Bisbee Linseed Co.

In the Matter of BISBEE LINSEED COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERICA, LOCAL 12092 Case No. R-2773.-Decided August 14 194J Jurisdiction : linseed oil manufacturing industry. Investigation and Certification of Representatives : existence of question: Com- pany refused to accord union recognition until Board determines after an election that it represented a majority of the employees ; casual employees held eligible to vote ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees, excluding supervisory and clerical employees, laboratory employees, and technical employees working in the laboratory ; agreement as to. Mr. Kennth Souser, of Philadelphia, Pa., for the Company. Mr. Saul C. Walbaum, of Philadelphia, Pa., for the United. Mr. Eugene M. Purver, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 24, 1941, District 50, United Mine Workers of America, Local 12092, herein called the United, filed with the Regional Di- rector for the Fourth Region (Philadelphia, Pennsylvania) a peti- tion alleging that a question affecting commerce had arisen concerning the representation of employees of Bisbee Linseed Company, Phila- delphia, Pennsylvania, herein called the Company, 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 July 11, 1941, 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 notice. On July 14, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the United. Pursuant to notice, a hearing was held on July,21, 1941, at Philadel- 34 N. L. R. B., No. 40. 272 BISBEE LINISEEID OOMPAN'Y 273 phia, Pennsylvania, before Jerome I. Macht, the Trial Examiner duly designated by the Chief Trial Examiner. The Company and the United were represented and 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. During the course of the hearing the Trial Examiner made several rul- ings 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 7, 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 1. THE BUSINESS OF TFTE COMPANY Bisbee Linseed Company, a Pennsylvania corporation, with its general offices and a plant in the city of Philadelphia, Pennsylvania, is engaged in the manufacture, sale, and distribution of linseed oil and certain other edible oils. It also maintains a plant in New York, and one in Illinois 1' The Company purchases annually in excess of $100,000 worth of raw materials, principally flaxseed, from points outside the Commonwealth of Pennsylvania, and from foreign countries, and sells annually in excess of $100,000 worth of finished products to customers located outside t he Commonwealth of Pennsylvania. II. THE ORGANIZATION INVOLVED District 50, United Mine Workers of America, Local 12092, is a labor organization affiliated with the Congress of Industrial Organi- zations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION At the hearing the Company and the United stipulated that the Company refuses to recognize or bargain collectively with the United as the sole and exclusive bargaining agent for its employees until the Board determines, after an election, that it represents a majority of the employees within an appropriate unit. At the hearing a report prepared by the Regional Director concern- ing claims of authorization for the purposes of representation was introduced in evidence showing that the United represents a sub- 2 These proceedings are concerned only with the Philadelphia plant. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantial number of the employees within the unit found to be ap- propriate herein.2 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 At the hearing the parties agreed that the appropriate unit con- sists of all production and maintenance employees at the Philadelphia plant, excluding supervisory and clerical employees, laboratory em- ployees, and technical employees working in the laboratory. The Company contends that five employees are supervisory and, therefore, outside the scope of the agreed unit. The United contends that they are production employees, and are within the unit. J. W. Oliver, R. L. Kellum, V. T. Pelzer, and G. Pullin, do the same type of work and have similar responsibilities. They are, on their re- spective shifts, in charge of the refinery and oil house, with from two to four employees under their respective direction, and have the power to recommend dismissal. Their regular duties include supervising the operation of the refinery and the handling of oil. These em- ployees are responsible for the carrying out of orders and are listed by the Company in the official pay-roll book on the same page with other supervisory employees, and are called foremen. We find these employees to be supervisory employees and shall exclude them from the unit. The fifth employee, P. H. Wright does maintenance work and acts as substitute foreman at least for one day during each week. We shall exclude him from the unit. We find that all production and maintenance employees at the Philadelphia plant, excluding supervisory and clerical employees, 2 The statement of the Regional Director concerning claims of authorization for the purpose of representation shows that the United submitted 168 application authorization cards, of which 4 were signed during May 1941, 139 during June 1941 , and 25 did not show when-they were signed. All of the application authorization cards bear apparently genuine original signatures , and 137 bear the signatures of persons whose names appear on the Company's pay roll of June 6, 1941 . The Company employed 151 production and maintenance employees on that date. BISB'E'E LINSEED COMPANY 275 laboratory employees, and technical employees working in the labora- tory, constitute a unit appropriate for the purposes of collective bar- gaining 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. VI. THE DETERMINATION OF REPRESENTATIVES - We find that the question which has arisen concerning the represen- tation of employees of the Company can best be resolved by an elec- tion by secret ballot. The United desires that casual employees engaged in production and maintenance work should be permitted to vote in the election. The Company, on the other hand, contends these employees should not be allowed to vote .s The Company follows no seniority or other rule in hiring or rehiring these employees and employs whomever happens to be available when the need arises. We shall permit such of these employees as are employed on the eligibility date to vote. We shall direct that the employees eligible to vote in the election shall be those employees within the appropriate unit who were employed by the Company on June 6, 1941, subject to such limitations and additions as are set forth in the Direction of Election.4 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 Bisbee Linseed Company, Philadelphia, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. All the production and maintenance employees of the Company at its Philadelphia plant, excluding supervisory and clerical employ- ees, laboratory employees, and technical employees working in the laboratory constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. e At the hearing the Company's representative testified that the number of these employees varies "more or less" according to different times of the year. 4 At the time of the hearing a strike was in progress , and the Philadelphia plant was closed down The parties agree that the last complete day's work, as indicated on the pay-roll books of the Philadelphia plant, was on June 6, 1941 Since the strike is a current labor dispute the strikers are employees of the Act. within the meaning of Section 2 (3) 276 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 Re- lations 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 Bisbee Linseed Company, Philadelphia, Pennsylvaluia, 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 Elec- tion, under the direction and supervision of the Regional Director for the Fourth 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 on June 6, 1941, includ- ing employees who did not work on said date 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 supervisory and clerical employees, laboratory employees, and technical employees working in the laboratory, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented for the purposes of collective bargaining by District 50, United Mine Workers of America, Local 12092. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Direction of Election.