Eljer Co.

National Labor Relations Board - Board Decisions

Jun 22, 1954

108 N.L.R.B. 1417 (N.L.R.B. 1954)

EWER CO. 1417
CONCLUSIONS OF LAW
1. Local 12270 , District 50, United Mine Workers ofAmerica , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of William F.
Patterson , thereby encouraging membership in a labor organization , the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By contributing support to the Union , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4. By such discrimination and support , thereby interfering with , restraining , and coercing
its employees in the exercise of. rights guaranteed in Section 7 of the Act , the Company has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
5. By causing the Company to discriminate in regard to terms and conditions of employ-
ment in violation of Section 8 (a) (3) of the Act, the Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
6. By restraining and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act , the Union has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (b) (1) (A ) of the Act.
[Recommendations omitted from publication.]
ELJER CO. i and FEDERATION OF GLASS , CERAMIC AND
SILICA SAND WORKERS OF AMERICA, CIO , Petitioner.
Case No . 6-RC-1421. June 22, 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 Harvard G.
Borchardt , hearing officers . The hearing officer ' s rulings
made at the hearing are free from prejudicial error and are
hereby affirmed.
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 organization involved claims 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.
4. The Petitioner , which is the certified bargaining repre-
sentative for a unit of production and maintenance employees
at the Employer ' s Ford City , Pennsylvania , plant ,' seeks to
represent the office and plant clerical employees at Ford City
in a single unit , or in separate units if it is determined that
the two groups may not be combined . The Employer raises
i The Employer ' s name appears as amended at the hearing.
2 The unit which the Board found appropriate in the earlier case excluded office and plant
clerical employees in accordance with a stipulation of the parties . Case No . 6-RC-1245,
issued April 6, 1953 ( not reported in printed volumes of Board Decisions and Orders).
108 NLRB No. 201.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no objection to the general composition of the unit , but con-
tends that certain individuals should be excluded as confi-
dential, managerial , supervisory , or professional employees.
The Employer is engaged in the manufacture and sale of
plumbing ware and fixtures . It operates 3 plants , 4 warehouses,
and numerous sales offices throughout the country . This pro-
ceeding involves only the clerical employees in the Ford City
plant and in the home office located in the same town. The
office clerical employees work in a separate building adjacent
to the plant. They are supervised by the office manager or
other company executives . The plant clerical employees work
in the factory office building or in the plant proper, under the
supervision of the factory superintendent . Although conditions
of employment for each group are separately established by
their respective top supervisors , they do not differ materially.
Of approximately 70 employees in the unit as described by
the Petitioner , only 9 are allegedtobe plant clericals : a nurse,
2 stenographers in the factory personnel office , 2 inventory
control clerks , and 4 checkers . As both parties agree on a
single unit of all clerical employees , and as the interests of
the 2 groups are not substantially different , we find that a unit
of office and plant clerical employees is appropriate in these
circumstances. 3
The parties disagree as to the confidential , professional,
managerial , or supervisory status of the employees whose
duties are set out below , the Petitioner seeking to include all
employees in the disputed categories , and the Employer con-
tending for their exclusion.
Plant Clericals
Factory personnel employees : The factory personnel office
hires new employees , processes terminations , maintains work
and personnel records , and assists the plant superintendent in
processing grievances under the bargaining agreement for the
production and maintenance unit. Virginia Caretti acts as confi-
dential secretary to the director , and types up material on
grievance matters for the consideration of the plant super-
intendent . Eleanor Timmerberg prepares personnel reports,
takes employment applications , and occasionally assists in
preparing material for grievance proceedings. Both have
acces 's to factory employees ' work records . As the factory
personnel director has some responsibility for the effectuation
of the Employer ' s general labor relations policies through his
participation in the grievance procedure , we find that Ceretti
is a confidential employee , and we shall therefore exclude her
3 American Lithofold Corp., ( not reported in printed volumes of Board Decisions and
Orders) 107 NLRB 1061; F. H. McGraw & Company, 107 NLRB No 45 and 106 NLRB 624;
B. F. Goodrich Company, 92 NLRB 575.
ELJER CO. 1419
from the unit .4 We shall, however , include Timmerberg, as her
participation in confidential matters is sporadic and infrequent.
