Vulcanized Rubber and Plastics Co., Inc.

National Labor Relations Board - Board Decisions

Jan 11, 1961

129 N.L.R.B. 1256 (N.L.R.B. 1961)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer does not intend to rehire him, we find that he was permanently
discharged and is ineligible to vote in the election.
Mrs. Frank Septer and Mrs. Mildred Terakedis left their employ-
ment with the Employer on August 5, 1960, and filed an unfair labor
practice charge alleging that they had been discriminatorily dis-
charged. The Regional Director has dismissed the charge. We find
that since these two individuals terminated their employment with
the Employer and were not discriminatorily discharged, they are not
eligible to Vote .5
[Text of Direction of Election omitted from publication.]
5 Colonial Provision Company, Ino., 112 NLRB 1056.
Vulcanized Rubber and Plastics Company, Inc.' and United
Rubber, Cork , Linoleum and Plastic Workers of America,
AFL-CIO, Petitioner. Case No. 4-RC-4172. January 11, 1961
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Morris Mogerman, hearing
,officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Rodgers and
-Jenkins].
Upon the entire record in this case, the Board finds :
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 Petitioner seeks to represent in a single unit all office cleri-
cal, plant clerical and laboratory employees, excluding all other em-
ployees, confidential secretaries, time-study engineers, salesmen, in-
spectors, professional employees, foremen, guards, and supervisors as
defined in the Act. Alternatively, the Petitioner is willing to repre-
sent the employees involved herein in three separate units of (a) office
clerical employees, (b) plant clerical employees, and (c) technical
" The name of the Employer appears as amended at the hearing.
129 NLRB No. 151.
VULCANIZED RUBBER AND PLASTICS COMPANY, INC. 1257
employees. The Employer objects to the inclusion of all these em-
ployees in the same unit. As to the scope of the unit, absent an
agreement of the parties, the Board has consistently refused to join
office and plant clerical employees in a single unit.' From the testi-
mony in this case, and upon the record as a whole, we see no valid
reason for departing from this rule.
Although the parties also disagree as to the unit placement of
several employees whom the Employer would exclude either as super-
visors or as confidential, managerial, or professional employees, they
agree that the following employees should be classified as either office
or plant clerical employees : Marini, Miller and Dreisbach,' order and
billing clerks; Barna, accounts payable clerk; Fordham, accounts re-
ceivable clerk; Snyder, P.B.X operator and receptionist; Osman,,
P.B.X relief operator and clerk-typist; Ritchie, coffee shop attend-
ant; Dail, clerk-stenographer; Janeski, clerk-typist; Gaug, clerk-B;
Rushinsky, clerk-typist-scheduler; and Pharo, production scheduler.
The record shows that all of the above employees, except Rushinsky
and Pharo, perform office work in either the administration building
or the nearby personnel and industrial engineering building. As
these employees spend all of their time in administrative office work
and have little or no contact with production employees, we find that,
they are office clericals and include them in the office clerical unit.
The record shows that both Pharo and Rushinsky work in build-
ing 11, the production scheduling building, are assigned to the rubber
division and are under the supervision of the chief production sched-
uler. As Pharo's principal duties involve the posting of production
data, we find that he is a plant clerical employee. Rushinsky is classi-
fied both as a clerk-typist and as a production scheduler. She is
located within the production area where she works under production
division supervisors. We find that she is a plant clerical employee.
Accordingly, we shall include Pharo and Rushinsky within the vot-
ing group of plant clerical employees established hereinafter.
The Alleged Confidential Employees
The Employer contends that Burns, secretary to the controller;
Long, secretary to the personnel manager; Frain, secretary to the
chief engineer; Garrison, secretary to the research manager; Everett,
secretary to the plastics division manager; Dilliplane, secretary to the
purchasing division manager; Cleary and Bell, payroll clerks; Stefan-
oski, statistical costs clerk; and Mountford, office mail messenger,
2 Plankinton Packing Company, 116 NLRB 1225, 1226.
8 The Employer questions the inclusion of Dreisbach in the office clerical unit because
her husband is the personnel manager. As this employee does not fall within the statu-
tory exclusions of certain relatives of management contained in Section 2(3) of the Act,
we find no reason to exclude her.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be excluded from any unit or units found appropriate herein
on the ground that all are confidential employees'
The record shows that the controller, although not on the negoti-
ating committee, jointly, with the Employer's president and vice presi-
dent, reviews all requests and demands by the Petitioner relating to
the production and maintenance unit. In addition, if the Petitioner
is certified in a unit including accounting department employees the
controller will become a member of the negotiating committee. The
personnel manager presently is u member of the negotiating team and
also represents the Employer in all grievances processed on his level.
