Gatke Corp.

In the Matter' of GATKE CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA, AFFILIATED WITH THE A. F. OF L. Case No. C-2372.-Decided April 7, 1943 Jurisdiction : braking equipment manufacturing industry. Unfair Labor Practices Collective Baigaining: refusal to bargain justified where a change in the Board disposition of a single challenge at the election would have raised an issue as to majority status of the union. Practice and Procedure : complaint dismissed. DECISION AND ORDER On October 15, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent has refused to bargain collectively with the Union and recommending that-it cease and desist therefrom and take certain affirmative action as set out in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions alleging, inter alia, that the Trial Examiner had improperly excluded certain evidence offered to establish that the Board's prior certification of the Union was erro- neous. On December 15, 1942, the Board, in conformity with the respondent's objections, ordered that- the record be reopened for the purpose of "taking evidence relating-to the status of the six employees whose votes were challenged at the election and the challenges sus- tained by the Board, contrary to the Company's objection." Pursuant to this order a reopened hearing was held on February 18 and 19; 1942. On March 3, 1943, the Trial Examiner issued a Supplementary Intermediate Report finding that the six, employees in question were supervisory employees and ineligible to vote in the election, as set out in the Supplementary Intermediate Report attached hereto. There- after, the respondent filed exceptions to the Supplementary Interme- diate R,-port and a brief in support of the exceptions. The Board has considered the rulings of the Trial Examiners at the original and re- opened hearings and finds that, with the exception of the ruling above 48 N. L R. B, No. 113. 962 9 GATKD CORPORATION 963 noted, no prejudicial error was committed. The rulings are hereby affirmed. - The Board has considered the Intermediate Report and the Supplementary Intermediate Report, the exceptions and briefs, u n& the entire record in the case, and ` hereby adopts the findings of the Trial Examiners to the extent that they are consistent with the conclusions hereinafter set forth. 1. The Trial Examiner found in his Supplementary Intermediate Report that at the time of the election Forrest Deeter ,was a super- visory employee and as such was ineligible to vote at the election. With this finding we, are unable to agree. Deeter's duties consisted of receiving materials for the plant and working in the stock and supply room. In 'addition to Deeter two other employees were en- gaged in the same work, doing it independently of Deeter and on their own responsibility. Thus, it appears that Marshall Rickel, one of the two employees, signed his own name, and not Deeter's, to all reports, records, and communications prepared by him for the Chicago office of the respondent, in the same manner as Deeter would have done if he had prepared such papers. The incoming bills and freight bills were signed either by Deeter or Rickel, depending upon which of them happened to be present. Accordingly, we find that at the time of the election,Forest Deeter was not a supervisory em- ployee and was therefore entitled to vote at the election. 2. The Trial Examiner having found that the Board's disposition of the challenged ballots in the election was proper, concluded that the respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the respondent's employees. We do not agree with this conclusion. Since the inclusion of one additional ballot would have placed in question the Union's majority and, as we have found above, the respondent's contention that Deeter was entitled. to vote was sound, we find that the respondent did not refuse to bargain with the Union as the exclusive bargaining rep- resentative of the respondent's employees, in violation of the Act and shall dismiss the complaint. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against Gatke Corporation, ,Warsaw, Indiana, be, and it hereby is, dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. ' Out of 121 valid ballots cast at the election, the Union received 61 votes, 53 being against the Union. Deeter's ballot would bring the total of valid ballots to 122, of which 61 is not a majority. 521247-43-vol. 4 8-- 62 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Arthur Donovan, for the Board. Fyffe and Clarke, by 31r. John Harrington, of-Chicago, Ill., for the respondent. - Mr. Gerald Smith, of Warsaw, Ind., for the Union. STATEMENT OP THE CASE On a charge duly filed on July 16, 1942, by International Union, United Auto- mobile Workers ' of America, affiliated with the A.