Western Rubber Co.

National Labor Relations Board - Board Decisions

Nov 8, 1939

17 N.L.R.B. 426 (N.L.R.B. 1939)

In the Matter of WESTERN RUBBER COMPANY and FEDERAL LABOR UNION
No. 21362 OF THE AMERICAN FEDERATION OF LABOR
In the Matter of WESTERN RUBBER COMPANY and UNITED RUBBER
WORKERS OF AMERICA, LOCAL No. 30
Cases Nos. R-1556 and R-1557, respectively.-Decided
November 8, 1939
Rubber Goods Manufacturing Industry-Investigation of Representatives:
controversy concerning representation of employees : refusal of company to
recognize either union as exclusive bargaining agent without certification by
Board after prior elections had been inconclusive-Unit Appropriate for Col-
lective Bargaining : production and maintenance employees , including inspectors,
plant clerical employees, excluding foremen, assistant foremen, "Bedeaux" men,
the direct office force, superintendents, persons with power to hire and discharge,
and named individuals-Election Ordered
Mr. William R. Consedine, for the Board.
Mr. Stanton A. Sweeney, Mr. Hugh Gormley, and Mrs. Margaret
Gormley, of Indianapolis, Ind., for the Federal.
Mr. Charles E. Lanning, of Elkhart, Ind., and Mr. Leonard Shaw,
of Chicago, Ill., for the United.
Mr. Ray Deahl, of Goshen, Ind., for the Company.
Mr. Stanley D. Metzger, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 29, 1938, Federal Labor Union No. 21362, affiliated
with the American Federation of Labor, herein called the Federal,
filed with the Regional Director for the Thirteenth Region (Chicago,
Illinois ) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of Western Rubber
Company, Goshen, Indiana, herein called the Company, and request-
ing an investigation and certification of representatives pursuant to
Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On February 1. 1939, the National Labor Relations
17 N. L. R. B., No. 31.
426
WESTERN RUBBER COMPANY 427
Board, herein called the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series-1, as amended, ordered an investigation
and authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice. On. February 13, 1939, the
Federal filed an amended petition.
On February 14, 1939, the Regional Director issued a notice of
hearing, to be held on February 20, 1939, copies of which were duly
served upon the Federal, the Company, and upon United Rubber
Workers of America, Local No. 30, a labor organization claiming to
represent employees directly affected by the investigation, herein called
the United. On February 17, 1939, however, the Company, the Fed-
eral, and the United entered into an agreement for a consent election,
which was held on February 27, 1939. The results of the election and
a subsequent run-off election were, however, inconclusive.
On July 24, 1939, the United filed with the Regional Director a
petition alleging that a question affecting commerce had arisen. con-
cerning the representation of employees of the Company and re-
questing an investigation and certification of representatives pursuant
to Section 9 (c) of the Act. On September 19, 1939, the Board, acting
pursuant to Section 9 (c) of the Act, and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
ordered an investigation with respect to the United's petition, and
authorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice, and pursuant to Article III,
Section 10 (c) (2), of the said Rules and Regulations, further ordered
that the cases be consolidated for the purposes of hearing and all
other purposes.
On October. 4, 1939, the Regional Director issued a notice` of con=
solidated hearing, copies of which were duly served upon the Company,
the Federal, and the United. Pursuant to the notice, a hearing was
held on October 12, 1939, at Goshen, Indiana, before Gustaf B.
Erickson, the Trial Examiner duly designated by the Board. The
Board, the Company, the Federal, and the United were represented
by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing, the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Western Rubber Company is an Indiana corporation having its
main office and plant in Goshen, Indiana. It manufactures rubber
bumpers, rubber gaskets, rubber mats, and other industrial molded
rubber goods. In 1938 the Company purchased raw materials, con-
sisting of cotton fabrics, zinc oxide, sulphur, clay, carbon black, dyes,
chemicals, coal, oil, and crude rubber, of an aggregate value of
$161,500. Ninety per cent of these it obtained outside the State of
Indiana. In the same year it sold products of an aggregate value of
$603,000. Eighty-five per cent of its sales were to customers outside
the State of Indiana. At the hearing the Company admitted that
it is engaged in interstate commerce within the meaning of the Act.
H. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 21362, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership all
production and maintenance employees of the Company except office
workers, foremen, and supervisory officials with the power to hire
and discharge.
United Rubber Workers of America, Local No. 30, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to membership all production and maintenance employees of
the Company except office workers, foremen, and assistant foremen,
clerical workers, supervisory officials, and "Bedeaux" men.'