A registered nurse who works in the dispensary in the main
factory building takes care of all plant injuries , and also keeps
a file of all chest X-rays showing the degree of silicosis of
each factory employee . These X-rays are considered confi-
dential because their publication might have a detrimental
effect on the morale of employees . We do not believe that
access to information relating to the health of individual
employees makes a nurse a confidential employee. ' We find,
however , that she is a professional employee. Her placement
in the unit and her voting status are discussed hereafter.
Kiln - car checkers : There are four plant clerical employees
who work in the kiln and inspection department , under the
supervision of the chief inspector . They prepare forms showing
the number and type of the different pieces of ware that are
placed on cars going into the kilns for firing . They examine the
condition of the cars and check the work of kiln placers who have
previously set the ware on the cars in accordance with detailed
drawings prepared by the engineering department . If akiln-car
checker believes that the ware has been improperly placed on
the car he calls it to the attention of the kiln placer . In case of
disagreement between the placers and the checkers , the latter
must then call on their own supervisors . The checkers have no
authority to change the placement of the ware . The-Employer
would exclude the checkers as supervisors on the ground that
they responsibly direct other employees. We find thatthe work
of the car checkers is part of the inspection process, and does
not require the exercise of responsible direction over other
employees . We shall include them in the unit.
Office Clericals
Plant accounting department : There are 5 employees in the
home office who work primarily on accounting for the Ford
City plant . The Employer would exclude 3 of them . Paul Green-
walt does the statistical work on production costs and budgets
and is assisted in the preparation of some reports by Charles
Roudebush and Miles Rowser . Roudebush is primarily respon-
sible for preparation of the plant ' s hourly payroll in which he
is assisted by Bowser and 2 female clerks . Bowser also
gathers information for payroll , production , and sales reports.
The Employer contends that these 3 men are closely allied to
management because of the information they prepare , and that,
in addition , Roudebush is a supervisor and Greenwalt is a
professional employee . All 5 employees are directly supervised
by a department head who is responsible for their work and who
fills out the rating sheets on which changes in their employment
4 Electrol , Incorporated. 93 NLRB 740.
5 Consolidated Vultee Aircraft Corporation , 108 NLRB 591.
142 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
status are based. There is no evidence in the record of Green-
walt's academic training or of the auditing skills , if any,
required in his work . We find that he is not a professional
employee. Although Roudebush assigns and checks some of
the work of two employees , it appears that his authority over
them is routine, and that he does not make effective recom-
mendations as to their status . We find that he is not a super-
visor . The Employer ' s contention that employees engaged in
compiling data on manufacturing costs are managerial em-
ployees is without merit .6 We shall include these men in the
unit.
Sales department : Howard Hinderliter and Robert Gross
schedule shipments from the Ford City plant , and occasionally
from other plants , to the Employer ' s customers . They deter-
mine the order in which shipments are to be made , and are
in constant communication with customers and salesmen in
expediting deliveries . The Employer contends that they should
be excluded as managerial employees because the decisions
they make affect its relationship with its customers and are
formulated as management policy . Even granting that tact and
skill are highly important in the proper performance of
Hinderliter ' s and Gross ' work, we believe that their day - to-day
decisions and judgments on the order of shipments are not at
the level of responsibility and discretion which indicates a
managerial status . We shall include them in the unit.
Edward Sereda assists the manager of the quotation depart-
ment in sending out specifications , descriptions , and quotations
on the Employer ' s products . In certain limited cases he is
authorized to quote prices or grant discounts without further
direction . The Employer contends that Sereda is a managerial
employee because his decisions as to prices and discounts in
certain cases establish company policy . We do not agree. The
area within which Sereda may exercise discretion seems to us
too limited to warrant the finding that he is thereby exercising
a managerial function . We shall include him in the unit.
Mrs. Smith is secretary to the vice president in charge of
sales and to his assistant , the sales manager. The Employer
contends that as secretary to a company official who should be
consulted on labor matters pertaining to salesmen, she is a
confidential employee. As the record does not establish that
Smith's supervisors formulate or effectuate general labor
relations policies , we find that she is not a confidential em-
ployee . We shall include her in the unit.
Advertising department : Pauline Orvis is secretary to the
manager and to the assistant manager of the advertising depart-
ment. When both are away , she lays out the work for the four
clericals in the department . The Employer would exclude her
because she is secretary to a department head and occasionally
acts :.s a supervisor . The Employer ' s office manager testified
that he did`not consider Orvis to be a supervisor. In any event,
6 Cities Service Refining Corporation , 94 NLRB 1634, 1 '=36.
ELJER CO. 1421
the direction she exercises over the other employees in the
department is both infrequent and routine . We shall include her
in the unit.'
