Evans Products Co.

National Labor Relations Board - Board Decisions

Dec 8, 1975

221 N.L.R.B. 1080 (N.L.R.B. 1975)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evans Products Company and International Brother-
hood of Electrical Workers , Local Union No. 280,
AFL-CIO, Petitioner: Case 36-RC-3477
December 8, 1975
DECISION ON REVIEW AND
DIRECTION OF ELECTION
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On June 3, 1975, the Regional Director for Region
19 `issued his Decision and Order in the above-
entitled proceeding, wherein he dismissed the peti-
tion on the basis of his finding that the requested unit
of employees at the Employer's Corvallis, Oregon,
plant is not representative and substantial in relation
to the complement required under its plans for
expansion of production. Thereafter, in accordance
with Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Petitioner filed a request for review of the
Regional, Director's decision on the grounds, inter
alia, that in reaching the above determination he
made clearly erroneous findings of fact which
prejudicially affected the rights of the Petitioner.
On August 7, 1975, the National Labor Relations
Board by telegraphic order granted the request for
review. Thereafter, Petitioner filed a brief on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issues under review,
including the Petitioner's brief on review, and makes
the following findings:
The Employer is engaged throughout the United
States in the manufacture and sale of building
materials and other products. At Corvallis, Oregon, it
currently has two battery separator plants which are
located about 130 feet apart. One has been producing
paper battery separators since 1961. The other began
operations in January 1975. Because of advanced
technology in the field of battery manufacturing, as
well as contamination problems with its paper
separators, the Employer developed a new submicro-
porous battery separator, basically plastic in compos-
ition, which it is producing at the new plant. While
production continues at the old plant, the Employer
I Just prior to the hearing, the Employer began negotiations for a new
contract with the collective -bargaining representatives of its employees at
the old plant.
2 The extruder-extractor line in operation at the time of the hearing
requires employees in the following job classifications mixer , extruder
operator, extractor operator, and grader-packer. However, these classifica-
tions are not rigidly adhered to as the small work force accomplishes all the
221 NLRB No. 175
predicted that the paper battery separators would not
be used within the battery industry in 10 years.
Consequently, although the Employer will in time
phase out production of the paper battery separators,
it does not have any immediate plans to discontinue
operations at the old plant.'
At the time of the hearing the work force, at the
new plant consisted of 7 to 10 employees in 4, job
classifications,2 and the plant was producing an
average of 10,000 to 12,000 separators a day. The
Employer anticipated that the new plant would be
fully operational by early November 1975, at which
time it stated the plant would be producing approxi-
mately 750,000 separators a day with approximately
70 employees in 12 job classifications. This expan-
sion would involve the addition of a second extruder-
extractor line, the installation and operation of a
glassmat coating line,3 and the employment of
quality control men, maintenance men, utility men,
cleanup men, reinspectors, distillation system watch-
er, and shipping and receiving clerks, which classifi-
cations the Employer states are normally utilized in
such production operations.
For the planned expansion to be accomplished the
-Employer testified that several events had to take
place. Shortly before the hearing the Employer
encountered problems with solutions essential to its
manufacturing process which had forced a reduction
in production output and resulted in the layoff of
three employees. Further, the Employer planned to
add a second production line only when the first line
had proved operationally satisfactory, and the
extruder and extractor for the second line had been
ordered contingent upon the successful performance
of the first line. Also, the Employer had to obtain
substantially more orders than it then had. Its largest
customer for the paper battery separators, which
purchased 82 percent of the output of the old plant,
had indicated it did not intend to convert to the
submicroporous separators. At the time of the
hearing sample plastic separators had been sent to 25
to 30 potential customers, and 12 to 15 of them had
by that time expressed a firm interest in the new
separators. The Employer, while believing it had a
strong order file, testified it would require substan-
tially more orders to achieve its plans for increased
production. One of Employer's managers, John
Sproull, further commented, ". . . But you must
remember that if, and we're facing this today if our
paper is contaminated, as we are told that it is, then
tasks essential to production
3 This operation involves the placement of glassmats next to the positive
plate to keep lead oxide from flaking away from the plate Such treatment is
required for industrial use of the submicroporous separator and the
Employer anticipated that from 40 to 60 percent of its order file would be in
glassmats
EVANS PRODUCTS COMPANY
we must switch to sub-micro-, and we might have to
adopt a much more strenuous program than we've
outlined for you...."
We granted review herein because of the substan-
tial issues raised concerning the Regional Director's
finding that the unit complement employed at the
Employer's new plant at the time of the hearing was
not representative and substantial in relation to that
planned by it in the reasonably forseeable future. We
were, and remain, troubled by the speculative nature
of the Employer's expansion plans; i.e., the number
of contingencies which would have to occur for that
expansion to take place. However, inasmuch as the
Employer, as above indicated, stated at the hearing
that it anticipated it would have a representative and
substantial complement by early November 1975, a
time frame which has already passed, the issues
under review have in that sense become moot and, so
far as appears, no impediment exists to an immediate
election.
Accordingly, we find that a question affecting
commerce exists concerning the representation of
certain employees of the Employer within the
meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act. In accord with the Petitioner's request, we
find that the following employees of the Employer
constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All employees in the Employer's submicroporous
battery separator division plant located in Corval-
4 There was no request for review of the Regional Director's finding that
the requested unit confined to the new plant was not an accretion to the
existing unit of employees of the old plant At the hearing, the Employer
contended that Joel Starr should be excluded from the appropriate
bargaining unit, on the ground that he was a supervisor . The record
discloses that Starr was in training to be the head foreman on the day shift.
1081
lis, Oregon, excluding office clerical employees,
guards and supervisors, as defined by the Act.4
[Direction of Election and Excelsior footnote
omitted from publication.]
MEMBER FANNING, concurring:
On the basis of the evidence set forth by my
colleagues, I would find that, at the time of the
hearing, the Employer's plans for expansion were too
speculative to warrant dismissal of the petition.
Instead, I find that an immediate election should
have been directed at that time in the unit petitioned
for.
I state these findings in the event the Employer's
expansion plans have not progressed to the level the
Employer anticipated by November 1975. While my
colleagues assume such expansion has occurred and
direct an election because the time frame in which
the Employer anticipated employing a work force it
deemed representative and substantial has run, I
wish to indicate that, in the event the Employer's
expansion plans have not progressed as anticipated, I
would still direct an election here based on the facts
adduced at the hearing.
However, should the expansion plans have prog-
ressed as the Employer anticipated and the work
force is therefore larger, I would permit Petitioner to
withdraw its petition within 10 days of this Decision
on Review without prejudice to its filing a later
petition in the unit should Petitioner not now seek to
go to an election in the present unit.
when the plant would operate at its anticipated expanded capacity. Starr at
the time of the hearing supervised the other employees during the plant
supervisor's frequent absences from the plant , from 2 to 4 hours a day. In
light of this evidence we find that Starr is a supervisor as defined in the Act,
and we shall exclude him from the unit.