III. THE QUESTION CONCERNING REPRESENTATION
On February 17, 1939, the Federal, the Company, and the United
entered into an agreement for a consent election. Pursuant to the
agreement, the Regional Director conducted an election in which the
Federal and the United together received a majority, although neither
alone obtained a majority. Thereafter, a run-off election, conducted
pursuant to the agreement, was won by the United. However, objec-
tions to the run-off election filed by the Federal were sustained by the
Regional Director, who found, on July 15, 1939, that-the question con-
cerning representation had not been resolved.
Prior to that time the United had had a contract with the Company
granting it recognition as the exclusive collective bargaining repre-
sentative of the Company's employees. Pursuant to the terms of the
contract, however, after the Regional Director, on July 15, 1939,
announced that the question concerning representation was unre-
I "Bedeaux" men work in the "standards" department, and, by time studies, set wage-
rate standards.
WESTERN RUBBER COMPANY 429
solved, the Company rescinded that part, of the contract which granted
exclusive bargaining rights to the United.
In July 1939 the Federal and the United each requested of the Com-
pany recognition as exclusive collective bargaining representative of
the employees , each claiming to represent a majority of them. The
Company informed both unions that it would recognize each as the
bargaining agency for its members only, until either union was certi-
fied by the Board as the exclusive bargaining agent.
We find that questions have arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTIONS CONCERNING
REPRESENTATION UPON COMMERCE
We find that the questions concerning representation which have
arisen, occurring in connection with the operations of the Company
described in Section I above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Federal desires the inclusion in the unit of all production and
maintenance employees of the Company, and the exclusion of the
direct office force, foremen , superintendents , and persons with the
power to hire and discharge . The United desires the exclusion, in
addition , of "Bedeaux" men, inspectors , assistant foremen, and cler-
ical employees in the plant, other than the direct office force. The
Federal 'would include these employees in the unit. We shall consider
the disputed classifications seriatim:
"Bedeaux" men. The standards department of the Company con-
sists of time-study and clerical employees . These employees, called
"Bedeaux" men, compute standard rates of production on goods manu-
factured by the Company. These rates of production are S used in
determining piece-work pay rates. The purpose of this system is to
eliminate inefficiency in the production process. The time-study men
circulate throughout the plant and time production operations for
the purpose of arriving at cost figures to be used in setting piece rates.
The clerical workers in the standards department use the information
gathered by the time-study men in making weekly reports to the head
of the department . The work of the "Bedeaux" men directly affects
the wages earned by the production employees . "Bedeaux" men are
salaried and receive vacations with pay, while production employees
are hourly paid and receive no vacations with pay. It appears that
the interests of the "Bedeaux" men are different from those of the
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other production and maintenance employees. They will be excluded
from the unit.2
Inspectors. The Company's inspectors -scrutinize manufactured
articles for flaws or breakage, and report their findings to foremen.
If an employee's work is not satisfactory, an inspector instructs him
as to the proper practice. Inspectors also instruct new employees.
Inspectors have no power to hire or discharge, nor to recommend such
action. Although they receive vacations with pay, inspectors are
hourly paid and work the same hours as other production employees.
It is apparent that while inspectors have minor supervisory duties,
these do not directly affect the conditions of employment of the other
production employees. Moreover, the similarity of the inspectors' and
other production employees' working conditions indicates the com-
munity of interest among them. We will include the inspectors within
the appropriate unit.3
Assistant foremen. Assistant foremen are salaried and receive va-
cations with pay. They have power to and do make recommendations
regarding the hiring and discharging of employees. The record indi-
cates that, of three assistant foremen in the plant, one acts as foreman
of the second shift, another acts as foreman of the big press depart-
ment, and the third is assistant to the foreman on the first shift. The
duties of assistant foremen are clearly supervisory and their interests
are more closely akin to those of the Company than to those of the
production employees. We shall exclude them from the unit.4
Plant clerical employees. Both unions desire the exclusion from
the unit of the direct office force. The United, in addition, desires
the exclusion of clerical workers not in the direct office force, who work
in other departments. Of these, the record indicates that three,
George.Ridenaur, WalterLechlitner, and Paul Markley, are considered
"Bedeaux" department employees by the Company. We shall, there-
fore, exclude them as such from the unit.
The other clerical employees in the plant consist of two stock
hackers, one shipping-department employee, one press-department
2 See Matter of B. F. Sturtevant Company and United Electrical and Radio Workers Local
Industrial Union No. 2118, 8 N. L. R. B. 835, where "price setters," with duties similar to
those of "Bedeaux" men, were excluded; Matter of Westinghouse Airbrake Company and
Radio Workers of America, Railway Equipment Workers Local No. 610, 4 N. L. R. B. 403,
where "time study" men were excluded ; Matter of The Electric Auto-Lite Company,
American Enameled Magnet Wire Division and International Association of Machinists,
Local 218, 10 N. L. R. B. 1239, where " time checkers" operating under an "adaptation"
of the "Bedeaux" system , were excluded.
