Owens-Corning Fiberglas Corp.

In the Matter of OWENS-CORNING FIBERGLAS CORP. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 8-R-14331 SECOND SUPPLEMENTAL DECISION AND DIRECTION April 13, 1845 Pursuant to a Decision and Direction of Elections issued on July 14, 1944,2 in the above-entitled proceeding by the National Labor Re- lations Board, herein called the Board, separate elections by secret ballot were conducted under the direction and supervision of the Re- gional Director for the Eighth Region (Cleveland, Ohio), on August, 9, 10, and 11, 1944, among three separate groups of employees of Owens-Corning Fiberglas Corp., Newark, Ohio, herein called the Com- pany. As a result of the elections held among employees in two of these groups, bargaining representatives were certified by the Board' in two appropriate units.3 The results of the balloting in the election conducted among the employees of the third group were inconclusive, 4 i Upon petition duly filed by Textile Workers Union of America, C I 0 , alleging that a question affecting commerce had arisen concerning the representation of employees of the Company, the Board provided for an appropriate hearing, upon due notice, before Louis Plost, Trial Examiner. The hearing was held at Newark, Ohio, on March 31, 1944 The Company, Textile Workers Union of America, C I 0, American Flint Glass Workers. Union of North America, A F L and International Brotherhood of Electrical Workers, A F L , appeared and participated in the hearing On May 27, 1944, the Board issued' an Order granting the motion to intervene filed by International Association of Machinists, Local No. 463, and directing that the record be reopened. Further hearing was held in Newark, Ohio, on June 8, 1944, before Frank L. Danello, Trial Examiner 2 Matter of Owens-Corning Fiberglas Corp , 57 N L R. B. 349 3 One unit comprised all electrical employees, excluding group leaders and supervisory personnel, and the International Brotherhood of Electrical Workers, A F L , was certified as their bargaining representative The other comprised 'all machinists, helpers, apprentices, tool and die makers, and welders in the laboratory machine shop, excluding clerical employees, laborers, sweepers, janitors, group leaders, and supervisory personnel, and the International Association of Machinists, Local No 463, A F. L , was certified as their bargaining representative 4 The Tally of Ballots showed as follows Approximate number of eligible voters-------------------------------------- 2, 030 Valid votes counted----------- -------------------------------------------- 1,679 Votes cast for American Flint Glass Workeis of North America, A F L---------- 477 Votes cast for Textile Workers Union of America, C 1 0----------------------- 503 Votes cast for Neither ------------------------------------------------------ 699 Challenged ballots--------------------------------------------------------- 28 Void ballots--------------------------------------------------------------- 3 In his Report on Challenged Ballots the Regional Director recommended that 10 of the challenges be sustained None of the parties excepted and the Board sustained those challenges 61 N. L. It. B., No. 76. 546 OWENS-CORNING FIBERGLAS CORP. 547 and a run-off election was duly held on September 28 and 29, 1944, to determine whether or not the employees within the third group desired Textile Workers Union of America, C. I. 0., herein called the Textile Workers, to represent them for the purposes of collective bar- gaining. The Supplemental Notice of Election, attached to the ballot for the run-off election, reads as follows : Those eligible to vote are: All production and maintenance employees of the Newark plant and its research laboratories, including section leaders (or utility men and utility women), who were employed by the Company during the pay-roll period ending June 30, 1944, including em- ployees 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. Those not eligible to vote are: All electrical employees, all machinists, helpers, apprentices, tool and die makers, and welders in the laboratory machine shop, office and clerical employees, salaried employees (it being understood that the Company will not deviate from its usual practice in plac- ing people on the salaried pay-roll), laboratory technicians and employees doing confidential work in the research laboratories, temporary and part-time employees, department heads, depart- ment foremen, shift foremen, chief shift inspectors, group leaders, all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, and those em- ployees who have since quit or been discharged for cause and have not been rehired or reinstated, prior to the date of the Election: As to the balloting and its results, the Regional Director reported as follows : Approximate number of eligible voters ------------------------------ 1, 793 Valid votes counted -- --------------------------------------------- 1,518 Votes cast for Textile Workers Union of America , C. I. 0------------- 762 Votes cast against participating union--- --------------------------- 756 Challenged ballots- - --------------------------------------------- 66 Void ballots------------------------------------------------------- 3 The Textile Workers challenged 55 ballots, the Board challenged 11, and the Company none. a With respect to the eligibility date and the composition of the third voting group, the Supplemental Notice of Election conformed in all details to the Board ' s original Decision and Direction of Elections 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 1, 1944, the Textile Workers filed objections to the elec- tions with the Regional Director, alleging : 1. That certain employees who were excluded from the voting, by the Board's order directing the election, cast ballots in the election. 2. That on the list of eligible and ineligible employees sub- mitted by the Company, job titles had been changed so as to make eligible employees ineligible, and ineligible employees eligible. On October 25, 1944, the Regional Director filed his Report on Ob- jections and Challenged Ballots, in which he recommended that 8 challenges be sustained, that 58 challenges be overruled, and that the objections be dismissed. On November 6, 1944, the Textile Workers filed Exceptions to the Regional Director's Report in which it con- curred with his recommendations with respect to 15 of the challenged ballots and dissented from his recommendations as to the remaining 51 challenged ballots, as well as from his recommendations concerning the objections. On November 14, 1944, the Company filed a Mem- orandum in Opposition to Union's Exceptions to Report on Objections and Challenged Ballots, in which it concurred with the Regional Director's recommendations in all respects and requested that the Board rule on all 66 challenged ballots in accordance with those recom- mendations and dismiss the objections. Pursuant to an order of the Board, and pursuant to notice, a hear- ing for the purpose of adducing evidence with respect to the objec- tions and the 51 challenges concerning which the Textile Workers dissented from the Regional Director's Report, was held on