The Philip Carey Manufacturing Co.

In the Matter of THE PHILIP CAREY MANUFACTURING COMPANY and INTERNATIONAL BROTHERHOOD OF PAPER MAKERS , A. F. OF L., MILL- CREEK VALLEY LOCAL NO. 502 Case No. 9-R-1844.-Decided July 1, 1946 Taft, Stettinius & Hollister, by Mr. J. Mack Swigert, of Cincinnati, Ohio, for the Company. Mr. L. Janney, of Cincinnati, Ohio, and Mr. M. M. Keniston, of Roselawn, Ohio, for the Union. Mr. Melvin J. Welles, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by International Brotherhood of Paper Makers, A. F. of L., Millcreek Valley Local No. 502, herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of The Philip Carey Manu- facturing Company, Lockland, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Allen Sinsheimer, Jr., Trial Examiner. The hearing was held at Cincinnati, Ohio, on April 12, 17, and 30, 1946. The Company and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Com- pany moved to dismiss the petition on the following grounds: (a) the Board lacks jurisdiction because the supervisors whom the Union seeks to include in the unit are not employees within the meaning of the Act; (b) the Union failed to show that it represents a substantial number of employees in the alleged appropriate unit because the designation cards it submitted are more than 1 year old and in any event run to its International; and (c) no bargaining unit of supervisory employees is appropriate. The Trial Examiner referred this motion to the 69 N L. R B., No. 22. 224 THE PHILIP CAREY MANUFACTURING COMPANY 225 Board. For reasons stated hereinafter, the motion is hereby denied. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Philip Carey Manufacturing Company is an Ohio corporation with its principal office and place of business in Lockland, Ohio. The Company operates plants at Plymouth Meeting, Pennsylvania; Ham- ilton, Franklin, Middletown, and Lockland, Ohio; Perth Amboy, New Jersey; and in Canada. Only the Company's Lockland, Ohio, plant is involved in this present proceeding. At the Lockland plant, the Company is engaged in the manufacture of asphalt and asbestos building products. Its annual purchases of raw materials are of a value in excess of $100,000, of which approxi- mately 75 percent is shipped to the Lockland plant from points outside the State of Ohio. Finished products manufactured at the Lockland plant exceed $150,000 in value annually, and approximately 75 percent of these products is shipped to points outside the State of Ohio. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Paper Makers, Millcreek Valley Local No. 502, is a labor organization affiliated with the American Federation of Labor, admitting only supervisory employees of the Company into membership.' III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to recognize the Union as the collective bargaining representative of any of its supervisory employees. The Company contends that the foremen involved herein are not employees within the meaning of the Act. The arguments advanced in support of this position have been considered in a number of Board and court decisions. Both the Board 2 and the courts 3 have found that 1 Although the Company contends to the contrary , it is clear from the record that the Union is a labor organization within the meaning of Section 2 (5) of the Act. 2 Matter of So88 Manufacturing Company, et at, 56 N. L. R . B. 348 ; Matter of Packard Motor Car Company, 61 N. L R. B. 4, and 64 N. L. R. B. 1212; Matter of L. A. Young Spring & Wire Corporation, 65 N L. R B 298. a N. L. R. B. v. Armour and Co , 154 F (2d) 570 (C. C A 10) ; Jones & Laughlin Steel Corporation v N L. R. B, 146 F (2d) 833 (C C. A. 5) ; N L. R. B. v. Skinner d Kennedy Stationery Company, 113 F. (2d) 667 (C. C A 8). 701592-47-vol. 69-16 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a foreman is an employee within the meaning of the Act in relation to his employer. Accordingly, we find that the foremen in the present proceeding are employees within the meaning of Section 2 (3) of the Act. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of employees in the unit hereinafter found appropriate.4 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 Union seeks a unit of all supervisory employees of the rank of general foreman and below, including the master mechanic, the chief inspector, night head inspectors, checkers or roust foremen, senior foremen, junior foremen, maintenance foremen, the switch- ing foreman, the trucking foreman, and still men, but excluding divi- sion superintendents and persons of similar or higher rank, the qual- ity production manager, the power plant engineer, and operating en- gineers. The Company contends that no unit of supervisory em- ployees is appropriate, taking no position with respect to the com- position of the unit. The Company argues further that the Union may not be certified as the representative of the Company's super- visory employees because its sister local 5 already represents the pro- duction and maintenance employees. The Board has considered the contention that no unit of super- visory employees is appropriate, and a majority of the Board has concluded," as it does here, that foremen are employees within the meaning of Section 2 (3) of the Act and are, as employees, entitled 4 The Field Examiner reported that the Union submitted 36 authorization cards and that there are approximately 45 employees in the alleged appropriate unit. The cards were dated as follows : March 1945.