The Ruberoid Co.

National Labor Relations Board - Board Decisions

Jan 9, 1947

71 N.L.R.B. 1420 (N.L.R.B. 1947)

In the Matter of THE RUBEROID COMPANY, EMPLOYER and LocAL
INDUSTRIAL UNION 1555, CIO, PETITIONER
Case No. 41-B-2141.-Decided January 9, 1947
Hannon, Evans , Nolan & Halpin , by Messrs . Charles F. Evans and
F. E. Byrnes, both of New York City, for the Employer.
Messrs. Ernest Kornfeld , of Camden , N. J., and Horace W. Phipps.
of Oaklyn, N. J., for the Petitioner.
Mr. Warren H. Leland, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Phila-
delphia., Pennsylvania, on July 30, 1946, before John H. Garver, hear-
ing officer. At the hearing and in its brief, the Employer moved that
the Petition be dismissed. The motion is hereby denied The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.2
r In support of its motion to dismiss, the Employer contends (1) that the Petitioner
did not introduce into evidence proof of interest among the employees it seeks , (2) that
the supervisors sought to be represented by the Petitioner are not employees' within the
meaning of the Act. (3) that in any event a unit of supervisory employees is inappro-
piiate . and (4) that it would be improper for the Employ er's supervisory employees to
be represented by a labor organization affiliated with the same parent as the Union acting
on behalf of the Employer's rank and file employees
We have held that the requirement that a petitioning union submit proof of repre-
sentation is but an administrative expedient "adopted to enable the Board to determine
for itself whether or not further proceedings are warranted . . " Matter of 0 D.
Jennrnts J Company. 68 N. L. R B. 516 Accordingly, we find the Employer's first
contention to be without merit. For reasons set forth in Section III urfta, we find the
Employer's second contention to be lacking in substance And, as hereinafter indicated
in Section IV, infra, we find also that the Employer's third and fourth contentions lack
merit
2The hearing officer refused to permit counsel for the Employer to elicit certain testi-
mom, allowing him, however, to make an offer of proof through the statement of
Frederick E Byrnes, an Employer witness This offer reads as follows.
Following the refusal of certain supervisory employees to perform their duties
as requested by the executive management at Joliet, it was necessary for the execu-
tive management to call in the sheriff of the county to provide protection for the
plant and property As a result of the sheriff's efforts with the union representing
the rank and file workers, a sheriff's arrangement was worked out whereby the
striking workers agreed to maintain a plant control and protection during the
strike During this period when the supervisor' employees had the light to cross
the )Noikers' picket line, they refused to do so They refused to pertorni the duties
requested of them by the management, which were distinctively those of super-
iisory employees, and as a result thereof, they were suspended and sortie of them:
discharged Following that, the foremen, or some of them as individuals came
71N LR B., No 228.
1420
THE RUBEROID COMPANY 1421
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The Ruberoid Company, a New Jersey corporation, operates about
10 plants and warehouses in various States in the United States. We
are concerned in this proceeding only with the Employer's plant lo-
cated at Gloucester, New Jersey, where it is engaged in the manu-
facture of building materials. Annually, the Employer purchases
raw materials for use at this plant valued in excess of $1,000,000, of
which about 25 percent is received from points outside the State of
New Jersey. Annually, the Employer manufactures finished products
at this plant valued in excess of $1,000,000, of which about 82 percent
is sold and shipped to points outside the State of New Jersey.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TIIE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of' Industrial Organizations, claiming to represent only supervisory
employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize the Petitioner as the collec-
tive bargaining representative of any of its supervisory employees.
The Employer contends that the supervisors involved herein are
not employees within the meaning of the Act. The arguments ad-
vanced in support of this position have been considered in a number
of Board and Court decisions. Both the Board 3 and the Courts 4
to the Company and asked for reconsideration of their case They were given
such reconsideration . They were asked if they would perform the duties requested
of them and they decided that they would They were therefore reinstated and
performed the duties during the balance of the strike.
The offer was apparently made for the purpose of demonstrating the alleged inappro-
priateness of units of supervisory employees It appears from the record that the plant
to which the Employer alludes in its offer of proof , and the plant herein concerned, are
more than 800 miles distant Moreover , the supervisois at the Employer ' s Joliet , Illinois,
plant , are represented by a local of the Foremen ' s Association of America In view of
the difference of labor organization and personnel , and the great distance between the
two plants , we are of the opinion that the hearing officer pioperly excluded the proffered
matter from this particular record.
' Matter of Soss Manufacturing Company , 56 N. L . R. B. 348 ; Matter of Packard Motor
Car Company , 61 N L R B 4 and 64 N. L. It B. 1212 , Matter of L. A. Young Spring &
Wire Corporation, 65 N. L. R. B 298.
IN L R B v Armour if Company, 154 F (2d) 570 (C C A 10) , Jones If Laughlin
Steel Corporation v N. L. R. B , 146 F. (2d) 833 (C C. A 5) , N. L. R. B. V. Skinner if
Kennedy Stationery Company , 113 F. (2d) 667 (C C A 8).
142 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have found that a foreman is an employee within the meaning of the
Act in relation to his Employer. Accordingly, we find that the su-
pervisors in the present proceeding are employees within the meaning
of Section 2 (3) of the Act. -
