Industrial Rayon Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1941

33 N.L.R.B. 680 (N.L.R.B. 1941)

In the Matter Of INDUSTRIAL RAYON CORPORATION and'INTERNATIONAL
BROTHERHOOD OF FIREMEN & OILERS, LOCAL No. 52 (AFL) AND
INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 589,
589A, 589B (AFL)
Case No. R-0576.-Decided July 21,1941
Jurisdiction : rayon manufacturing industry.
Investigation and Certification of Representatives : existence of question: dis-
pute as to appropriate unit; labor organization excluded from ballot because
it made no showing of designation within the appropriate unit ; election
necessary.
Unit Appropriate for Collective Bargaining
Employees of powerhouse held appropriate unit where remainder of plant
represented and where intervenor claiming alternatively that appropriate
unit should be multi-plant, or plant wide, did not desire election on the
suggested basis, and declined to submit evidence of representation in the
affected plant.
Operating engineers included within unit where they operate powerhouse
machinery and union shows substantial bargaining history in locality for
them, although intervenor and Company urged exclusion as supervisory.
Chief engineer excluded as managerial official although union requested
his inclusion and showed bargaining history.
Jones, Day, Cockley c Reavis, by Mr. Grover Higgins and Mr.
Frederic S. Cross, of Cleveland, Ohio, for the Company.
Hartshorn, Thomas d Abele, by Mr. Arnold M. Edelman, of Cleve-
land Ohio, for the Operating Engineers.
Mr. Ray E. Seitz, of Cleveland, Ohio, for the Firemen.
Mr. David Jaffe, of New York City, for T. W. U. A.
,Mrs. Carrie Gallagher, of Cleveland, Ohio, for U. T. W. A.
Mr. Charles W. Schneider, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On April 18, 1941, International Brotherhood of Firemen & Oilers,
Local No. 52 (AFL) and International Union of Operating Engi-
neers, Local No. 589, 589A, 589B (AFL), herein called, respectively,
the Firemen, and the Operating Engineers, filed a petition with the
33 N. L. R. B., No. 116.
680
INDUSTRIAL RAYON CORPORATION 681
Regional Director for the Eighth Region (Cleveland, Ohio) alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Industrial Rayon Corporation, Painesville,
Ohio, herein called the Company, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act. On
May 2, 1941, 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
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice.
On May 6, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the Firemen,
the Operating Engineers, and also upon Textile Workers Union of
America, (C: I. 0.), herein called T. W. U. A. On May 14, 1941,
T. W. U. A. filed a motion to intervene with the Regional Director
alleging that it represented a substantial number of employees in
the Painesville plant of the Company, and that it had been certi-
fied as the bargaining agent at the Company's plant in Covington,
Virginia. The Regional Director referred the motion to the Trial
Examiner. Pursuant to notice, a hearing was held on May 19 and 20,
1941, at Cleveland, Ohio, before Harry L. Lodish, the Trial Examiner
duly designated by the Chief Trial Examiner. At the opening of
the hearing the Trial Examiner granted the motion filed by T. W.
U. A. to intervene. United Textile Workers of America (AFL),
herein called U. T. W. A., moved at the hearing to intervene in the
proceedings, alleging that it represented employees at the Paines-
ville plant of the Company. The Trial Examiner granted the motion.
The Company, the Firemen, the Operating Engineers, T. W. U. A.,
and U. T. W. A. were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing on the issues was
afforded all parties. At the hearing T. W. U. A. moved to dismiss
the petition on the ground that the unit requested was inappropriate
for the purposes of collective bargaining. The Trial Examiner re-
served ruling on the motion for the Board. The motion is hereby
denied. During the course of the hearing the Trial Examiner made
several rulings on other motions and on objections to the admission
of evidence. The Board has reviewed the rulings of the Trial Ex-
aminer and finds that no prejudicial errors were committed. The
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. All parties 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
Industrial Rayon Corporation is incorporated under the laws of
the State of Delaware. It is engaged in the manufacture, sale, and
distribution of rayon yarns. In connection with its business it op-
erates three factories, one located at Painesville, Ohio, one at Cleve-
land, Ohio, and one at Covington, Virginia, each of them employing
approximately 1,000 persons. At the Painesville plant the Company
uses raw materials, principally cellulose and chemicals, to the value
of over $2,000,000 a year, of which approximately 70 per cent are
purchased and shipped to Painesville from points outside the State
of Ohio. The value of the finished goods manufactured and dis-
tributed at Painesville amount to over $5,000,000 a year, more than
90 per cent of which are shipped to points outside the State of
Ohio.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen & Oilers, Local No. 52, is
a labor organization affiliated with the American Federation of
Labor, admitting to membership employees of the Company.