- F. of L, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Inciana), issued its complaint dated September 21, 1942, against Gatke Corporation, herein called the respondent, alleging that the respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 -(6) and (7) of the National Labor Relation's Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notices of hearing, were duly served upon the respondent and the Union. The complaint alleges, in substance, in relation to the unfair labor practices that following an election held under the direction of the Board on March 19, 1942, among the employees of the respondent in a unit found by the Board to be appropriate, the Board issued its certification of the Union as the representative of the employees in such unit and duly notified all the parties thereof ; that thereafter the Union- requested: the respondent',to !bargain" collectivelyI with' it with respect to rates of pay, hours of employment and other conditions of em- ployment in said unit and that respondent refused and has continued to.refuse said request or to recognize the Union as the sole bargaining agency for the employees in the appropriate unit. ' The answer of the respondent filed October 2, 1942, admits substantially all the allegations of the complaint, but denies that at the election referred to, the Union received a majority of the valid votes cast, and alleges affirmatively that the Board erroneously and incorrectly sustained challenges of the Union to a sufficient number of votes to have affected the outcome of the election and as a result thereof,-the Union has never been and is not now the exclusive repre- sentative of the employees of the respondent in said unit. The answer of the respondent further alleges that in the month' of ,June 1942, it "received ,a-petition, signed by a large majority of its employees stating that the signers thereof did not want to be represented by the Union. Pursuant to due notice, a hearing was held in Warsaw, Indiana,-on October 8, 1942, before R N. Denham, the Trial Examiner, duly appointed by the Acting Chief Trial Examiner. The Board, the Union 'and the respondent were repre- sented by counsel or appropriate representatives. All parties participated in the hearing, where full opportunity was afforded them to be heard, to examine and cross-examine, witnesses, and to introduce evidence bearing on' the issues. At the opening of the hearing, the respondent announced that it was abandoning all the allegations of its answer pertaining to the petition signed by its employees which purported to declare that they did not desire to be represented by the Union, and counsel for the, respondent further stated for the record, that the respondent admitted that an election had been held under the direction of the Board, that the Union had been certified by the Board as the exclusive bargain- ing representative of all the employees within the unit found by the Board to be appropriate, that the unit so found to be appropriate is an appropriate unit and that the respondent has refused and continues to refuse to bargain with the Union for the reason that the Board erroneously disposed of certain chal- , GATKE CORPORATION 965 lenges of the right of certain named employees to vote, and erroneously denied to the respondent the privilege of a hearing before the Board on the question of the appropriateness of such challenges. During the hearing certain offers of proof were made by the respondent and the Board bearing on the appropri- ateness of the Board's disposition of the challenges referred to. Such offers of proof were rejected and will be dealt with more at length in the body of this Intermediate Report. At the close of the hearing counsel for the Board moved to conform, the !complaint to the • proof. in matters pertaining to correct spelling of names and other general matters not going to the fundamentals of-the issues involved. Without objection, the motion was granted and made applicable to all pleadings herein. Argument before the Trial Examiner was waived by all parties, as was the privilege of filing briefs with the Trial Examiner. Upon the entire record thus made and upon hearing and observing the one witness from whom testimony was received, the undersigned, in addition to the foregoing, makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Gatke Corporation, is engaged at its plant at Warsaw, In- diana, in the manufacture of asbestos friction products, brake lining, timing gears, and non-metallic bearings. In the manufacturing process the respondent uses raw-materials consisting of compound, crude rubber, crude asbestos, cotton cloth, asbestos'cloth, and4asbestos yarn. More than 50 percent of these raw materials is obtained by respondent outside the State of Indiana. More than 50 percent of respondent's finished products is sold by it and shipped to purchasers outside the State of Indiana.' II. THE ORGANIZATIONS INVOLVED International Union, United Automobile Workers of America, affiliated with the A. F. of L, is a labor organization admitting to membership employees of the respondent' - III. THE UNFAIR LABOR PRACTICES On February 25, 1942, the Board, pursuant to a petition for investigation and hearing duly held thereon, issued its Decision and Direction of Election in,, theJMatter ofGatke Corporation and International Union United, Automobile Wbriers' of Ainericd, ai"Jiliat'ed with the A. F. of L, known as Case No. R-3486, in which it found that all production and maintenance employees of the respond- ent, excluding supervisory and clerical employees, constitute an appropriate ,'unit for purposes of collective bargaining, and directed that an election be held among the employees within such appropriate unit to determine whether or not they desire to be represented by International Union United Automobile Workers of America, affiliated with the American Federation of Labor, for the purpose of collective bargaining. I The facts in this section are based upon the findings of the Board in the Matter of Gatke . Corporation