American Anode, Inc.

In the Matter of AMERICAN ANODE, INC., and LATEX EMPLOYEES UNION Case No. R-5702.-Decided August 20,1914 Mr. John A. Hull, for the Board. Messrs. Robert Guinther and R. W. Albright, of Akron, Ohio, for the Company. Messrs. Bruce W. Bierce, C. Walter Jordan, and John Plumlee, of Akron, Ohio, for the Independent. Messrs. G. W. Patterson, Paul M. Fessenden, Joseph Wright, and George R. Bass, of Akron, Ohio, for the C. I. O. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Latex Employees Union, herein called the Independent, alleging that a question affecting commerce had arisen concerning the representation of employees of American Anode, Inc., Akron, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Earl S. Bellman, Trial Examiner. Said hearing was held at Akron, Ohio, on July 15 and 16, 1943. The Company, the Independent, and United Rubber Workers of America (C. I. 0.), Local No. 5, herein called the C. I. 0., 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 rulings of the Trial Examiner made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. The C. I. O. moved at the hearing to dismiss the petition of the Independent because the latter's constitution showed that it was not capable of functioning as- a collective bargaining agency. Ruling on the motion was reserved for the Board. We find the contention of the C. I. O. to be without merit, and its motion to dismiss is hereby denied. 52 N. L. R. B., No. 1. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Anode, Inc., a Delaware corporation, is a wholly owned subsidiary of B. F. Goodrich Company, herein called Goodrich. The Company maintains a plant in Akron, Ohio, where it is engaged in the following functions: (1) the operation of a research and develop- ment laboratory on natural and synthetic latices; (2) the licensing of its processes and the servicing of licensees; (3) the manufacture and sale of latex mixes; and (4) the manufacture and sale of rubber goods made from natural and synthetic latices. During the year 1942 the Company used raw materials having an approximate value of $561,000, of which approximately 90 percent was shipped to the plant from points outside the State of Ohio. During the same period the Com- pany manufactured products having a value of $1,300,000, of which approximately 25 percent was shipped to points outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Latex Employees Union is an unaffiliated labor organization ad- mitting to membership employees of the Company. United Rubber Workers of America, Local No. 5, is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admit- ting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or about May 27, 1943, the Independent requested the Company to recognize it as the exclusive collective bargaining representative of all hourly paid employees. The C. I. O. informed the Company that its contract with Goodrich covered the Anode employees. The company thereafter advised both the Independent and the C. I. O. that neither would be granted exclusive bargaining rights until the Board resolved their conflicting claims. The C. I. O. contends that its contract with Goodrich is a bar to a present determination of representatives. The contract applies to all hourly and piece-work factory employees of the Akron plants of Goodrich. It was entered into on June 17, 1942, and provides that it is to remain in effect until April 1, 1943, and in the event that ne- gotiations for revision or extension have not been satisfactorily con- cluded by April 1, is to continue in effect thereafter until cancelled by either party on 30 days' written notice. While the C. I. O. argued that the Anode plant is an Akron plant or department of Goodrich, AMERICAN ANODE, INC. c) and?the Independent and the Company asserted the independent cor- porate character of the Company, we find it unnecessary at this point to determine the intent of the parties to the contract or the corporate relations between the Company and Goodrich. Even assuming that the Anode plant is an Akron plant of Goodrich, and that the parties intended the contract to cover the Anode plant, nevertheless the con- tract.has been in operation for longer than a year, its original term expired April 1, 1943, and currently it is subject to cancellation by either party upon 30 days' written notice. We find that the contract is no bar to a present determination of representatives, since even if it be considered to apply to the Company's plant, it has been in opera- tion over a year and is now terminable by either party upon notice., A statement of a Field Examiner of the Board, introduced in evi- dence at the hearing, indicates that the Independent represents a sub- stantial number of employees in the unit which it contends to be appropriate.' 