The Dayton Rubber Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 23, 1954

107 N.L.R.B. 1242 (N.L.R.B. 1954)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through collective bargaining that the Employer would not
otherwise give them voluntarily and that if they struck to
enforce their demands the Employer was prepared and intended
to fill their jobs with replacements.
Whether or not the Employer would have committed an unfair
labor practice by engaging in such conduct is not, I submit,
the issue in this case . 8 The issue as I see it is whether the
Employer's preelection conduct so impressed upon the em-
ployees the futility of voting for the Petitioner that they
were unable freely to express their desires in the election.
I find that it did. Here the employees went to the polls with
the Employer's warning that it would not honor the Board's
certification even if the Petitioner won the election, but
instead would engage in several years of litigation; aware
that they would gain nothing through collective bargaining
that the Employer would not otherwise give them voluntarily;
and with the knowledge that the Employer was prepared to
replace them if they struck for economic benefits. I find that
the Employer's conduct was clearly calculated to create
such an impression of futility in the minds of the voters and
therefore constituted interference with that sober and thoughtful
choice which a free election is designed to reflect. Accordingly,
I would set aside the election.
8Cf. the majority opinion in Peerless Plywood Company, 107 NLRB 427.
THE DAYTON RUBBER MANUFACTURING COMPANY and
UNITED RUBBER WORKERS OF AMERICA, Petitioner. Case
No. 11-R-1563 (formerly 5-R-1563). February 23, 1954
SUPPLEMENTAL DECISION
On July 17, 1944, the Board issued its Decision and Di-
rection of Election in the above-entitled case' involving the
branch factory of the Employer2 at Waynesville, North Carolina.
In it, the Board found that the following unit was appropriate
and directed an election therein:
All production and maintenance employees including cal-
endar operators , inspectors , testing and packing em-
ployees, receiving and shipping employees, and firemen,
but excluding cafeteria workers, laboratory employees,
watchmen, office and clerical employees, foremen,and
all or any other supervisory employees with authority
to hire, promote , discharge , discipline, or otherwise
effect changes in the status of employees, or effectively
recommend such action.
157 NLRB 388.
2 Since the original proceeding herein, the name of the Employer has been changed to
The Dayton Rubber Company_
107 NLRB No. 263.
THE DAYTON RUBBER MANUFACTURING COMPANY 1243
On August 11, 1944, following the election, the Board certified
the Petitioner as the collective-bargaining representative of
the employees in said unit. On September 8, 1953, Local 277,
United Rubber, Cork, Linoleum and Plastic Workers of America,
C.I.O., herein called Local 277,' filed a motionfor clarification
of the unit to includg therein employees of the Employer who
perform their services at the Employer ' s warehouse located
at Asheville, North Carolina. On October 7, 1953, the Employer
filed a reply in opposition to the motion. On October 19, 1953,
the Board directed the Regional Director for the Eleventh
Region to hold a hearing on Local 277's motion and the
Employer's reply. Accordingly, on November 9, 1953, a
hearing for this purpose was held before Harold X . Summers,
hearing officer. The Employer and Local 277 appeared and par-
ticipated. Thereafter, both parties filed briefs with the Board.
The Board has reviewed the rulings of the hearing officer
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
Upon the basis of the evidence adduced at the hearing and
the entire record in the case , the Board hereby makes the fol-
lowing findings:
The Employer has 2 factories, located at Dayton, Ohio,
and Waynesville, North Carolina, and 29 branch offices and
warehouses located in various parts of the United States.
Its main office is at Dayton. The warehouse at Asheville,
North Carolina--the only one involved in this proceeding--was
not in existence at the time of the Board ' s certification of
the Waynesville unit. Local 277 contends, however, that since
its establishment, the warehouse employees have been included
in the unit under the bargaining contract betweenthe Employer
and Local 277, and that they should remain in that unit.
The Employer contends that these employees are not, and
never have been, in the unit, and cannot properly be included
therein.
The record shows that the Employer began the acquisition
of warehouse space in Asheville, a town approximately 30
miles from Waynesville, in the latter part of 1951. During
1951 and 1952, it leased certain buildings for this purpose,
and made arrangements to lease an additional building, to
be constructed for its use. This building was completed and
turned over to the Employer on September 3, 1953.
The Employer asserts that it acquired these buildings in
order to establish a branch office and warehouse, to be
operated as part of its division of branch offices and warehouse
operations, which has its headquarters in Dayton. Until
September 11, 1953, however, the available space was used
3At the hearing, the parties stipulated that United Rubber, Cork, Linoleum and Plastic
Workers of America, C I.O., is the successor to, and the same organization as, United
Rubber Workers of America, the petitioner in the original proceeding. Local 277, which
was established shortly after the Board's certification, is the contracting local at the Waynes-
ville plant.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Waynesville plant for surplus storage of its products,
and for making shipments to customers . Orders were processed
and customers were billed at Waynesville. During this time,
the warehouse was under the supervision of James G. McKinley,
manager of the Waynesville plant, and most of the employees
were assigned to it from the shipping department at that
plant. Some additional employees were hired from time to
time on a temporary basis at Asheville by the foreman of
the warehouse, working under the supervision of McKinley.