and International Union United Automobile Workers of America, afli- ated with the A. F. of L., Case No. R-3486 decided February 25, 1942. All the parties stipulated that the foregoing statement could be adopted by the Board as a'finding of fact in this cause , and that the operations of the respondent are substantially the same at this time as they were when the above finding was made in Case No R-3486. The facts found in this section are based upon findings of the Board in the Matter of Gatke Corporation and International Union United Automobile Workers of America, affili- ated with the A. F. of L, Case No. R-3486 decided by the Board February 25, 1942. It was stipulated by all the parties that the above finding which is taken from the decision of the Board in that Case could be incorporated as a finding of the,Board in this cause. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The appropriate unit It was stipulated by all the parties and it is now found that all the pro- duction and maintenance employees of the respondent at Warsaw, Indiana, excluding supervisory and clerical employees, constitute a unit appropriate for purposes of collective bargaining, which will insure to the employees of the respondent the full benefit of their right to self-organization and to col- lective bargaining and will otherwise effectuate the policies of the Act. B. The majority representation of the Union in the appropriate unit In the Direction of Election above referred to, the Board directed that those employees whose names appear on the respondent's payroll immediately pre- ceeding the date of the Direction of Election (February 25, 1942), including employees who did not work during such payroll period because they were ill or on vacation or in active military service or training of the United States, or were temporarily laid off, but excluding the supervisory and clerical em- ployees and employees who have since quit or been discharged for cause, should be entitled to vote in such election. Pursuant to such direction of election, the, Regional Director for the Eleventh Region, conducted an election among the employees so designated, at the plant of the respondent on March 19, 1942, and thereafter issued his Election Report certifying to the following results : - 1. Total on eligibility list------------------------------------ 132 2 Total ballots cast----------------------------------------- 135 3. Total ballots challenged--------------------------------- 19 4. Total blank ballots------------------------------------'--- - 2 5. Total void ballots ----------------------------------------- 0 6. Total valid votes counted--------------------------------- 114 7. Votes cast for International Union United Automobile Workers of America (AFL)---------------------------- _ 61 8. Votes cast against International Union United Automobile Workers of America (AFL) ----------------------------- 53 In his Election Report, the Regional Director disposed of the 19 challenges; as follows : 1 challenge by the Board Agent was overruled, and •7 challenges by the Board Agent were sustained. All the challenges of, the;^Board~Agent are based on the fact that the respective names of the voters challenged did not appear on the eligibility list. Of the 11 challenges by the Union, 10 were based on the ground that the persons attempting to vote were supervisors and 1 was based on the ground that the person attempting to vote was a clerical employee. Of these, the challenge against the person described as a clerical employee was overruled as were the challenges as to three of the employees described as super- visors: Seven of the challenges by the Union were sustained by the Regional Director. -On April 24, 1942, the respondent filed objections to the Election Report with reference to eight of the rulings of the Regional Director on challenged ballots,' one of which was directed to a challenge which had been overruled and seven to challenges of A. F. of L. which had been sustained by the Regional 'Director. In the statement of objections the respondent requested the Regional.'Director to hold a hearing on the questions raised by the objections. On the same day, the Regional Director replied to the respondent's request for a bearing by citing the provisions of the Rules and Regulations pertaining to the procedure to be followed by the Regional Director with reference to challenged votes and objec- GATKE CORPORATION 967 tions to election reports and denied the request for a hearing, but suggested that the respondent could file affidavits with him pertaining to the questions raised. Such affidavits were in time duly filed with the Regional Director by, the respondent. Following the receipt of the objections and the affidavits above referred "to, the Regional Director, on May 23, 1942, issued an Amended Election Report, overruling, the objections of the respondent and recommending that, since the five challenged,ballots which were overruled in the original Election Report would not change the final result of the election, the Union be certified as the exclusive representative of the employees in the appropriate unit. On May 27, 1942, the respondent through its attorneys, wrote to the Board requesting a hearing on the objections. This hearing was not granted. On June 11, 1942,, the Board,, with the full record of the conduct of the election including the affidavits submitted by the respondent