Commercial Solvents Corp.

In the Matter of COMMERCIAL SOLVENTS CORPORATION and INTER- NATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 6' Case No. R-2887.-Decided September 18, 1941 Jurisdiction : chemical products manufacturing industry. Investigation and Certification of Representatives : existence of question: Com- pany refused to accord union recognition doubting the validity of anion's claim that it represented a majority of the employees ; election necessary. Unit Appropriate for Collective Bargaining : all production and maintenance employees in the employ of the Company at its Agnew plant, excluding executives, foremen, and clerical and technical employees. Mr. Herbert J. Jacobi, of New York City, for the Company. Mr. Richard Lynden, of San Francisco, Calif., for the Union. Mr. Eugene Purver, of counsel to the Board. ,DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 30, 1941, International Longshoremen's and Warehouse- men's Union, Local 6, herein called the Union, filed with the Regional Director for the Twentieth Region (San Francisco, California) a petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Commercial Solvents Corporation, Agnew, California, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act:- On July 23, 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 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 notice. 1 Sometimes referred to as Warehousemen 's Union, Local 1-6, ILWU but corrected at the hearing to read International Longshoremen's and Warehousemen 's Union, Local a 35 N. L. R B., No. 111. 489 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 1, 1941, the Regional Director issued a notice of hear- ing, and on August 6, 1941, a notice of postponement of hearing. ,On August 7, 1941, the Regional Director issued another notice of hearing and on August 8, 1941, a notice of postponement of hearing. Copies of these notices of hearing and notices of postponement of hearing were duly served upon the Company and the Union. Pursu- ant to notice, a hearing was held on August 15, 1941, at San Fran- cisco, California, before LeRoy Marceau, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the Union were represented and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On August 28, 1941, the Company filed a brief 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 Commercial Solvents Corporation is engaged at its plant at Agnew, ^California,2 in the manufacture and distribution of chemical prod- ucts including ethyl alcohol, magnesia blocks and pipe covering, acetic acid, and metaldehyde. During 1937, 1,414,000 pounds of products, which constituted 13.6 per cent of the total output of the Agnew plant, were shipped to points outside California, and ' during the same period 564,000 -pounds of raw materials, constituting 1.3 per cent of the raw ma- lerials used by the Company, were imported from points outside the State. From January 1, 1940, through June 30, 1941, the Com- pany obtained raw materials- and containers from points within the State of California in the value of $544,287.04, and similar materials from without the State in the value of $67,041.34. During the same period the Company shipped to points within the State products in the value of $935,665.78, and to points outside the State in the value of $112,990.89. 2 The only plant herein Involved. COMMERCIAL SiOLVENTSI CORPORATION 491 II. THE ORGANIZATION INVOLVED International Longshoremen's'and Warehousemen's Union, Local 6, is a labor organization affiliated with the Congress of Industrial Organizations . It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On May 7, 1941, the Union informed the Company that it repre- sented a majority of the employees and requested a bargaining con- ference. The Company refused to bargain on the ground that it doubted the validity of the Union's claim that it represented a -majority of the employees. , At the hearing the Union submitted to the Trial Examiner evi- dence showing that it represents a substantial number of the employees within the unit hereinafter found to be appropriate.8 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 Union contends that the appropriate unit includes "all produc- tion and maintenance employees in the employ of the Company in its Agnew plant, excluding executives, foremen, clerical and tech- nical employees." The Company argues that the appropriate unit consists of all employees at the Agnew plant, excluding the plant manager, his assistant, the chemical engineer, and the office man- ager. The Company and the Union disagree upon the inclusion of the following employees whom the Company would include in, and. the Union exclude from, the appropriate unit : 8 At the hearing the Union submitted to the Trial Eaminer 23 application -authorization, cards,, all bearing apparently genuine original signatures , 21 of which are names of persons appearing on the August 1, 1941 , pay roll. Five of the cards are dated between April 1 and June 30 , 1940, 8 cards are dated between January 1 and March 31, 1941, and 10 are dated between April 1 and June 30 , 1941 . There are approximately 50 men employed by the Company, of whom approximately 84 come within the unit claimed by the Union to be appropriate. , 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pete Borden, listed on the employee list as "Warehouse and Yard"' man, is in charge of the warehouse and yard, carries orders from the, office to the warehouse, and lays out and supervises