Lee Rubber and Tire Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1940

24 N.L.R.B. 1077 (N.L.R.B. 1940)

In the Matter of LEE RUBBER AND TIRE CORPORATION, REPUBLIC RUB-
BER DIVISION and LOCAL #102, UNITED RUBBER WORKERS OF
AMERICA (C. I. 0.) -
Case No., R-1860-Decided June 28, 1940
Rubber Goods ' Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees ; refusal of company to
recognize union as exclusive representative until and unless union certified as
such by. Board-Unit Appropriate for Collective Bargaining: all .hourly and piece-
work production and maintenance employees , including the cafeteria workers,
inspectors , factory, clerical workers, laboratory 'testers, watchmen, one named
salaried production employee, and two named experimental workers, excluding
general -office workers; foremen,' assistant . foremen, heads of experimental re=
search department , salaried chemists ; time-study men, and one named employee-
Election Ordered
Mr. Stanley Denlinger and Mr. 0. H. Bosley, of Akron, Ohio, for
the United.
Mr. W. 0. R. Johnson, of Youngstown,''Ohio, for the Independent.
Mr. Norman A. Emery, of Youngstowp, Ohio, for the Company.
Mr. Ivar Peterson, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 3, 1940, Local #102; United Rubber Workers of America,
herein called the United, filed with the Regional Director for the
Eighth Region (Cleveland, Ohio) a petition alleging that a question
affecting commerce had arisen concerning the representation of
employees of Lee Rubber and Tire Corporation, Republic Rubber
Division, Youngstown, Ohio, herein called the Company,' and re-
questing 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 May 15', 1940, the National Labor Relations
Board,.herein called the-Board, acting pursuant to Article III, Section'
. 1 Designated "Republic Rubber Division , Lee Rubber & Tire Corp ." in the notice of hearing.
The correct designation of the Company appears to be that given in the text.
24 N. L. R. B., No. 119. .
1077
25302,5-42-vol. 24-CO
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3, of National Labor Relations Board Rules and Regulations-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 18, 1940, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company, the United, and
Independent Association of Republic Rubber Employees, herein'
called the Independent, a labor organization claiming to represent
employees directly affected by the investigation. Pursuant to the
notice, a hearing was held on May 27, 1940, at Youngstown, Ohio,
before Max Johnstone, the Trial Examiner duly designated by the
Board. At the opening of the hearing the Independent orally moved
to intervene; ruling'on.the motion was reserved,. but the Independent
was permitted to participate in the hearing. The Company, the
'Uni'ted, and the Independent were represented by counsel.. All parties
participated in the hearing and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. 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 com-
mitted. The rulings are hereby affirmed.
On June 4, 1940, 'the Independent filed a written motion to inter-
vene. On June 5, 1940, the Trial Examiner issued an order, which
was duly served upon the parties, granting the motion to intervene
and ordering that if none of the parties moved to reopen the proceed-
ings for the purpose of taking further evidence within five (5) days
after receipt of the order, the record would be closed. None of the
parties moved that the proceedings be reopened, and on June 15,
1940, the Trial Examiner issued an order closing the record herein.
No request for oral argument,has been made by any of the parties.
.Upon the basis of the entire record in the case, the Board makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, Lee Rubber and Tire Corporation, Republic Rubber
Division, a New York corporation having its principal - office and
place of business at Conshohocken, Pennsylvania, and plants at.Con-
shohocken, Pennsylvania, and Youngstown,- Ohio,, is engaged in the
manufacture, sale, and distribution of pneumatic and solid rubber
tires and miscellaneous rubber goods. The present case' is concerned,
only with the Company's plant located in' Youngstown, Ohio, which
is known as the Republic Rubber Division,of the Company.
LEE RUBBER AND TIRE CORPORATION 1079
Raw materials used in the manufacture of the finished products of
the Company consist of crude rubber, reclaimed. rubber, fabrics, hose
cords, coal, and compounding and miscellaneous materials. In ' 1938
purchases of raw materials amounted to $919,273, of which approxi-
mately 89 per cent were purchased and received from outside the
State of Ohio. During the same year, the total value of the Com=-
pany's finished products amounted to about $3,086,223. Seventy-eight
per cent in value of the finished products were shipped outside the
State of Ohio.
