Kalamazoo Paper Co.

In the Matter of KALAMAZOO PAPER COMPANY and INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS (A. F. OF L.) Case No. R-1780.-Decided April 22, 1940 Paper Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees. recognition as exclusive bargaining agency requested by labor organization but refused by employer-Unit Appro- priate for Collective Bargacnoig: employer and labor organization in agree- ment, except with respect to groups and individuals mentioned below, that employees of Company's two powerhouses constitute an appropriate unit ; "first firemen" and "engineers," each of whom supervises a helper, included in the unit at the request of the only labor organization involved; filter plant operator included in the unit over objection of labor organization because of close relation between his work and that of powerhouse employees ; electricians excluded from the unit because ineligible for membership in petitioning labor organization, because within jurisdiction of another affiliate of same parent organization, and because engaged in work throughout the Company's structures and not in powerhouses alone-Election Ordered Mr. Harry N. Casselman, for the Board. Mr. John C. Howard, of Howard, Howard ci Howard, of Kala- mazoo, Mich., for the Company. Mr. Howard A. Plank, of Chicago, Ill., for the Union. Mr. William Stix, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 16, 1940, International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railroad Shop Laborers,' affili- ated with the American Federation of Labor, herein called the Union, filed with the Regional Director for the Seventh Region (Detroit, Michigan) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Kalamazoo Paper Company, Kalamazoo, Michigan, herein called the Company, 'The Union is variously designated in the record but its name , as set forth here, is that given in its constitution , which was introduced in evidence. 23 N. L. R. B., No. 7. 76 KALAMAZOO PAPER COMPANY 77 and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 5, 1940, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, herein called the Regulations, ordered the Regional Director to con- duct an investigation and provide for an appropriate hearing upon due notice. On March 19, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company and the Union. Pursuant to the notice, a hearing was held on March 28, 1940, at Kalamazoo, Michigan, before Berdon M. Bell, the Trial Examiner duly designated by the Board. The Board and the Com- pany were represented by counsel; the Union was represented by an international representative; and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On March 23, 1940, prior to the hearing, the Company filed with the Regional Director an application for issuance of subpenas to re- quire the appearance at the hearing of 13 persons in order to prove facts concerning "the question of selection and designation of bar- gaining representatives." On the same date the Regional Director denied this application on the ground that it failed to comply with Article II, Section 21, of the Regulations in that it did not specify the nature of the facts to be proved by the testimony of the persons whose attendance was sought. At the commencement of the hearing the Company renewed its application for subpenas, stating in substance that it desired to examine the 13 persons, whom it iden- tified as employees constituting a "cross-section" of its powerhouse personnel, concerning whether they wished to be represented by the Union. The Trial Examiner, upon ascertaining from the Union's representative that it was not seeking certification upon the record but desired an election, denied the application for subpenas on the ground that it was premature and unnecessary since an election, if ordered by the Board, would determine the issues of fact upon which the Company wished to adduce testimony. During the course of the hearing, the Trial Examiner ruled on several objections to the ad- mission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. His rulings are hereby affirmed. Upon the entire record in the case the Board makes the following : 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Kalamazoo Paper Company, a Michigan corporation with all its properties in Kalamazoo Township, Michigan, is engaged in the manu- facture of various kinds of paper .2 During the calendar year 1939 the Company used raw materials 3 to the value of $3,755,151.07, of which approximately 75 per cent were purchased outside Michigan, and produced finished goods valued at $5,105,459.92, approximately 75 per cent of which were sold outside Michigan.4 On March 15, 1940, the Company had 852 employees, including its office and supervisory personnel. H. THE LABOR ORGANIZATION INVOLVED Local No. 78, International Brotherhood of Firemen, Oilers, Help- ers, Roundhouse and Railroad Shop Laborers, affiliated with the American Federation of Labor, is a labor organization which admits to membership, among others, competent boiler firemen, water tend- ers, boiler washers, boilers washers' helpers, oilers, ash handlers, coal passers, stoker firemen, stoker helpers, and utility men and mainte- nance laborers when employed in or around boiler and engine robins, including certain employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On or before February 26, 1940, the Union, claiming to have been designated as collective bargaining representative by a majority of the employees of the Company's two powerhouses, asked for recog- nition as exclusive bargaining agent. The Company refused to grant such recognition. We find that a question has arisen concern- ing representation of the Company's employees. 