Decem- ber 19 and 20, 1944, at Newark, Ohio, before W. P. Webb, Trial Ex- aminer. The Board, the Company, the Textile Workers, and Amer- can Flint Glass Workers Union of North America, A. F. L., herein called the Glass Workers, appeared and participated. All parties were afforded an opportunity to be heard, to examine and cross-exam- ine witnesses, to introduce evidence bearing on the issues, and to file briefs with the Board. On January 30, 1945, pursuant to the Board's Order dated January 16, 1945, the Trial Examiner issued his Report and Recommendations, a copy of which is attached hereto, in which he recommended that of the 51 challenges which were investigated at the hearing, 50 be over- ruled and 1 be sustained, and that the objections be dismissed. There- after, the Textile Workers filed Exceptions to the Report and Recom- mendations and the Glass Workers filed documents urging that the Board adopt the Report and Recommendations in its entirety. None of the parties requested oral argument. OWENS-CORNING FIBERGLAS CORP. 549 The Board has reviewed the Trial Examiner's rulings on motions and on objections to the admission of evidence and finds that no prej- udicial error was committed. The rulings are hereby affirmed. Upon consideration of the entire record, we affirm and adopt the findings, conclusions, and recommendations of the Trial Examiner, except inso- far as they are inconsistent with our findings and conclusions herein- after set forth. I. The Challenges In his Report on Objections and Challenged Ballots, the Regional Director recommended that the challenges to the ballots of James E. Christman, Johanna Cald-well, Eva Rose, E. C. Humphrey, Mario Simi, and three production clerk helpers be sustained, and that the challenges to the ballots of Carl Azbell, Glenn H. Davis, William Cagney, Letha Simco, Florence Taylor, Mildred Deck, and T. Mow- ery be overruled. As stated above, none of the parties excepted to the Regional Director's recommendations with respect to the fore- going challenges. We concur with the recommendations of the Re- gional Director and hereby sustain the challenges to the ballots of James E. Christman, Johanna Caldwell, Eva Rose, E. C. Humphrey, Mario Simi, and three production clerk helpers, and hereby declare valid the ballots of Carl Azbell, Glenn H. Davis, William Cagney, Letha Simco, Florence Taylor, Mildred Deck, and T. Mowery. We shall direct that the ballots of the last seven named employees be opened and counted. In his Report and Recommendations, the Trial Examiner recom- mends that the challenges to the ballots of 32 employees in the testing department, 7 operations reporters and 1 methods technician in the Methods and Specifications Department, 4 production recorders, Helen Hankinson, Warren Myers, Frances Wilson, Helen Winter- mute, and Freda Hahn, be overruled, and that their ballots be opened and counted. We hereby adopt the Trial Examiner's findings, con- clusions, and recommendations as to their ballots, and we shall direct that they be opened and counted. Willard Vaddux: The Textile Workers challenged the ballot of Willard Maddux on the ground that he was a supervisory employee and therefore, ineligible. Prior to the date of the first election, Maddux believed himself to be a foreman and was so regarded by other employees in his department. Although immediately before that election the Company advised him that he was an instructor, his right to vote at that election was challenged and he did not cast a ballot. An employee who worked in Maddux's department for several years testified that before and after the first election, "We all took our orders from him." In this department, the refractory room of 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the factory alloy, operations continue 7 days weekly ; workmen -take days off during the week and work on Sundays. Maddux tells the employees what days to take off. He is paid 5 to 10 cents per hour more than other employees in his department. We are of the opinion that on the eligibility date, at least, Maddux was vested with sufficient indicia of authority to warrant the conclusion that he was a super- visory employee within the meaning of our usual definition of the term. We find, therefore, that he was ineligible to vote in the run-off election, and we shall sustain the challenge to his ballot. Violet Thompson: The Board challenged the ballot of Violet Thompson because her name was not on the list of eligibles. She became ill on November 28, 1943, and ceased work on that account. She returned to her job on September 7, 1944. It is, the Company's policy to permit employees to "lay off" during illness and it considers them eligible, for reinstatement when they return. The Company's general personnel director testified that she remained an employee of the Company during her illness. It is clear that, upon her return to work, she was not required to file a new employment application. We are of the opinion that Violet Thompson was an employee of the Company on the eligibility date; we accordingly overrule the chal- lenge to her ballot, and we shall direct that her ballot be opened and counted. II. The objections "That certain employees who were excluded from voting, by the Board's order directing the election, cast ballots in the election." The Textile Workers contends that employees in six classifications were listed on the eligibility list and permitted to vote, although they were not included within the third voting group. The six classifica- tions are as follows: (1) a number of employees in five research department laboratories, who the Textile Workers claims are clerical, technical, or confidential employees, (2) eight employees in the Methods and Specifications Department, (3) four production record- ers, (4) shift clerks in the shipping department, the three latter classifications being allegedly clerical employees, (5) eleven group leaders, and (6) four production clerk helpers. The ballots cast for the eight employees in the Methods and Speci- fications Department and by the four production recorders were challenged by the Textile Workers. The Trial Examiner found that they are, in fact, production employees and were properly permitted to cast ballots. We have already adopted the Trial Examintr's recommendations overruling these challenges. Thus, this first objec- tion of the Textile Workers is without merit as respects these two classifications of employees. OWENS-CORNING FIBERGLAS CORP. 551 The Trial Examiner also found that the employees in the 5 re- search department laboratories and the shift clerks in the shipping department are not clerical, technical , or confidential employees, but are rather production workers who were properly named on the eligi- bility list and permitted to vote. Among the research laboratory employees are the 32 testing department employees whose ballots the Textile Workers challenged. As to these 32 employees, we have already adopted the Trial Examiner's recommendations that the chal- lenges to their ballots be overruled , and that their ballots be opened and counted. The disputed employees in the remaining four research department laboratories similarly are laboratory