H. O. Canfield Co.

In the Matter of H. O. CANFtELD COMPANY, EMPLOYER and H. O. CANFIELD RUBBER WORKERS UNION, PETITIONER Case No. 2-RC-40.-Decided March 5, 1948 Kaye, Scholer, Fierman ct Hays, by Mr. Frederick R. Livingston, of New York City, for the Employer. Mr. Irwin E. Friedman, of Bridgeport, Conn., for the Petitioner. Mr. Harry Friedson, of New York City, for the Intervenor.' DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Bridge- port, Connecticut, on December 5, 1947, before Herbert C. Kane, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Subsequent to the hearing, the Intervenor made a motion for oral argument before the Board. Inasmuch as the record and the brief filed herein, in our opin- ion, adequately present the issues and positions of the parties, the motion is hereby denied. I Although counsel for the Intervenor stated that he was the attorney for the Intervenor and certain named individuals, it would appear that the latter are members of the Inter- venor and are not attempting to intervene or otherwise participate individually in the proceeding 2 At the hearing and in its biief, the Intervenor moved, in effect, to dismiss the petition. The hearing officer reserved ruling on the motion for the Board. The record discloses that the notice of hearing was erroneously accompanied by a petition in another proceeding rather than by the petition herein, but that the notice itself couectly indicated the parties, case number, and time and place of hearing It shows further that the Intervenor appeared and was served with a copy of the petition at the hearing, participated fully in the pro- ceeding, examined and cross-examined witnesses, was afforded full opportunity to introduce evidence, and filed briefs with the Board Indeed, counsel for the Intervenor has not, in his brief, pointed to any matters of a relevant nature not already covered at the hearing In view of all the foregoing, and on the basis of the entire record in the case, we are of the opinion that the Intervenor has not been prejudiced by the alleged irregularity of service of the Notice of Hearing Accordingly, the motion to dismiss is hereby denied. And for the same reasons we find that the Intervenor was not prejudiced by the hearing officer's denial of its motion for a continuance. (Matter of Merrill Motor Line, 58 N L. R. B 828 ) In reaching this conclusion we find it unnecessary to rely upon a letter, dated December 1, 1947, from the Board to the Intervenor explaining the above inadvertence and enclosing the proper petition The evidentiary value of the letter is being attacked by the Intervenor on the ground that it was introduced into evidence, despite the objection that there was no proof of service upon the Intervenor. 76 N. L. R. B., No. 92. 606 H. 0. CANFIELD COMPANY 607 Upon the entire record in the case, the National Labor Relations Board 3 makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER H. 0. Canfield Company, Inc., a Connecticut corporation with its principal office and place of business in Bridgeport, Connecticut, is engaged in the manufacture of molded, extruded, and cut rubber goods. During the past year the Employer purchased raw materials exceeding $250,000 in value, approximately 75 percent of which represented ship- ments from places outside the State of Connecticut. During the same period, sales of finished products exceeded $1,000,000, of which ap- proximately 75 percent represented shipments to points outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization claiming to represent em- ployees of the Employer.' United Construction Workers, herein called the Intervenor, is a labor organization affiliated with the United Mine Workers of Amer- ica, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of certain employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. 3 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-man panel consist- ing of the undersigned Board Members [Houston, Murdock , and Gray]. 4 At the hearing, and in its brief, the Intervenor contended that the hearing officer was in error in not allowing it to explore the question of whether the Petitioner was dominated or interfered with by the Employer The Board has previously stated that "in the ordinary representation proceeding, the issues aie normally limited to those concerning jurisdiction, whether a question concerning representation has arisen , and the appropriate bargaining unit or units In administering the Act, the Board has found it to be convenient and prac- ticable for the most part rigidly to exclude any proffered evidence on unfair labor prac- tices in a representation proceeding " Matter of Flint Manufacturing Company , 62 N. L. It B. 1003. See also , Matter of Pacific Manifoldtang Book Company, Inc, et al, 64 N. L. R B 1257 Case No 2-C-7098 , in which the Intervenor charged the Employer with violation of Section 8 ( 1) and 8 ( 5) of the Act, was dismissed by the Regional Director on November 26, 1947, for failure of the Intervenor to comply with the requirements of Section 9 (f), (g),-and (h) of the Act, as amended No appeal was taken from the Regional Director's ruling within the time provided therefor. