Industrial Rayon Corp.

In the Matter Of INDUSTRIAL RAYON C ORPORATION and'INTERNATIONAL BROTHERHOOD OF FIREMEN & OILERS, LOCAL No. 52 (AFL) AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 589, 589A, 589B (AFL) Case No. R-0576.-Decided July 21,1941 Jurisdiction : rayon manufacturing industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit; labor organization excluded from ballot because it made no showing of designation within the appropriate unit ; election necessary. Unit Appropriate for Collective Bargaining Employees of powerhouse held appropriate unit where remainder of plant represented and where intervenor claiming alternatively that appropriate unit should be multi-plant, or plant wide, did not desire election on the suggested basis, and declined to submit evidence of representation in the affected plant. Operating engineers included within unit where they operate powerhouse machinery and union shows substantial bargaining history in locality for them, although intervenor and Company urged exclusion as supervisory. Chief engineer excluded as managerial official although union requested his inclusion and showed bargaining history. Jones, Day, Cockley c Reavis, by Mr. Grover Higgins and Mr. Frederic S. Cross, of Cleveland, Ohio, for the Company. Hartshorn, Thomas d Abele, by Mr. Arnold M. Edelman, of Cleve- land Ohio, for the Operating Engineers. Mr. Ray E. Seitz, of Cleveland, Ohio, for the Firemen. Mr. David Jaffe, of New York City, for T. W. U. A. ,Mrs. Carrie Gallagher, of Cleveland, Ohio, for U. T. W. A. Mr. Charles W. Schneider, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 18, 1941, International Brotherhood of Firemen & Oilers, Local No. 52 (AFL) and International Union of Operating Engi- neers, Local No. 589, 589A, 589B (AFL), herein called, respectively, the Firemen, and the Operating Engineers, filed a petition with the 33 N. L. R. B., No. 116. 680 INDUSTRIAL RAYON CORPORATION 681 Regional Director for the Eighth Region (Cleveland, Ohio) alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Industrial Rayon Corporation, Painesville, Ohio, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On May 2, 1941, 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 Regula- tions-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On May 6, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the Firemen, the Operating Engineers, and also upon Textile Workers Union of America, (C: I. 0.), herein called T. W. U. A. On May 14, 1941, T. W. U. A. filed a motion to intervene with the Regional Director alleging that it represented a substantial number of employees in the Painesville plant of the Company, and that it had been certi- fied as the bargaining agent at the Company's plant in Covington, Virginia. The Regional Director referred the motion to the Trial Examiner. Pursuant to notice, a hearing was held on May 19 and 20, 1941, at Cleveland, Ohio, before Harry L. Lodish, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing the Trial Examiner granted the motion filed by T. W. U. A. to intervene. United Textile Workers of America (AFL), herein called U. T. W. A., moved at the hearing to intervene in the proceedings, alleging that it represented employees at the Paines- ville plant of the Company. The Trial Examiner granted the motion. The Company, the Firemen, the Operating Engineers, T. W. U. A., and U. T. W. A. were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the hearing T. W. U. A. moved to dismiss the petition on the ground that the unit requested was inappropriate for the purposes of collective bargaining. The Trial Examiner re- served ruling on the motion for the Board. The motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed. The 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. All parties filed briefs, which the Board has considered. Upon the entire record in the case, the Board, makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Industrial Rayon Corporation is incorporated under the laws of the State of Delaware. It is engaged in the manufacture, sale, and distribution of rayon yarns. In connection with its business it op- erates three factories, one located at Painesville, Ohio, one at Cleve- land, Ohio, and one at Covington, Virginia, each of them employing approximately 1,000 persons. At the Painesville plant the Company uses raw materials, principally cellulose and chemicals, to the value of over $2,000,000 a year, of which approximately 70 per cent are purchased and shipped to Painesville from points outside the State of Ohio. The value of the finished goods manufactured and dis- tributed at Painesville amount to over $5,000,000 a year, more than 90 per cent of which are shipped to points outside the State of Ohio. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen & Oilers, Local No. 52, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. International Union of Operating Engineers, Local No. 589, 589A,. 