American Cyanamid Co.

National Labor Relations Board - Board DecisionsOct 31, 1940

27 N.L.R.B. 1176 (N.L.R.B. 1940)

In the Matter of AMERICAN CYANAMID COMPANY and UNITED MINE WORKERS OF AMERICA, GAS, BY-PRODUCTS , COKE AND CHEMICAL WORKERS, DISTRICT NO.50 - - Case No. R-0094.-Decided October 31, 1940 Jurisdiction : chemical 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 production and maintenance employees including watchmen, but excluding executives, superintendents, fore- men, assistant foremen, supervisory employees, office and clerical employees, timekeepers, laboratory assistants, and salaried employees. Mr. George R. Martin, of New York City, for the Company. Mr. Samuel L. Rothbard, of Newark, N. J., for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 30 and September 13, 1940, respectively, United Mine Workers of America, Gas, By-Products, Coke and Chemical Workers, District No. 50, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affecting commerce had arisen concerning the representation of employees of American Cy- anamid Company,l Newark, New Jersey, 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 October 1, 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, ordered an investigation and authorized the Regional Director to 3 Incorrectly designated in the , formal papers as Calco Chemical Division American Cyanamid Company. This was corrected by motion at the hearing 27 N. L. R B., No. 192. 1176 4 AMERICAN CYANAMID COMPANY 1177 conduct it and to provide for an appropriate hearing upon due notice. On October 8, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly -served upon the Company and the Union. Pursuant to notice, a hearing was held on October 14, 1940, at New York City, before Mark Lauter, the Trial Examiner duly designated by the Board. The Company and the Union were repre- sented by counsel and participated in the hearing: Full opportunity to be heard, to examine and- cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. During the course of the hearing, the Trial Examiner granted several motions by the Union to amend its amended petition as to formal matters. During the course of the 'hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY American Cyanamid Company is a Maine corporation with its principal executive offices in New York City. The Company owns and operates manufacturing plants in the State of New Jersey and other States in the United States. This proceeding-. is concerned solely with its Newark, New Jersey, plant, where it is engaged in the manufacture, sale, and distribution of chemicals and chemical products. During the first 6 months of 1940 the Company purchased raw materials for, use in its Newark, New Jersey,, plant valued in excess of $100,000, approximately 80 per -cent of which were shipped to it from points outside the State of New Jersey. During the same period the Company produced finished products at its Newark, New Jersey, plant valued in excess of $175,000, approximately 80 per cent of which were shipped by it to points outside the State of New Jersey. The Company stated that it does not dispute that it is engaged in com- merce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Mine Workers of America, Gas, By-Products, Coke and Chemical Workers, District No. 50, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to member- ship all production and maintenance employees in the Newark, New 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jersey, plant of the Company, including watchmen, but excluding executives, superintendents, supervisory employees, office and clerical employees, timekeepers, laboratory assistants and salaried employees. III. THE QUESTION CONCERNING REPRESENTATION The Union has requested the Company to bargain with it as the exclusive representative of the employees at the Newark, New Jersey, plant. The Company has refused to recognize the Union as such exclusive bargaining agency until such time as the Board designated the appropriate bargaining unit and certified the Union. A state- ment of the Regional Director introduced at the hearing shows,that the Union represents a substantial number of employees in the unit alleged by it to be appropriate.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 The Union urges that all production and maintenance, employees at the Newark, New Jersey, plant of the Company, including watch- men, but excluding executives, superintendents, foremen, assistant fore- men, supervisory employees, office and clerical employees, timekeepers, laboratory assistants, and salaried employees, constitute an appropriate unit. The Company stated that it had no objection to this unit. How- ever, the parties seem to be in disagreement as to whether certain employees are included or excluded from this unit. We shall con- sider the special groups sought by the parties to be included and excluded from the unit. The Union seeks to exclude from the unit Joseph J. Kerins and Peter Szabo on the ground that they are supervisory employees. They are classified by the Company as production operators, and al-J 2 The Regional Director's statement shows that 87 employees of the 