L. E. Shunk Latex Products, Inc.

In the Matter of L. E. SHUNK LATEX PRODUCTS, INC. and INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 821, A. F. L. Case No. 8-R-1979.-Decided April 19, 1946 Mr. R. W. Woodward, of Akron, Ohio, for the Company. Mr. Arnold M. Edelman, of Cleveland, Ohio, for the A. F. L. Messrs. Robert E. Shuff and Claude Wisdom, of Akron, Ohio, for the C. 1. 0. Mr. Arnold Ordman, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Union of Operating Engineers, Local No. 821, A. F. L., herein called the A. F. L., alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of L. E. Shunk Latex Products, Inc., Akron, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Louis S. Belkin, Trial Examiner. The hearing was held at Akron, Ohio, on January 23, 1946. The Company, the A. F. L., and United Rubber Workers of America, C. I. 0., herein called the C. I. 0., appeared and participated. All parties were afforded full oppdrtunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the hearing the C. I. O. moved to dismiss the petition on the ground that its contract with the Company is a bar to this proceeding, and on the further ground that the unit sought by the A. F. L. is inappropriate. For reasons stated, infra, this motion is hereby denied.' The Trial Examiner's rulings 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. 0 also moved to dismiss the petition because the Company had allegedly engaged in unfair labor practices Inasmuch as the present case is a representation pro- ceeding and two unfair labor practice charges filed by the C I 0 have been withdrawn, this assigned reason does not warrant a dismissal of the petition. 67 N. L. It. B, No. 71. 552 L. E. SHUNK LATEX PRODUCTS, INC. 553 Upon the entire record in the case, the Board makes the following- FINDINGS OF FACT 1. TIIE BUSINESS OF THE COMPANY L. E. Shank Latex Products, Inc., is an Ohio corporation with its principal office and place of business at Akron, Ohio, where it is engaged in the manufacture of Latex products. The value of its finished products in 1944 amounted to approximately $1,200,000, of which 100 percent was shipped to agencies of the United States Gov- ernment. In the same year the Company purchased raw materials in the approximate value of $29.10%, of which approximately 85 percent was shipped to the plant from points outside the State of Ohio. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. Jr. THE ORGANIZATION IN\4LVED International Union of Operating Engineers, Local No. 821, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. United Rubber Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. III. THE, QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the A. F. L. as the exclusive bargaining representative of certain of its employees until the A. F. L. has been certified by the Board in an appropriate unit. The C. I. O. contends that its contract with the Company constitutes a bar to this proceeding. On October 1, 1942, the C. I. O. and the Company executed a 1-year contract, covering all non-supervisory em- ployees of the Company. It contained the following provision : THIS AGREEMENT, shall be in force for one (1) year from this date, and shall continue thereafter for like yearly periods unless notice of termination is given by either party to the other party thirty (30) days or more prior to the expiration on such early period, provided, however, that termination may be effected by either party by a thirty (30) day notice, in writing, at any time after the expiration of the first year. [Italics supplied.] At the time of the hearing, a new agreement was being negotiated between the parties. Even assuming, however, that the 1942 contract is still in effect, inasmuch as it is now terminable on 30 days' notice 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by either party, it is an agreement of indefinite duration already in effect for more than 1 year and hence not a bar to a current determina- tion of representatives.2 A statement of a Board agent, introduced into evidence at the hearing, indicates that the A. F. L. represents a substantial number of employees in the unit it alleges to be appropriate.3 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. [V. THE APPROPRIATE UNIT; TIIE DETERMINATION OF REPRESENTATIVES The A. F. L. seeks a unit embracing all power plant employees of the Company. The C. I. O. argues that such a unit is inappropriate inasmuch as these employees have hitherto been represented in a plant- wide unit. The Company takes no position on this issue. There are seven employees in the Company's power plant, a chief engineer, three engineers, and three helpers. For a number of years, these employees have been represented by the C. I. O. as part of a plant-wide unit, and they have participated in the benefits accruing to the other employees through the bargaining efforts of the C. I. O. T+ urthermore, their interests are to some extent aligned with those of the Company's production and maintenance employees. Evidence was adduced, moreover, showing that similarly classified employees have been included in production and maintenance units at the plants of other employers in the rubber industry. Consequently, we are of the opinion that it is feasible for the Company's power plant employees to continue to be represented in a plant-wide unit. On the other hand, the power plant is a separate physical unit of the Company's operations. It occupies a separate room in the base- ment with a separate entrance for power-plant employees. These employees operate the boilers which serve the remainder of the plant where the actual manufacturing is done. The work of the engineers is skilled and they are required to be licensed by the State of Ohio. Except for the chief engineer, the power plant employees spend all their time in the power plant ; no other employees of the Company have duties requiring them to be there. There is no interchange of employees between the power plant and other departments of the Com- pany. And most significantly the A. F. L. for the past 3 or 4 years has supplied the Company with all its power plant employees. These facts clearly indicate that it is also feasible at present for the Com- 2 See Matter of Bercut Richards Packing Company , et al, 64 N L R. B 133. , The Field Examiner reported that the A F L submitted five authorization cards bear. ing the names of three employees listed on the Company 's pay roll. The C. I. O. relies on Its contract as evidence of its interest in this proceeding. There are approximately seven employees in the unit alleged by the A . F. L. to be appropriate. L. E. SHUNK LATEX PRODUCTS, INC. 555 pany's power plant employees to function as a separate collective bargaining unit.4 Under all the circumstances, therefore, we shall defer our determina- tion of the appropriate unit. Such determination will depend, in part, upon the result of the election which we shall hereinafter direct. The A. F. L. seeks to include the chief engineer, whereas the C. I. O. and the Company urge his exclusion on the ground that he is a super- visory employee. He has heretofore been excluded from the plant- wide unit represented by the C. I. O. There is undisputed evidence furthermore that he hires and discharges employees. Accordingly, we shall exclude him from the voting group hereinafter established. We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among all the power plant employees of the Company, excluding the chief engineer and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. In the event these employees select the A. F. L. as their collective bargaining representative, they will be taken to have indicated their desire to be bargained for in a separate unit. On the other hand, if they select the C. I. O. as their collective bargaining representative, they will be taken to have indicated their desire to continue to be bargained for as part of the existing plant-wide unit. 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 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with L. E. Shunk Latex Products, Inc., Akron, Ohio, an election by secret ballot shall be con- ducted 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 111, Sections 10 and 11, of said Rules and Regulations, among the em- ployees in the voting group described in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said, See Matter of Revere Copper and Brass Incorpotated , 58 N L R . B. 1319. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be represented by International Union of Operating Engineers, Local No. 821, A. F. L., or by United Rubber Workers of America, C. I. 0., for the purposes of collective bargaining, or by neither.