Johns-Manville Products Corp.

National Labor Relations Board - Board Decisions

Jun 26, 1937

2 N.L.R.B. 1048 (N.L.R.B. 1937)

In the Matter Of JOHNS-MANVILLE PRODUCTS CORPORATION 1 and AS-
BESTOS WORKERS' UNION, NASHUA LOCAL, AFFILIATED WITH THE
COMMITTEE FOR INDUSTRIAL ORGANIZATION, THE INDEPENDENT
ASBESTOS WORKERS' ASSOCIATION, and AMERICAN FEDERATION OF
LABOR.
Case No. R-155-Decided June 26,1937
Asbestos Products Manufacturenq Industry-Electtion Ordcrcd; controversy
concerning representation of employees : majority status disputed by employer ;
rival organizations ; substantial doubt as to majority status ; strike provoked
by employer's refusal to recognize petitioning union as exclusive representative-
Unit Appropriate for Collective Bargaining: hourly rate employees; functional
coherence; eligibility for membership in rival organizations-C,ertsfication of
Representatives.
Mr. Edmund J. Blake for the Board.
Mr. Robert B. Hamblett, of Nashua, N. H., for the Company.
Mr. Horace J. Brouillette, of Nashua, N. H., for Asbestos Workers'
Union, Nashua Local, affiliated with the Committee for Industrial
Organization.
Mr. Raymond C. Leahy, of Nashua, N. H., for The Independent
Asbestos Workers' Association.
Mr. John. L. Barry, of Manchester, N. H., for the American Feder-
ation of Labor.
Mr. Alexander B. Hawes, of counsel to the Board.
DECISION
N STATEMENT OF CASE
On April 30, 1937, Asbestos Workers' Union, Nashua Local, the
Dame of which has since been changed to United Asbestos Workers'
Industrial Local Union No. 5, filed with the Regional Director for the
First Region (Boston, Massachusetts), a petition alleging that a
question affecting commerce had arisen concerning the representation
of the production employees in the Nashua, New Hampshire, plant
of Johns-Manville Products Corporation, hereinafter referred to as
the Company, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, hereinafter referred to as the Act. On May
' The name of the Company appeared as "Johns-Manville" in the petition as originally
bled ; it was corrected by a motion to amend granted at the healing.
1048
DECISIONS AND ORDERS 1049
25, 1937, the Board, acting pursuant to Article III, Section 3 of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered the Regional Director to conduct an investigation
and provide for an appropriate hearing. On May 26, 1937, the
Regional Director issued a notice of hearing to be held at Nashua,
New Hampshire, on June 3, 1937. On June 2, 1937, The Independent
Asbestos Workers' Association, hereinafter referred to as the Inde-
pendent Association, filed a petition to be permitted to intervene in
the proceeding in accordance with Article II, Section 19 of said Rules
and Regulations.
Pursuant to the notice, a hearing was held in Nashua, New Hamp-
shire, on June 3, 1937, before Tilford Dudley, the Trial Examiner
duly designated by the Board. At the hearing the American Federa-
tion of Labor, hereinafter referred to as the Federation, filed a petition
to be permitted to intervene in the proceedings in accordance with
Article II, Section 19 of said Rules and Regulations. This petition,
as well as the petition of the Independent Association, previously
filed, way granted by the Trial Examiner. We affirm these rulings.
At the hearing the Board, the Independent Association, and the Com-
pany were represented by counsel, and United Asbestos Workers'
Industrial Local Union No. 5, hereinafter referred to as the United
Union, and the American Federation of Labor were represented by
organizers for the Committee for Industrial Organization and for the
American Federation of Labor, respectively. All parties participated
in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. No objections were raised to the introduction of
any of the evidence.