together with the record of a previous hearing involving an election in the same unit in 1941, before it, issued its Sup- plemental Decision and Certification of Representatives in which, after for- mally denying the respondent's request for a hearing on the objections, it re- viewed all the challenges objected to by the respondent, overruled the Regional Director with respect to two challenges he had sustained and sustained him with respect to the other challenges upon which he had ruled, and issued its certification that,the Union had been designated by a majority of all production and maintenance employees of the respondent, excluding the supervisory and clerical employees,' as their representative for purposes of collective bargaining and that the Union is the exclusive bargaining representative of all the em-, ployees in such unit for purposes of collective bargaining with respect to rates, of pay, wages, hours of.employment and other conditions of employment. C. The refusal to bargain collectively i On June 30, 1942, the Union wrote the respondent calling attention to the certi- fication by the Board and requesting the respondent to designate a time and place fora meeting for the purpose of negotiating an agreement covering the employees in the appropriate unit On July 8, 1942, the respondent replied to the Union's letter, stating that it had received a petition signed by a majority of the employees, in which they stated,they did not desire to be represented by the Union; that the respondent questioned the right of the Union to represent the employees;. and,. that the respondent considered the decision of the Board to be erroneous. It was stipulated at the hearing that this letter constitutes a refusal by the respondent to bargain with the Union and that the respondent has at all times since that time refused and continues to refuse to bargain with the Union as the representative of all the employees in the appropriate unit described On the above showing the Board rested its case. The respondent then called to the witness stand Neal Mikesell, plant manager for the respondent, and began an examination of him as to the employment structure, of the respondent and the duties of the employees whose challenged ballots were the subject of the respondent's objections filed with the Regional Director in the representation hearing, together with the relation of those men to other employees whose ballots had not been challenged. Upon being advised by counsel for the respondent that this line of testimony was designed to prove the respondent's contention that the decisions of the Board with reference to the challenges described in the objections were erroneous, the Trial Examiner questioned the propriety of the evidence on the ground that the respondent was attempting to do by indirection what the Board had held it could not do directly when it refused to grant a hearing on the objections raised in the representation 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing, and upon the further ground that the action of the Regional Director and the Board in passing on the challenges and denying a hearing on the objections was taken by the Board and its agent in the exercise of discretionary power granted by the Act and that in the absence of a showing or charge that the Board, in the exercise of this discretionary power had abused its discretion, such action could not now be reviewed in this case.' Thereupon the respondent made an offer to prove by the testimony of Mikesell, first,' that the overruled chal-' ]enge to which it objected should have been sustained for the reason that the voter had been 'discharged; and second, that each of the other seveli employees whose votes were challenged and the challenges sustained because they were supervisors, were in fact not supervisory employees but were senior employees standing in substantially the same position as other senior employees whose votes had not been challenged. The offer of proof was rejected for the reasons an- nounced by the Trial Examiner when the line of testimony was opened and' objected to by him as above set out. Upon the rejection of the above offer of proof by the respondent, the Trial Examiner invited counsel for the Board to make a paralleling offer of proof of such matters as he was prepared to prove in rebuttal of the facts recited in the respondent's offer of proof, whereupon counsel for the Board made an offer to prove by the testimony of certain named witnesses that each of the seven 'men whose votes were challenged because of their supervisory duties were in fact supervisors and ,that, the one man against whom the- challenge., was- over-' ruled was in fact a laid-off employee , as was another against whom a challenge was overruled by the Board In, connection therewith , counsel for the Board offered affidavits of each of the seven alleged supervisory employees taken in connection with the election in the same unit held in 1941, and likewise affidavits by the nine employees affected, taken by the Field Examiner for the Board immediately following the election of March 19, 1942, which affidavits were be- fore the Regional Director and considered by him in ruling on the objections by the respondent as reported in his Amended Election Report of May 23, 1942. The offer of proof by counsel for the Board and the affidavits as to each of the employees involved which were offered