1V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial 2 The Company manufactures the following kinds of paper : machine finish , hangings, label, linings , offset, super and writing, coated book , dull finish, folding enamel, litho- graph, varnish label , friction glazed , and embossed. Raw materials used by the Company consist of paper stock , bleached sulphite, un- bleached sulphite , soda pulp, alum, rosin size, colors , starch , silicate of soda, sundry chemicals , satin white, casein , and wax. • Alfred E. Curtenius, president of the Company , estimated that from year to year the percentages of raw materials obtained from outside Michigan and of finished products sold outside Michigan did not vary more than 5 per cent from the above figures. KALAMAZOO PAPER COMPANY 79 relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The parties stipulated, subject to the qualifications discussed below, that the appropriate unit should comprise the employees of the Com- pany's two powerhouses, including engineers, firemen, crane operators, boiler repairmen, and oilers,5 but excluding the chief and assistant chief engineers.6 The Company wishes to include, however, while the Union desires to exclude, six electricians and the filter-plant operator; on the other hand, the Union seeks the inclusion and the Company the exclusion of three first or head firemen and three engi- neers or operators, all employees of Powerhouse No. 1. The first firemen: At Powerhouse No. 1 there are three hourly paid first firemen,? all assigned to different shifts. Each of them supervises a second fireman 8 whose hiring or discharge he has the authority to recommend. However, this authority has not been exer- cised by the first firemen in the last 3 or more years. While the Com- pany maintains that the first firemen are supervisory employees and should, therefore, be excluded from the unit, it is apparent that they are primarily firemen and only incidentally supervisors.9 We have frequently held, where such a distinction has been sought by the only labor organization or organizations involved, that minor supervisors were entitled to participate in the choice of representatives but that other supervisors should be excluded from the unit 10 Accordingly 5 We find that this category includes Ford Adams who is listed on the powerhouse pay roll as "Motor Oiler in all Mills " 6 The powerhouses are operated on three shifts , 24 hours a day. At Powerhouse No. 1, which serves two paper mills and two coaling units , the Company employs three first firemen, four second firemen , three engineers, four oilers , three boiler repairmen , a crane operator, and a filter-plant operator ; and at Powerhouse No. 3, four firemen, three engineers , a boiler repairman , and a crane operator Manfred A. Oliver, John R Harris, and Lewis Cook. s The second firemen, of whom there are four , work on "swinging shifts" and are not regularly assigned to given first firemen. B At Powerhouse No 3 there are no "second " firemen but the Company and the Union have stipulated that the " firemen" there employed should be included in the unit. Cf. supra, footnote 6. 10 See Matter of Kansas Milling Company and Flour, Feed, Seed, Cereal & Elevator Workers Union, No. 20991, A. F. of L., 15 N. L. R. B. 71 (working supervisors included ; others excluded) ; Matter of Willys Overland Motors, Inc and International Union, United Automobible Workers of America, Local No. 12, 9 N. L R. B 924, 10 N. L. R B. 160 (foremen, foreladies , and assistant foremen Included ; department heads, division superin- tendents , and general foremen excluded ) ; Matter of Shell Petroleum Corporation and Oil Wort ers International Union, Local No. 367, 9 N. L R. B. 831 (group of supervisors not exercising major supervisory functions included ; others excluded ) ; Matter of Mer- rimack Manufacturing Company and American Federation of Labor, et al., 9 N L R B 173 (second hands included , other supervisors excluded ) ; Matter of Richmond Hosiery Mills, Spinning Plant and Textile Workers Organizing Committee, 8 N. L R B. 1073 ( section men included, other supervisors excluded). 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall include in the unit the three first firemen at Powerhouse No. 1. The engineers at Powerhouse No. 1: Because of their supervisory authority, the Company also seeks the exclusion from the unit of three engineers" at Powerhouse No. 1 who occupy, with respect to four oilers, a position comparable to that of the first firemen with respect to the second firemen. For the reasons stated in our dis- cussion of the first firemen, we shall include these three engineers in the unit. The filter-plant operator: Charles Curry is the day-shift operator of the water-filtration plant which is adjacent to and connected with Powerhouse No. 1.12 Although a representative of the Union testi- fied that it had not solicited Curry's membership because at other paper companies jurisdiction over filter-plant operators had been assumed by another A. F. of L. union, the American Federation of Paper Makers, there is no showing that the latter organization has any members among the Company's employees. Prior to 1929 Curry worked as a powerhouse engineer; at that time, because one of the power plants was eliminated, he