Upon the entire record in the case the Board makes the following :
t
FINDINGS OF FACT
1. THE'COMPANY AND ITS BUSINESS
Johns-Manville Products Corporation, a Delaware corporation,
with head offices in New York, New York, and a plant in Nashua,
New Hampshire, is a wholly owned subsidiary of Johns-Manville
Corporation. The Nashua plant of the Company occupies three
buildings there, employs about 540 hourly rate production workers,
and is engaged in the manufacture of asbestos and cement products,
and electrical insulating material. Its production in the year 1936
-v. as valued at $1,240,000. During 1937, the value of each mouth's
production, up to the time of the strike in April, which is discussed
below, was about $175,000. The principal raw materials used by
1050 NATIONAL LABOR RL+LATIONS BOARD
the Nashua plant are asbestos and cement . The entire supply of
these two materials is imported from outside the State of New
Hampshire : asbestos from Canada and South Africa, cement from
New York and Pennsylvania . Lacquers are secured from New
Jersey, ' and lumber from Vermont , Maine, and Canada. Altogether
98 per cent of the materials used come from outside New Hampshire.
Ninety -eight per cent of the product also is shipped out. All sales
are made to an affiliated company, but shipments are made, on orders
from New York, direct to points throughout the United States as
well as to foreign countries . About 40 per cent of the shipments
are made by truck , the rest by rail.
II. THE ORGANIZATIONS INVOLVED
The United Union is a labor organization affiliated with the Com-
mittee for Industrial Organization. It admits to membership all
employees of the Company in thG, Nashua, New Hampshire, plant
except inspectors, foremen, assistant foremen, superintendents, pay-
masters, office clerks, time study, and efficiency men. The Independ-
ent Asbestos Workers' Association is a labor organization unaffili-
ated with-any other body. It admits to membership the same classes
of employees of the Company as the United Union, and in addition
assistant foremen. The American Federation of Labor is a labor
organization. There previously existed in the plant an American
in which membership was openFederation of Labor local union,
generally to production employees. While, at present, there is no
such union, the Federation has certain local craft unions in Nashua,
made up of employees of other firms, and certain of the Company's
employees are members or eligible to membership in such unions.
III. TIIE QUESTION OF REPRESENTATION
Brouillette, local organizer for the Committee for Industrial Organ-
ization, started organizing work among the employees of the Nashua
plant about the middle of March, 1937. On April 8 he and a com-
mittee of nine employees called on Maclldowie, the plant manager,
to ask that he negotiate with them concerning certain demands. Mac-
Ildowie asked Brouillette and the committee to submit evidence that
they represented a majority of the plant employees. Though claim-
ing to have cards signed by a majority, the committee refused to
submit them on the ground that they were confidential. The dis-
cussion broke up on this refusal. After another later conference
which ended in the same impasse, Brouillette wrote Maclldowie on
April 14, suggesting an election. The Company replied April 20
that it would not bargain with the committee until it proved its
authority, pointing out that the National Labor Relations Act pro-
1
DECISIONS AND ORDERS 1051
vided a method for'establishing that authority. On April 21 it again
wrote Brouillette and the committee declining to consent to an elec-
tion and pointing out that the Company could not, but the committee
could, file a petition for certification of representatives under the
National Labor Relations Act.
As a result of this breakdown .of negotiations, a strike was called
that same evening, April 21, which completely tied up the Nashua
plant for a whole month. After the first night, no shipments moved
in or out of the plant during this entire period. On May 21, the
employees gent back to work, however, without having secured any
-solution of the bargaining problem. In the meantime, the petition
in this proceeding was filed on April 30, and on May 10, Brouillette
and the committee secured for their organization a charter from the
Coninuttee for Industrial Organization, designating it as United
Asbestos Workers' Industrial Local Union No. 5.
On May 27, Maelldowie received a letter from Leahy, an attorney,
notifying him of the recent organization of "a large group of the
employees" into the Independent Association, and stating that the
association wished to be represented at any conference for collective
bargaining.
At the hearing the United Union claimed a membership of 472, and
the Independent Association a membership of 190. Since the total
number of employees eligible for membership in these organizations
is not over 540, their claims cast doubt upon each other. In addition,
the American Federation of Labor contended that about eight per
cent of the employees were members of local craft unions of the
Federation and that some of the ex-members of its old plant local
were still employed there. All three organizations, as well as the Com-
pany, agreed that there was a question as to representation which
could best be settled by a secret poll among the employees. Each of
the organizations expressed its willingness to have the names of the
other two appear upon the ballot.
