Plastic Molding Corp.

PLASTIC MOLDING CORPORATION 179 Under all the circumstances, I am persuaded that Board policy dic- tates that the employees in the historical contract units should not be merged into a single bargaining unit without first determining their desires in the matter. I would, therefore, conduct such self-determi- nation elections among those employees. the employees concerned had a separate history of bargaining And, in view of the con- trolling weight which my colleagues attached to their finding that the existing units in this case "were constituted only as a device to attempt an accommodation of the conflicting jurisdictional claims of the two unions," it is particularly noteworthy that the decision in the Illinois Cities Water Company case affirmatively indicates that conflicting jurisdic- tional claims of the two unions involved therein brought about the creation of the sepa- rate bargaining groups of laborers and other physical employees. Plastic Molding Corporation and J. G. Cavanaugh, Petitioner and Local 412, United Rubber, Cork , Linoleum & Plastic Workers of America, CIO. Case No. 2-RD-261. April 15,1955 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Meyer G. Reines, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Union contends that the petition herein should be dismissed be- cause the Petitioner is a supervisor and also because he was assisted by a supervisor in filing the petition. We find no merit in the conten- tion. As hereinafter found under paragraph numbered 4, Petitioner Cavanaugh is not a supervisor. As to the alleged assistance from Supervisor Berls, the record only shows that the Petitioner "discussed it [the petition] with him" and asked him where to get the petition. In these circumstances, we do not believe that the Petitioner, in filing this petition, acted at the behest of the Employer's supervisor.' Ac- cordingly, we deny the Union's motion to dismiss the petition in this proceeding. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner, an employee of the Employer, asserts that the Union, currently recognized by the Employer as the exclusive bar- gaining representative of the production and maintenance employees of the Employer, is no longer the exclusive bargaining representative as defined in Section 9 (a) of the Act. 3. A question affecting commerce exists concerning the represen- tation of the employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. i Moore Drop Forging Company, 108 NLRB 32. 112 NLRB No. 35. 36,9028-56--vol. 112-13 ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Union contends, in effect, that its certification and its re- cent contract covering the Employer's production and maintenance employees at its Sandy Hook, Connecticut, plant, also covered the em- ployees of Thor Corporation at Hawleyville, Connecticut, and that, therefore, the Thor employees should be included in the appropriate unit. The Employer argues that the Thor Corporation plant, estab- lished subsequent to the Board's certification, is a new and separate operation of another employer, and is not an integral part of the Em- ployer's operations. Accordingly, it contends that the employees of Thor Corporation should not be included in the unit. In 1951, pursuant to a consent election, the Union was certified as the bargaining representative of the Employer's production and main- tenance employees at its Sandy Hook plant.' Thereafter, the parties executed successive contracts covering these employees, the latest hav- ing expired December 1954. During the currency of its last contract with the Union and during the spring of 1954, the Employer began sending certain items for finishing to the Thor Corporation plant at Hawleyville, Connecticut, 5 or 6 miles away, rather than performing the work at the Sandy Hook plant.' Although in existence since 1938 as a separate legal entity, the Thor Corporation had no physical plant and did no manufacturing until 1954. At that time it leased the Hawleyville plant and agreed to per- form the Employer's finishing operation. All new employees were hired except one who was transferred from the Employer but who is no longer employed by Thor Corporation. All the hiring is done locally at the Hawleyville plant by the foreman. There is no em- ployee interchange between the Employer's Sandy Hook plant and the Thor plant, and the operations themselves are separately super- vised. While both have a common stockholder and president,4 the two companies are separate corporations having their own offices and books. The Employer has continued to recognize the Union as the certified bargaining representative of its production and maintenance employees, but it has always refused to include the employees of Thor Corporation in such recognition. Apart from whether or not the Employer and Thor Corporation may constitute a single employer, under all the circumstances, we believe that the Employer's utilization of the finishing operation at Thor's Hawleyville plant is tantamount to a new operation which 2 Case No 2-RC-3448 3 A few years earlier the Employer had subcontracted this work to another corporation. Although the Employer and Thor Corporation have a common president and majority stockholder, no such relationship existed between the Employer and the former subcon- tractor ' Although general labor policies are established by the majority stockholder , the record does not show that the policies are the same for both