was assigned to oiling in the mills and to operation of the filter plant, but subsequently, since he was ad- vanced in age, he was relieved of the former task. Oilers from the powerhouse make such repairs in the filter plant as are necessary on the day shift, substitute for Curry if he is absent from work, and operate the plant on the two night shifts. Furthermore, the power- house engineers operate the pumps which force water into and away from the filter plant. Under all the circumstances we find that, because of the close relation between his work and that of the power- house employees, Curry should be included in the unit. The electricians, of whom there are six, are ineligible for mem- bership in the Union and fall within the jurisdiction of the Inter- national Brotherhood of Electrical Workers, another A. F. of L. affiliate. The Company seeks the inclusion of these employees be- cause they are listed on the powerhouse pay roll, make their "head- quarters" at the powerhouses, and at all times work under the gen- eral supervision of the powerhouse "foreman"; because one of them assists in starting Powerhouse No. 1 on Monday mornings,13 and another, who is "breaking in for future assistant," acts as relief operator at Powerhouse No. 3; because they do routine repair and maintenance work in the powerhouses; and because, if there is a breakdown at the power plants or if there is insufficient electrical 11 Arthur B Barber, Frank Tracy, and William Lawler. 12 The Comoanv has its own water-supply system. "This powerhouse operates 7 days a week but under full, load only If the mills are running. KALAMAZOO PAPER COMPANY 81 work to keep them occupied, they assist the powerhouse personnel in repairing the turbo-generators, boilers, or other equipment. Carl Hein, the Company's chief steam and electrical engineer, testified, however, that 2 of the electricians spend over 90, and none less than 60 to 65, per cent of their time in the mills, where they repair and maintain the wiring and some 500 electric motors. All the elec- tricians, moreover, work on the day shift, whereas the powerhouses operate on 3 shifts, 24 hours a day. From these facts it appears that the electricians are essentially maintenance employees and that their customary work in the powerhouses is simply a part of their duty to keep in repair all of the Company's electrical equipment. In view of these facts and because the Union does not accept them as members, we think that it would.be inappropriate to include the electricians in the -unit. We find that employees of the Company's two powerhouses, in- cluding first firemen and second firemen at Powerhouse No. 1 and firemen at Powerhouse No. 3, engineers, oilers, motor oiler, crane operators, boiler repairmen, and filter-plant operator, but excluding the chief and assistant chief engineers and the electricians, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargain- ing and otherwise effectuate'.thv, policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES A representative of the Union testified that 20 of the employees in the appropriate unit were members of that organization. How- ever, the Union does not seek certification upon the basis of evidence adduced at the hearing, but has asked that an election be held. We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The parties agreed that, if the Board ordered an election herein, all employees in the appropriate unit who appear on the pay roll for the period ending March 16, 1940, should be eligible to vote. We shall direct that employees in the unit on that pay roll, including those who did not work during that pay-roll period because they were ill or on vacation, or who were then or have since been tempo- rarily laid off, but excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : i 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Kalamazoo Paper Company, Kalamazoo, Michigan, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The employees of the Company's two powerhouses including first and second firemen at Powerhouse. No. 1 and firemen at Power- house No. 3, engineers, oilers, motor oiler, crane operators, boiler repairmen, and filter-plant operator, but excluding the chief and as- sistant chief engineers and the electricians, constitute a unit appro- priate for the purposes of collective bargaining. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National La- bor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with Kalamazoo Paper Company, Kalamazoo, Michigan, 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 direc- tion and supervision of the Regional Director for the Seventh Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Reg- ulations, among the employees of the Company's two powerhouses who appear on the pay roll for the period ending March 16, 1940, or who did not work during that pay-roll period because they were ill or on vacation or-temporarily laid,off, including first and second fire- men at Powerhouse No. 1 and firemen at Powerhouse No. 3, engineers, oilers, motor oiler, crane operators, boiler repairmen, and filter-plant operator, but excluding the chief and assistant chief engineers, the electricians, and employees who have since quit or been discharged for cause, to determine whether or not they wish to be represented for the purposes of collective bargaining by Local 78, International Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railroad Shop Laborers, affiliated with the American Federation of Labor.