as exhibits in connection therewith, were rejected and placed in the file of rejected exhibits. From the- foregoing, it is found that on July 8, 1942, and at all times since, the respondent has refused to bargain collectively with the Union as the exclusive representative for purposes of collective bargaining, of all the employees in the unit heretofore found to be appropriate and that thereby the respondent has and now is interfering with, restraining and coercing-its employees -in, the exercise of the rights guaranteed them in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PR tCTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent 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 REMEDY The respondent having admitted. and it having been found, that the Union is the duly designated representative of a majority of the employees in the 3 At no stage of the proceedings did the respondent charge either the Regional Director or the Board with abuse of discretion. GATKE CORPORATION 969 appropriate unit and that it has been so certified by the Board, and that the respondent has refused and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees within the unit, it will be recommended that the respondent cease and desist from refusing to bar- gain with the Union and that upon request it,bargain with the Union as the representative of all the employees within the unit in matters pertaining to rates of pay, wages, hours of employment, and other conditions of employment ; and it will be also recommended that the respondent post throughout its plant in Waisaw, Indiana, appropriate' notices that it will comply with such recommendations. On the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. International Union, United Automobile Workers of America, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the respondent, excluding supervisory and clerical employees, have since March 19, 1542, and now, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3.' International Union,*United Automobile Workers ofjAmerica, affiliated witli the A. F. of L, was on June 11, 1942, the date of its certification by the Board, and at all times thereafter has been, the exclusive representative of all the employees in such unit, for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on July 8, 1942, and at all times thereafter to bargain col- lectively with International Union, United Automobile Workers of America, affiliated with the A. F. of L., as the exclusive representative of the employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, it is recommended that the respondent, Gatke Corporation, its officers, agents, repre- sentatives, successors, and assigps, shall : 1. Ceast and desist from : (a) Refusing to bargain collectively with International Union, United Auto- mobile Workers of America, affiliated with the A F of L., as the exclusive repre- sentative of its production and maintenance employees, excluding supervisory and clerical employees ; (b) Engaging in like or related acts or conduct interfering with, restraining, or coercing its employees in the exercise of the rights of self-organization, to join, form, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which will effectuate the policies of the Act: I (a) Upon "request, bargain collectively with International Union, United Auto- mobile Workers of America, affiliated with the A. F. of L., as the exclusive repre-. sentative of the production and maintenance workers, exclusive of supervisory and clerical employees, in respect to rates of pay, wages, hours of employment, or other conditions of employment ; (b) Post immediately in conspicuous places within its plant at Warsaw, Indi- ana, and maintain for a period of sixty (60) consecutive days from the date of posting, notices to its employees that it will not engage in the conduct from which it is recommended in paragraph 1 (a) and (b) that it cease and desist, and that it will,take the affirmative action recommended in paragraph 2 (a) hereof; , (c) Notify the Regional Director for the Eieventh Region in writing, within ten (10).days from the receipt of the Intermediate Report, what steps the respondent has taken to comply therewith: It is also further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifi°s the Regional Director iii writing that it will comply with the foregoing recommends-' tions, the National Labor Relations Board issue an order requiring respondent to take the action aforesaid. As provided in"Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective October 14, 1942-any party may within fifteen (15) days from the date of the entry of the, order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. R. N. DENHAM, Dated October 15, 1942. Trial Examiner. SUPPLEMENTARY INTERMEDIATE REPORT Miss Helen F. Humphrey, for the Board. Fyffe & Clarke, by Mr. John Hari ington, of Chicago, Ill., for the respondent. Mr. Gerald Smith, of Warsaw, Ind., for the Union. On the 15th day of December 1942, the Board ordered that the hearing in the above-entitled case. be reopened for the purpose of "taking evidence relating to the status of six employees whose votes were challenged at the election-and the challenges sustained by the Board contrary to the Company's objection, and as to two employees whose votes were challenged and the challenges overruled by the Board contrary to the Company's objection." Pursuant to flue notice, the reopened