International Union of Operating Engineers, Local No. 589, 589A,.
589B, is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
Textile Workers Union of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
United Textile Workers of America is a labor organization affili-
ated with the American Federation of Labor, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In November 1940 the Firemen and the Operating Engineers began
negotiations with the Company for recognition as bargaining agent
for the employees of the powerhouse at the Painesville plant. The
Company questioned the appropriateness of the unit proposed by the
Firemen and the Operating Engineers. On April 18, 1941, the Fire-
men and the Operating Engineers jointly filed a petition for in-
vestigation and certification of representatives of the Painesville
powerhouse employees.
INDUSTRIAL RAYON CORPORATION - 683
The Firemen and the Operating Engineers submitted evidence that
they represent a substantial number of the powerhouse employees.'
We find that a question has arisen concerning the representation of
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
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 Firemen and the Operating Engineers request an appropriate
unit consisting of all 36 employees in the powerhouse. U. T. W. A.
agrees that the unit requested is appropriate. T. W. U. A., however,
contends (1) that such a unit is inappropriate, (2) that the proper
unit should consist of employees of the Company's three plants on an
industrial basis,2 (3) alternatively, that if a multi-plant unit
is found not to be appropriate, then all employees at the Paines-
ville plant including the powerhouse employees but excluding super-
visory and clerical employees constitute an appropriate unit. The
Company takes no position with regard to the powerhouse employees
constituting an appropriate unit, but states that if they are found
to constitute an appropriate unit, then 5 of the 36 employees in the
powerhouse-the Chief Engineer and 4 operating engineers-should
not be included in the unit because they are supervisory employees.
T. W. U. A. takes the same position as the Company regarding these
five men.
About March 18, 1941, U. T. W. A. requested the Company to
recognize it as bargaining agent for all employees at the Company's
Painesville plant, excluding clerical, supervisory, salaried, and power-
house employees. The Company suggested that U. T. W. A. be
certified by the Board. U. T. W. A. then filed a petition for in-
lestigation and certification.' T. W. U. A. received notice of the
proceedings but denied any interest, stating that it had no members
I The Trial Examiner stated for the record that the Regional Director reported that 12
authorization cards from the Firemen and 21 from the Operating Engineers had been
submitted . There are 36 employees in the powerhouse.
2 In addition to its plant at Painesi Ille, the Company has plants at Covington , Virginia,
and Cleveland. Ohio. T. W. U. A. (then T W . 0 C.) won an election among employees
at the Covington plant on July 17, 1937, and was thereafter certified by the Board.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Painesville. There being no other opposing claims, a consent pay-
roll check was made by the Regional Director on April 23 among a
unit of Painesville employees substantially the same as that requested
by U. T. W. A., with a few additional exclusions agreed upon between
U. T. W. A. and the Company.' Out of 935 employees in that unit
503 were found to be represented by U. T. W. A. In reliance upon
the pay-roll check the Company and U. T. W. A. have been bargain-
ing with respect to a contract submitted by that Union.
In the meantime, on April 18, the Firemen and the Operating En-
gineers filed the petition herein. Notwithstanding the disclaimer
it had made less than 1 month before, T. W. U. A. on May 7,4 wrote
to the Company claiming representation among its Painesville em-
ployees. T. W. U. A., on May 12, then moved to intervene in this
proceeding, claiming to represent a substantial number of the Paines-
ville employees and all of the employees at the Covington plant.
Upon learning of T. W. U. A.'s action U. T. W. A. also moved to
intervene.
The powerhouse is segregated from the rest of the plant and is a
composite of two interconnecting buildings, one containing machinery
for the generation of steam and electric power and some miscella-
neous equipment, the other containing machinery for water softening
and filtration. The powerhouse would ordinarily remain open for
property protection even though the rest of the plant was closed.
It has its own separate scheme of promotion and seniority. Its per-
sonnel consists of 36 men ; the Chief Engineer, one utility man, two
crane operators, and four each of the following categories : operating
engineers, filtration engineers, refrigeration engineers, electric-
switchboard operators, mechanics, firemen, assistant firemen, and
oilers.' Its machinery is in the charge of the operating engineers,
subject to directions from the Chief Engineer. The only labor
organizations presenting evidence of membership among the em-
ployees at the Painesville plant are agreed upon the propriety of the
unit requested by the petitioners. T. W. U. A. declined to present
any evidence of membership either in the powerhouse or any other
portion of the Painesville plant; it does not desire an election among
the employees at the Painesville plant or among the employees at
the Company's three plants. Under the circumstances we reject the
s All production and maintenance employees , excluding supervisors , foremen, assistant
foremen, foreladies, powerhouse employees , section inspectors in the Coning Department,
head fixer in the Coning Department , head tinner in the Maintenance Department, head
painter- in {he Maintenance Department , guards, head mechanics , storel eepers , office em-
ployees , laboratory employees , technical staff, and salaried employees.
