The Barr Rubber Products Co.

National Labor Relations Board - Board Decisions

Sep 20, 1957

118 N.L.R.B. 1428 (N.L.R.B. 1957)

1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the supervisory status of working
foremen whom the Employer would include in the unit and the Peti-
tioner would exclude. Within the engineering department and under
the supervision of its superintendent, there are the garage foreman,
the cabinet repair foreman, and the plant engineering foreman. There
is also 1 working foreman in the milk processing department and 1 in
the ice cream production department. Each works about 90 percent
of his time. They have no authority to hire or discharge employees,
and their recommendations as to hire and discharge are subject to
independent investigation.e Accordingly, as the record does not indi-
cate that they have any other supervisory authority, we find that they
are not supervisors and include them in the unit.
We find that the following employees of the Employer at its plant
and Second Avenue warehouse in Miami, Florida, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act: 1
All production, maintenance, shipping and receiving and ware-
house employees, including truckdrivers, truckdriver helpers, garage
employees, cabinet repair employees, and working foremen, but ex-
cluding driver-salesmen, sales department employees, office clerical
employees, restaurant employees, guards, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
@ Although the Employer 's manager testified that the working foreman could fire em-
ployees in an "emergency ," he explained this testimony to mean that the working fore-
man could send employees to the department head who would then determine whether
or not the employees were to continue on the job.
4 The unit found appropriate Is larger than that sought by the Petitioner, and neither
the exact size of the unit nor the exact interest of the Petitioner in the unit is clear from
the record before us. Accordingly, we Instruct the Regional Director not to proceed with
the election herein directed until he shall have first determined that the Petitioner has
made an adequate showing of Interest among the employees In the appropriate unit, who
are eligible to vote in the election . See The Great Atlantic & Pacific Tea Company, 99
NLRII 1500.
In the event the Petitioner does not wish to participate in an election in such a unit,
we shall permit it to withdraw its petition upon notice to the Regional Director within
5 days from the date of issuance of this Direction , and shall thereupon vacate the Direc-
tion of Election.
The Barr Rubber Products Company and United Rubber, Cork,
Linoleum & Plastic Workers of America, AFL-CIO, Petitioner.
Case No. 8 RC-2941. September 20,1957
DECISION AND DIRECTION
On March 26, 1957, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Eighth
118 NLRB No. 192.
THE BARR RUBBER PRODUCTS COMPANY 1429
Region among the employees in the agreed appropriate unit. Follow-
ing the election the Regional Director served on the parties a tally of
ballots which showed that of approximately 215 eligible voters, 191
valid ballots were cast, of which 97 were for the Petitioner and 94
were against the Petitioner. Eight ballots were challenged.
No objections to the election or to the conduct of the election were
filed. As the challenges are sufficient in number to affect the re-
sults of the election, an investigation was made pursuant to Section
102.61 of the Board's Rules and Regulations by the Regional Di-
rector, who on July 5, 1957, issued his report on challenged ballots,
recommending that 3 challenges be sustained and 4 be overruled, and
recommending postponement of conclusion on the eighth pending the
count of those overruled. The Petitioner filed timely exceptions to the
report concerning two of the recommendations, apparently acquiescing
in the remainder.
The Board has reviewed the stipulation of the parties, the Regional
Director's report, the Petitioner's exceptions thereto, and the entire
record in this case and hereby adopts the findings, conclusions, and
recommendations of the Regional Director except as modified below.
The Board does not at this time pass upon the Regional Director's
recommendation that a hearing be held concerning the challenge to
McCarthy's ballot in the event a determination of the other challenges
is not dispositive of the issue.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Murdock, Rodgers, and Bean].
Upon the entire record in the case, the Board makes the following
findings of fact :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer, as stipulated by the
parties, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act: All pro-
duction and maintenance employees of the Employer at its Sandusky,
Ohio, plant, excluding office clerical employees, confidential employees,
professional employees, guards, and supervisors as defined in the Act.
5. The issues raised by the Petitioner's exceptions concern the ballot
of Mary Roeder, as to whom the Regional Director recommended sus-
taining the challenge, and the ballot of Singer, as to whom he recom-
mended that it be overruled.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roeder, pursuant to a call from the Employer's personnel office, was
reemployed by the Employer 2 weeks before the election but after the