We find that this question of representation which has arisen, 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 with foreign countries,
and has led and tends to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
IV. THE APPROPRIATE BARGAINING UNIT
The last payroll preceding the hearing on June 3 was that of May
29. It listed 518 hourly rate employees, exclusive of supervisory and
clerical employees. In addition, it was testified that there were 22
regular employees temporarily absent for illness or other cause. The
1052 NATIONAL LABOR RELATIONS BOARD
payroll was classified into ten departments as follows : transite de-
partment, 140; compressing department, 41; ebony department, 160;
tile department, 70; box and shipping department, 14; yard crew,
45; maintenance department, 41; boilers and burners, 12; inspectors,
14; miscellaneous, 14. Testimony developed, however, that many of
these classifications were arbitrary. For example, apparently only
nine of the men in the ebony department confine their work to ebony.
The rest work also on transite. The departments are generally not
segregated from each other in the plant. The compressing men work
on both ebony and transite, and the transite and ebony men work
in the same parts of the plant with them and each other. The yard-
crew is engaged in moving materials all over the plant. Moreover,
it is not the department classification which determines the rate of
wages paid, but the actual type of work done by each employee.
The United Union and the Independent Association both admit
to membership men from all these departments (with the exception
of the inspectors). All, even maintenance men, are regarded as pro-
duction employees for their purposes. Both these unions, however,
exclude inspectors, foremen, superintendents, paymasters, office
clerks, time study, and efficiency men. The United Union also ex-
cludes assistant foremen. It appears, however, that these employees
have no right to hire or discharge and ordinarily are engaged directly
on production. Their only distinguishing function is that they tem-
porarily replace absent foremen. We think that their interests are
closer to those of the ordinary, than to those of the supervisory,
employees.
At the hearing the organizations involved, including the American
Federation of Labor, indicated no disagreement with the designa-
tion of a unit along the lines of the group generally eligible for
membership in the United Union and the Independent Association.
The Federation recognized the probability of such a designation by
asking that its name (rather than the names of any of its constituent
unions) appear on the ballot.
Therefore, in order to insure to employees the full benefit of their
right to self-organization and to collective bargaining, and otherwise
to effectuate the policies of the National Labor Relations Act, we
find that the hourly rate employees of the Nashua, New Hampshire,
plant of Johns-Manville Products Corporation, except inspectors,
foremen, superintendents, paymasters, office clerks, time study, and
efficiency employees, constitute an appropriate unit for the purposes
of collective bargaining.
DECISIONS AND ORDERS
V. CONDUCT OF ELECTION
1053
Those eligible to vote shall be all employees who, as of May 29,
1937 , come within the classification stated above , including , in addi-
tion to those appearing on the payroll as of that date, all regular
employees in such classification who were then temporarily absent
for illness or other cause , and excluding all who have since quit or
been discharged for cause.
CONCLUSIONS OF LAW
On the basis of the above findings of fact, the Board makes the
following conclusions of law :
1. A question affecting commerce has arisen concerning the repre-
sentation of the employees of the Nashua, New Hampshire , plant of
the Johns-Manville Products Corporation , within the meaning of
Section 9 (c) and Section 2, subdivisions (6) and (7) of the Na-
tional Labor Relations Act.