hearing was held in Warsaw, Indiana, February 18 and 19, 1943, before J. J. Fitzpatrick, the Trial Examiner duly ap- pointed by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by one of its officials. All parties par- ticipated in the hearing and were given full opportunity to be heard, to examine GATKE CORPORATION 971 and cross-examine witnesses and to introduce evidence bearing on the issue. At the conclusion of the hearing, argument before the Trial Examiner was waived by all parties. Upon the record thus made on the issue presented by the above order and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT Respondent in its business of manufacturing asbestos friction products, brake linings, timing-gears-and-non-metallic bearings has its plant divided into a•num- ber of departments under the general supervision of Neal Mikesell, the plant manager, who has exclusive authority to hire and fire. Most of the departments are directly supervised by a foreman. These foremen are paid on a monthly basis. All other production and maintenance employees with the exception of one assistant foreman are paid on an hourly basis.' At the time of the election, March -19, 1942, the respondent had approximately 140 employees in its plant. The votes of six employees were not counted on the ground that they, were supervisors and ineligible to vote in the election. The respondent contends that these employees were not supervisors and their votes should have been counted. The votes of two other employees were counted, although their names did not appear on the respondent's pay roll February 15, 1942, immediately preceding the date of the Direction of Election (February 25, 1942), on the ground that they had' been, temporarily, laid off in January of 1942. The respondent contends that both of these employees had been permanently discharged f in January and were ineligible to vote. The status of the six supervisory employees will be -considered first herein. The six supervisory employees These employees are Gloid Whitesell, Arthur Brallier, Irl W., Brallier, Earl West, Carl Boggs and Forrest Deeter. All.of these men are older in point of service than the ordinary employees. The respondent admits that because of their experience the older employees, including a number of others besides the six named, are regarded as lead men in their respective departments and on occasion assist less experienced men. The hourly rate of pay of these senior employees is from 10 to 15 cents higher than the ordinary employee. As will hereafter appear, however, each of the above'-named employees performs other functions usually assigned to supervisors. Gloid Whitesell works in Department B. This department molds, presses and finishes industrial friction and brake blocks. The entire department numbers about 40 employees and is in charge of Foreman Ed Gatke. In what is called the pressing section of the department Whitesell is the head pressman. Under Gatke's direction he supervises the work of from 8 to 10 pressmen. When an order comes into the department Gatke, after looking it over, takes a copy of the order to Whitesell's desk and gives the latter any necessary instructions. After studying the copy, Whitesell supervises the preparation of the proper dies for the presses, instructs the pressmen as to the proper compound to put in the presses and sees that the presses function properly. He assigns the work of the pressmen, criticizes poor work or loafing on the job and is regarded by the press- men as their boss. When not otherwise occupied, Whitesell also works with the other pressmen. Arthur and Irl W. Brallier also work,in Department B. For a year prior to about January 1, 1942, Arthur was in charge of a night shift making brake 'Each of the eight whose employee status is involved in the reopened hearing is paid on an hourly basis. r 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,blocks. It was his job to see that the machines were set up with grinders and drills and the blocks properly drilled and ground. About January 1, 1942, the night shift was discontinued and Arthur returned to the day crew. His work continued about the same except that it was confined to producing brake blocks for buses and trucks. He relays the orders received from the foreman to some 10 to 16 workers and arranges the routine of their jobs: Although he spends more time on the day shift in inspection than he had previously done, he also sets up machines for green workers and checks their progress. • While he occa- sionally runs a machine when his other duties permit, he testified that he was a "straw boss" or a group leader. Irl W. Brallier performs similar duties on the day shift as Arthur but his work is confined to producing industrial brake blocks. He directly supervises the work of 10 to 12 men and described his occu- pation as that of assistant to tha foreman. Although the day shift did not end until 5 o'clock it was customary during March 1942 for Foreman Gatke to leave the plant about 2 p. in each day. During these hours, and on any other occasions when the foreman was absent, employees working on the 16 machines in the department looked to the two Bralliers for instructions in their work. Earl West works in Department E under Foreman Don Gatke This depart- ment molds and finishes certain' types of brake linings and friction material. It employs from 30 to 35 men After the foreman looks over the