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On July 24, 1946, the Employer and the Intervenor entered into a contract covering substantially the same employees involved herein. With regard to its duration and termination the contract provided as follows : "This agreement shall continue for a period of two years from date hereof. Either party shall have the right to reopen this agreement for the purpose of renegotiating any of the economic benefits herein contained by giving to the other written notice of a desire so to do on or before forty-five days before July 23, 1947. In the event that such written notice is given, the parties shall then endeavor to agree upon such changes in the contract, which changes, when agreed to, shall be retroactive as of July 24, 1947. In the event the parties are continuing negotiations sub- sequent to July 24, 1947, the contract shall continue in full force and effect. In the event that the parties are unable to come to an agreement, then either party shall have the right to give to the other a fourteen day written notice of final termination of the agreement . . ." [Italics supplied.] On July 9, 1947, the Intervenor gave the Employer 14 days notice in writing of its desire to terminate the contract on July 24, 1947, in accordance with its terms. At the hearing the Intervenor urged, in effect, that notwithstanding its termination notice, its contractual relationship was a bar to this proceeding. In support of its contention, the Intervenor offered to prove that at the time of the execution of its written contract with the Employer the parties to the agreement had concurrently reached a verbal agreement providing that contractual relations were to continue between the parties despite any notice of termination which might be served in accordance with the terms of the written contract. The hearing officer, however, rejected Intervenor's offer of proof of the verbal agreement and the Intervenor took exception to his ruling. Even assuming that the hearing officer's ruling was erroneous, we are unable to agree with the Intervenor's conclusion based on these facts. As a general rule, evidence of a collateral oral agreement may not be used to contradict the terms of a written contract.' In any event, we have frequently held that true stability in labor relations is not at- tained until collective bargaining agreements have been reduced to writing and signed.' We therefore attach no significance for contract bar purposes to the oral understanding between the parties and we find that there is no obstacle to an election at this time. See Wigmore On Evidence, Third Edition , Vol. IX, Sec. 2425 et seq. Cf Matter of Hollywood Brands, Inc, 70 N. L. R. B. 706. 1 Matter of Eicor, Inc , 46 N L. R. B 1035. H. O. CANFIELD COMPANY 609 We find that a question affecting commerce exists colicerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. lv. THE APPROPRIATE UNIT The parties agree generally that all employees of the Employer at its Bridgeport, Connecticut, plant, excluding executives, office, office clerical, sales, technical and professional employees (including chem- ists, assistant chemists, professional engineers and assistant profes- sional engineers, technicians and assistant technicians), production schedulers, cost clerks, foremen, assistant foremen and all supervisors constitute an appropriate unit.' The parties disagree regarding the inclusion in the unit of pay-roll timekeepers. There is also a ques- tion as to the disposition to be made of watchmen. Pay-roll timekeepers: The Petitioner requests that salaried factory clerical employees, including pay-roll timekeepers, be excluded from the appropriate unit. The Intervenor contends that factory clericals, including pay-roll timekeepers, should be included, whereas the Em- ployer urges the exclusion of pay-roll timekeepers on the ground that they are salaried and confidential employees. Although at the time of the execution of the Intervenor's contract with the Employer, hourly paid factory clericals were employed in the plant and were included in the agreed appropriate built, there are presently no employees classified as hourly paid or salaried factory clerks and the record does not show whether the Employer plans to engage any employees in this category. However, the Employer does employ salaried pay-roll timekeepers, who act as production clerks. The Intervenor maintains that the pay-roll timekeepers are doing the same work as that formerly done by the factory clerical employees and should, therefore, be included in the unit. The record shows that factory clericals were included in the unit by the 1946 agreement, and that they were paid on an hourly basis. The factory clerks made production and piecework counts for submission for final wage com- putation to the salary office, which had custody of the various wage rates. The record shows further that the factory clerks did not handle the time cards of hourly paid employees who were not on an incentive basis. The time cards of these employees were sent directly to the salary office which made the pay calculations. Upon the discontinu- ance of the factory clerical classification by the Employer, some of the factory clerical employees were transferred and reclassified as pay- 1 There are approximately 330 employees in the alleged appropriate unit. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD roll timekeepers, and placed on a salary basis. In addition to the func- tions that the factory clerical employees formerly had, the timekeepers are required to enter wage rate data on time cards which are submitted to the salary office for final computation of weekly earnings. Although the pay-roll timekeepers now enter the hourly rate as well as the production record of employees, we perceive no essential dif- ference between their duties and those of factory clericals whom they are apparently replacing. Moreover, in prior decisions we have pointed out that in the performance of their duties timekeepers are no different from factory clerical employees and that their working conditions associate them closely with production employees. We have also heretofore rejected the contention that timekeepers such as these are confidential employees." And with regard to the contention that the salaried status of the timekeepers warrants their exclusion from the unit, we have always held that, while the Board will consider the form in which particular individuals or categories of employees are compensated as an aid in determining their proper classification for unit purposes, differences in the mode of payment per se will not oper- ate to exclude such employees from a unit in which they might other- wise be included.' Accordingly, in view of all the foregoing, and inasmuch as the timekeepers are closely allied in their collective bargaining interests with the production and maintenance employees, we shall include the timekeepers in the unit. Watchmen: The parties took no position regarding the inclusion or exclusion of the two watchmen in the plant. The watchmen, who are on duty during the night, patrol the plant, punch inspection time clocks, prevent the entry of unauthorized persons and otherwise protect company property. We are of the opinion that these employees, by virtue of their plant-protection duties, are guards within the meaning of the amended Act. We shall exclude the watchmen from the unit.'