-28 April 1945-6 May 1945-2 One of the grounds upon which the Company moved to dismiss the petition was the fact that a majority of the authorization cards are dated more than a year prior to the petition. But we have held that authorization cards are required to provide prima facie evidence of representation in the appropriate unit to enable the Board to determine whether the peti- tioner has sufficient interest to warrant an investigation by the Board, and that their authenticity is not a matter for challenge . See Matter of The Dayton Malleable Iron Company, 66 N. L. R. B. 501, and cases cited therein. The Company also contends that the Union may not rely upon these cards as evidence of interest among the employees it seeks to represent because the cards designate its Inter- national . Since the International chartered the Union for the purpose of enabling the employees involved herein to be represented by a separate local, we find no merit in this contention. 6Local 321. a Matter of L A Young Spring & Wire Corporation, supra; Matter of Packard Motor Car Company, supra. THE PHILIP CAREY MANUFACTURING COMPANY 227 to be represented in some unit for the purposes of collective bar- gaining. We find no merit in this contention. The Board has also considered the contention that a local union may not represent the supervisory employees when a sister local already represents the non-supervisory employees of the same employer, and it has been determined 7 that employees have an unrestricted choice in their se- lection of a bargaining representative. We, therefore, reject the Company's contention in this respect. We find that all supervisory employees of the rank of general fore- man and below at the Company's Lockland, Ohio, plant, including the master mechanic, the chief inspector, night head inspectors, check- ers, or roust foremen, senior foremen, junior foremen, maintenance foremen, the switching foreman, and the trucking foreman' but excluding division superintendents and persons of similar or higher rank,' the quality production manager, the power plant engineer, op- erating engineers and still men,10 constitute a unit appropriate for the purposes of collective bargaining 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 em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. 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 Rela- tions 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 Iepresenta- tives for the purposes of collective bargaining with The Philip Carey 'Matter of Jones & Laughlin Steel Corporation, Vesta-Shannoptn Coal Division, 66 N. L. R. B. 386. See Matter of The Curtis Bay Towing Company of Pennsylvania , et al., 66 N. L. R. B. 1152, 8 It is clear from the record that the foregoing classifications are supervisory within the meaning of the Board's customary definition. 9 Among the exclusions are the plant engineer and the chief engineer , who are conceded by both the Company and the Union to be similar in status to division superintendents in the supervisory hierarchy io Although the Union seeks to include the still men, testimony adduced at the hearing reveals that they have no authority to recommend discharge or discipline , and that their vacation and sick leave privileges are similar to those of the non -supervisory employees. Since thel are not supervisory employees within the meaning of the Board 's usual definition. we aie excluding them from the appropriate unit. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manufacturing Company, Lockland, 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 super- vision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board , and sub- ject to Article III, Sections 10 and 11 , of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preced- ing the date of this Direction, 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, 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 or not they desire to be repre- sented by International Brotherhood of Paper Makers, A. F. of L., Millcreek Valley Local No. 502, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For the reasons stated in my dissenting opinions in Matter of Packard Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones & Laughlin Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent from the majority opinion in this case.