2. The hourly rate employees of the Nashua , New Hampshire,
plant of Johns-Manville Products Corporation , except inspectors,
foremen, superintendents , paymasters , office clerks , time study, and
efficiency employees , constitute a unit appropriate for the purposes
of collective bargaining , within the meaning of Section 9 (b) of the
National Labor Relations 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, 49 Stat . 449, and pursuant to Article III, Section 8 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain the representatives for collective bargaining with
Johns-Manville Products Corporation , an election by secret ballot
shall be conducted within 15 days from the date of this Direction,
under the direction and supervision of the Regional Director for the
First Region, acting in this manner as agent for the National Labor
Relations Board, and subject to Article III, Section 9 of said Rules
and Regulations , among all of the hourly rate employees of the
Nashua, New Hampshire , plant of Johns-Manville Products Corpora-
tion who appeared on its payroll of,May,29, 1937, and all such hourly
rate employees who were regularly employed at that date though
1054 NATIONAL LABOR RELATIONS BOARD
temporarily absent for illness or other cause, except , however, in-
spectors, foremen, superintendents , paymasters , office clerks, time
.study, and efficiency employees , and those who since have quit or
have been discharged for cause , to determine whether they desire to
be represented by United Asbestos Workers' Industrial Local Union
No. 5, The Independent Asbestos Workers' Association, or the Amer-
ican Federation of Labor, for the purposes of collective bargaining.
[SAME TITLE]
AMENDED DIRECTION OF ELECTION
July 6, 193 7
The Board having directed on June 26 , 1937, that an election be
conducted within 15 days from said date among the hourly rate
employees of the Nashua , New Hampshire, plant of Johns-Manville
Products Corporation who appeared on its payroll of May 29, 1937,
including such hourly rate employees who were regularly employed
at that date although temporarily absent for illness or other cause,
but excepting inspectors , foremen, superintendents , paymasters, office
clerks, time study, and efficiency employees , and those who have since
quit or have been discharged for cause, to determine whether they
desire to be represented by United Asbestos Workers' Industrial
Local Union No. 5, The Independent Asbestos Workers' Association,
or the American Federation of Labor, for the purposes of collective
bargaining;
And the Board having received on July 6, 1937, a telegraphic re-
quest from one Francis P. Fenton, signed in his capacity of "New
England Representative American Federation of Labor", that the
Board omit the name of the American Federation of Labor from the
ballot to be used in the poll of the Johns-Manville Products Corpora-
tion employees;
And it appearing from the record in this case that said Francis
P. Fenton occupies a position in the American Federation of Labor
immediately superior to John L. 'Barry, who appeared at the hear-
ing on behalf of said Federation , and that the appearance of said
Barry at the hearing was at the direction of said Fenton , it is hereby
DIRECTED that, as a part of the investigation authorized by the
Board to ascertain the representatives for collective bargaining with
Johns-Manville Products Corporation , an election by secret ballot
shall be conducted within 15 days from the date of the original
Direction of Election on June 26 ,1937, under the direction and super-
vision of the Regional Director for the First 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
M CISIONS A\D ORDERS 1055
of the hourly rate employees of the Nashua , New Hampshire, plant
of Johns-Manville Products Corporation who appeared on its pay-
roll of May 29, 1937 , and all such hourly rate employees who were
regularly employed at that date though temporarily absent for ill-
ness or other cause, except , however, inspectors , foremen , superin-
tendents , paymasters , office clerks , time study , and efficiency em-
ployees, and those who since have quit or have been discharged for
cause, to determine whether they desire to be represented by United
Asbestos Workers' Industrial Local Union, No. 5 or The Independent
Asbestos Workers' Association for the purposes of collective bar-
gaining.
[SAME TITLE]
CERTIFICATION OF REPRESENTATIVES
July 00, 1937
On April 30, 1937, Asbestos Workers' Union, Nashua Local, the
name of which has since been changed to United Asbestos Workers'
Industrial Local Union , No. 5, filed with the Regional Director for
the First Region (Boston , Masachusetts ), a petition alleging that a
question affecting commerce had arisen concerning the representa-
tion of the production employees in the Nashua, New Hampshire,
plant of Johns -Manville Products Corporation , herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On May 25, 1937, the Board,
acting pursuant to Article III, Section 3 of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended , ordered
the Regional Director to conduct an investigation and provide for
an appropriate hearing. On May 26, 1937, the Regional Director
issued a notice of hearing to be held at Nashua, New Hampshire, on
June 3, 1937.
