Trojan Powder Co.

In the Matter of TROJAN POWDER COMPANY and INTERNATIONAL UNION OF MINE, MILL AND SMELTER `YORKERS , C. I. O. Case No. R-2219.-Decided January ^?8, 1941 a Jurisdiction : commercial explosive manufacturing industry. Investigation and Certification of Representatives : existence of question re- fusal to accord recognition to union ; election necessary Unit Appropriate for Collective Bargaining : all employees including foremen .who do not perform major supervisory functions, watchmen-guards, and the laboratory assistant, but excluding the Company's assistant general manager, foremen who perform major supervisory functions, clerical employees, the head chemist, and the cook. Fitzgerald, Abbott c Beardsley, by Mr. Edward B. Kelly, of Oak- land, Calif., and Mr. Kennzetlt Souser, of Philadelphia, Pa., for the Company. 'Gladstein, Grossman, Margolis d Sawyer, by Mr. Norman Leonard, of San Francisco, Calif., for the Union. Mr. Robert F. Koretz, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On September 24, 1940, International Union of Mine, Mill and Smelter `porkers, C. I. 0., herein called the Union, filed a petition with the Regional Director for the Twentieth Region (San Francisco, California, alleging that a question affecting commerce had arisen concerning the representation of employees of Trojan Powder Com- pany, Robert, California, herein called the Company, and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called -the Act. On December 7, 1940, the National Labor Rela- tions Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due nbtice. 29 N. L. R. B., No 41. 229 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 10, 1940, the Acting Regional Director issued a notice of hearing, copies of which, together with copies of the peti- tion, were duly served upon the Company, the Union, and United Powder and High Explosive Workers of America, a labor organization affiliated with American Federation of Labor. Pursuant to the notice, a hearing was held on December 17, 1940, at San Francisco, California, before Earle K. Shawe, the Trial Examiner duly designated by the Board. The Company and the Union ap- peared, were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. During the course of the hearing the Trial Examiner made several rulings on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. The rulings are thereby affirmed. On January 3, 1941, the Company requested oral argument before the Board, and on January 4 submitted a brief, which the Board has considered. Pursuant to notice duly served upon the parties, a hear- ing for the purpose of oral argument was held before the Board at Washington, D. C., on January 14. The Company was represented by counsel and participated in the argument. k Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Trojan Powder Company is a New York corporation, with its principal office in New York City. These proceedings are concerned solely with the Company's plant located at Robert, California, here- inafter called the Robert plant, where the Company is engaged in the manufacture and sale of commercial explosives and blasting ac, cessories. From October 1, 1939, to September 30, 1940, the Company purchased for use in the course of production at the Robert plant raw materials worth approximately $275,000, approximately one-third of which, or $90,000 worth, were shipped to said plant from points out- side the State of California. In the same period the Company man- ufactured products which it sold for the gross selling price of $685,000. About 53 percent of such sales, totaling approximately $363,000, were made,' and the products shipped, to customers outside the State of California. Approximately 58 persons are employed by ,,the Company at the Robert plant. The Company admits for the purpose of these proceedings that its above-mentioned operations affect interstate commerce, within the meaning of the Act. 0 TROJAN POWDER COMPANY , 231 II. THE ORGANIZATIONS INVOLVED International Union of Mine, Mill and Smelter Workers is a, labor organization affiliated with Congress of Industrial Organiza- tions. Chemical and Explosive Workers, Local 519, is a local of International Union of Mine, Mill and Smelter Workers, admitting to membership employees of the Compliny at the Robert plant. Prior to September 17, 1940, the local was known as United Powder and High Explosive Workers of America, Local No. 130. ^ On that date, by vote of its membership, the local affiliated itself with International Union of Mine, Mill and Smelter Workers. III. THE QUESTION CONCERNING REPRESENTATION r By letter dated September 18, 1940, the Union requested the Com- pany to recognize and otherwise bargain collectively with it as the statutory'representative of employees of the Company. The Com- pany refused and still refuses to recognize the Union as the statutory representative of its employees within an appropriate collective bar- gaining unit until the Union be certified by the Board as such repre- sentative. At the hearing there was introduced in evidence a report by the Acting Regional Director showing that a substantial number of employees within the unit hereinafter found to be appropriate desig- nated the Union as their representative for the purposes of collective bargaining.' We find that a question has arisen concerning representation of employees of the Company. IV. 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 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. 'The Acting Regional Director reported that the Union submitted to him 51 membership application cards , dated between September 13 and October 3, 1940, bearing the apparently genuine and original signatures of persons whose names appear on the Company 's current pay roll, which contains 53 names. At the hearing the Union submitted to the Trial Exam- iner two additional membership application cards dated November 7 and December 3, 1940, respectively , bearing the apparently genuine and original signatures of persons whose names appear on the Company 's current pay roll. , 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE ' UNIT The petition alleges that "'all production and maintenance em- ployees excluding supervisory and clerical employees" at the Robert plant constitute a unit appropriate for the purposes of collective bargaining. As further defined at the hearing this unit would com- prise all employees at the Robert plant except the Company' s assist- ant general manager, clerical employees, the head chemist and the cook. The Company agrees that the proposed unit is appropriate, except that it would exclude therefrom persons classified on the Com- pany's pay roll as foremen, watchunen-guards, and laboratory assistant. Foremen. The Robert plant is under the supervision of Bronstein, the Company's assistant general manager, who spends about two hours each day at this plant. Bronstein testified that in his ab- sence the foremen, William Parr, Thomas Graham, George