° We find that all employees of the Employer at its Bridgeport, Connecticut, plant, including timekeepers, but excluding executives, office, office clerical, sales, technical and professional employees, (in- cluding chemists, assistant chemists, professional engineers and assist- ant professional engineers, technicians and assistant technicians) , pro- duction schedulers, cost clerks, watchmen, foremen, assistant foremen and all supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 8 Matter of Northwest Engineering Company, 73 N L R B 40 and cases cited therein. 9 Matter of Edgewater Steel Company, 56 N L R B 1778 11 Matter of C V. Hill t Company, Inc, 76 N L R B 158 H. 0. CANFIELD COMPANY V. THE DETERMINATION OF REPRESENTATIVES 611 Although a strike, called by the Intervenor, has been in progress at the Employer's plant since July 25, 1947, the plant has continued to operate with replacements. All the parties desire an immediate election, but differ as to the proper date to be used in determining eligibility to vote. The Intervenor urges that the pay roll prior to July 25, 1947, the date of the strike, be used in determining eligibility. The Petitioner and the Employer urge that the pay roll immediately preceding the election, which is the Board's customary eligibility date, be used. Under Section 9 (c) (3) of the Act, as amended, only those strikers who are entitled to reinstatement are eligible to vote. For the reasons pointed out in Matter of The Pipe Machinery Company,` we can best ascertain the facts essential to the application of the afore- mentioned section by proceeding with an immediate election, using a current pay roll and permitting affected individuals to cast ballots under challenge with the proviso that their ballots shall not be counted unless the results of the election make it necessary to do so. In the event that the counting of the challenged ballots would affect the results of the election, the question as to which of these ballots shall be opened and counted will await a further investigation concerning the employment status of the affected individuals. Accordingly we shall direct an immediate election, permitting all employees to participate who were employed during the pay-roll period immediately preceding the date of this Direction. All persons hired since July 25, 1947, the date of the strike, and all strikers shall be deemed presumptively eligible to vote, subject to challenge.'2 Some question arose at the hearing as to the status of probationary employees. At the time of the hearing there Were approximately 20 employees who were serving the company's customary 2-week proba- tionary period. During this time the Employer regards such em- ployees as temporary. However, if an employee is retained after serv- ing this 2-week probationary period he is considered a permanent enmployee. The record indicates that probationary employees in all 11 76 N L R B 247 12 We wish to make it clear that nothing in this Direction should be construed as indi- cating that the Board has prejudged in any respect any of the questions which may be drawn into issue by it challenge to the eligibility of certain voters, including Such questions as whether (1) a new empio%ce is a permanent replacement, (2) a striking employee has been validly replaced, or (3) any employee's position no longer exists by reason of its permanent discontinuance for economic reasons Matter of Longhorn Roofing Products, Inc, 67 N. L R. B 84; Matter of Geilich Tanning Company, 59 N. L. R. B 1183. 781902-48-vol 76-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probability become permanent employees.13 We shall permit proba- tionary employees to cast ballots in the election. DIRECTION OF ELECTION 14 As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with H. O. Canfield Company, Bridge- port, Connecticut, 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 Second Region, subject to Sections 203.61 and 203.62, of National Labor Relations Board Rules and Regulations-Series 5, and to our determination in Section V, supra, 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 Di- rection, including employees who did not work during said pay-roll period because they Were ill or on vacation or temporarily laid off, 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, and also excluding employees on strike who are not entitled to reinstatement,' to determine whether or not they desire to be repre- sented by H. O. Canfield Rubber Workers Union, for the purposes of collective bargaining. is we find it unnecessary, therefore, to pass upon the piopriety of the hearing officer's resection of the Inteivenor's offer to prove that the employees presently in the plant are not permanent employees and that only those employees employed before the strike are eligible to vote " Having failed to achieve compliance, or to initiate steps for compliance with the filing requirements of Section 9 (f), (g), and (h) of the Act, the Intervenor will not be accorded a place on the ballot "As noted above, we are unable to determine at this stage of the proceeding who falls within this description. We shall therefore follow the practice outlined in Matter of The Pipe Machinery Company, referred to above, and permit both strikers and their replace- ments to vote under challenge.