The plastics division manager's position is presently vacant. How-
ever, the record shows that the former manager was a member of the
negotiating team, and took an active part in the formulation and
effectuation of the Employer's labor policy as well as the handling of
the day-to-day affairs of his division. The Employer's witness testi-
fied that the successor will have the same functions and authority.
The research manager is in charge of the laboratory, handling the
day-to-day affairs of that department. Although not a member of
the negotiating team, he is frequently consulted as to negotiations con-
cerning the production and maintenance unit. In addition, if the Pe-
titioner is certified in a unit including the laboratory employees, the
research manager will become a member of the negotiating team. On
the basis of the foregoing, we find that the secretaries to the con-
troller, the personnel manager, the research manager, and the plastics
division manager are confidential employees who should be excluded
from the unit because of the role in past and future bargaining ne-
gotiations assigned to the officials for whom they work.5 The record,
however, does not establish that either the chief engineer or the pur-
chasing division manager are members of the negotiating committee
or play any part in the formulation and effectuation of management
policies in the field of labor relations, other than in advisory capacities,
and then only with respect to specific issues. As it is clear that the
labor relations functions of the chief engineer and the purchasing
division manager are advisory only, we find that their secretaries,
Dilliplane and Frain, are not confidential employees and include them
within the office clerical unit.'
The Employer would exclude the remaining employees on the fol-
lowing grounds : Bell and Cleary on the ground that they prepare
data showing the effect of wage adjustments contemplated in labor
contract negotiations; Stefanosky on the ground that she handles
statistical information relating to labor costs; and Mountford on the
ground that as mail messenger he opens all mail not marked personal
6 The parties agree that Liberatore, secretary to the vice president, is a confidential
employee
5 The B. F. Goodrich Company, 115 NLRB 722, at 724 and 725.
6 Eastern Corp., 116 NLRB 329, 333.
VULCANIZED RUBBER AND PLASTICS COMPANY, INC. 1259
and thus has access to correspondence that may relate to labor relations
matters. We find no merit in these contentions. In the B. F. Goodrich
case, the Board announced that only those employees who assist or act
in a confidential capacity to persons who formulate, determine and
effectuate management labor relations policies will be considered a
confidential employee. As none of these disputed employees assist or
act in such capacity, we find that they are not confidential employees
and include them in the office clerical unit?
In addition to contending that Lemon, senior cost clerk, and Du-
fault, a stenographer, are supervisors (discussed hereinafter), the Em-
ployer asserts that they are confidential employees. Lemon maintains
and is in charge of the general ledgers and cost control ledgers and
assists the chief accountant in the preparation of the financial oper-
ating statements. As she does not assist or act in a confidential capacity
to a person who determines, formulates, and effectuates management
labor relations policies, we find that she is not a confidential employee.
Dufault is a stenographer in the sales department. As part of her
duties, she frequently substitutes for Liberatore, taking dictation for
the Employer's vice president. The vice president testified that this
substitution occurs on an average of six times a day. Although the
record shows that Dufault frequently substitutes for a confidential
employee it does not indicate whether, in such substitutions, she assists
or acts in a confidential capacity to the vice president. Under these
circumstances, and as we hereinafter find that she is not a supervisor,
we shall permit her to vote in the office clerical unit, subject to
challenge.