eligibility date, February 23, 1957. She had worked for the Employer
in each of the 3 previous years and had been laid off each time after
2 to 4 months' work. On the last occasion, November 26, 1956, she
was told that she should not come in until called back. She was
rehired each time at the rate of pay which obtains for all but new
employees. The Regional Director found that the Employer has a
60-day layoff status policy, pursuant to which it took Roeder's name
off the employee roster on February 13, 1957, and eliminated her
from the Blue Cross group policy "at the end of February." The
report does not specify whether this was after the February 23
eligibility date. The Regional Director found that Roeder had no rea-
sonable expectancy of reemployment on the eligibility date, notwith-
standing her actual reemployment several weeks later and before the
election, citing Gerber Plastic Company,110 NLRB 269, 2 71. The Pe-
titioner would distinguish the Gerber case on the ground that the
"recalls" there were to different jobs. It contends that the report gives
greater weight to the Employer's characterization of the facts than to
the actual facts. On this record, which shows employment of Roeder
by the employer in each of 3 previous years, we find that her employ-
ment history and the indefinite basis of her layoff gave her a reason-
able expectancy of reemployment on the eligibility date. We shall,
therefore, overrule the challenge to her ballot. See Aroostook Federa-
tion of Farmers, Inc., 117 NLRB 31, footnote 11. We distinguish the
Gerber decision because of the finding therein that the employees in
question were permanently laid off.
Singer, the Regional Director found, is 1 of 2 employees classified
as storekeeper and receiver in the receiving department, both of whom
are paid at the same rate, with the third employee in the department
being a lift truck operator paid at a lesser rate. The receiving depart-
ment is supervised by the plant manager, who relays some orders
through Singer. Singer can requisition help from other departments
or special "spot labor" for unloading operations, but only with the
consent of the plant manager. Spot labor is hired by the personnel
department and Singer can effectively recommend their discharge.
However, as spot labor is used only once or twice a year for brief
periods of a day or two and involves usually two employees, the Re-
gional Director found, in effect, that this sporadic exercise of authority
in recommending discharge did not constitute Singer a supervisor
within the meaning of the statute. The Petitioner contends that any
exercise of supervisory authority makes an employee a supervisor. It
also contends that the other employees regard Singer as a supervisor
and argues that it is noteworthy that the instructions he relays to the
other employees are given him by a "plant official, namely, the Plant
THE VELLUMOID COMPANY 1-431
Manager." We find no merit in the Petitioner's contentions concern-.
ing the supervisory character of Singer, and shall overrule the chal-
lenge to his ballot as recomended by the Regional Director. It is
well established that the sporadic exercise of supervisory authority
does not constitute an employee a supervisor within the meaning of
Section 2 (11) of the Act. See Sunnyland Packing Company,
113 NLRB 162, 165; Sebastopol Cooperative Cannery, 111 NLRB
530, 531.
[The Board directed that the Regional Director for the Eighth
Region shall, within ten (10) days from the date of this direction,
open and count the ballots of Mary Roeder, and of McGory, Heidel,
Maimes, and Singer, and thereafter serve upon the parties a supple-
mental tally of ballots.]
The Vellumoid Company and United Steelworkers of America,
AFL-CIO, Petitioner. Case No.1 RC-4891. September 24, .1957
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on April 25, 1957, under
the direction and supervision of the Regional Director for the First
Region of the National Labor Relations Board among the employees
in the stipulated unit. Following the election, the parties were fur-.
nished a tally of ballots which showed that of approximately 172
eligible voters, 84 were for the Petitioner, 71 were against the Peti-
tioner, and 14 were challenged.
On May 2, 1957, the Employer filed timely objections to the election.
As the challenged ballots were sufficient in number to affect the results
of the election, the Regional Director investigated both the objections
and the challenges, and thereafter, on June 17, 1957, issued and duly,
served upon the parties a report on objections and challenged ballots,
a copy of which is attached hereto,, in which he found that the objec-
tions were without merit, and recommended that they be overruled
and the challenges to the ballots of four individuals be sustained'
The Employer timely filed exceptions to the Regional Director's
report with supporting brief.
Upon the entire record in this case, the Board 2 finds :
11. The Employer is engaged in commerce within the meaning
of the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
I The . Regional Director made no ruling as to the remaining challenges because they
could not affect the results of the election.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [Members Murdock, Rodgers,
and Bean].
118 NLRB No.194.