Pursuant to the notice, a hearing was held in Nashua, New Hamp-
shire, on June 3, 1937, before Tilford Dudley, the Trial Examiner
duly designated by the Board. At the hearing The Independent
Asbestos Workers' Association, herein called the Independent Asso-
ciation, Ind the American Federation of Labor, herein called the
Federation, were permitted to intervene in accordance with Article
II, Section 19 of said Rules and Regulations : The Board , the Inde-
pendent Association, and the Company were represented by counsel,,
and United Asbestos Workers' Industrial Local Union, No. 5, herein
called the United Union, and the Federation were represented by
organizers for the Committee for Industrial Organization and for
the Federation, respectively. All parties participated in the hearing.
.1056 NTIONAL LABOR RELATIONS BOARD
On June 26, 1937, the Board issued a Decision in which it found
that a question affecting commerce had arisen colicernirig the repre-
sentation of all the hourly rate employees of the Nashua, New
Hampshire, plant of Johns-Manville Products Corporation, except-
ing inspectors, foremen, superintendents, paymasters, office clerks,
time study, and efficiency employees, and that such employees con-
stituted a unit appropriate for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment. In its Decision the Board directed that
an election be held among such employees to determine whether
they desired to be represented by • United Asbestos Workers' Indus-
trial Local Union, No. 5, The Independent Asbestos Workers' Asso-
ciation, or the American Federation of Labor.
On July 6, 1937, the Board, having received a telegraphic request
from the New England representative of the Federation, in accord-
ance with that request issued an Amended Direction of Election
eliminating the name of the Federation from the ballot to be used
in the election.
Pursuant to the Board's Decision and Amended Direction of
Election, an election by secret ballot was conducted on July 7, 1937,
by the Regional Director for the First Region among the employees
of the Company constituting the bargaining unit found appropriate
by the Board. On July 9, 1937, the Regional Director issued and
duly served upon the parties to the proceeding his Intermediate
Report on the ballot. No exceptions to the Intermediate Report
have been filed by any of the parties.
As to the results of the secret ballot the Regional Director
reported :
Total number of employees eligible to vote---------------------- 513
Total number of ballots cast------------------------------------ 47S
Total number of ballots for United Asbestos Workers' Industrial
Local Union No. 5------------------------------------------ 283
Total number of ballots for The Independent Asbestos Workers'
Association--------------------------------------------------- 193
Total number of blank ballots ----------------------------------- 2
Total number of void ballots---------------------------------- 0
In the conduct of the ballot the Regional Director ruled that two
men came in the designation of "office clerks" and therefore were not
eligible to vote, and that two other men, hourly rate employees in
the cost reduction and development division, were eligible to vote
because their work was subject to further inspection of the chemist.
These rulings, which were embodied as findings in the Regional
Director's report, are hereby affirmed.
United Asbestos Workers' Industrial Local Union, No. 5, having
been selected by a majority of the hourly rate employees of the
DECISIONS AND ORDERS 1057
Nashua, New Hampshire, plant of the Company, except inspectors,
foremen, superintendents; paymasters, office clerks, time study, and
efficiency employees, as their representative for the purposes of
collective bargaining, is, by virtue of Section 9 (a) of the Act, the,
exclusive representative for the purposes of collective bargaining
of all of such employees, and we will so certify it.
Now THEREFORE, by virtue of and pursuant to the power vested in
the National Labor Relations Board by Section 9 (c) of the National
Labor Relations Act, and pursuant to Article III, Section 8 of
National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT is HEREBY CERTIFIED that United Asbestos Workers' Industrial
Local Union No. 5 has been selected by a majority of all, of the
hourly rate employees of the Nashua, New Hampshire, plant of
Johns-Manville Products Corporation, except inspectors, foremen,
superintendents, paymasters, office clerks, time study, and efficiency
employees, as their representative for the purposes of collective bar-
gaining, and that pursuant to Section 9 (a) of the National Labor
Relations Act, United Asbestos Workers' Industrial Local Union
No. 5 is the exclusive representative of all of such employees of
Johns-Manville Products Corporation for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment,
and other conditions of employment.