W. D. Byron & Sons of Maryland, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1943

47 N.L.R.B. 994 (N.L.R.B. 1943)

In the Matter of W. D. BYRON & SONS OF MARYLAND , INC. and INTER
NATIONAL FUR AND LEATHER WORKERS UNION OF THE UNITED STATES'
AND CANADA , C. I. O.
Case No. B-4810.-Decided February 24., 194.3
Jurisdiction : tanning industry:
Investigation ' and Certification of Representatives : existence of question: re-
fusal to bargain ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance _
employees at one tannery ' of.company , including firemen, oilers and electrical
helpers, ands watchmen , but excluding office clerks , managers , foremen, and
other supervisory employees.
Mr. David W. Byron, of Hagerstown, Md., for the Company.
Mr. Robert Herbin, of New York City, for the Union.
Mr. A. Swmvner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF -ELECTION
STATEMENT OF THE CASE
I
Upon petition duly filed by International Fur and Leather'Workers
Union of the United States and Canada, C. I. 0., herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of W. D. Byron & Sons of
Maryland, Inc., Williamsport, Maryland, herein called, the Company,
the National Labor Relations Board provided for an appropriate
hearing upon due notice before Anthony E. Molina, Trial Examiner.
Said hearing was held at Hagerstown, Maryland, on January 28,
1943. The Company and the Union appeared, participated, and 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. The Company filed a brief which the
Board has duly considered.
47 N. L. R. B., No. 124.
994
W. D. BYRON.& SONS OF :MARYLAND INC.: .F 995;
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY _
W. D. Byron & Sons of Maryland, Inc., a Maryland corporation
engaged in the tannery business, has plants at Hanover, Pennsylvania,
and at Williamsport, Maryland. Only the latter plant is involved in
the presentjproceeding. During the fiscal year ending May 31, 1942,,
the Company manufactured and sold from its Williamsport, plant.
finished products having a value in excess of $2,000,000 of which over-
75 percent was shipped to points outside the State of Maryland. Dur-
ing the same period, over 75 percent of the raw materials used by the
Company at its Williamsport plant was obtained from points outside-
the State of Maryland. The Company admits that it is engaged in,
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Fur and Leather Workers Union of the United States
and Canada .is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about December 15, 19421 at a conference called for the purpose
of discussing charges of unfair labor practices (waived for the pur-
pose of this proceeding), the matter of union recognition- was raised
informally, at which time the Company intimated that it desired to
have the question of representation determined by regular Board pro-
cedure. At a_ subsequent conference, the Company,. when asked
whether it would agree to a determination of the issue of representa-
tion by a cross-check of the pay roll, stated that it preferred to have
the issue settled by an election, but refused to enter into an agreement
for a consent election.`
A- statement of a Field Examiner, introduced in evidence at the
hearing, together with other evidence, indicates that the Union, repre=
sents a substantial number of employees in the unit hereinafter found
appropriate.1
1 The Field Examiner reported that the Union had submitted to him 110 signed author-
ization cards , dated between June 1942 and January 8, 1943, all of which appeared to
bear genuine original signatures of persons purporting . to be employees of the Company..
These cards were not checked by the Field Examiner against the Company's pay roll
because the Company refused to furnish him a pay roll , but the Company did state to the
Field Examiner that there were 182 persons currently employed . At the hearing, the.
Union submitted 3 more such cards which appeared to the Trial Examiner to bear genuine
original signatures of persons purporting to be employees , of the Company . There are
approximately 195 employees in the appropriate unit.
996. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 UNIT
The Union contends that the appropriate unit should ;consist *of
all, production and maintenance employees at the Company's Wil-
liamsport, Maryland, tannery, including firemen, oilers and electrical'
.helpers, and watchmen, but excluding office clerks, managers, foremen
and other supervisory employees (including certain named individ-
uals, whom the Union claims have supervisory duties). While the
Company does not dispute thee general basis proposed as the appro-
priate unit, it would exclude therefrom the firemen, oilers and electrical
helpers, and "watchmen, and would'include therein the named indi-
viduals whom the Union would exclude as supervisory employees.
'The various groups' in 'dispute will be considered` in the order named.
Firemen,, oilers and electrical helpers. The Union claims that these
employees should/be included within the appropriate unit because they
are maintenance employees whose work is necessary 'to the carrying
on of production 'Work. The Company's reason for opposing their
inclusion arises from the fact that while none of these employees have
supervisory duties, they are, nevertheless, responsible for maintaining
the Company's steam plant in running condition. The duties of the
firemen, of whom there are four in number, consist of tending the steam
gauges, seeing that coal is put into the stokers and looking after the
turbine room at night, in the course of which duties the firemen main-
tain daily service of 24 hours, including hours when the plant` is not
in operation. The duties of the two oilers and electrical helpers consist
of oiling the motors, making repairs and starting the boxes and
switches. They observe the same hours as the production employees
generally. The record does not reveal what, if any, differences in the
matter of wages'exist between the production workers and the firemen,
the oilers and electrical workers. Moreover, it appears that the Union
has other bargaining agreements in' the industry covering employees
of these types, together with production workers. No other organiza-
tion claims to'represent them. We are of the opinion that the firemen,,
oilers and electrical helpers are maintenance employees with sub-
stantial interests in common with the production employees. We shall,
accordingly, include them-within the appropriate unit.2
Watchmen. There are three watchmen, all of whom have worked
for the Company on other jobs prior to becoming watchmen.' Their
2 See Matter of United Wallpaper Factories , Inc. and International Union, United
Automobile , Aircraft and Agricultural Implement Workers of' America, C I. 0, 42
N. L. R. B 977.
W. D. BYRON & SONS OF MARYLAND, INC. `997
sole duty consists of taking care of the plant at night, in performance
of which duty they are required ' to punch a clock every hour. The
record does not reveal that the watchmen are paid on any different basis, .
