Rice & Adams Corp.

National Labor Relations Board - Board Decisions

Feb 9, 1942

38 N.L.R.B. 1003 (N.L.R.B. 1942)

In the Matter of RICE & ADAMS CORPORATION and INDEPENDENT UNION
OF THE RICE & ADAMS CORPORATION, INDEPENDENT
Case No. R-3448.-Decided February 9, 194L
Jurisdiction : milk-plant equipment manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
'fusal to recognize either of two competing unions until one or the other is
certified by the Board ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees, excluding office and clerical workers, all employees in the drafting,
room with the exception of one person employed as a welder, employees
engaged ih a supervisory capacity, and watchmen ; agreement as to by unions ;
leadmen and stockkeeper who perform supervisory duties, and who have in
the past met with officials of the Company in management conferences,
excluded.
Mr. John F. Lane, of Buffalo, N. Y., for the Company.
Mr. James P. McNamara , of Buffalo , N. Y., for the Independent.
Mr. Willard Bliss and Mr. Ted Buezek, of Buffalo, N. Y., for the
United.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 9, 1941, Independent Union of the Rice & Adams Cor-
poration, Independent, herein called the Independent, filed with the
Regional Director for the Third Region (Buffalo, New York) a peti-
tion alleging that a question affecting commerce had arisen concerning
the representation of employees of,Rice & Adams Corporation, Buf-
falo, New York, herein called the Company, and requesting an inves-
tigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein' called the
Act. On- December 23, 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 Regulations-Series 2, as amended, ordered an investigation and
38 N. L. R. B., No. 186
1003
1004 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
On December 26, 1941, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
Independent, and upon the United Electrical, Radio & Machine Work-
ers of America, affiliated with the C. I. 0., herein called the United,
a labor organization claiming to represent employees directly affected
by the investigation. Pursuant to notice, a hearing was held on Jan-
uary 8, 1942, at Buffalo, New York, before Peter J. Crotty, the Trial
Examiner duly designated by the Chief Trial Examiner. The Com-
pany, the Independent, and the United were represented and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing,
the Trial Examiner made 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 committed.
The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Rice and Adams Corporation, a New York corporation, has its
office and principal place of business at Town of Tonawanda, New
York. It is engaged in the manufacture and sale of milk-plant
equipment. During 1941, $282,645 worth of raw materials were pur-
chased, more than 50 percent of which were shipped to the Company's
plant from points outside New York; $650,506 worth of products were
sold, more than 50 percent of which were shipped to points outside
New York.
The Company stipulates that it is engaged in commerce within
the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Independent Union of the Rice & Adams Corporation, Independent,
is an unaffiliated labor organization admitting to membership em-
ployees of the Company.
United Electrical, Radio & Machine Workers of America is a labor
organization affiliated with the Congress of Industrial Organizations
and likewise admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
Both the Independent and the United have demanded recognition
as exclusive bargaining agent of employees of the Company. The Com-
RICE & ADAMS CORPORATION 1005
pany has refused to enter into any bargaining negotiations until an
election has been held and the proper representative has been certified
by the Board. The Independent and the United have submitted to
the Regional Director evidence showing that each represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate.'
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 Independent and the United have agreed upon a unit of all pro-
duction and maintenance workers, excluding office and clerical help, all
employees in the drafting room with the exception of Fred Bronoski
(a welder), employees engaged in a supervisory capacity, and watch-
men. The Company takes no position as to the appropriate unit.
We are of the opinion that production and maintenance workers
exclusive of the categories which the Independent and the United,
agreed to exclude, comprise a unit appropriate for collective bargain-
ing with the Company.
There exists a dispute between the Independent and the United over
the inclusion in the unit of two named employees, and six -lead men.
Th United would exclude Milton Klein on the grounds that he is a
truck driver engaged in outside activities and is not eligible to mem-
bership in the United; it would exclude Joseph Krause, a stockkeeper,
on the grounds he is either a clerk, a supervisor, or both; and it would
exclude the six lead men, on the ground that they are supervisors or
foremen.
Milton Klein. The evidence discloses that Klein is temporarily act-
ing as truck driver in the absence of the regular driver who is on
i The Regional Director 's statement shows that the Independent submitted 56 application
