The Goodyear Tire and Rubber Co.

National Labor Relations Board - Board Decisions

Jul 30, 1948

78 N.L.R.B. 838 (N.L.R.B. 1948)

In the Matter of THE GOODYEAR TIRE AND RUBBER COMPANY, EM-
PLOYER and A. P. KERNS, PETITIONER a(fd UNITED RUBBER, CORK,
LINOLEUM & PLASTIC WORKERS OF AMERICA, C. I. 0., LOCAL 2,
UNION
Case No. 8-RD-8.-Decided July 30, 1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, a hearing in this case
was held at Akron, Ohio, on April 27, 1948, before Charles A. Flem-
ing, hearing officer. At the hearing the Union moved to dismiss the
petition because (1) it was prematurely filed, (2) the unit sought is
inappropriate, and (3) the petition was filed by an individual who
had been a supervisor for the Employer a short time before. The
hearing officer referred the motions to the Board. For the reasons set
forth below the motions to dismiss are denied. The hearing officer's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3 (b) of-the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-man panel consisting of
the undersigned Board Members.*
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The Goodyear Tire and Rubber Company is an Ohio corporation
engaged in the manufacture of tires and other rubber and chemical
products at Akron, Ohio. Its annual production exceeds $1,000,000
of which 50 percent is shipped outside the State. The annual con-
sumption of raw materials is valued in excess of $1,000,000 of which
50 percent is received by the Employer from outside the State.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the Act.
*Chairman Herzog and Members Reynolds and Murdock.
78 N. L. R. B., No. 107.
838
THE GOODYEAR TIRE 'AND RUBBER COMPANY
II. THE PARTIES INVOLVED
839
The Petitioner, representing individuals employed as firemen in the
Employer's fire department, asserts that the Union is no longer their
bargaining representative as defined in Section 9 (a) of the amended
Act.
The Union, a labor organization affiliated with the Congress of In-
dustrial Organizations, was certified on November 8, 1946, in Case
No. 8-R-2379, as exclusive bargaining representative of the Employ-
er's fire department as a result of a consent election conducted pursuant
to a stipulation for certification upon consent election.
III. THE QUESTION CONCERNING REPRESENTATION
On November 8, 1946, as noted above, the Union became bargaining
representative for the Employer's fire department employees. On
June 2, 1947, the Employer executed a contract with the Union for
these employees for the term of 1 year, with provision for renewal
from year to year unless notice to terminate or modify was given by
either party at least 30 days prior to the terminal date of the contract.
The Union contends that this contract is a bar to this proceeding
inasmuch as the petition was prematurely filed.
We have previously decided that the same rules of "contract-bar",
as are applied to petitions for certification of representatives should
also apply to decertification cases.' Inasmuch as the. petition in this
proceeding was filed on February 24, 1948, before the operative date
of the automatic renewal clause and approximately 3 months before
the terminal date of the contract, we find that it was timely filed and
that the contract does not constitute a bar to this proceeding.2
The Union further contends that, inasmuch as the individual Peti-
tioner had been a supervisor up to January 1, 1948, approximately 8
weeks before the filing of this petition for decertification, the petition
was "colored" and should be dismissed. The Board has held that a
supervisor may not file a decertification petition, either in his capacity
as a management representative or as an "individual" acting on behalf
of the employees within the designation in Section 9 (c) (1) (A) of
the Act.3 In this case, however, the individual petitioner was not
actually a supervisor at the time of the filing. Moreover, there is no
evidence of collusion between the Petitioner and the Employer, or
that the Petitioner's status was changed in contemplation of a petition
being brought. In fact, during oral argument at the hearing the union
1 Matter of Snow & Nealley Company, 76 N. L. R B. 390.
8 Matter of Snow & Nealley Company, supra; see also Matter of Bush Woolen Mills, Inc.,
76 N. L. R. B. 618.
8 Matter of Clyde J. Merris, 77 N. L . R. B. 1375.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative disclaimed any intent even to imply any such collu-
sion. Under the circumstances, we find that the Petitioner was a.
proper party to file the petition in this proceeding.
We find that a question affecting -commerce exists concerning the