The Company stipulated that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local #102, United Rubber Workers of America, is a labor or-
ganization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
Independent Association of Republic Rubber Employees is an un-
affiliated labor organization admitting to membership employees of
the Company except company officials and such hourly or weekly
paid employees as have the authority to employ or discharge.
III. THE QUESTION CONCERNING REPRESENTATION
It was stipulated by all parties that a question concerning repre-
sentation has arisen in that in January 1940 the United. requested
recognition as the exclusive representative of employees at the Com-
pany's Youngstown, Ohio, plant, and the Company refused to grant
such recognition until and unless the Board certified the United as
the representative of employees in an appropriate unit.
We find that a question has arisen concerning 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 parties have agreed that all hourly and piece-work production
and maintenance employees, including cafeteria' workers, should be
1080 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
included in the unit. They, have further agreed that general office
workers, foremen, assistant, foremen, heads of the experimental re-
search department, salaried. chemists, and time-study men should be,
excluded. The United would, -in, addition, exclude certain alleged
supervisors, laboratory testers, inspectors, factory clerical workers,
Karl Barth, a salaried production worker, James Jacque,. a junior'
draftsman, and Albert Garthwaite, a helper in the experimental de=
partrnent.' The Independent, apparently, would include all the fore-
going employees and categories of employees in the unit. The
Company considers that the disputed. groups of 'employees are pro-
duction and maintenance employees'and would include. them -in-the
unit. There is also controversy as to the watchmen. The United
contends that they should be included in the unit, whereas the Com-
pany would exclude them. 'The record does not reveal the position
of the Independent with regard to watchmen. We shall 'discuss,
separately each of the employee classifications' in controversy.
Alleged supervisors. There are 10 employees in this category.2
They are paid hourly wages and only for the hours actually worked.,
The Company does not. consult them with regard to hiring and dis.-
charging. They perform general utility and service work, . act as
inspectors'and as. leaders of small crews of production workers, and'
some of them, spend part of each day on production work.- When
the number of shifts is reduced some of them work exclusively on
production.
The duties of these alleged supervisors do not differ'in substance
from those of some 50 crew leaders throughout the plant as to
whom no objection is raised. We shall include them in the unit.
Laboratory testers. Eight employees constitute this group. They
are hourly paid, and work in the laboratory testing materials and
recipes before they .are used in the production departments and test-
ing finished goods before they are shipped. They also make samples
to cu'stomers' specifications to assist the sales department.. In some
cases they produce goods on small orders since such orders can be
handled better in the laboratory than in the factory with its larger
equipment.
The duties of the laboratory testers appear to be closely related
to the production process. We shall include them in the unit.
Inspectors. Three employees, one on each shift, inspect the prod-
ucts -produced in the press department. They .also assist the press-
'Earl Blackwood and John Smith were originally included in this group by the United.
The Company , however , conceded at the bearing that Blackwood has supervisory duties and
should be excluded . We shall exclude him. Smith is a watchman stationed in the watch-
men's headquarters in order to render first aid to employees who may be injured on the
third shift and to dispense supplies from the storeroom when the storekeeper is not on duty.
We. shall consider Smith with the other watchmen , infra.
LEE RUBBER AND TIRE CORPORATION .1081
men. in making tr'iar.heats when new molds are being introduced, see
that the truckers take away from the presses full containers and place
empty containers at the presses, and-. substitute for pressmen when
the latter,must leave their .presses, temporarily. The inspectors are
hourly 'paid employees, and work ' under the direction of a shift
foreman.
Although inspectors appear to have minor supervisory duties, these
do not directly affect the conditions of employment of the other pro-
duction employees. No sufficient reason appears for excluding them.
We shall include the inspectors in the unit.3
Factory clerks. Sixteen employees, who work in the factory in
connection with production, are.included in this disputed classifica-
tion. All of them are hourly paid -employees. Five are called plan-
ning clerks ; four of them work in different production departments
breaking' down manufacturing orders into the various kinds of rubber
compounds, fabrics, wire, and other material which they 'order from
other departments when and in the quantities' needed and scheduling
the work through' the department; the fifth planning clerk works in
the stock- preparation department receiving orders for materials from
the manufacturing departments and scheduling the work for the
compound, mill, and calender departments. The work of the five
,planning clerks requires ' that they be familiar' with manufacturing
operations 'so that they may satisfactorily schedule the work and pro-
vide' the materials needed for' it. .Some of them also truck :stock
when it is needed in a hurry.