Evans, and John Leal, are in charge of the plant. -The record shows that, Parr and, Graham are principally engaged in supervising the work of the production employees at the Robert plant. Parr is in charge of 20 to 25 employees; Graham is in charge of 6 to 8 employees. Parr is generally consulted by Bronstein in connection with the prep- aration -of the daily production schedule and the daily work assign ment sheet, pursuant to which Parr assigns employees to, their duties. Evans, maintenance foreman, devotes approximately 75 per cent of his time to.the performance of general maintenance work, such as the repair and construction of plant equipment. During the re- mainder of his time he supervises the work of from 1 to 6 plant em- ployees who are assigned upon occasion to maintenance work or "make" work, such as weeding and cleaning out ditches on the Com- pany's property. Leal was formerly- a maintenance" foreman at the Robert plant, but in 1937 he was assigned to his present duties because of his,health. Leal and one or two other employees are en- gaged in making empty boxes. Leal exercises little, if any, super- visory authority in connection with his work. We are of the opinion that Parr and Graham, who devote prac- tically all of their time to the supervision of production employees, perform major supervisory functions in connection with the opera- tions at the Robert plant. We shall; therefore, exclude. Parr and Graham from the unit.2 On the other hand, Evans and Leal devote 2 Cf. Matter of Levroton Manufacturing Company, Inc and Into nattonal Brotherhood of Electrical Workers, Local 3, (A F of L ), 27 N. L R B 735 Matter of Birmingham Tank Company, Division of The Ingalls Iron Works Company, Inc and International Assocc- -ation of Bridge, Structural and Ornamental Iron , Workers, Shopmen's Local #539, 25 N. L. R. B. 1306. TROJAN POWDER COMPANY 233 a majority of their time to work similar to that of ordinary workers and generally do not perform major supervisory functions. Under these circumstances we hold that Evans and Leal belong in the unit. Watchmen-guards. The Company employs four watchmen-guards, whose average hourly wage is slightly less than that of production and maintenance employees. Two of these employees, who work at patrol the plant, check plant temperature, and clean the night. office. The other two, who work during the day, check time cards of employees entering and leaving the plant, guard against entry into the plant without permission, and perform gardening, cleaning, and similar work in the vicinity of the plant gate. There is uncontra- dicted testimony that all of these persons are members of, or ap- plicants for membership in, the Union. We shall include these men in the unit at the request of the only union involved.3 The Labor°atorzy Assistant is a former production employee who was trained for his present duties by the head chemist at the Robert plant. His hourly pay is approximately the same as the average hourly wage paid production and maintenance employees. His prin- cipal duties consist of inspecting and testing raw materials and finished products. He reports on the quality of such products to his superior, the head chemist. He also mixes ingredients under formulas prepared by the head chemist, and occasionally runs er- rands, cuts- the plant lawn, cleans the plant laboratory. He testi- fied that he is a member of the Union and desires to be represented by it in collective bargainin(r. We shall include him in the unit.' We find that all employees of the Company at its Robert plant, including George Evans and John Leal, watchmen-guards, and the laboratory assistant, but excluding the Company's assistant general manager, William Parr and Thomas Graham, clerical employees, the head chemist, and the cook, 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 bargaining and otherwise effectuate the policies of the Act. 8 Cf. Matter of Southern Cement Company and Steel Workers Organizing Committee, 28 N L. R B 596. Matter of Lee Rubber and Tire Corporation, Republic Rubber Dizision and Local # 102, United Rubber Workers of America (C. I. 0.), 24 N. L. it. B. 1077 and cases therein cited in footnote 6; Matter of Ifawneer Company and Local 92, United Auto- mobile Workers of America, A. F. of L, 22 N . L it. B. 995, and cases therein cited) is footnote 10. 4 Cf. Matter of Lee Rubber and Tire Corporation, Republic Rubber Division and Local #102, United Rubber Workers of America (C. I. 0.), 24 N. L. it. B 1077; Matter of Gulf Refining Company and Federal Labor Union No 22191, affiliated with the American Federa- tion of Labor,'25 N. L. R. B. 745; Matter of Magnolia Petroleum Company and Oil Workers' International Union Local No. 243 et al. 18 N. L R B. 380 ' 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by the holding of an election by secret ballot among employees within the appropriate unit to determine their desires with regard to representation. Following our usual - practice, we shall use as the date for determining eligibility of em- ployees to vote the pay-roll period next preceding the date of this Direction of Election, subject to such limitations and additions as are set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Trojan Powder Company, Robert, Cali- fornia, within the meaning of Sectioii 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees of the Company at its Robert, California, plant, including George Evans and John Leal, watchmen-guards, and the laboratory assistant, but excluding the Company's assistant general manager, William Parr and Thomas Graham, clerical elh- ployees, the head chemist, and the cook, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 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 Re- latior s Act, 49 Stat. 449, 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Trojan Powder Company, Robert, California, 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 of Election, under the direction and supervision of the Regional Di- rector for the Twentieth Regioii, acting in this matter as agent for the National'Labor Relations Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations, among all employees of the Company at its Robert, California, plant, including George Evans and John Leal, watchmen-guards, and the laboratory assistant, who TROJAN POWDER COMPANY 235 were employed during the pay-roll period next preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding employees who have since quit or been discharged for' cause, and also excluding the Company's assistant general manager, William Parr and Thomas Graham, clerical employees, the head chemist, and the cook, to determine whether or not they desire to be represented by Chemical and Explosive Workers, Local 519, of the International Union of Mine, Mill and Smelter Workers, C. I. 0., for the purposes of collective bargaining. CHAIRMAN HARRY A. Mrs took no part in the consideration of the above Decision and Direction of Election.