The Alleged Supervisors
Nathan Tigar, Edward Braithwaite, Anne Flynn, and John
Doherty: The Employer would exclude these individuals on the
ground that they are supervisors. As factory liaison man for the
laboratory, Nathan Tigar is responsible for the factory quality control
system which includes the completion of tests on products. He assigns
work on a priority basis as he sees fit to others in the laboratory. He
effectively recommends wage increases, handles employees' complaints,
and, during the frequent absences of the research manager, is jointly
responsible, with Edward Braitwaite, for the operation of the labora-
tory. We find that Tigar is a supervisor. The Employer's witness
testified that Edward Braithwaite, who also works in the laboratory,
assigns, trains, and disciplines the two employees under him and has
the authority effectively to recommend pay increases for them. In
these circumstances, and as he is jointly responsible for the laboratory
during the absence of the research manager, we find that he is a super-
visor. The Employer's witness testified that Anne Flynn was recently
7 Gull States Telephone Comp`gny, 118 NLRB 1039, 1042.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointed supervisor in the traffic and shipping department, that she
is responsible for the activities of two employees and that, at the time
of her appointment, a notice was posted on company bulletin boards to
that effect. The witness also testified that she has the power to repri-
mand and to recommend hiring and firing in her department. In this
respect, the witness testified that although company seniority would
first apply in filling any vacancies in her department, she would make
the final determination as to whether eligible employees were quali-
fied, and that in the event no employee with seniority applied to fill the
vacancy she would determine, after screening by employees in the
personnel office, which new applicant would be hired. In these circum-
stances we find that she is a supervisor. The record shows that John
Doherty is assigned to the packing section of the comb finishing divi-
sion, and that two production and maintenance employees are assigned
to this section. The Employer's witness testified, without contraven-
tion, that Doherty is in charge of packing in the comb division and
that he has the authority to direct and assign the two employees under
him in their work, select who will work overtime when necessary,
handle grievances and make recommendations as to disciplinary action.
As Doherty responsibly directs the work of the two employees and can
make recommendations as to discipline, we find that he is a supervisor."
As we have found that these four employees are supervisors, we shall
not include them in any of the units sought by the Petitioner herein.
The Employer would also exclude the following office employees on
the ground that they are supervisors : Lemon (senior cost clerk) ; Ma-
guire (head clerk, accounts payable) ; Hunold (head clerk, payroll) ;
and Doheny (head clerk, order and billing). The Petitioner contends
that these employees are not supervisors and that any authority they
might exercise amounts to no more than routine direction. The record
shows that these employees regularly direct the work of from one to
three other employees in their respective sections. Lemon maintains
and is in charge of the general ledgers and the cost control ledgers of
the Employer and also assists the chief accountant in the preparation
of financial statements. The Employer's witness testified that until
recently Lemon supervised Wilhelm and is presently training a tem-
porary employee to fill Wilhelms vacancy. Maguire is responsible for
the proper checking of all items involved in accounts payable. In this
respect she directs the work of one clerk. Hunold is responsible for the
preparation of all plant payrolls and related reports and tax returns.
She directs the work of two clerks. Doheny prepares price extensions
and invoices of orders received, and directs the work of two other
clerks. Although these four employees direct the work of other em-
ployees, they also perform the same type of work themselves and oper-
ate the same type of office machines. In addition, they do not have the
8 Sunnyland Packing Company , etc., 113 NLRB 162, 164.
VULCANIZED RUBBER AND PLASTICS COMPANY, INC. 1261
authority to make effective recommendations as to hire, tenure, disci-
pline, or any changes in the status of the other employees. As to the
issue of whether they responsibly direct the employees in their sections,
the record fails to establish that their direction is anything other than
the routine type of direction normally exercised by older, more experi-
enced employees with respect to less experienced coworkers. In these
circumstances, we find that Hunold, Lemon, Doheny, and Maguire are
not supervisors. Accordingly, we shall include them in the office
clerical unit .9
The Employer would also exclude Viola Dufault on the ground that
she is a supervisor. In support of its position, the Employer asserts
that she frequently substitutes for Lucille Policello, the sales office
manager. We find no merit in this contention. Although the Em-
ployer's witness testified that the sales office manager has been absent
frequently in the past, due to her husband's illnesss, the record fails
to establish that these absences will continue with any regularity.
