The Ruberoid Co.

National Labor Relations Board - Board Decisions

Apr 16, 1946

67 N.L.R.B. 353 (N.L.R.B. 1946)

In the Matter of THE RUBEROID COMPANY and FOREMAN'S ASSOCIATION
OF AMBRICA AND CHAPTER 119, FOREMAN'S ASSOCIATION OF AMERICA
Case No. 13-1-3084.-Decided Apr=il 16,1946
JIes.srs. Han non and Evans, by Charles F. Evans, of New York City,
for the Company.
AIr. Allen Nelson, of Detroit, Mich., for the Union.
Mr. Harry K. Ehrlich, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon a petition duly filed by Foreman's Association of America and
Chapter 119, Foreman's Association of America, herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of The Ruberoid Company,
Joliet, Illinois, herein called the Company, the National Labor Rela-
tions Board provided for an appropriate hearing upon due notice
before Herman J. DeKoven, Trial Examiner. The hearing was held
at Chicago, Illinois, on September 6, 7, and 10, 1945. The Company
and the Union appeared and participated. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. At the hearing the Company moved to dismiss the
petition on three grounds. The Trial Examiner referred these motions
10 the Board. For reasons stated hereinafter these motions are denied.
All parties were afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Ruberoid Company is a New Jersey corporation with its prin-
cipal offices at New York City, and with 12 plants located in various
parts of the United States. At the plant involved in this proceeding,
67 N. L. R. B., No. 49.
692148-46-vol. 67--24 353
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is located at Joliet, Illinois, the Company is engaged in the
manufacture of building materials, consisting principally of roofing,
siding, insulation, tar, creosote, oil, naphthalene, and dry felt. During
the past year, the Company, in its operations at the Joliet plant, pur-
chased raw materials valued in excess of $50,000, of which more than
50 percent was shipped to its Joliet plant from points outside the State
of Illinois. During the same period, the Company produced goods
at its Joliet, Illinois, plant valued in excess of $50,000, of which more
than 50 percent was shipped to points outside the State of Illinois.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America and Chapter 119, Foreman's
Association of America, unaffiliated, is a labor organization, admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as the
exclusive bargaining representative of any of its supervisory em-
ployees on the grounds that the supervisors sought by the Union
perform managerial functions and are not employees within the mean-
ing of the Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE KNIT
The Union generally seeks a unit composed of the superintendents
of the production and maintenance departments (roofing mill, felt mill,
reduction and tar, mechanical, and power) and the plant chemist, the
foremen of the production and maintenance departments and the chief
electrician, the supervisors in the production and maintenance depart-
ments, and a miscellaneous group of employees discussed below but
excluding general superintendent, works superintendent, Director of
Industrial Relations, Industrial Relations Assistant, purchasing
agent, assistant purchasing agent, office manager and planning super-
intendent, Chief Forester Western Division, Havana Wood Depot
I The Trial Examiner reported that the Union submitted 34 cards bearing the names of
28 employees in the alleged appropriate unit There are approximately 41 employees in
the snit
THE RUBEROID COMPANY 355
foreman, and the Chicago warehouse supervisor. The Company con-
tends that the unit claimed is not appropriate upon the grounds that
supervisory employees are not employees within the meaning of Sec-
tion 2 (3) of the Act and that they are a part of management.
The status of foremen and comparable supervisors under the Act has
been considered ii. a number of Board and Federal court decisions; the
courts have concurred in the Board's holding that they are "employees"
within the meaning of the Act. Accordingly, we find that the super-
visory employees involved herein are "employees" within the meaning
of Section 2 (3) of the Act.2
Upon consideration of the evidence as a whole, we are of the opinion
that the supervisory employees involved herein do not have the deter-
minative voice in the formulation of company policies, the planning
of production, the handling of the Company's labor relations, or the
hire and discharge of employees, as to constitute such an integral part
of management that they may not be segregated therefrom and recog-
nized as a separate group for the purposes of collective bargaining.
Accordingly, we find that such supervisory employees may constitute
a unit appropriate for the purposes of collective bargaining.
The Company generally does not oppose the specific composition of
the unit, but contends that the cost and budget supervisor should be
excluded therefrom; the Union would include him. The evidence
shows that the cost and budget supervisor has no employees under his
direction and consequently has no supervisory authority within our
usual definition of that term. We shall exclude him from the unit.
The record also shows that some doubt exists as to the supervisory
status of the following employees whom the Union would include in
the unit :
Head timekeeper: The head timekeeper spends approximately 10
minutes a day directing the work of two employees and the rest of the
day performing the same timekeeping functions as they perform. The
evidence shows that she has no supervisory authority over them within
our customary definition of that term. Consequently, we shall exclude
her from the unit.
Draftsman and enineeritzq assistant: The evidence shows that the
draftsman and engineering assistant prepares blue prints of mechani-
cal equipment used in the production process. He also prepares time
sheets of the number of hours worked by employees in the mechanical
department and the jobs to which the time is to be charged as well as
run errands for the superintendent of the mechanical department. He
7 See Matter of The ?Midland Steel Products Company, Parish & Bingham Division, 65
N L R B 997 See also Matter of Jones & McLaughlin Steel Corporation , Vesta-
Shannopin Coal Division , 66 N L R B 386: Matter of Simmons Company, 65 N. L R B
984: Matter of L 4 Young Spring & Wire Corporation , 65 N L. R B 298, and
Matter of The B F I3oodiieh Company, 65 N L R B 294, and cases cited therein
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not supervise the work of any employee. Accordingly, we shall
exclude him from the unit.
We find that the Superintendents of the roofing mill, felt mill, reduc-
tion and tar, mechanical, and power departments, the plant chemist,
roofing mill foreman, warehouse and shipping foreman, felt mill fore-
man, felt mill special foreman, mechanical foreman, powerhouse fore-
man, chief electrician, roofing mill supervisors, raw material receiving
supervisor, felt mill receiving supervisor, reduction and tar plant
supervisor, machine shop supervisor, felt mill mechanical supervisor,
construction supervisor, miscellaneous supervisor, shipping supervi-
sors, water treatment man and supervisor, planning and scheduling
supervisor, chief rigger and mason, stores keeper, and felt mill receiv-
ing clerk, but excluding the general superintendent, works superin-
tendent, Director of Industrial Relations, Industrial Relations Assist-
ant, purchasing agent, assistant purchasing agent, office manager and
planning superintendent, Chief Forester Western Division, Havana
Wood Depot foreman, the Chicago warehouse supervisor, cost and
budget supervisor, head timekeeper, and draftsmen and engineering
assistant, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Ruberoid Com-
pany, Joliet, Illinois, 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, under the direction and supervision of the Regional
Director for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
tions 10 and 11, of said Rules and Regulations, among employees in
the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
THE RIIBEROID COMPANY 357
Direction, including employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid
off, and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding those
employees who have since quit or been discharged for cause and have
not been rehired or reinstated prior to the date of the election, to
determine whether or not they desire to be represented by Foreman's
Association of America, and Chapter 119, Foreman's Association
of America, for the purposes of collective bargaining.
MR. GERARD D. REILLY, dissenting :
For the reasons stated in my dissenting opinion in Matter of Packard
Motor Car Company, 61 N. L. R. B. 4, I am constrained to dissent from
the majority opinion in this case.