incoming orders he gives them to West, who orders the necessary stock from the supply room, marks the delivery dates on the orders, makes out the work tickets and distrib- utes them to the men for execution. He inspects each item of'the work asdt progresses, sees that the completed set is properly assembled, packed, boxed, labelled and sent to the stockroom. ' If the _ checking' develops faulty work, West reports it to the foreman and sometimes takes it up directly with the workman responsible. During the foreman's absence from the department, the employees- go to West for direction. In an emergency, on such occasions, he grants temporary time off to employees. Carl Boggs works in Department It which is also known as the mixing or com- pound room. There are about a dozen employees in the department and the fore- man is Frank Eisenhardt. However, the foreman spends a considerable portion of his time in the laboratory, located at the opposite side of the plant, and is only in the compound room about one-third of the time. Boggs supervises the employees in the weighing and mixing of the various compounds in accordance with direc- tions he receives from Eisenhardt. When a worker: is unsatisfactory Boggs some- times reports the fact to his superiors. He also passes on requests for,time off provided the requests are for a period of less than a day. Forrest Deeter is employed in the shipping and storeroom also known as Depart- ment S. There is no foreman in the department. Deeter checks the incoming material assisted by two other employees whose work he directs. He also issues requisition;, for needed materials to the Chicago office and issues supplies from the storeroom as required at the factory. In the case of incoming carload ship- ments lie directs the work of men loaned temporarily from other departments to assist in unloading the car. Although the Plant Manager, Mikesell, denied specifically that any of the above six employees are supervisors, it is clear from the above and the undersigned finds that each of them performs work of a supervisory nature and that they are regarded by the other employees as supervisors. This was also the situation on March 19, 1942. It is therefore found that Gloid Whitesell, Arthur Brallier, Irl W Brallier, Earl West, Carl Boggs and Forrest Deeter are, and on March 19, 1942, were, supervisory employees. GATKE CORPORATION 973 The two dismissed employees Lacy Carpenter -and -Elmer Quier were employed by the respondent, respec- tively, on July 19 and September 29, 1941, and worked from that time until January 1942, when, because of shortage of material and lowered production Carpenter was released on January 17 and Quier on January 26. On February 19 Mikesell sent for both of the men and put them to work. Other employees were also=dismissed, int January because-of the -shortage. Mikesell, although questioned, was unable to state whether any' of these other employees were later recalled to work. Although Mikesell testified that Carpenter and Quier were discharged in January be admitted that thereafter 'neither made application for reemployment, but nevertheless both were returned to work as soon as they could be used. Mikesell also testified that it was the policy of the respondent to give preference to former discharged or laid-off employees when it needed men. After their reem- ployment Carpenter and' Quier continued to work for the respondent until after the 1942 election, but at the time of the hearing were not working for the respond- ent or available as witnesses. Neither was removed from the pay roll in January because of any fault in his work. In view of the fact that both were reemployed as soon as there was work for them and within 4 or 5 weeks of their dismissal, the undersigned -is of the opinion and finds that Carpenter and Quier were temporarily laid off in January 1942. Upon the basis of the foregoing findings of fact and from the entire record in the reopened hearing, the undersigned makes the following : CONCLUSIONS OF LAW 1. On March 19, 1942, Gloid Whitesell, Arthur Brallier, Irl W. Brallier, Earl West, Carl Boggs, and Forrest Deeter were supervisory employees of ` the respondent. 2. Lacy Carpenter and Elmer Quier were temporarily laid off in January 1942 and on February 19, 1942, were reinstated as employees of the respondent and continued as employees until after March 19, 1942. As provided in Section 37 of Article II of the Rules and regulations of the National Labor Relations Board, Series 2-as amended, effective October 28, 1942-any party may within fifteen (15) clays from the date of filing of this Supple- mentary Intermediate Report file with the Board, Shoreham Building, Washing- ton, D. C., an original and four copies of a statement in writing setting forth such exceptions/'toithe-Supplementary-Intermediate Report'or to any other part of the record or proceeding (including all rulings on motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof, provided said party shall at the same time serve a copy of the exceptions and brief upon each of the other parties hereto and upon the Regional Director. As further provided in said Section 37, should any party desire permission to argue orally before the Board, request therefor must be'made in writing to the Board within ten (10) days after the date of the filing of this Report with the Board. J. J FITZPATRICK, Dated March 3, 1943. Trial Examiner.