Further, the record fails to establish that Dufault possesses or exer-
cises the right to hire and fire or effectively recommend the same or
that she possesses any of the other indicia of supervisory status during
such sporadic periods of substitution. In these circumstances we find
that she is not a supervisor.
The Alleged Managerial Employees
Leo J. MeCrone: The Employer would exclude this employee on
the ground that he is a managerial employee. McCrone is employed
in the production inspection department as an expediter for the rubber
division. He reports directly to the superintendent in charge of
rubber production. His functions consist of participating in the
setting up of production schedules and seeing to it that these schedules
are adhered to. In this respect he makes recommendations to pro-
duction foremen and department heads regarding changes in pro-
duction, the reassignment of employees, the addition and reduction
of personnel, and overtime work. In addition he advises the foremen
as to the quality of work being performed by individual employees.
He works in close contact with higher management and has con-
siderable authority in connection with the performance of his duties
involving scheduling and the coordination of activities between vari-
ous plant production areas. McCrone's interests appear to be sub-
stantially different from those of the production and maintenance
employees and plant clerical employees and we shall therefore exclude
him from the unit.14
J. Wesley Hildebrandt and John E. Sawyer: The Employer would
exclude these employees on the ground that they are managerial em-
0 American Radiator & Standard Sanitary Corporation , 119 NLRB 1715, 1717.
10 Tell City Furniture Company, Inc, 88 NLRB 284, 285.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. In addition, the Employer would also exclude Hildebrandt
on the ground that he is a supervisor. These two individuals maintain
customer contacts, quote prices on orders, schedule delivery dates, and
handle customer complaints. They are in constant contact with cus-
tomers and production department heads regarding production and
delivery schedules. Although their work may be of paramount im-
portance insofar as customer relations are concerned, the record fails
to establish that their day-to-day decisions and judgments, which
relate to the order of production and delivery, involve the exercise
of such a degree of responsibility and discretion in the fixing of pricing
as to indicate the possession of managerial status. Further, they have
no discretion in pricing as all prices are quoted from predetermined
schedules. In these circumstances, we find that they are not man-
agerial employees." Accordingly, we shall include John Sawyer in
the office clerical unit. As to Hildebrandt's supervisory status, the
record fails to establish whether his direction of Sawyer constitutes
actual supervision within the meaning of the Act. As we are unable
to determine the supervisory status of Hildebrandt at this time, we
shall permit him to vote in the office clerical unit, subject to challenge.
Accordingly, we find that all office clerical employees employed at
the Employer's Morrisville, Pennsylvania, factory, excluding all other
employees, confidential employees, and all supervisors as defined in
the Act, constitute a unit appropriate for the purposes of collective
bargaining.
As Board policy precludes the establishment of a separate unit of
plant clerical employees where a petitioning union currently repre-
sents a unit of the production and maintenance employees, we shall
direct an election in the following voting group : All plant clerical
employees at the Employer's Morrisville, Pennsylvania, factory, ex-
cluding all other employees, confidential employees, and supervisors
as defined in the Act. If a majority of the employees in the above
voting group vote for the Petitioner, they shall be deemed to con-
stitute a part of the existing production and maintenance unit, and
the Regional Director will issue a certification of results of election to
such effect 12
The Technical Unit
The Employer contends that employees Heenan, Nay, Mild, and
Olga Braithwaite are technical employees and as such, should be rep-
resented in a separate unit. As the Petitioner does not contest their
technical status and is willing to represent them in a separate unit,
we find that these employees are technical employees." However, the
parties disagree as to the unit placement of the chemist, Robert
u F,l'er Co., 108 NLRB 1417, 1420.
Ohio Ferro Alloys Corporation, 107 NLRB 504, 506.
See Litton Industries of Maryland , Incorporated , 125 NLRB 722.
VULCANIZED RUBBER AND PLASTICS COMPANY, INC. 1263
Purper, and the mold designer, John Chase. The Employer would
exclude them on the ground that they are professional employees.