Seven employees are engaged in assisting the planning clerks'and
in' performing minor clerical work of., a routine nature. They act
as messengers between their department and other departments. It
is a common occurrence for some of them to be engaged in production
work along with their clerical work. When work is slack they are
either laid off or placed on production work.
One clerk, Kenneth Hilliard, works in the shipping department
helping pack goods and writing out packing lists and reports on
goods shipped. Another clerk,. Charles Davies, does the detail cler-
ical work for the salaried chemists in the laboratory.. He prepares
and sends the detailed orders to the stock preparation department
relative to the ingredients to be used in the numerous compounds
and works with that department in the control of raw materials to
be kept on ,hand and used. Two employees, Robert Holmes and
Kenneth Loveless, work in the stores, department. Holmes, the full-
time storekeeper, dispenses tools, supplies, and materials to produc-
$ See Matter of Western Rubber Company and Federal ' Labor Union No. 21362 of the
American Federation of Labor; Matter of Western . Rubber Company and United Rubber
Workers of America, Local No. 30, 17 N. L . R. B. 426.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and maintenance employees. He notifies his foreman when the
stock on hand, falls below the set minimum and checks incoming
goods against purchase orders and tallies issued by the receiving
room. Loveless assists Holmes part of the time in handing out store-
room items and substitutes for Holmes during the latter's lunch
period and after Holmes quits for the day until the storeroom is
closed. Loveless spends the balance of his time on general warehouse
and salvage work.
No reason appears for excluding these employees from the unit.
Their duties are not supervisory in character. It is apparent that
they bear a closer relationship to the other production employees
than to the general office workers. Moreover, some of them fre-
quently work directly on production. We shall, therefore, include
them in the unit'
Watchmen. There are eight watchmen, including Smith who is
stationed in the watchmen's headquarters, as stated above,5 . and
Thomas Shugart who is carried on the salary pay roll. The' watch-
men, with the exception of Shugart, are hourly paid employees. All
of them, except Smith, make the customary. rounds of the factory.
Some of the watchmen are members of the United. -
As stated above, the position of the Independent with. regard to
watchmen is not revealed by the record. Under these circumstances,
where no labor organization contests their inclusion, we have custo-
marily included them in plant-wide bargaining units. We shall in-
clude watchmen in the appropriate unit."
Karl Barth is on the salary pay roll but is: engaged only in brass
plating metal inserts for molded goods. The company regards this
work as exclusively production work and hence contends that he
should be included with the hourly paid production employees.
James Jacque and Albert Garthwaite are hourly paid employees
engaged in experimental work. Jacque is a junior draftsman; he
traces customer's drawings and makes blueprints, templets for letters
to be used as inserts in rubber floor mats, and sketches of punches,
brands, and miscellaneous small equipment. He also makes measure-
ments in the factory for other draftsmen. Garthwaite helps build
equipment for the manufacturing departments. He works under the
direction of the experimental engineer and operates lathes, drill
4Matter o f Western Rubber Company and Federal Labor Union No. 21362 of the American
Federation of Labor; Matter of Western . Rubber Company and United Rubber Workers of
America, Local No. 30, 17 N. L. R. B. 426.
5 See footnote 2. s,,pra.
"Matter of Agwilines, Inc., doing business under the trade name of Clyde-Mallory Lines and
Brotherhood of Railway and Steamship . Clerks, Freight Handlers, Express and Station
Employees , 12 N. L. R. B. 366; Matter of Willys Overland Motors , Inc. and International
Union, United Automobile Workers of America, Local No. 12, 9 N. L. R. B. 924.
LEE RUBBER AND TIRE.CORPORATION 1083
presses, and welding torches in connection with building new devices
and equipment.
.It is clear that Barth's duties are closely related to production
work. The fact that he is paid on a salary basis, whereas other
production employees are paid by the hour, does not appear. to be
a sufficient reason for excluding him. The United advanced no
reason for not including him in the unit. We shall include him.