than that of the production employees.. The watchmen are not armed
and do not wear uniforms or badges. There is no evidence that they
are deputized or have any right of supervision or authority over the
production and maintenance employees.' Under the circumstances, we
shall include the'watchmen within the appropriate uriit.3
-Samuel Shank, Samuel McCauley, and George S. Liter. Shank'is a
paint and color mixer employed in the case'finishing department.' He
is not listed on the pay roll as an assistant foreman,' and he gives orders
only in the absence of the regular foreman from the department. The
record does not reveal whether the foreman's absences are other than
occasional and infrequent. Moreover, it is clear that when the fore=
man is present, Shank has no supervisory authority except on occasion
to relay the foreman's instructions to the men. There is nothing in
the record to indicate that Shank is paid in any different fashion than
the production workers or that the has any connection with the
hiring, discharging, promotion, or disciplining of other employees.
McCauley is a rough leather sorter employed in the wet and dye room.
Lizer is a sorter and shipping clerk, employed in the shipping room.
Their limited supervisory duties are similar to those of Shank, and
the record does pot indicate the amount of time devoted thereto,' as
compared with their regular work as production employees. Under
the circumstances, we find that the evidence is insufficient to establish
that Shank, McCauley, and Lizer are supervisory employees. We
shall, therefore, include them within the appropriate unit.5
Jacob Turner is classified as reeling and floor man in the beam house.
his duties consist of reeling leather from one lime pool to another.
A production employee who'had worked in the beam house some 20
years before though not with Turner, testified, that Turner told him
sometime in September of 1942 that he had signed a union card, but
would have to return the card because he was an assistant foreman.
This employee further testified that the men had told him that Turner
was an assistant foreman and that they took orders from him in the
absence of the foreman. On the other hand, there is no evidence as to
the frequency of such absences or the amount of time if any which
3 See Matter of`Hoosier Panel Coinpany and District 50, United Mine Workers of America,
45 N. L R. B 478.
6 The Company's assistant superintendent testified that except for the graining depart-
ment which has an assistant foreman not included in the group under dispute , the Com-
pany has no assistant foreman in the several departments in which members of this group
are employed.
6
The Board has held that employees who act as substitute foremen only infrequently
may be included in a unit of production and maintenance employees . See Matter of Olean
Tile Co, Inc and Olean Industrial Independent Union of Tile Plant Workers, Inc., 32
N. L. R. B. 288. 1
'998 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
'Turner devotes to' supervisory duties. Moreover; the, Company's
assistant superintendent testified that Turner has no supervisory au-
thority and that the men are not required, to follow Turner's direc-
tions. We find that the evidence is insufficient to establish that
Turner is a supervisory employee. We shall, accordingly, include
-him within the appropriate unit.
Richard Mellott is engaged in the unloading and storing of hides in
the hide house. There is no evidence that he has any supervisory
.duties as such. However, the same production employee who testified
,concerning Turner also testified that'Mellott told him in July of 1942
that he was an assistant foreman. While it appears that the witness
had at one time worked in the hide house, he has not been there since
Mellott has been in this department. There is no evidence that the men
in this department regard Mellott as an assistant foreman. We find
the evidence insufficient to establish that Mellott is a supervisory em-
C ployee. We shall, 'accordingly, include him within the appropriate
unit.
James Frank Winters is a dye wheel operator, employed ' in the
wet, and dye room., , There is no evidence-that he has any' supervisory
.duties. The -Union's attempt to show. that Winters was an assistant
.foreman failed when its witness was -unable to testify on the subject.
,The Company's, assistant superintendent testified that Winters has
no. authority at all and that he knew of no occasion when Winters
might have. been told by the foreman- to tell certain of the men what
work they, should perform. We find that Winters is not a super-
visory employee.,, We, shall include him within the appropriate
-unit. -
Harry A. Davis' is a hand and machine grainer, employed in the
graining department. The only evidence that Davis has -supervisory
authority is . the testimony of an employee in another department,
to the-effect that Davis tells the men what grain to put on the leather.
The witness admitted, however, that this was'only•hearsay, and that
his- own knowledge went no further than the fact that Davis was' a
grainer. The Comp'any's assistant superintendent testified that
Davis' duties are limited to "graining and that he does not direct the
other,men in the performance of their duties. We find that 'Davis
3s, not -a supervisory employee. • We shall include him within the
appropriate unit. . .
We find that all production and maintenance employees 6 at the
-Company's Williamsport, Maryland, tannery, including firemen,
oilers and electrical, helpers, and watchmen, but excluding office
clerks, . managers, foremen, ' and, other supervisory employees, con-
e Since we have found that Shank , McCauley , Lizer , Turner, Mellott, Winters , and Davis
are'not supervisory employees , they are included as production employees . • 1 : )'
i
W. D. BYiRO`N & SONS OF MARYLANID, INC. 999
stitute _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 , the
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 Re-
lations Act, and pursuant to Article III,, Section 9, of •National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby - - `
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with W. D. Byron
& Sons of Maryland, Inc., Williamsport, Maryland, 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 Fifth
Region, acting in this matter as agent for the National Labor Re-
lations Board and subject to Article III, Section 10, of said Rules
and Regulations, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately, 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 armed forces of the United States who present themselves in
person at the polls, but excluding employees who have since quit or
been discharged for cause, to determine whether or not they desire'to,
be represented by International Fur and Leather Workers Union of
the United States and Canada, affiliated with the Congress of
Industrial Organizations, for the purposes of collective bargaining.
MR. WM. M: LEISERSON took no part in the consideration of,the
above Decision and Direction of Election.