representative disclaimed any intent even to imply any such collu-
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner has requested the decertification of the Union as.
representative of "all plant protection employees in the Fire Depart-
ment." The Union urges that the unit described is inappropriate be-
cause the firemen have been included in a more comprehensive unit by
contract . The Employer asserts that the unit is not inappropriate in-
asmuch as those employees have been covered by a separate contract.
As stated above, the Union was certified on November 8, 1946, by the
Board, pursuant to a Stipulation for Certification Upon Consent Elec-,
tion. On February 11, 1947, a company-wide contract was entered into
by the Employer and the Union, together with locals affiliated with the
Union representing employees of the Employer at plants located in
eight other cities. By this contract the Employer recognized "the
Union as the exclusive bargaining agent for the employees of the Com-
pany in the above named plants , subject to the inclusions and exclusions
as set forth in the certifications of representatives by the National
Labor Relations Board following elections or as mutually agreed be-
tween the Local Plant and the Local Union."
On May 5, 1947, the Employer and the Union entered into an agree-
ment by its terms "supplemental to and subject to the terms and provi-
sions of the company -wide agreement entered into on February 11,
1947," and "In order to supplement said company -wide agreement and
to make said company -wide agreement effective . . . ." The cover-
age of this supplemental agreement "includes the hourly rated and
piece-work production , engineering and maintenance employees at the
Company's Plants 1, 2, and 3, Akron, Ohio, except those employees
working in the capacity of . . . plant protection employees exclusive
of fire department employees."
On June 2, 1947 , an agreement covering the fire department em-
ployees was entered into by the Employer and the Union. This agree-
ment was a complete contract in itself and referred to no other docu-
ment.
A supplemental agreement covering the Employer 's Plant C was
executed on November 20, 1947. This agreement by its terms made the
contract of February 11, 1947, and the supplemental agreement of May
5, 1947 , applicable to Plant C with certain modifications.
THE GOODYEAR TIRE AND RUBBER COMPANY 841
The Union urges, in effect, that the bargaining history shows that
the unit of fire department employees was integrated into the more
-comprehensive unit by the supplemental agreement of May 5, 1947.
The Employer contends that the agreement of June 2, 1947, was a
separate contract covering the firemen and thus evidences the fact that
those employees were not included in the larger unit. Furthermore,
the Employer alleges that the omission of fire department employees
from the exclusion of plant-protection employees in the May 5, 1947,
agreement was not intended to bring the firemen within the coverage of
that agreement, but was intended to make certain that a separate con-
tract for the firemen would not be foreclosed. Testimony at the hear-
ing shows that the Employer did not intend to integrate the unit of
firemen into a more comprehensive unit. Moreover, the Union stated
-at the hearing that the agreement of June 2, 1947, was executed because
the firemen desired a separate agreement. We do not believe that the
record supports the contention that the unit of firemen has been con-
solidated into a more comprehensive unit.
Accordingly, we find that all firemen in the Employer's fire depart-
ment at Akron, Ohio, excluding supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
-ivithin• the meaning of Section 9 (b) of the Act.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
-30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
-heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, among the em-
ployees in the unit found appropriate in Section IV, above, who were
-employed during the pay-roll period immediately preceding the date
.of this Direction of Election, including employees who did not work
-during said pay-roll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
•quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
-on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by United Rubber, Cork, Linoleum & Plastic Workers of America,
C. 1. 0., Local 2.
A See Matter of Monsanto Chemical Company , Clinton Laboratories, Oak Ridge , Tennessee,
76 N. L . R. B. 767, wherein the Board concluded that the firemen were not "guards " within
the meaning of Section 9 (b) (3) of the Act.
F