4 Three weeks after the petition was filed in this case.
5 They are grouped in fours in order to provide three 8-hour shifts and a relief man in
each group except the crane operators.
INDUSTRIAL RAYON CORPORATION 685
,contentions of T. W. U. A. and find that the powerhouse employees
may properly constitute an appropriate unit.
The Chief Engineer is the head of the powerhouse department. He
is a management official spending most of his time in the front office
and takes no part in the direct operation of the powerhouse. His
authority as to hiring and discharging, while subject to approval by
the plant superintendent, is sufficiently definitive to classify his status
as managerial . In view of this intimate connection with the man-
agement, he will be excluded from the unit s
The operating engineers, however, are actively engaged in the
operation of the powerhouse machinery and are hired for that pur-
pose. They are members of the Operating Engineers and want it to
bargain for them. The Union has a substantial history of bargain-
ing for operating engineers.7 Their exclusion would deprive their
union of the nucleus of its organization. In view of these and the
other facts heretofore mentioned, the operating engineers properly
belong within the appropriate unit.
We find that all employees in the powerhouse at the Company's
Painesville plant, excluding the Chief Engineer, constitute a unit
appropriate for the purposes of collective bargaining and that said
unit will insure to the 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.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. Since
T. W. U. A. made no showing that any employees of the Company
within the appropriate unit have designated it as their representative
for the purposes of collective bargaining, we shall not include the
name of T. W. U. A. upon the ballot in the election which we shall
direct." The parties expressed no preference with respect to the
pay roll to be used to determine eligibility to vote in the election.
We shall follow our usual practice and direct that the employees of
the Company eligible to vote in the election shall be those in the
appropriate unit employed during the pay-roll period immediately
preceding the date of the Direction of Election herein, subject to such
limitations and additions as are set forth in the Direction hereinafter.'
6 General Motors Corporation, Chevrolet Division and International Union of Operating
Engineers, Locals 30 & SO-A, 28 N. L R B 793. The fact that Operating Engineers
has bargained for chief engineers elsewhere in the locality is not persuasive in view, of his
functions in the instant case.
' The Operating Engineers has contracts for operating engineers with about 93 industrial
firms in the locality
8 Seas Shipping Company, Inc. (Robin Line) and Seafarers ' International Union of
North America, A. F. of L., 27 N. L R. B. 460
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of_ factand upon the entire
record in the case, the Boai d makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre=
sentation of employees of Industrial Rayon Corporation , Painesville,
Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
2. All employees in the powerhouse of the Painesville plant of the
Company, excluding the Chief Engineer , constitute a unit appro-
priate 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 Industrial Rayon Corporation, Painesville, Ohio, 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 of Election
under the direction and supervision of the Regional Director for
the Eighth 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 powerhouse employees at the Com-
pany's Painesville plant 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 in the active military service or
training of the United States, or temporarily laid off, but excluding
the Chief Engineer, and employees who have since quit or been dis-
charged for cause, to determine whether or not they desire to be
represented by International Brotherhood of Firemen & Oilers, Local
No. 52 (AFL) and International Union of Operating Engineers,
Local No. 589, 589A, 589B (AFL), for the purposes of collective
bargaining.
MR . EDWIN S. SMITH , dissenting in part :
I dissent from the determination of the Board to exclude the Chief
Engineer from the appropriate unit. While he is a salaried employee
INDUSTRIAL RAYON CORPORATION 687
with power to recommend the hire and discharge of employees, and
is considered by the Company as a department head, he is, as the
record clearly shows , an, employee customarily covered by contracts
between the Operating Engineers and employers in the locality.
Moreover, he is a member of the Operating Engineers and that union,
which is the only labor organization showing any representation
among the powerhouse employees , desires his inclusion within the
unit. Under the circumstances I would include the Chief Engineer
in the appropriate unit.9
9 See my dissenting opinion In Matter of Armour and Company of Delaware and
Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 545, A. F.
of L., 33 N. L. R B . 154; Westerman Print Company and Cincinnati Printing Pressmen
& Assistants' Union Local No. 111, 27 N . L. R B. 1.