assistants who do not perform analysis . Their work is manual, and, although some of it is experimental , part of it is on finished products that are sold in the regular course of the Company 's business. The duties of the shift clerks in the shipping department were clearly explained at the hear- ing. They wrap the finished cones of yarn , pack them in sealed car- tons, carry and truck the cartons to the proper shipping platforms, make records of warehouse stocks and shipments , and generally are responsible for the handling of the Company 's products. All of them do some manual work. We agree with the findings of the Trial Ex- aminer that the Employees in the five research department labora- tories in question and the shift clerks are not clerical but production employees . Under these circumstances, to the extent that it is based on the assertion that the research laboratory employees and shift clerks in the shipping department were improperly placed on the eligibility list, this objection is without merit. Considering the last two classifications of employees whose names the Textile Workers contends should not have been placed on the eligibility list, we have already found that production clerk helpers are clerical employees . In addition to the 4 involved in this objec- tion, the Company employs 3 other production clerk helpers, and as to the latter, we have sustained the Textile Workers' challenges to their ballots. The record establishes, and we agree with the Trial Examiner, that the 11 group leaders were excluded from the third voting group as supervisory employees. We do not, however, recog- nize, as a proper basis for an objection to the election , the fact that certain employees of the Company who were excluded from the third voting group were nevertheless placed on the eligibility list and per- mitted to cast ballots. The Board's Rules and Regulations provide for objections to the conduct of the election or conduct affecting the results of the election ." An objection, however, is to be distinguished from a challenge . An objection, if sustained , voids the results of the election, while a challenge , is sustained, merely eliminates the objec- National Labor Relations Board Rules and Regulations, Art III, Sec. 10. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tionable ballot. This "objection" by the Textile Workers does noth- ing more than question the eligibility to vote of a number of em- ployees, and is tantamount to the challenging of ballots. Although the eligibility list was prepared by the Company, and, admittedly, the names of 11 group leaders were included through inadvertence, Textile Workers' representatives examined the lists in advance of the balloting. They also kept a close check on the classi- fications and eligibility of individual employees during the balloting, as is evidenced by the fact that they challenged a large number of the disputed employees in the research department laboratories, 8 em- ployees in the Methods and Specifications Department, the produc- tion recorders, and 3 of 7 production clerk helpers. Therefore, it cannot be disputed that the Textile Workers was at all times informed of the duties and job classifications of the Company's employees. As it challenged the ballots of 3 production clerk helpers, it had every opportunity to challenge the ballots of the remaining 4, or of the 11 group leaders. We note that, upon completion of the balloting, a Textile Workers' representative certified that the election was prop- erly conducted. In keeping with our administrative policy of not considering post- election challenges where employees not included within the appro- priate unit were permitted to vote, we shall not entertain "objections" to conduct affecting the election, which, in reality, are only challenges." "That on the list of eligible and ineligible employees submitted by the Company, job titles had been changed so as to make eligible em- ployees ineligible, and ineligible employees eligible." This objection is based on the allegation that the Company recently created three classifications of employees in order to affect the voting eligibility of certain employees and thereby influence the result of the election. These classifications include group leaders, purportedly created in order to disfranchise a group, and production recorders and production clerk helpers, allegedly reclassified for the purpose of conferring voting eligibility upon them. We have already found that group leaders were excluded from the third voting group because of their supervisory duties and that the production recorders were eligible to cast ballots because their duties warranted their, inclusion as production employees. As to the production clerk helpers, although they were ineligible to vote because they perform clerical duties, the Textile Workers was not misled with respect to their duties and did challenge the ballots of three of them. In addition, the record is bare en of any evidence indicating that the Company created these:job classifications for the purpose of influencing the election. Accordingly, we shall overrule this objection. 7 See Matter of Anzertean (}unite Fnnnshing Company, 28 N L. R. B 739. OWENS-CORNING FIBERGLAS CORP. Miscellaneous matter 553 In addition to the foregoing formal objections duly filed on October 1, 1944, the Textile Workers, in its Exceptions dated October 6, 1944, to Report on Objections and Challenged Ballots, raised two other be- lated "objections" to the run-off election. It charged that several employees in the Process Control Department were permitted to vote although their names did not appear on the eligibility' list, and it consequently was deprived of an opportunity to challenge their ballots. In its Memorandum in Opposition to Union's Exceptions to Report on Objections and Challenged Ballots, the Company states that dur- ing the "disassembly" and examination of the eligibility list by a num- ber of observers before the election, a page bearing the names of six Process Control Department employees was lost, that the loss was discovered before lunch on the day of the election, and that a sub- stitute page was prepared at once to replace it. We do not agree with the Textile Workers' contention that it was deprived of an op- portunity to challenge the ballots of these six employees. During the morning its challenges could have been based on the fRct that the voters' names were not on the eligibility list, and during the after- noon it could have challenged them on any other proper basis. The Textile Workers also makes the charge, apparently intended as an objection, but first stated in its brief after the Regional Director filed his Report on Objections and Challenged Ballots, that Board Field Examiners at the election "refused to accept and record chal- lenges made by the [Textile Workers] watchers on the ground that in their opinion the challenges were without merit, thus usurping the responsibility of the Board and depriving the Union of its sub- stantial right of challenge." Despite an extensive brief in support of its exceptions to the Regional Director's report, the Textile Workers generally stated this * "objection," setting