listed on the payroll as "foreman" and paid
96 cents an hour.
L. Outman is listed on the pay roll of the Company as a foreman
in the Machine Room, and is paid $1.00 an hour whereas other em-
ployees in the department, with the exception of the machine tender
who receives the same wages, are paid from 68 to 85 cents an hour.
When the superintendent of the Machine Room is on vacation, Outman
takes his place. Outman does production work along with the other
employees in the machine room and, in addition supervises the work
of four employees: under him. Like Martin, Dewey, and Anglum,
Outman acts as a relief man when needed on any operation of the
department.
W. Kirkwood, A. E. English, and S. Willis are listed as foremen
on the pay roll in the Packing and Shipping Department and are
paid 90 cents an hour. Other employees in the department are paid
from 68 to 85 cents an hour. The duties of these employees consist
of assembling and checking orders and seeing that they are properly
loaded for shipment. While they do not regularly supervise the work
of other employees, during rush periods 'employees are assigned to
work under them. When this occurs the superintendent transmits
his orders to Kirkwood, English, and Willis who see that the em-
ployees working under them properly carry out such orders. The
number of employees under the supervision of these three men varies
with the volume of orders. Kirkwood and English work on the day
shift under the superintendent of_the Shipping and Packing Depart-
ment and Willis is in charge of the shipping employees on the night
shift, seeing that orders left with him by -the superintendent at the
end of the day shift -are carried out.
R. Grice is listed on the pay roll as "Head Mechanic" and receives
$1.00 an hour whereas other mechanics receive from 85 to 96 cents
an hour. Grice receives orders from the plant engineer as to repair
work to be done and in turn assigns the work to other mechanics and
supervises their work. In addition ; to supervising the work of the
other mechanics, Grice also does mechanical work.
J. Romero is a maintenance employee engaged in keeping the ma-
chinery in repair/ in the beater room. He exercises no supervisory
authority over employees in the beater room, and is paid a mechanic's
rate of 96 cents an hour.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the employees whose duties have been detailed above, with
the exception of Romero, excercise some supervision over the work
of other employees. However, they do not have authority to hire or
discharge or make recommendations in that connection and their
duties 'are not confined strictly to supervision. On the contrary, they
are production workers and'work with the other employees, are en-
'gaged in the same tasks, and are distinguishable thereform only by
the fact that they direct ' the others to some extent in their work and
receive a higher hourly rate of pay for this additional duty.
These minor supervisory employees are all members of the Paper
Makers, some of them officers thereof, and have been included within
the unit under the various contracts between the Paper Makers and
the Company since July 12, 1937. In view of this organizational
and bargaining history they will be included within the unit.
We find that H. Martin, E. Dewey, J. Anglum, L. Outman, W.
Kirkwood, A. E. English, S. Willis, R. Grice, and J. Romero are
within the appropriate unit.
The I. L. W. U. also objects to the inclusion in the unit of W.
Gough, and C. F. Abbey. The-objection to Abbey; and Gough is that
they are clerical employees. The Paper Makers and the Company
desire these employees included in the unit.'
W. Gough is engaged in clerical work in connection with the Pack-
ing and Shipping Department. His duties consist of keeping records
of stock and checking production material. Gough performs his
duties at a desk in the Packing and Shipping Department, is under
the supervision of the superintendent of that department, and is
paid 68 cents an hour. He has no connection with the salaried office
clerks excluded from the unit by the agreement of all the parties.
C. F. Abbey is listed on the pay roll as "Stores Clerk" and is paid
75 cents an hour. His duties consist in caring for the material and
supplies purchased for maintenance work which are kept in the store-
room of the plant. Abbey requisitions the material and supplies to
the maintenance employees to be used in repair work and has no con-
nection with the salaried clerical force of the office.
Both Gough and Abbey were members of the Paper Makers and
were included in the unit covered by the past collective agreements
between that organization and the Company. We find that W. Gough
and C.7. Abbey are within the unit.
We find that-,all hourly paid production and maintenance em-
ployees,_ excluding supervisory and clerical employees, constitute a
unit appropriate for the purpose of collective bargaining, and that
said unit will insure to employees of the Company the full benefit of
their right to self-organization and to collective bargaining and
otherwise effectuate the policies of the Act.
CERTAIN-TEED PRODUCTS CORPORATION 923
VI. THE DETERMINATION OF REPRESENTATIVES'
We find that the question which has arisen concerning represen-
tation can best be resolved by an election by secret ballot. -
We shall direct that the employees within the appropriate unit
who were employed by the Company during the pay-roll period
immediately preceding the date of our Direction of Election herein,
including those who did not work during said pay-roll period because
they were ill or on vacation and employees who were then or have
since been temporarily laid off, but excluding those who have since-
quit or been discharged for cause, shall be eligible to vote in the
election.
Upon the basis of the above findings of fact, and upon .the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of Certain-Teed Products Corporation,
Richmond, California, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the Act. -
2. All hourly paid production and maintenance employees of the
Company, excluding supervisory and clerical employees, constitute
a unit appropriate for the purposes of collective bargaining , within
the meaning of Section 9 (b) of the Act.
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 Rela-
tions Act and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the -Board
to ascertain representatives for the purposes of collective bargaining
with the Certain-Teed Products Corporation, Richmond, 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 supervision of the Regional' Director for the Twen-
tieth Region, acting in this matter as agent for the National Labor
Relations Board and subject to Article III, Section 9, of said Rules
and Regulations, among all hourly paid production and maintenance
employees of the Company, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
those who did not work during such pay-roll period because they were
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ill or on vacation and those who were then or have since been tempo-
rarily laid off, but excluding supervisory and clerical employees and
those who have since quit or been discharged for cause, to determine
whether they desire to be represented by International Longshore-
men's & Warehousemen's Union, Local 1-6, or by International
Brotherhood of Paper Makers, Richmond Local No..334, A. F. of L.,
for the purposes of collective bargaining, or by neither.