All employees were carried on the Waynesville plant payroll,
and those who had been transferred from Waynesville were
retained on the seniority lists there and continued to have
their union dues checked off.
On September 11, 1953, the entire warehouse was transferred
to the supervision and control of Howard W. Ryder, manager
of branch office and warehouse operations. Employees who
had been hired at Waynesville wete told by Jackson B. Hunt,
personnel manager of the Waynesville plant, that they could
return to their old jobs or to other jobs at Waynesville to
which they were entitled on the basis of their seniority, 4
or that they could terminate their employment at the Waynesville
plant and apply to Ryder for employment at the warehouse.
All of them chose to return to Waynesville; one later quit
and was hired by Ryder as a supervisor. Employees who had
been hired at Asheville were told that their services were
terminated, but that they could apply to Ryder for jobs.
All those who applied were hired, and in addition Ryder
hired some new employees.
The warehouse is now operated by Ryder, who has no con-
nection with the Employer's manufacturing operations. Man-
ufactured products are shipped to it from both the Dayton
and Waynesville plants, 5 and are shipped from it to customers
and to the Employer's other warehouses. Orders from the
sales department are received and processed at the warehouse;
customers are billed by the warehouse division. All employees
are hired and trained by Ryder, and work under the immediate
supervision of the branch warehouse manager, who is directly
responsible to him. They are paid on a salary basis by the
main office at Dayton.
In support of its contention that the warehouse employees
have in the past been included in the unit, Local 277 relies
in part on the recognition clause in its current contract with
4Under the Waynesville contract, employees acquire seniority after 3 months' service
with the Employer.
5 Although the Waynesville plant still ships some private brand products direct to cus-
tomers, most of its output is shipped to the Employer's warehouses-- approximately 50
percent to Asheville.
THE DAYTON RUBBER MANUFACTURING COMPANY 1245
the Employer, executed on April 3, 1953.6 That clause, however,
contains no reference to the warehouse or the warehouse
employees, and specifically defines the employees covered as
"the hourly rated and piece work production and maintenance
employees at the Company's plant in Waynesville, North
Carolina." Furthermore, the record shows that in February
1953, during the contract negotiations, the Employer rejected
a proposal of Local 277 to establish the warehouse as a separate
division of the factory with a representative of its own, on
the ground that the warehouse was not included in the unit,
and that in August 1953 it refused to accept a grievance filed
on behalf of the warehouse employees for the same reason.
Local 277 also contends that the Employer has recognized
the warehouse employees as part of the unit by carrying them
on the seniority lists at the Waynesville plant and checking off
their union dues. The Employer contends, however, that it
did so only because it regarded the employees involved as em-
ployees of the Waynesville plant, temporarily transferred to
the Asheville warehouse. On the record as a whole, we are
convinced that the Employer has not at any time recognized
the warehouse employees as part of the Waynesville unit.7
Finally, it is clear that, although the Asheville warehouse
was temporarily used by the Waynesville plant, it is now
operated as part of a separate division of the Employer's
business, and that the present employees of the warehouse
work under different supervision and different conditions of
employment from the employees at the Waynesville plant.8
We therefore find, contrary to Local 277's contention, that the
warehouse employees are not included in the unit previously
certified by the Board.
6 The clause reads as follows:
The Company recognizes the Union as the exclusive bargaining agency for all em-
ployees of the Company employed by its Waynesville, North Carolina, Plant. It is
agreed that the term employees, for the purpose of this Agreement, shall include the
hourly rated and piece work production and maintenance employees at the Company's
plant in Waynesville, North Carolina, except cafeteria workers, laboratory employees,
watchmen, executive, administrative, engineering, office and clerical employees, fore-
men, and all and any other supervisory employees with authority to hire, promote, dis-
charge, discipline or otherwise effect changes in the status of employees or effec-
tively recommend such action, .. .
7Although there is some evidence that a union steward at the warehouse discussed some
grievances with the warehouse foreman, and that the grievances were adjusted, we do not
regard this as sufficient in itself to indicate that the Employer regarded the warehouse
as part of the unit.
8 The change in operations was made 3 days after the filing of the motion herein. How-
ever, we find nothing in the record to support Local 277's contention that it was made for
the sole purpose of excluding the warehouse employees from the bargaining unit.
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