8 See Matter of Hat Corporation of America and United Hatters, Cap and Millinery
Workers International Union , 11 N. L. R. B. 1206; Matter of Model Blouse Co., etc. and
Federal Labor Union No. 21560 (A. F. of L.), 8 N. L. R. B. 725; Matter of Singer Manu-
facturing Company and United Electrical, Radio and Machine Workers of America, Local
No. 917, 8-N. L. R. B. 434; Matter of B. F. Sturtevant Company and United Electrical
and Radio Workers Local Industrial, Union No. 218, 8 N. L. R. B. 835.
4 Sec Matter of Mt. Vernon Car Manufacturing Company , a corporation ; and. Local
Lodge No . 1756, Amalgamated Association of Iron, Steel & Tin Workers of North America,
affiliated with the Committee for Industrial organization , 11 N. L. R . B. 500.
\\TESTERN RUBBER COMPANY 431
employee, a receiving clerk, a shipping dispatcher, and another em-
ployee who acts as clerk to the production manager. No reason ap-
pears for excluding these employees from the unit. They have no
supervisory duties. They appear to bear a closer relationship to the
other production employees than to the clerical employees in the
direct office force. We shall, therefore, include these plant clerical
employees in the unit.
There are two individuals, Jesse Bruce and Joe Kerlin, as to whose
status question was raised at the hearing. Bruce, a "master mechanic,"
has the duties of a foreman over firemen in the boilerhouse. Kerlin,
an engineer in charge of the engine and mechanical devices in the
power plant, is a salaried employee who receives vacations with pay,
and supervises repair work. We shall exclude Bruce and Kerlin from
the unit as supervisory employees.
We find that all production and maintenance employees of the Com-
pany, including inspectors and plant clerical employees, but excluding
foremen, assistant foremen, "Bedeaux" men, the direct office force,
superintendents, persons with power to hire and discharge, George
Ridenaur, Walter Eechlitner, Paul Markley, Jesse Bruce, and Joe
Kerlin, constitute a unit appropriate for the purposes of collective
bargaining and that such unit will insure to the employees of the Com-
pany the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
The Company employs approximately 360 persons. The Federal
claims to represent 267 of them. The United claims to represent 212.
We find that the questions that have arisen concerning representation
of employees of the Company can best be resolved by an election by
secret ballot.
The United desires eligibility to vote in the election to be determined
as of the date of its petition herein. The Federal. desires the present
pay roll to be used to determine eligibility. No reason appears why
the current pay roll should not be used for this purpose. Therefore,
we shall direct that those eligible to vote shall be the employees in the
appropriate unit whose names appear upon the Company's pay roll
immediately preceding the date of this Direction of Election, including
any employees who did not work during said pay-roll period because
they were ill or on vacation, and employees who were then or have
since been temporarily laid off, but excluding those who have since
quit or been discharged for cause.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Questions affecting commerce have arisen concerning the repre-
sentation of employees of Western Rubber Company, Goshen, Indiana,
within the meaning of Section 9 (c) and Section 2 (6) and (7) of
the Act.
2. All production and maintenance employees of the Company, in-
cluding inspectors, and plant clerical employees, but excluding fore-
men, assistant foremen, "Bedeaux".men, the direct office force, super-
intendents, persons with power to hire and discharge, George Ride-
naur, Walter Lechlitner, Paul Markley, Jesse Bruce, and Joe Kerlin,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
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 8, of National Labor Relations
Board Rules and Regulations-Series 2, it is hereby
DIRECTED that, as part of the investigation ordered by the Board to
ascertain representatives for the purposes of collective bargaining
with Western Rubber Company, Goshen, Indiana, 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 of Election, 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, Section 9, of said Rules and Regula-
tions, among all production and maintenance employees of Western
Rubber Company whose names appear upon the Company's pay roll
immediately preceding the date of this Direction of Election including
inspectors and plant clerical employees, any employees who did not
work during said pay-roll period because they were ill or on vacation,
and employees who were then or have since been temporarily laid off,
but excluding foremen, assistant foremen, "Bedeaux" men, the direct
office force, superintendents, persons with power to hire and discharge,
George Ridenaur, Walter Lechlitner, Paul Markley, Jesse Bruce, and
Joe Kerlin, and those who have since quit or been discharged for
cause, to determine whether they desire to be represented by Federal
Labor Union No. 21362, affiliated with the American Federation of
Labor, or by United Rubber Workers of America, Local No. 30,
affiliated with the Congress of Industrial Organizations, for the pur-
poses of collective bargaining, or by neither.