work done by other employees. His job requires more skill than that of the other yardmen. He is paid a monthly salary. He does not have the right to hire, discharge, or make recommendations respecting employment, although when the Company employed a much larger number of men he did have such power. The Company wishes to include him and contends that he is a working foreman since he devotes more than half of his time to actual labor, part of which consists of carpentry work. The Union insists that he is a supervisory employee and desires his exclusion. We shall include him, as his present work is. that of a production employee rather than supervisory. Leo Knoth, listed on the employee list as a' magnesia worker and welder, is in a position somewhat similar to that of Borden. Knoth transmits orders given to him by the management, but has not had the power to hire or discharge or recommend such action in recent years. He is paid a monthly salary. He spends from 50 to 70 per cent of his time welding, and at other times about half of his work consists of making repairs. The Company desires his inclusion as a working foreman ; the Union wishes to exclude him as a supervisory employee. We shall include him for the same reason as in the case of Borden. _ H. W. Fischer, J. E. Allen, and F. Kent, listed, respectively, on the employee list as bookkeeper, bookkeeper, and stenographer, are clerical workers. They are paid on a monthly salary basis. The Company desires their inclusion on the grounds that their interests are the same as those of the other employees; that their work is intimately con- nected with the work of the other employees; that the total number of employees is so small they form a coherent unit; and that the clerks, if excluded; would have no other representation. The Union, on the other hand, desires their exclusion as clerical workers and contends that, although they are eligible to- membership, it did not organize them or exercise jurisdiction over them because previous attempts had "proved unsatisfactory." In accordance with our usual practice we shall exclude them.4 H. M. Locke, listed as Warehouse Government Records man, spends much of his time outside the office, in the yard, and in the plant build- 4 In support of its position the Company cites the case of Louis Weinberg, Association, Inc. and United Wholesale and Warehouse Employees, Local No. 65, U. R. S. A., 13 N. L.^ R. B. 66, wherein the office employees were included within the unit because there was no "sharp differentiation in function and interests between office and other employees.", In that case, however, the Board said, "There is ,only one labor organiza- tion here involved and that labor organization desires that the, office employees be Included in the bargaining unit." COMM RCIAL SOLVENTS CORPORATION 493 ings, reading meters, checking railroad car numbers, and making out the gauges for the tax-paid warehouse. The Company desires his inclusion on the ground that he is not a clerical employee, and on the broad grounds above given for a plant-wide unit. The Union wishes to exclude him as a clerical employee. We shall exclude him as a clerical employee. E. M. Graham, listed as a relief still operator, devotes about 70 per cent of his time to operating a still and spends the remainder in the laboratory preparing solutions for use in the plant in testing prod- ucts. _ He is paid a monthly salary. He conducts some of the chemical tests within the operating plant. The Company desires his inclusion on the ground that he is not a technical employee. ,The Union desires his exclusion as a technical employee. Since Graham spends ' the greater portion of his time as a still operator and since the parties agree that still operators should be included, we shall include him. We find that all production and maintenance employees in the employ of the Company at its Agnew plant, excluding executives, fore- men, and clerical and technical employees, constitute a unit appro- priate for the purposes of collective bargaining. We further find 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. 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. We shall direct that the employees in the appropriate unit who were 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, 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 : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Commercial Solvents Corporation, Agnew, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees in the employ of the Company at its Agnew plant, excluding executives, foremen, and clerical and technical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby • Dn crrxD that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Commercial Solvents Corporation, Agnew, California, an elec- tion 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 Twentieth 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 production and maintenance em- ployees of the Company who were employed at the Agnew, California, plant, during the pay-roll period immediately preceding this Direction of Election, 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 executives, foremen, and clerical and technical employees, and employees who have since quit or been discharged for cause,'to determine whether or not they desire to be represented. by Interna- tional Longshoremen's and Warehousemen's Union, Local 6, affiliated with the Congress of Industrial Organiz'tions, for the purposes of collective bargaining.