forth no supporting facts. Under these circumstances, we shall overrule this "objection." Conclusion For the reasons set forth above and upon the entire record in the case, all objections to the run-off election filed by the Textile Workers are hereby overruled. DIRECTION 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, Sections 9 and 10, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Owens-Corning Fiberglas Corp., Newark, Ohio, the Regional Director for the Eighth Region shall, pursuant to the Rules and Regulations of the Board, set forth above, and subject to Article III, Sections 10 and 11, of said Rules and Regulations, within ten (10) days from the date of this Direction, open and count the ballots of Carl Azbell, Glenn H. Davis, William Cagney, Letha Simco, Florence Taylor, Mildred Deck, T. Mowery, the 32 testing department employees, the 7 operations re- porters, the methods technician, the 4 production recorders, Helen Hankinson, Warren Myers, Frances Wilson, Helen Wintermute, Freda Hahn, and Violet Thompson, and upon the conclusion of the counting of said ballots, shall clause to be furnished to the parties in this pro- ceeding a Supplemental Tally of Ballots embodying his findings as to the result of the balloting. REPORT AND RECOMMENDATIONS Marshall, Melhorn, Wahl & Block, by Mr. Harry R. Bloch, of Toledo, Ohio, and Messrs. John D. Black and D. A. O'Neill, also of Toledo, Ohio, for the Company. Mr. Charles T. Bubb, of Columbus, Ohio, and Mrs. Clara Kanun, of Newark, Ohio, for Textile Workers Union of America, C. I. 0. Mr. Harry H. Cook, of Toledo, Ohio, and Mulholland, Roble & McEwen, by Mr. Richard R. Lyman, also of Toledo, Ohio, for the Intervenor, American Flint Glass Workers' Union of North America, A. F. L. Pursuant to a Decision and Direction, of Election issued by the National Labor Relations Board, herein called the Board, in the above-entitled matter, on July 14, 1944,1 separate elections by secret ballot were conducted under the direction and supervision of the Regional Director for the Eighth Region (Cleveland, Ohio), on August 9, 10, and 11, 1944, among three separate groups of employees of the Company, as follows : Group 1. All electrical employees, excluding group leader s and all other super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recommend such action, to determine whether they desire to be represented by International Brotherhood of Electrical Workers, A. F. L., or by Textile Workers Union of America, C. I. 0. or by American Flint Glass Workers Union of North Amer- ica, A. F. L., for the purposes of collective bargaining, or by none. Group 2. All machinists, helpers, apprentices, tool and die makers, and welders in the laboratory machine shop, excluding clerical employees, laborers, sweepers, janitors, group leaders, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, to determine whether they desire to be represented by International Association of Machinists, Local No. 463, or by Textile Workers Union of America, C. I. 0., or by American Flint Glass Workers Union of North American, A. F. L, for the purposes of collective bar- gaining, or by none. 1 57 N. L R. B. 349. OWENS-CORNING FIBERGLAS CORP. 555 Group 8. All production and maintenance employees of the Newark plant and its research laboratories, including section leaders (or utility men and utility women), but excluding all employees included in groups 1 and 2 above, office and clerical employees, salaried employees (it being understood that the Company will not deviate from its usual practice in placing people on the salaried pay roll), laboratory technicians and employees doing confidential work in the re- search laboratories, temporary and pairt-time employees, department heads, de- partment foremen, shift foremen, chief shift inspectors, group leaders, and other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, to determine whether they desire to be represented by Textile Workers Union of America, C I. O , or by American Flint Glass Workers Union of North America, A. F. L., for the purposes of collective bargaining, or by neither. In its Supplemental Decision and Certification of Representatives, dated August 23, 1944, the Board found, as a result of the elections, that groups 1 and 2 constituted units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act, and'that International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, had been designated and selected by a majority of all employees in unit 1, and that Inter- national Association of Machinists, Local No. 463, had been so designated and selected by a majority of all employees in unit 2' No objections were filed by any of the parties within the time provided therefor. Therefore the Board certified that these organizations were, respectively, the exclusive representa- tives of all the employees in these units for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employment, and other condi- tions of employment In respect to group 3, the Tally of Ballots showed that of the approximately 2,030 eligible voters in this group, 1,679 cast valid votes, of which 477 were for Glass Workers, 503 for Textile Workers, and 699 for neither. Twenty-eight ballots were challenged,' and three were void The Board further stated in its Decision and Certification of Representatives, dated August 23, 1944, that "since the election results in group 3, involving the remaining production and maintenance employees, are inconclusive, no disposi- tion will be made of this group at the present time." On September 12, 1944, the Board issued its Supplemental Decision and Direc- tion in which it stated in respect to the Tally of Ballots concerning group 3 that: Because the 28 challenged ballots were sufficient in number to determine which of the 2 participating unions was entitled to appear on a run-off ballot, the Regional Director on August 19, 1944, following an investiga- tion, issued a Report on Challenged Ballots. In his report, the Regional Director- recommended that challenges to 10 specific ballots be sustained and the ballots accordingly not be counted. He recommended further that, 2 Tally of Ballots were furnished the parties in accordance with the Board's Rules and Regulations. Of the approximately 31 eligible voters in group 1, 26 cast valid votes, of which 1 was for the Glass Workers, 20 for I. B. E W., 3 for Textile Woikers, and 2 for none Of the approximately 65 eligible voters in group 2, 63 cast valid votes, of which 2 were for Glass Workers, 46 for I. A. 11I., 5 for Textile Workers, and 10 for none. 3In respect to the 28 challenged ballots, the Regional Director , on August 19, 1944, issued his Report on Challenged Ballots, in which he stated that if his recommendations were accepted by the parties, it would not be necessary to open any of the challenged ballots, and he recommended that a run -off election be held among the eligible employees in group 3 to determine whether or not they desired to be represented by the Textile Workers for the purposes of collective bargaining. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although the challenges to the remaining 18 ballots should be overruled, none of the 28 challenged ballots should be opened and counted inasmuch as 18 ballots, if all cast for the A. F. L., would be insufficient to entitle the A. F. L. to appear on a run-off ballot . . . We have considered the Re- gional Director's recommendations, and since none of the parties has taken exception thereto, they are sustained. We hereby direct that none of the challenged ballots be opened and counted. The Board then directed that the Textile Workers Union of America, C. I. 0, be given 10 days within which to request a run-off election. On September 23, 1944, the Board denied the motion of American Flint Glass Workers of North America, A. F. L., to be placed on the ballot in the run-off elec- tion, since this union received fewer votes than the sole opposing union and the choice of "neither" in the election held on August 9, 10, and 11, 1944. The run-off election was duly held on September 28 and 29, 1944, to determine whether or not the employees within group 3 desired Textile Workers Union of America, C. I. O. to represent them for the purposes of collective bargaining. The Supplemental Notice of Electioh, attached to the ballot, reads as follows: Those eligible to vote are: All production and maintenance employees of the Newark plant and its research laboratories, including section leaders (or utility men and utility women), who were employed by the Company during the pay-roll period ending June 30, 1944, 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. Those not eligible to vote are: All electrical employees, all machinists, helpers, apprentices, tool and die makers, and welders in the laboratory machine shop, office and clerical em- ployees, salaried employees (it being understood that the Company will not deviate from its usual practice in placing people on the salaried pay roll), laboratory technicians and employees doing confidential work in the research laboratories, temporary and part-time employees, department heads, depart- ment foremen, shift foremen, chief shift inspectors, group leaders, all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recom- mend such action, and those, employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election. The Tally of Ballots of the run-off election, which was held on September 28 and 29, 1944, shows that of the approximately 1,793 eligible voters, 1,518 cast valid votes, of which 762 were for, and 756 were against, the Textile Workers Union of America, C. I. O. Sixty-six ballots were challenged and 3 void ballots were cast. On October 1, 1944, Textile Workers Union of America, C. I. 0., filed objections to the run-off election, with the Regional Director, alleging: - 1. That certain employees who were excluded from voting, by the Board's order directing the election, cast ballots in the election. 2. That on the list of eligible and ineligible employees submitted by the Company, job titles had been changed so as to make eligible employees ineligible, and ineligible employees eligible. On October 25, 1944, the Regional Director filed his Report on Objections and Challenged Ballots in reply to the objections raised by Textile Workers Union of 4 This Notice is in accordance with group 8, the residual voting group established by the Board pursuant to its Decision and Direction of Elections, issued on July 14, 1944. OWENS-CORNING FIBERGLAS CORP. 557 America, C. I. O. On November 6, 1944, Textile Workers Union of America, C. I. 0., filed exceptions to the report of the Regional Director, concurring in part and dissenting in part to the Regional Director's findings and recommenda- tions On November 14, 1944, the Company filed a memorandum in opposition to the exceptions filed by Textile Workers Union of America, C. I. 0., in which it fully agreed with the findings and recommendations of the Regional Director, and requested that the Board rule upon the 66 challenged ballots in accordance with the recommendations of the Regional Director. On December 5, 1944, the Board issued the following order : ORDER DIRECTING HEARING ON EXCEPTIONS TO REGIONAL DIREC- TOR'S REPORT ON OBJECTIONS AND CHALLENGED BALLOTS Counsel for Textile Workers Union of America, having filed exceptions to the Regional Director's "Report on Objections and Challenged Ballots" issued in the above-entitled matter on October 25, 1944, and the Board having duly considered the matter, IT IS HEREBY ORDERED that a hearing be held to receive evidence with respect to the following issues raised by the exceptions to the aforesaid report : 1. Whether employees of the Company's Testing Department; Glass Research Department; Chemistry Laboratory Department; Physics Labora- tory Department; Products Developments Department; operations reports and the methods technician in the Methods and Specification Department ; production recorders working in the Process Control Department ; and shift clerks in the Shipping Department comprise categories included in the residual voting group established by the Board pursuant to its Decision and Direction of Elections (57 N. L R. B, No 64) issued on July 14, 1944; 2. Whether Helen Hankison, Willard Maddux, Warren Myers, and Frances Wilson are supervisory employees within the meaning of the Board's definition of that term ; 3. Whether Helen Wintermute and Freda Hahn, classified as run-off checkers in the Company's twisting Department, are clerical employees ; 4. Whether Violet Thompson was working during the eligibility period or was otherwise entitled to vote in the run-off election ; and 5 Whether the 22 tallymen and utility men in the Packing Department, alleged by the Union to have been given the title of group leaders by the Company for the purpose of excluding them from participating in the election, are supervisory employees within the meaning of the Board's definition of that term ; and IT Is FURTHER ORDERED that the proceeding be referred to the Regional Director for the Eighth Region for the purpose of conducting such hearing, and that the said Regional Director be, and he hereby is authorized to issue notice thereof. Pursuant to notice, a hearing was held at Newark, Ohio, on December 19 and 20, 1944, before the undersigned, W. P. Webb, the Trial Examiner duly designated by the Chief Trial Examiner The Board, the Company, Textile Workers Union of America, C. I. 0., herein called the Textile Workers, and the intervenor, American Flint Glass Workers' Union of North America, A. F. L., herein called the Glass Workers,` were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine 5 The motion of the Glass Workers to intervene in this proceeding was granted by the undersigned Notice of Hearing was duly served upon the Glass Workers. 639678-45-vol. 61-37 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witnesses and to introduce eviden4e bearing on the issues was afforded all parties. Subsequent to the hearing, the Company and Glass Workers filed briefs with the Board, and Textile Workers submitted a letter in reply to the Glass Workers' brief, all of which have been considered by the undersigned. On January 16, 1945, the Board issued an order directing the undersigned to issue and serve upon the parties a Report and Recommendations setting forth his findings of fact and recommendations as to the disposition of the case. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT In accordance with the Board's order of December 5, 1944, directing the instant hearing, testimony was taken only in respect to the issues raised therein. These will'be dealt with seriatim.` The residual voting group established by the Board pursuant to its Decision and Direction of Elections, issued on July 14, 1944, reads as follows : All production and maintenance employees of the Newark plant and its research laboratories, including section leaders (or utility men and utility women), but excluding . . . of ee and clerical employees, salaried employees, (it being understood that the Company will not deviate from its usual prac- tice in placing people on the salaried pay roll), laboratory technicians and employees doing confidential work in the research laboratories, temporary and part-time employees, department heads, department foremen, shift fore- men, chief shift inspectors, group leaders, and all other supervisory employees with authority to hire, 'promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. While the Company is engaged in the production of finished products for the market, it is still passing through the experimental stage. Experiments are con- ducted primarily for the purpose of development. However, in the course of these operations, finished goods are produced which are sold along with similar goods manufactured in other departments of the plant. Issue No. 1 Testing Department (properly known as the Testing Division).-This depart- ment includes the following hourly paid job classifications : thermal testers, physical testers, electrical testers, textile testers, plastic testers and micro-projec- tionists. All of these employees perform similar work. For example, thermal testers obtain and prepare samples of finished products to be tested, weigh the samples, operate the equipment, record the meter readings on standard forms and submit same to the supervisor. None of these testing jobs, including the micro- projectionists, is a technical job, and similar work is done in the production part of the plant. Their work is not confidential. All of these employees should be classified as production employees in the residual voting group. These employees were challenged by Textile Workers in the run-off election. The undersigned agrees with the Regional Director that these challenges should not be sustained. Glass Research Department.-There are only two hourly paid job classifications in this department-laboratory assistants and research assistants.7 Laboratory 6 The job classifications dealt with consist solely of hourly paid, nonsupervisory em- ployees. Supervisory employees, as outlined in the residual voting group , are automatically excluded from group 3. 7 Research assistants are classified as technicians and were not included in the eligible voting list in the run-off election. OWENS-CORNING FIBERGLAS CORP. 559 assistants assist in the preparation of material for whatever purpose the research assistants desire, and make routing tests, but makes no analysis of results. Essen- tially they come within the category of production employees in the residual voting group. The laboratory assistants in this department were not challenged in the run-off election. Chemistry Laboratory Department.-(properly known as the Chemical Engi- neering Laboratory), There are three hourly paid job classifications in this department-utility laboratory assistants, utility men, and research assistants. These employees are engaged in the treatment of glass cloth which is made in the production part of the plant, and after treatment in this department,' it is sold to the trade. This department is engaged in both experimental and produc- tion work. They should be classified as production employees in the residual voting group, as they are primarily engaged in production work These em- ployees were not challenged in the run-off election. - Physics Laboratory Department.-This department contains only one hourly paid job classification, viz ; laboratory assistants. Their functions are to assist physicists in performing special tests, special experiments, and special checks on both experimental and finished products, principally the latter. Similar func- tions are performed in the production part of the plant, such as works laboratory process control department and quality control department. The record is clear that the laboratory assistants in the Physics Laboratory Department should be placed in the included list of the residual voting group. These employees were not challenged in the run-off election. Products Developments Department.-There are two hourly paid job classifi- cations in this department, viz; storekeeper and laboratory assistant. As the name implies, the storekeeper keeps the store. The laboratory assistant per- forms functions similar to the laboratory assistant in the Physics Laboratory Department. He helps in various ways, under direction, doing general duties which do not require any special technical training They should be included in the residual voting group. These employees were not challenged in the run-off election. Methods and Specifications Department.-This department contains two hourly paid job classifications-operations reporters and methods technicians.' The functions of the operations reporters are to watch the operation of production machinery, record their observations on standard forms, which are then sub- mitted to the specifications technician. This data is used for a variety of pur- poses, primarily to discover what is wrong with the machine operation in order that it may be corrected. The methods technicians install experimental machin- ery on the production line. The record is clear that both of these job classi- fications come within the category of production employees in the residual voting group. All of these employees were challenged by Textile Workers in the run-off election. The undersigned agrees with the Regional Director that these chal- lenges should not be sustained. Process Control Department-production recorders!-There are four produc- tion recorders in this department-namely John S. Humphrey, Ray E. Larason, Earle C. Sleeth and Joseph Hobbs. These employees work in the continuous forming department. Their duties are to push trucks, which are loaded with empty tubes, into the production room, position the trucks for the operators, re- move the trays of full tubes, load them on the trucks, weigh the loaded trucks, subtract the tare weight and determine the amount of production, which is 8 There is one other hourly paid job classification in this department called specifications technicians. However, this classification comes within the category of technicians, and is not included in the Board's order. 9 These production recorders are now assigned to the Accounting Department. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recorded on standard forms, and submit same to a production clerk This data is used to determine the amount of production in the department and also for the purpose of computing a bonus. The amount of clerical work involved is less than 20 percent of the employees' total time. These employees should be classified as production employees in the residual voting group. They were challenged by Textile Workers in the run-off election The undersigned agrees with the Regional Director that these challenges should be sustained. Shipping Departments-shift clerks.-There are two shipping departments- textile and wool. In the textile shipping department there are the following job classifications : packager, billing clerk, billing and packaging clerk, ware handler, packer shipping clerk helper, production checker, and stock clerk. In the wool shipping department the job classifications are weigher handler, weigher handler tallyman, mule driver (driver of a small gasoline tractor) carloader tallyman, filter frame packer and LCL dock checker. The work performed by these employees is briefly as follows : the packager wraps the cones of yarn in paper, the billing and packaging clerk makes out the bills of packing, the ware handler carries or trucks the packed cartons of yarn to the desired spot, the packer places the wrapped cones of yarn in the cartons and seals the cartons, the shipping clerk helper assists the shipping clerk in making out bills of lading for routing the material, the production checker keeps a record of the material in the stock rooms, the billing clerk makes out the way bills, the stock clerk has charge of the stock of material in the depart- ment, the weigher handler handles the packaged material from the warehouse to the trucks or railway cars, the weigher handler tallyman does the same kind of work as the weigher handler and also keeps a record, on the standard form, of material loaded on the trucks or railway cars, the mule driver oper- ates a gasoline tractor which pulls the trucks loaded with material, the car- loader tallynian helps load the material in the trucks or railway cars and keeps a tally of the number of packages loaded, the filter frame packer packs filter frames for shipment, and the LCL dock checker checks the shipments of LCL material on the shipping dock to make sure that nothing has been overlooked. The evidence discloses that some of these employees use pencil and paper in the performance of their duties, but they are not classified as clerical employees. All of them do manual labor also. They are carried on the pay roll as shipping department employees The evidence clearly indicates that they should be classified as production employees in the residual voting group. None of them was challenged by the Textile Workers in the run-off election 10 Issue No. 2 0 Helen Hankison, Willard Maddux, Warren Myers and Frances Wilson Helen Hankison is classified as a utility woman in the bonding and mat de- partment. She works directly under the supervision of the department foreman, as do the other employees in the department. Her duties are to check the finished packages to see that they contain the proper number of mats, keep a record of all rejected material, record of production for bonus purposes, record of pounds packed, assist in cutting, wrapping and selecting material, order material from the storeroom, check material before accepting it for production, and set the cutters. She has no authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action It is clear that she comes within the included category of the 10 Each of these shipping departments has a foreman and a group leader , both of whom are supervisory employees. OWENS-CORNING FIBERGLAS CORP. 561 residual voting group. She was challenged by the Textile Workers in the run- off election. The undersigned agrees with the Regional Director that this chal- lenge should not be sustained. Willard Madduw is classified as a fitter and setter in the alloy department. He reports directly to his foreman. He has no supervisory authority within the meaning of the Board's definition of that term. He had no employees working under him. He has the same classification as other employees in the alloy de- partment and is paid on an hourly rate basis. Being the oldest employee in point of service, and the most experienced pusher, fitter and setter in the plant, he may help to correct errors made by other employees. However, he has no authority whatsoever to effectively recommend the change of status of any employee. He should be classified as a production employee in the residual voting group He was challenged by Textile Workers in the run-off election. The undersigned agrees with the Regional Director that this challenge should not be sustained. Warren Myers is classified as an A 1 machinist in the textile maintenance department. This job classification consists of being qualified to operate and use all standard machine tools, grinding and cutting tools, and measuring in- struments. He must be able to do precision machine work and all kinds of bench, floor lay-out and assembly work, read blueprints, make sketches and rough patterns, and have a general knowledge of foundry work, rigging and millwright work, blacksmithing, and pipe fitting. Myers has no one working under him. He has no authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. He was previously a first class repair man. He should be classified as a production and maintenance employee in the residual voting group. He was challenged by Textile Workers in the run-off election The undersigned. agrees with the Regional Director that this challenge should not be sustained Frances Wilson is classified as an instructor in the twisting department. Her duties are to instruct and train new employees in the correct and best methods of performing the work in any of the divisions of the textile department, and she has various other duties in adjusting new employees to their work. The duration of the training period of a new employee is 3 days. She has no authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. She is clearly a production employee, and should be so classified in the residual voting group. She was challenged by Textile Workers in the run-off election. The undersigned agrees with the Regional Director that this challenge should not be sustained. Issue No. 3 Helen Wintermute and Freda Hahn (run-off checkers).-These two employees are classified as run-off checkers in the continuous twisting and plying depart- ment. Their duties are to check the tubes returned from the twisting frames by the twister operators in order to determine whether or not the tubes are completely run off, and the number of trays returned to salvage by the operators. They keep a record, on standard forms, of the number of tubes on which good material remains after the twister operators have taken the tubes from the machines and placed them upon the trucks, so that such tubes may go to the salvage or reconditioning department. The data secured by these employees is turned in to the production accounting supervisors, and is used, among other things, for calculating the bonus of the twister operators. The run-off checkers do not participate in a bonus These employees should be classified as production employees in the residual voting group The only clerical work that they perform 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is merely the noting on a standard form the number of tubes they have in- pected. These two employees were challenged by the Board in the run-off elec- tion. The undersigned agrees with the Regional Director that these challenges should not be sustained. Issue No. 4 Violet Thompson.