cards, of which 49 are dated in November 1941, one in December 1941, and 6 are undated.
All 56 signatures appear to be genuine , and all are names which appear on the November 29,
1941, pay roll . The United submitted 41 authorization cards, of which one is dated in
April 1941, 3 in September 1941 , 29 in October 1 941, 1 in November 1941, and 7 are undated
All 41 signatures appear to be genuine . Forty of the names appear on the previously men-
tioned pay roll. The Company has 92 employees , exclusi\ a of the drafting department,
office and clerical employees , and the one conceded foreman.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sick leave. According to uncontradicted testimony of the Company
president, he previously was' employed in the stockroom. There is
every expectation that he will be returned to duties pertaining-to the
production or maintenance operations of the plant. In view of these
facts, we find that Milton Klein should be included in the appropriate
unit.
Lead Men. The six lead men comprise a group' incorporating both
characteristics of supervisors and of production employees. The num-
ber of men who work under their direction ranges from 3 to 16 de-
pending on the department in question. There is but one foreman in
the plant above them. The lead men are responsible to, and take
their orders from, this foreman. They do not possess the power to hire
or fire, or to discipline men under them. They assign work to their
men, -and inspect the finished product. Although,there is some. con-
flict in the. evidence as to whether they work physically with their
men, we conclude upon the basis of the entire record, that all lead
men do work with their men. In the past, the lead men, have met
regularly with the foreman and Company officials in management
conferences called by the Company. Thus their interests would seem
to be more closely allied with management than with the production
and maintenance employees., In view of these facts, we^find that the
six lead men should be excluded' from the appropriate unit as
employees engaged in supervisory duties.
Joseph Krause. Krause is classified as a stockkeeper. Normally,
he has but one helper in the stockroom, but there are indications that
he may be called on from time to time to supervise additional em-
ployees, e. g. in the taking of inventories. There is testimony that
Krause, although not classified as a lead man, also attended the above-
mentioned meetings with the management. In view of these facts,
we find that Joseph Krause should be excluded from the appropriate
unit.
We find that all production and maintenance employees, including
Milton Klein, but excluding office and clerical help, all employees in the
drafting room with the exception of Fred Bronoski (a welder),
employees engaged in a supervisory capacity, the six lead men, Joseph
Krause, and watchmen, constitute a unit appropriate for the purpose
of collective bargaining and that said unit will insure to employees 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
We find that the question concerning representation which has
arisen can best be resolved by the holding of an election by secret
RICE & ADAMS CORPORATION 1007
ballot, and we shall so direct. Those eligible to vote shall be the em-
ployees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of our Direction of Election,
subject to the limitations and additions set forth therein.
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 repre-
sentation of employees of Rice & Adams Corporation, Buffalo, New
York, within the meaning of Section 9 (c) and Sections 2 (6) and
(7) of the Act.
2. All production and maintenance employees of the Rice & Adams
Corporation, Buffalo, New York, including Milton Klein, but ex-
cluding office and clerical help, all employees in the drafting room
with the exception of Fred Bronoski (a welder), employees engaged
in a supervisory capacity, the six lead men, Joseph Krause, and watch-
men, constitute a unit appropriate 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 Relations Act,
49 Stat. 449, 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 Rice & Adams Corporation, Buffalo, New York, 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 Third
Region, acting in this matter as agent for the National Labor Relations
Board, and subject to Article III, Section 9, of said Rules and Regu-
lations, among all production and maintenance employees of the Com-
pany who were employed during the pay-roll period immediately pre-
ceding the date of this Direction of Election, including Milton Klein,
and employees who did not work during such pay-roll period because
they were ill or on vacation or in the active military service or train-
ing of the United States, or temporarily laid off, but excluding office
and clerical help, all employees in the drafting room with the excep-
tion of Fred Bronoski (a welder), employees engaged in a supervisory
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
capacity, the six lead men, Joseph Krause, watchmen, and those em-
ployees who have since quite or been discharged for cause, to determine
whether they desire to be represented by Independent Union of the
Rice & Adams Corporation, Independent, or by United Electrical,
Radio & Machine Workers, affiliated with the C. I. 0., for the purposes
of collective bargaining, or by neither.