Administrative secretaries : Mrs. Nichols is secretary to the
executive vice president, the top resident official of the Em-
ployer. She handles confidential matters relating to the formula-
tion of general labor relations policies . We shall exclude her as
a confidential employee.
Lucille Swigart prepares checks in payment of bills , handles
remittances from customers , andkeeps the Employer's bank
accounts . She also takes some dictation from the comptroller,
and keeps the absence and tardy records for the office
employees . None of these duties constitutes a ground for
excluding her from the ur it.8
Training and services department : When typists or clerks
are hired they are give ,l an orientation course by Norma
Churchill . She also instructs them in the operation of various
office machines . The newly hired employees are temporarily
assigned wherever extra help is needed , and after they are
fully trained , permanentl't assigned to other departments.
Employees thus awaiting assignment do all the duplicating
work for the office . As Cht rchill responsibly directs the work
of these employees as long as they remain in her department,
and as she is called upon to rate them for status changes, we
find that she is a supervisor and shall exclude her from the
unit.
The Employer would exclude the telephone operator because
she trains girls to serve as relief operators , and because she
has access to labor relations information which may come to
her through a telegraph machine which she operates. Her
responsibilities in training relief operators do not indicate a
supervisory status. The Board has found that telephone opera-
tors with duties similar to chose of this operator are not confi-
dential employees . Accordingly , we shall include the telephone
operator in the unit.
Billing department: Arth • ir Edgington is assistant to the head
of the billing department , which consists of nine people. He
assists in the assignment i)f work, instructs and corrects the
work of the clerks who do the order writing and billing, and
participates in the preparation of employees ' rating sheets.
We shall exclude him as a s .rpervisor.
Administrative accounting ; department : Mrs. Markle works
as the general ledger book ' ceeper and directs the work of two
employees who post accounts receivable . She rates their work,
which is a necessary preliminary to any change in their status.
We find that Mrs. Markle is a supervisor and shall exclude her
from the unit.
Oscar Rush prepares the confidential salary payroll and other
payrolls for particular categories of employees. He attended a
7 Wilson R Co , Inc., 97 NLRB 1388.
8 American Lithofold Corp , 107 NLRB 1(61.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business college and took a course in higher accounting at the
University of Tennessee . William Webber prepares a series of
reports on labor and material costs , sales, and defective ware
for company executives . During the absence of the general
ledger bookkeeper, Webber will do some of her work. His higher
education consists of some courses taken with the International
Accountancy Society. The Employer contends that both Rush and
Webber are professional employees. We find that neither meets
the educational requirements or other qualifications necessary
for exemption under Section 2 (12) of the Act as a professional
employee. We shall include Webber in the unit, but shall exclude
Rush as a managerial employee because of his work in compiling
confidential payroll information.
Traffic and claims department : Under the supervision of
their department head, Michael Dentici passes on claims sub-
mitted to the Employer and Paul Hume acts on traffic problems.
Dentici must approve all nonroutine claims arising from losses
in transit , possible defective merchandise, or errors inbilling.
Hume arranges shipping directions and decides on the type of
carrier to be used. He also appears before governmental rate
setting bodies in connection with the filing of tariffs by carriers.
We find, contrary to the Employer' s contentions , that Dentici
and Hume are neither professional nor managerial employees.
We shall include them in the unit.
Export department : The head of the export department spends
about half his time outside the country. While he is away, Louis
Esola is in charge of the department' s affairs and supervises
the one other employee there . Esola contacts customers in
foreign countries , handles and arranges all export shipments,
and is authorized , with respect to certain types of merchandise,
to exercise great latitude in fixing selling prices . We find that
his discretion with respect to selling prices indicates the type
of responsibility usually exercised by managerial employees.
We shall therefore exclude him from the unit.
IBM department : Rose Frisina is the assistant to the super-
visor of this department, and directs the four employees in the
department in the supervisor' s absence . The testimony indicates
that Frisina issues instructions and orders even when the
supervisor is present . We shall exclude her as a supervisory
employee.