-This employee became ill on May 28, 1943, and ceased work on that account. She was reemployed in the plant on September 7, 1944, after an absence of about one year and three months." Prior to her reemployment, she was paid the full amount of her group insurance by the Company, and her name was removed from the Company pay roll. The Company was under no obligation to reemploy her after this long lapse of time. Her name was not on the voting list for the run-off election. She was challenged by the Board in the run-off election. The undersigned agrees with the Regional Director that this challenge should be sustained. Issue No. 5 Packing Department.-Tallymen and utility men (group leaders). Prior to August 16, 1944, there was no job classification of group leader in the packing department. On May 1, 1944, the plant rate analyst prepared data with respect to the job classification of group leader for this department. This data was submitted to the Newark plant Hourly Rate Structure Committee for consid- eration.' At that time, the Company had decided to create this new classifica- tion in order to provide for more efficient control of the packing department, and because of the installation of a revised bonus incentive plan. On July IT, 1944, this matter was submitted to the Toledo Hourly Rate Structure Committee for final approval. On August 10, 1944, the Toledo Committee notified the Newark plant Committee that the plan had been approved. On August 16, 1944, 22 group leaders were installed in the packing department, of which 5 were designated as part-time group leaders. The new group leaders were drawn from the utility men and tallymen, mostly. from the former. Subsequent to the creation of group leaders, there were utility men, as such, still maintained in the packing department. The duties of a group leader were to supervise and direct the work of a group of utility men consisting of from 5 to 1,8 employees; requisition and maintain adequate supplies of material ; position equipment and material to gain maxi- mum efficiency ; relieve workers during personal and lunch periods ; clean up around the machine ; set the chopper or cut-off saw for special length ; record on the time clock, the start and finish of each job; notify the machine tender of job changes; make out bonus sheet and time slips; turn in to production accounting all load tickets with complete order ; and in some operations, posi- tion empty trucks and clear the working area of loaded trucks and make out the load tally, in place of the tallyman. Group leaders had the authority, not previously held by anyone in the department below the shift foreman, to effec- tively recommend the hiring, promoting, discharging, disciplining and otherwise changing the status of employees. The five part-time group leaders relieved the full-time group leaders when 'the latter were absent, on account of illness or otherwise, and when thus en- 11 The eligibility date of the run-off election was the pay-roll period ending June 30, 1944, which was about 3 months prior to the reemployment of Thompson by the Company. " The established procedure in the plant for determining the rate to be paid for new or revised hourly paid jobs was, for the rate analyst to make a complete study of the job in question , and to submit same to the Newark Plant Hourly Rate Structure Committee. If this Committee approved it, a recommendation to that effect was forwarded to the Toledo Plant Hourly Rate Structure Committee for final approval or rejection. OWENS-CORNING FIBERGLAS CORP. 563 gaged, they had the same supervisory authority as the full -time group leaders. Normally about 20 percent of their time is spent as group leaders. The remainder of their time is spent in performing the same duties as utility or tallymen'a Prior to the installation of the group leaders and part-time group leaders, the utility men , tallymen, selectors, packers, and handymen in the packing department reported directly to the shift foremen. After August 16, 1944, they reported to the group leaders, who in turn, reported to the shift foreman. Textile Workers informed their members , who had been made group leaders on August 16, 1944, that they would not be eligible to vote in the run-off election on September 28 and 29, 1944, because of their supervisory status. The evidence is conclusive that the group leaders and part-time group leaders are supervisory employees within the meaning of the Board 's definition of that term , and therefore fall within the excluded category in the residual voting group. It appears that an error was made in the preparation of the eligible list for the run-off election , and 11 group leaders ( 6 full-time and 5 part-time ) were placed on the eligible list. They were not challenged in the run-off election . However, it is obvious that they should not have voted. There is no evidence in the record to sustain any contention or supposition that these group leaders and part-time group leaders were created for the purpose of influencing the run-off election, one way or another. The matter of creating this new job classification was started on May 1, 1944, nearly 5 months prior to the run -off election. Inasmuch as the eligibility lists containing these eleven erroneous entries were accepted by all the parties and these employees were not challenged by any ob- server at the poll, the undersigned agrees with the recommendation of the Regional Director that this error in computing the eligibility lists should not affect the validity of the run-off election. CONCLUSIONS AND RECOMMENDATIONS Upon the basis of the foregoing findings of fact and upon' the entire record in the case, the undersigned concludes and finds that , with reference to the issues raised in the Board's order Directing Hearing on Exceptions to Regional Director's Report on Objections and Challenged Ballots, dated December 5, 1944, in accord- ance with which, the instant hearing was conducted , the evidence fully sustains the findings of the Regional Director and the undersigned concurs in his find- ings. The undersigned therefore recommends that they be adopted by the Board 14 Any party may, within 15 days from the date of this Report and Recommenda- tions, file with the Board , Rochambeau Building, Washington, D. C.,' an original and four copies of a statement in writing setting forth such exceptions to the Report and Recommendations 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 . Immediately upon the filing of the statement of exceptions and brief , the party filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Dated January 30, 1945. W. P. WEBB, Trial Examiner. 13 The names of these 5 part-time group leaders are Lester Henderson, Charles Jones, Alexander Stewart, Ralph Hartsough and Burrell Snelling. 14 A copy of the Regional Director 's Report on Objections and Challenged Ballots, dated October 25, 1944, was duly served upon the parties.