The Petitioner contends that they are technical employees. Alter-
natively, the Petitioner is willing to represent them in the technical
unit if they are found to be professionals and elect to be included in
the technical unit. The record shows that Chase is classified as a
junior mold designer and presently works under a professional en-
gineer who is temporarily acting as senior mold designer. Chase takes
blueprints and specifications provided by customers and designs the
mold for use in either rubber or plastic production. Although the
designing of a mold requires a high degree of skill and technical
knowledge the record does not establish that the performance of this
type of work is sufficiently complex to justify a finding that Chase is
a professional employee.l' Moreover, we are not prepared to say at
this time that completion of a 2-year course at a junior college meets
the requirements of the Act that professional employees must have
obtained their education in an institution of higher learning, or its
equivalent. In these circumstances, we find that Chase is not a pro-
fessional employee. However, as the record establishes that Chase is
a technical employee, we shall include him in the technical voting
group. The record shows that Purper is responsible for the testing
of many of the Employer's products. He devises and performs tests
in situations where established procedures are not available, works
with minimum instructions, has a science degree in chemistry, and
is paid at a rate approximately 80 percent higher than most of
the other employees included in the technical unit. In these circum-_
stances, we find that Purper is a professional employee.
As the Employer objects to the inclusion of the technical employees
in the unit of office clerical employees found appropriate hereinabove,,
and as it appears that all of the Employer's technical employees are
involved herein, we find that the technical employees constitute a
separate appropriate unit either alone or with the professional
employees. 15
The Board is prohibited by the Act from including professional
employees in a unit with nonprofessional employees unless the ma-
jority of the professional employees vote for inclusion in such a unit.
Accordingly, we must ascertain the desire of the one professional
employee involved herein as to inclusion in a unit with nonprofessional
employees. We shall therefore direct separate elections in the follow-
ing voting groups: (a) All technical employees employed at the Em-
ployer's laboratory located at its Morrisville, Pennsylvania, factory,
excluding all professional employees and all other employees and
supervisors as defined in the Act; (b) the professional employee;
" Westinghouse Air Brake Company , 121 NLRB 636, 640.
11 General Electric Company , 120 NLRB 199.
I264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Robert Purper) in the laboratory excluding all other employees and
supervisors.
The employees in the nonprofessional voting group (a) will be
polled as to whether or not they wish the Petitioner to represent them.
The employee in the professional voting group (b) will be asked two
questions on his ballot : (1) Do you desire to be included in a unit
composed of the technical employees in the laboratory at the Em-
ployer's Morrisville, Pennsylvania, factory, for purposes of collective
bargaining? (2) Do you desire to be represented for the purposes of
,collective bargaining by United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO? If the professional employee in
voting group (b) votes "yes" to the first question, indicating his wish
to be included in a unit with the nonprofessional employees, he will
be so included. His vote on the second question will then be counted
together with the votes of the nonprofessional voting group (a) to
,decide the representative for the technical and professional unit. If,
,on the other hand, the professional employee votes against inclusion,
he will not be included with the nonprofessional employees, and his
vote on the second question will not be counted.16
Our unit determination is based, in part, then, upon the ballot of
-the professional employee. However, we now make the following
findings in regard to the appropriate unit.
1. If the professional employee votes for inclusion in the unit with
-the nonprofessional employees, we find that the following employees
will constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All technical employees and the professional employee employed at
-the Employer's laboratory located at its Morrisville, Pennsylvania,
-factory, excluding all other employees and supervisors as defined in
-the Act.
2. If the professional employee does not vote for inclusion in the
- unit with the nonprofessional employees, we find the unit set forth
-above to be appropriate, with the exclusion, however, of the pro-
fessional employee.
[Text of Direction of Elections omitted from publication.]
16 Southwestern Sales Corporation , 93 NLRB 936, 938
Julius Corn and Sheldon Corn d/b/a Julius Corn and Co. and
Local 10, Amalgamated Ladies ' Garment Cutters ' Union,
I.L.G.W.U., AFL-CIO. Case No. 2-CA-72J9. January 12, 1961
DECISION AND ORDER
On July 19, 1960, Trial Examiner William J. Brown issued his
-Intermediate Report in the above-entitled proceeding, finding that the
129 NLRB No. 144.