The Voting Groups and the Appropriate Unit
The Board is prohibited by the Act from including profes-
sional employees in a unit with nonprofessional employees
unless the majority of the professional employees vote for
inclusion in such a unit . Accordingly, we must ascertain the
desire of the nurse , the one professional employee involved
herein, as to inclusion in a unit with nonprofessional em-
ployees . 9 We shall therefore direct separate elections in the
following voting groups:
9 Southwestern Sales Corporation , 93 NLRB 936. 938.
ELJER CO. 1423
(a) All office and plant clerical employees at the Employer's
establishment at Ford City, Pennsylvania, including the clerk
in the factory personnel office, the kiln-car checkers, the em-
ployees in the plant accounting department, the sales depart-
ment employees in charge of scheduling, the assistant manager
of the quotation department, the secretary to the vice president
in charge of sales, the secretary in the advertising department,
the administrative secretary who handles the general bank
accounts, the telephone operator, a bookkeeper in the adminis-
trative accounting department, 10 and the employees handling
traffic and claims, but excluding the secretary to the factory
personnel director, the secretary to the executive vice presi-
dent, the supervisor of the training and services department,
the assistant head of the billing department, the general ledger
bookkeeper, the bookkeeper who prepares the confidential pay-
rolls," the assistant to the head of the export department, the
assistant to the head of the IBM department, and all other
supervisors as defined in the Act.
(b) The nurse in the factory personnel department, excluding
all other employees and supervisors.
The employees in the nonprofessional voting group (a) will be
polled as to whether or not they wish the Petitioner to repre-
sent them. The employee in the professional voting group (b)
will be asked two questions on her ballot: (1) Do you desire to
be included in a unit composed of office and plant clerical em-
ployees at the Employer's establishment at Ford City, Penn-
sylvania, for the purposes of collective bargaining? (2) Do you
desire to be represented for the purposes of collective bar-
gaining by the Petitioner? If the professional employee in voting
group (b) votes "yes" to the first question, indicating her wish
to be included in a unit with the nonprofessional employees, she
will be so included. Her vote on the second question will then
be counted together with the votes of the nonprofessional voting
group (a) to decide the representative for the office and plant
clerical unit. If, on the other hand, the professional employee
votes against inclusion, she will not be included with the non-
professional employees, and her vote on the second question
will not be counted.
Our unit determination is based in part then upon the ballot
of the professional employee. However, we now make the
following findings in regard to the appropriate unit:
(1) If the professional employee votes for inclusion in the
unit with the nonprofessional employees, we find that the
following employees will constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9 (b) of the Act:
All office and plant clerical employees at the Employer's
establishment at Ford City, Pennsylvania, including the clerk
in the factory personnel office, the kiln-car checkers, the
10 William Webber.
11Oscar Rush.
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the plant accounting'department, the sales depart-
ment employees in charge of scheduling, the assistant manager
of the quotation department, the secretary to the vice president
in charge of sales, the secretary in the advertising department,
the administrative secretary who handles the general bank
accounts, the telephone operator, the bookkeeper in the admin-
istrative accounting department, the employees handling traffic
and claims, and the nurse, but excluding the secretary to the
factory personnel director, the secretary to the executive
vice president, the supervisor of the training and services
department, the assistant head of the billing department, the
general ledger bookkeeper, the bookkeeper who prepares the
confidential payrolls, the assistant to the head of the export
department, the assistant to the head of the IBM department,
and all other' supervisors as defined in the Act.
(2) If the nurse does not vote for inclusion in the unit with
the nonprofessional employees, we find the unit setforth above
to be appropriate, with the exclusion, however, of the nurse.
5. The Employer urges that no election be directed at this
time because it is undergoing reorganization. During the
summer of 1953, majority ownership and control of the Em-
ployer was transferred to the Murray Corporation of America,.
whose home office is in Detroit, Michigan. The Murray Corpo-
ration has for many years been engaged in the manufacture of
bodies and stampings for the automobile industry, but has
recently embarked on a program of diversification and expan-
sion into various manufacturing lines. The Employer asserts
that the previous reasons for locating its home office at Ford
City do not necessarily prevail now and that the advent of the
new ownerships means that continuing studies will be made
to decide whether the administrative headquarters should be
moved from Ford City. There are, however, at this time no
plans for transferring the Ford City office elsewhere. The
possibility that the office may be transferred elsewhere is not
a ground for denying present employees the right to select
their bargaining representative at this time. Accordingly, we
shall direct an election within the period usually prescribed.
[ Text of Direction of Election omitted from publication. ]
ARROW PHOTO SERVICE, INC. and MATTHEW McCORKLE.
Case No. 2-CA-2756. June 23, 1954
DECISION AND ORDER
On January 7, 1954, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in certain unfair labor
practices in violation of Section 8 (a) (3) and (1) of the National
108 NLRB No. 198.