We see no reason why Jacque and Garthwaite should be excluded
from the unit: Both are hourly paid employees, and their duties
are not unrelated'to those of production employees. Since the unit
is essentially an industrial one, we shall include. Jacque and Garth-
waite:
We find that all hourly and piece-work production' and mainte-
nance employees :of the Company, including the ' cafeteria workers,
inspectors , factory clerical workers, ' laboratory testers, watchmen,
Karl Barth, James Jacque, and Albert Garthwaite, but excluding
general office workers, foremen, assistant 'foremen, heads of the ex-
perimental research department, salaried chemists, time-study 'men,
and 'Earl, Blackwood, constitute a unit appropriate for the purposes
of collective bargaining ' and that such unit will insure to the em-
ployees 'of. the Company the full benefit .of their right to self-
organization and to collective bargaining and otherwise will effectuate
the .policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company employed approximately 791. hourly - paid produc
tion and maintenance employees 'as -of April 30, 1940.7' The United
presented authorization cards and petitions, `application cards and
a dues roster, which show that about 386 of the foregoing employees
have indicated their desire to' be represented by the 'United. ' Th i
membership roster of the Independent contained the names of 240
employees listed on the April 30, 1940, pay roll; in addition, the
Independent introduced in evidence authorization' petitions signed by
311 such employees which to some extent duplicate the, membership
roster. All parties' agreed that the question concerning representa-
tion could best be resolved by an election. _
The United desires that the January 17, 1940, pay roll be used to
determine eligibility to vote so that, employees temporarily laid off
since that time may vote. The Company and the. Independent ex-
pressed no preference regarding an eligibility date, but it appears that
they are, not in agreement with the United. ' Apparently the United
was of the opinion that employees temporarily laid off prior to the
'Apparently this figure also includes piece-work employees.
1084 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
eligibility date • would ^ not be eligible to vote. However, since our
Direction of Election provides that employees in the status-of tem-:
porarily laid-off employees.as of the eligibility date are eligible to,
vote, it follows that the use of the current pay roll will not render
ineligible persons temporarily laid off prior thereto. Under these
circumstances, we conclude that the current pay roll should be used.
We shall direct that those eligible to, vote shall be the employees in.
the appropriate unit whose names appear on the Company's pay roll'-
immediately preceding the date of this Direction of Election, includ-
ing any employees 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.
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-
resentatiori of employees of Lee Rubber and Tire Corporation, Repub-
lic Rubber Division, Youngstown, Ohio, within the meaning of Sec-
tion 9 (c) and Section 2(6) and (7) of the National Labor Relations
Act.
2. All hourly and piece-work production and maintenance em
ployees of the Company, including the cafeteria workers, inspectors,
factory clerical workers, laboratory testers, watchmen,' Karl Barth,
James Jacque, and,Albert. Garthwaite, but .excluding. general office
workers, foremen, assistant . foremen, heads of the experimental re-
search department, salaried chemists, time-study men, and Earl
Blackwood, constitute a. unit appropriate for the purposes of col-
lective bargaining. .
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 Re-'
lations 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 ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Lee Rubber and Tire Corporation, Republic Rubber Division,
Youngstown, 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
LEE RUBBER -AND TIRE CORPORATION 1085,
,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
hourly and piece-work production and maintenance. employees of
Lee Rubber and Tire Corporation, Republic Rubber Division, whose
names appear'upon the Company's pay roll immediately preceding the
date of this Direction of Election, including the cafeteria, workers,
inspectors, factory clerical workers, laboratory testers, watchmen,
Karl Barth, James Jacque, and Albert Garthwaite, and employees who
did not work during said pay-roll period because they were ill or
on vacation, and those who were then or have since been temporarily
-laid off, but excluding, general office workers, foremen, assistant
foremen, heads of the experimental research department, salaried
chemists, time-study men, 'and Earl Blackwood, and those who have.
since quit or been discharged for' cause, to determine whether they
desire to be represented by Local #102, United Rubber Workers of
America, affiliated with the Congress. of, Industrial Organizations,
or by Independent Association of Republic Rubber Employees, for
the purposes of collective bargaining, or by..neither..
MR. EDWIN S. - SMrrH took no part in the consideration of the
above Decision and Direction of Election.
0