companies. PLASTIC MOLDING CORPORATION 151 was not in existence when the Union was certified or when the last collective-bargaining contract was executed.' We therefore find that neither the certification nor the bargaining contract embraced the employees of Thor Corporation. Accordingly, we believe that the separately located and supervised Sandy Hook plant of the Employer, for which the Union had been certified, while not necessarily the only appropriate unit, may constitute by itself a separate appropriate unit without the inclusion of the Thor Corporation plant.' The parties agree as to the composition of the unit except as to the inclusion of certain working leadmen in departments without fore- men, whom the Union, contrary to the Employer, would exclude as supervisors.' Petitioner Cavanaugh is the working leadman in the maintenance department, which also includes 3 watchmen and 3 boiler-firemen. He repairs and keeps in operation the pumps and electric lines and is the only employee performing such duties. He works under the as- sistant superintendent, who acts as foreman of the department. Un- like the other working leadmen hereinafter discussed, he does not have authority to grant time off. Nor is he held responsible for the opera- tion of the department. The watchmen and boiler-firemen, who follow their own routine, are given little or no direction by the main- tenance leadman. While he may select one of the firemen for over- time, such authority appears to be routine in character because it must be exercised in accordance with a specific selection procedure pre- scribed by the assistant superintendent. In these circumstances and as the maintenance leadman does not have or exercise the statutory duties of a supervisor, we find the maintenance leadman is not a super- visor but an employee within the meaning of the Act. Accordingly, we include him in the Unit .8 Other leadmen.: The record shows that there are five other working leadmen in departments without foremen." Each of them has from 1 to 7 employees under him, is held responsible by the assistant super- intendent for the proper functioning of his respective department, and directs the employees therein. Each has and exercises the au- 5 Phillips Chemical Company, 101 NLRB 582, at 583; Richard Alan Button Company, 94 NLRB 1429, at 1430; and Scrsvner Stevens Company, 104 NLRB 506. Cf. Pluss Poul- try, Inc., 100 NLRB 64, at 65-66 and The Mennen Company, 105 NLRB 677, at 678 6 See Bausch and Lomb Optical Company, 107 NLRB 263; Michigan Limestone Division, United States Steel Corporation, 106 NLRB 1391. 7 The parties agree that all of the leadmen in departments having foremen are not supervisors but are employees, who are included in the unit. 8 Sprague Electric Company, 98 NLRB 533 at 535-536. Compare the cases cited in foot- note 10 B Berls in first inspection department , Carbonneau in the oven room department , Granms In the shipping department , and E Scoville on the first shift and Klesitz on the second shift in the cold mold department. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thority to grant time off not exceeding 1 day. In addition, Berls, Carbonneau, and Scoville can settle minor grievances concerning chairs, lights, etc. In view of the foregoing and as these leadmen responsibly direct the employees under them and grant time off, we find that they are supervisors within the meaning of the Act and exclude them from the unit.'° Accordingly, we find that all production and maintenance employees of the Employer at its Sandy Hook, Connecticut, plant, including the maintenance leadman, Cavanaugh, and leadmen in departments where there are foremen; but excluding office clerical employees, shop clerical employees, watchmen, guards, professional employees, Leadmen Berls, Carbonneau, Grannis, E. Scoville, and Klesitz, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Union contends that certain economic strikers not yet re- called are eligible to vote in the election herein directed. The Em- ployer argues that they have no reasonable expectancy of being re- called and therefore should not vote. The strike terminated December 6, 1953, at which time there were on the payroll 58 employees and approximately 83 strikers. The Employer agreed to recall the strikers according to seniority and to permit seniority to accrue during the period they were out of work. In the year since the end of the strike, 50 of these strikers were re- called; 8 were contacted and failed to respond; and 25 have not been recalled. The Employer testified that there has not been much fluctuation in the amount of work in the past year, that not over three strikers have been recalled in the past 2 months, and that no increase in work requirements is expected in the next few months. In these circumstances, we believe and find that the 25 strikers who have not been recalled do not have a reasonable expectancy of being recalled in the near future and therefore are not eligible to vote in the election directed herein." [Text of Direction of Election omitted from publication.] MEMBER LEEDOM took no part in the consideration of the above De- cision and Direction of Election. 10 Safe Harbor Water Power Corporation, et al., 109 NLRB 1365. The DeLaval Sepa- rator Company, 97 NLRB 544 at 547; Edwards Brothers, Inc, 95 NLRB 1451 at 1453 (Coffey) ; Ideal Roller & Manufacturing Company, 104 NLRB 931 at 933; Gen Pro, Inc., 110 NLRB 12. 11 The Park Drop Forge Company, 110 NLRB 915.