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 Independent and the Company agree that all hourly rate em- ployees, excluding armed guards, constitute an appropriate bargaining unit at the Anode plant. The C. I. O. contends that these employees are part of a larger unit consisting of the Akron plants of Goodrich. In 1937 the C. I. O. won an election conducted by the Board among the employees of the several Goodrich plants in Akron, Ohio, and was subsequently certified as their collective bargaining representa- tive. The employees of the Company did not participate in this elec- tion. At that time Goodrich owned only 45 percent of the stock in the Company ; in July 1938, it acquired all the stock. In June 1938 the C. I. O. and Goodrich entered into a contract covering the Good- rich Akron plants. This original contract and the succeeding con- tracts contain no specific reference to the Anode plant and fail to state that the Akron plants of Goodrich "subsidiaries" are covered. There is nothing in the record to indicate that the intent of the parties was to include the Anode plant. Although the C. I. O. has had contractual relations with Goodrich for over 5 years, the record is clear that the Anode plant has had no 1 See Matter of La Plant-Choate Manufacturing Co., Inc , 29 N. L. R B 40, 43; and Matter of William Senn, Frank Senn, Ida Senn and Lelia Senn, individually and as co- partners, doing business as Brightman Nut iE Manufacturing Company, 30 N. L. R B. 663, 665 2 The Field Examiner stated that the Independent submitted to him 118 membership cards, of which 117 bore apparently genuine original signatures ; and that 115 of the apparently genuine original signatures were the names of persons whose names appeared on the Company's pay roll for June 15 , 1943, which listed 181 persons in the alleged appropriate unit. 549875-44-vol. 52-2 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD history of collective bargaining. , Thus, not until 3 or 4 months before the hearing did the C. ' I. O. elect a committeeman at the Anode plant.' Moreover, although about 5,000 written grievances were handled by the C. I. O. under its Goodrich contracts, only 2 or 3 oral grievances concerning the Anode plant have been raised. All the directors of the Company except 1 are directors of Goodrich. The Company purchases materials from, and sells materials to, Good- rich and utilizes the latter's legal and accounting services. On the other hand, Goodrich is 1 of 14 licensees of, and pays royalties to, the Company. The Company pays its taxes, keeps its social security records and its workmen's compensation account. It hires its own employees and pays them with its funds. It handles its own manufacturing, sell- ing, shipping and purchasing operations. Lastly, the Anode plant is physically separated from the plants of Goodrich. We are of the opinion that the manner in which the Company oper- ates is sufficiently independent of Goodrich so that the Anode plant may properly constitute a separate unit for collective bargaining purposes.4 The Company's foremen and higher supervisors, as well as its cleri- -cal and technical employees, are all on a salary basis, as distinguished from the remaining employees who are hourly paid. The Company stated that no employee below the rank of foreman possessed substan- tial supervisory authority. One department, however, has 4 or 5 lead women who receive 5 cents more per hour than regular employees therein. The lead women instruct the other employees, keep the work moving, and inspect the work. Two of the lead women have,15 to 35 employees under them. They do no production work except in emergen- cies. The other lead. women have 5 or 6 employees under them. They work on production to some extent. The lead women may recommend hiring and discharging to their foreman, although there is no evidence that they have exercised such authority. The President and General Manager, R. W. Albright, testified that he thought the foremen would give some weight to the recommendations of the lead women. We find that the lead women are supervisors, and we shall exclude them from the appropriate unit. We find that all hourly rate employees of the Company, excluding armed guards and lead women, and all other supervisory employees having authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such s In April 1942 the C. I. 0. discussed the formation of a labor management committee with the Company, but took no part in the selection of the committee. 4 Had the C. I. 0. not expressed a desire that its name be omitted from the ballot in any election ordered by the Board in this proceeding in which the Independent was to participate, we should have made no final determination as to the appropriate unit until the results of the election had been announced. AMERICAN ANODE, INC. 5 action, constitute a unit appropriate for the purpose of collective bar- 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 em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of our Direction of Election herein, subject to the limitations and additions set forth therein. At the request of the C. I. O. we shall not accord it a place upon the ballot. 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 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 American Anode, Inc., Akron, Ohio, 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 Eighth Region, acting in this matter as agent for the National Labor Relations 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, includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause, to determine whether or not they de- sire to be represented by Latex Employees Union, for the purposes of collective bargaining. CHAIRMAN MILIds took no part in the consideration of the above Decision and Direction'of Election.