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all supervisory employees of the
Employer, including the master mechanic, the chief electrician, the
paper tester, and the chief guard, but excluding the general superin-
tendent, the felt mill superintendent, the calsilite superintendent, the
assistant superintendent of calsilite, the plant engineer, the supervisor
of calsilite planning, shipping, scheduling and receiving, the office
manager and the personnel director." The Employer, however, urges
that a unit of supervisors is inappropriate, and, in any case, the Peti-
tioner may not be certified as the representative of the Employer's
supervisory employees, because'the union presently representing the
Employer's rank and file workers 6 is affiliated with the same parent
as the Petitioner.
The Board has considered the contention that no unit of super-
visory employees is appropriate, and a majority of the Board has
concluded,7 as it does here, that foremen are employees within the
meaning of Section 2 (3) of the Act and are, as employees, entitled
to be represented in some unit for the purposes of collective bargain-
ing. We pointed out in the Young case 8 that the National Labor
Relations Act is intended to encourage the practice of collective bar-
gaining as a means of settling labor disputes and that this policy is
as applicable to labor disputes involving supervisory personnel as to
those pertaining to rank and file employees. Accordingly, we find
no merit in the Employer's contention that a unit of supervisory em-
ployees is inappropriate. The Board has also considered the con-
tention that a union should not represent supervisory employees when
a sister union affiliated with the same parent already represents non-
supervisory employees of the same Employer, and it has been deter-
5 The Petitioner desires, generally , to exclude all supervisory employees who are on the
"staff level ," and those supervisory employees whose duties are primarily of an office or
clerical nature.
9 Local 183, United Rubber Workers of America, CIO.
"Matter of L. A. Young Spring & Wire Corporation , supra; Matter of Packard Motor
Company, supra.
8 Matter of L A. Young Spring & Wire Corporation, supra.
THE RUBEROID COMPANY 1423
mined 9 that employees have an unrestricted choice under the Act
in their selection of a bargaining representative. We, therefore,
reject the Employer's contention in this respect.
We turn now to the composition of the appropriate unit of super-
visory employees. The Employer specifically opposes the inclusion of
the master mechanic, chief electrician, and the paper tester, contending
that the master mechanic and the chief electrician are on the "staff
level" of its supervisory hierarchy, and that the paper tester is not a
supervisor, but a technical worker.
Master mechanic.-This employee is responsible, for the mainte-
nance of the entire plant, for construction work performed by the
Employer 's employees within the plant, and for the operation and
maintenance of the machine tool equipment. He directly supervises
approximately 47 workers. He has no subordinate supervisors and he
is responsible directly to the plant engineer. He represents the Em-
ployer in the first step of the grievance procedure for employees whom
he supervises. It is observed that the supervisors on the staff level
whom the parties have agreed to exclude direct the activities of other
supervisory employees, and that they represent management above the
first step in the settlement of grievances of rank and file workers. We
are satisfied that the master mechanic is on the lower supervisory level.
We shall therefore include 16m.
Chief electrician.-This employee is responsible for the mainte-
nance of all electrical equipment in the plant. He also designs new
installation work. He supervises approximately five electricians, none
of whom are themselves supervisors. He, too, represents the Em-
ployer in the first step of the established grievance procedure. We
can perceive no distinction between the supervisory duties of the chief
electrician and those of the master mechanic. Accordingly, we shall
also include the chief electrician.
Paper Tester.-This employee, who works in the felt mill, tests
bales of paper which are purchased by the Employer. His duties
consist largely of weighing and testing the paper, so that the Employer
will know how much to pay for this material. These duties involve
the exercise of a certain amount of judgment. But the paper tester
does not supervise the work of any other employee. He is clearly a
technician and not a supervisor. Accordingly, we shall exclude hiin.
We find that all supervisory employees below the rank of "staff
level" at the Employer's Gloucester, New Jersey, plant, including the
master mechanic, the chief electrician, and the chief guard, but ex-
cluding the general superintendent, the felt mill superintendent, the
calsilite superintendent, the assistant superintendent of calsilite, the
n nldtfer of Jones J Laughlin Steel Corporation, Vesta-Shannopin Coal Division, 66
N. I, It B 386, Matter of The Curtis By Towing Company of Pennsylvania, et at, 66
N. 1, P B 1152
717734 -47-v ol 71 91
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant engineer, the supervisor of calsilite planning, shipping, sched-
uling and receiving, the office manager, the personnel director, and
the paper tester, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act..
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with The Ruberoid Corporation, Glou-
cester, New Jersey, 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 Fourth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations-
Series 4, among the employees in the unit found appropriate in Sec-
tion IV, above, who were employed during the pay-roll period imme-
diately preceding the date of this 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 aimed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged 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 Local Industrial Union 1555, CIO, for the purposes
of collective bargaining.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Decision and Direction of Election.