589B, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. United Textile Workers of America is a labor organization affili- ated with the American Federation of Labor, admitting to member- ship employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION In November 1940 the Firemen and the Operating Engineers began negotiations with the Company for recognition as bargaining agent for the employees of the powerhouse at the Painesville plant. The Company questioned the appropriateness of the unit proposed by the Firemen and the Operating Engineers. On April 18, 1941, the Fire- men and the Operating Engineers jointly filed a petition for in- vestigation and certification of representatives of the Painesville powerhouse employees. INDUSTRIAL RAYON CORPORATION - 683 The Firemen and the Operating Engineers submitted evidence that they represent a substantial number of the powerhouse employees.' We find that a question has arisen concerning the 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. V. THE APPROPRIATE UNIT The Firemen and the Operating Engineers request an appropriate unit consisting of all 36 employees in the powerhouse. U. T. W. A. agrees that the unit requested is appropriate. T. W. U. A., however, contends (1) that such a unit is inappropriate, (2) that the proper unit should consist of employees of the Company's three plants on an industrial basis,2 (3) alternatively, that if a multi-plant unit is found not to be appropriate, then all employees at the Paines- ville plant including the powerhouse employees but excluding super- visory and clerical employees constitute an appropriate unit. The Company takes no position with regard to the powerhouse employees constituting an appropriate unit, but states that if they are found to constitute an appropriate unit, then 5 of the 36 employees in the powerhouse-the Chief Engineer and 4 operating engineers-should not be included in the unit because they are supervisory employees. T. W. U. A. takes the same position as the Company regarding these five men. About March 18, 1941, U. T. W. A. requested the Company to recognize it as bargaining agent for all employees at the Company's Painesville plant, excluding clerical, supervisory, salaried, and power- house employees. The Company suggested that U. T. W. A. be certified by the Board. U. T. W. A. then filed a petition for in- lestigation and certification.' T. W. U. A. received notice of the proceedings but denied any interest, stating that it had no members I The Trial Examiner stated for the record that the Regional Director reported that 12 authorization cards from the Firemen and 21 from the Operating Engineers had been submitted . There are 36 employees in the powerhouse. 2 In addition to its plant at Painesi Ille, the Company has plants at Covington , Virginia, and Cleveland. Ohio. T. W. U. A. (then T W. 0 C.) won an election among employees at the Covington plant on July 17, 1937, and was thereafter certified by the Board. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at Painesville. There being no other opposing claims, a consent pay- roll check was made by the Regional Director on April 23 among a unit of Painesville employees substantially the same as that requested by U. T. W. A., with a few additional exclusions agreed upon between U. T. W. A. and the Company.' Out of 935 employees in that unit 503 were found to be represented by U. T. W. A. In reliance upon the pay-roll check the Company and U. T. W. A. have been bargain- ing with respect to a contract submitted by that Union. In the meantime, on April 18, the Firemen and the Operating En- gineers filed the petition herein. Notwithstanding the disclaimer it had made less than 1 month before, T. W. U. A. on May 7,4 wrote to the Company claiming representation among its Painesville em- ployees. T. W. U. A., on May 12, then moved to intervene in this proceeding, claiming to represent a substantial number of the Paines- ville employees and all of the employees at the Covington plant. Upon learning of T. W. U. A.'s action U. T. W. A. also moved to intervene. The powerhouse is segregated from the rest of the plant and is a composite of two interconnecting buildings, one containing machinery for the generation of steam and electric power and some miscella- neous equipment, the other containing machinery for water softening and filtration. The powerhouse would ordinarily remain open for property protection even though the rest of the plant was closed. It has its own separate scheme of promotion and seniority. Its per- sonnel consists of 36 men ; the Chief Engineer, one utility man, two crane operators, and four each of the following categories : operating engineers, filtration engineers, refrigeration engineers, electric- switchboard operators, mechanics, firemen, assistant firemen, and oilers.' Its machinery is in the charge of the operating engineers, subject to directions from the Chief Engineer. The only labor organizations presenting evidence of membership among the em- ployees at the Painesville plant are agreed upon the propriety of the unit requested by the petitioners. T. W. U. A. declined to present any evidence of membership either in the powerhouse or any other portion of the Painesville plant; it does not desire an election among the employees at the Painesville plant or among the employees at the Company's three plants. Under the circumstances we reject the s All production and maintenance employees , excluding supervisors , foremen, assistant foremen, foreladies, powerhouse employees , section inspectors in the Coning Department, head fixer in the Coning Department , head tinner in the Maintenance Department, head painter- in {he Maintenance Department, guards, head mechanics , storel eepers , office em- ployees , laboratory employees , technical staff, and salaried employees. 4 Three weeks after the petition was filed in this case. 5 They are grouped in fours in order to provide three 8-hour shifts and a relief man in each group except the crane operators. INDUSTRIAL RAYON CORPORATION 685 ,contentions of T. W. U. A. and find that the powerhouse employees may properly constitute an appropriate unit. The Chief Engineer is the head of the powerhouse department. He is a management official spending most of his time in the front office and takes no part in the direct operation of the powerhouse. His authority as to hiring and discharging, while subject to approval by the plant superintendent, is sufficiently definitive to classify his status as managerial. In view of this intimate connection with the man- agement, he will be excluded from the unit s The operating engineers, however, are actively engaged in the operation of the powerhouse machinery and are hired for that pur- pose. They are members of the Operating Engineers and want it to bargain for them. The Union has a substantial history of bargain- ing for operating engineers.7 Their exclusion would deprive their union of the nucleus of its organization. In view of these and the other facts heretofore mentioned, the operating engineers properly belong within the appropriate unit. We find that all employees in the powerhouse at the Company's Painesville plant, excluding the Chief Engineer, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the 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. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. Since T. W. U. A. made no showing that any employees of the Company within the appropriate unit have designated it as their representative for the purposes of collective bargaining, we shall not include the name of T. W. U. A. upon the ballot in the election which we shall direct." The parties expressed no preference with respect to the pay roll to be used to determine eligibility to vote in the election. We shall follow our usual practice and direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to such limitations and additions as are set forth in the Direction hereinafter.' 6 General Motors Corporation, Chevrolet Division and International Union of Operating Engineers, Locals 30 & SO-A, 28 N. L R B 793. The fact that Operating Engineers has bargained for chief engineers elsewhere in the locality is not persuasive in view, of his functions in the instant case. ' The Operating Engineers has contracts for operating engineers with about 93 industrial firms in the locality 8 Seas Shipping Company, Inc. (Robin Line) and Seafarers' International Union of North America, A. F. of L., 27 N. L R. B. 460 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of_ factand upon the entire record in the case, the Boai d makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre= sentation of employees of Industrial Rayon Corporation , Painesville, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All employees in the powerhouse of the Painesville plant of the Company, excluding the Chief Engineer, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 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 authorized by the Board to ascertain representatives for the purposes of collective bargaining with Industrial Rayon Corporation, Painesville, 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 of Election under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all powerhouse employees at the Com- pany's Painesville plant who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding the Chief Engineer, and employees who have since quit or been dis- charged for cause, to determine whether or not they desire to be represented by International Brotherhood of Firemen & Oilers, Local No. 52 (AFL) and International Union of Operating Engineers, Local No. 589, 589A, 589B (AFL), for the purposes of collective bargaining. MR. EDWIN S. SMITH , dissenting in part : I dissent from the determination of the Board to exclude the Chief Engineer from the appropriate unit. While he is a salaried employee INDUSTRIAL RAYON CORPORATION 687 with power to recommend the hire and discharge of employees, and is considered by the Company as a department head, he is, as the record clearly shows , an, employee customarily covered by contracts between the Operating Engineers and employers in the locality. Moreover, he is a member of the Operating Engineers and that union, which is the only labor organization showing any representation among the powerhouse employees, desires his inclusion within the unit. Under the circumstances I would include the Chief Engineer in the appropriate unit.9 9 See my dissenting opinion In Matter of Armour and Company of Delaware and Amalgamated Meat Cutters & Butcher Workmen of North America, Local No. 545, A. F. of L., 33 N. L. R B. 154; Westerman Print Company and Cincinnati Printing Pressmen & Assistants' Union Local No. 111, 27 N . L. R B. 1.