174 employees on the September 10, 1940, pay roll of the Company have designated the Union as their represent- ative . During the course of the hearing , the Union submitted 9 additional authorization cards to the Trial Examiner. AMERICAN CYANAMID COMPANY 1179 though, they were at one time foremen they have not acted in that capacity for several years. A witness for the Union testified that employees in the plant considered them to be foremen and that Kerins and Szabo give orders to other employees. They are paid on an hourly basis similar to that of the production workers in the plant in contrast to the employees classified by the Company as supervisory who are paid on a salary basis. Under these circumstances, we shall include them in,the unit. John Potter, John Rankin, Patsy Russo, John Kluxen, Michael Smereka, and Nathan Young are classified by the Company as pro- duction operators. The Union seeks to exclude these employees from the unit on the ground that they are supervisory' employees. They are all paid on an hourly basis and their names do not appear on the Company's list of supervisory employees. The manager of the New- ark, New Jersey, plant testified that none of these employees are considered by the Company to have any supervisory duties whatsoever. Two employees of the Company, who are also members of the Union, testified that these employees are considered by the employees in the plant to be foremen or assistant foremen and that they give orders to other employees in the plant. There is no evidence in the record as to the extent, if any, that these employees give orders to others in the plant or whether they have the right to hire or discharge or the right to recommend the hire or discharge of employees. Under these circumstances, we shall include them in the unit.- Joseph P. Jandick and Charles J. Weiss are classified by the Com- pany as shippers. The Union alleges that these employees have super- visory powers and asks that they be excluded from the unit. Jandick and Weiss receive bills of lading from the Company's office and gather the materials to be shipped, place shipping tags on the cartons or stencil the name of the consignees on barrels, and then truck the goods to be shipped out to the shipping floor. An employee of the Com- pany, who is also an officer of the Union, testified that Jandick and Weiss, are assistant foremen and give orders to other employees. It does not appear in the record to whom, if anyone, Jandick and Weiss give orders, and to what extent, if they do so. We find that Jandick and Weiss should be included in the unit. Herbert V. Gauch is listed by the Company as a mechanic. He is employed by the Company as a welder and is paid on an hourly basis. Gauch has a helper who assists him in his various welding operations. The Union urges that Gauch be excluded from the unit because he gives orders to his helper. It does not appear from the record that Gauch has any supervisory control over his helper other than requests normally made of a helper by a mechanic. We find that Gauch should be included in the unit. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louis C. Rothfuss is classified by the Company as a sample man. The Union asks that he be excluded from the unit on the ground that he is a supervisory employee. His duties consist of taking samples from the various raw materials received by the Company for use at its Newark, New Jersey, plant and bringing the samples to the office for analysis. During the course of his work it is neces- sary for Rothfuss to handle large barrels and shipping cartons and he often requests any employee who happens to be present to assist him. An employee of the Company, who is also a member of the Union, testified that Rothfuss is an assistant foreman. There is no evidence in the record as to any -conduct on the part of Rothfuss which would indicate that he performs supervisory functions. We find that Rothfuss should be included in the unit. Charles Hellyer, Jr. is classified by. the Company as a clerk. He works in the storeroom where he hands out materials to the various employees in the plant. The Union urges that he be excluded from the unit oil the ground that he is a clerical, employee. The only clerical work involved in his duties is that of making out receipts for the materials he issues and this consumes approximately 20 per cent of his time. His duties are in the plant where he is in close contact- with the production workers. We find that Hellyer, Jr. should be included in the units ' H. Morris and Charles Mills are . classified, respectively, by the Company as head machinist and head carpenter. The Union seeks to exclude these employees from the unit on the ground that they are supervisory employees. The manager of the Newark, New Jer- sey, plant, testified that the reason these employees appear on the pay roll as head machinist and head carpenter is because they are the oldest and most experienced workers in the plant. The evidence shows that these employees work in cooperation with other ma- chinists and carpenters in-the plant and because of their experience often "head'up" a job. The Company stated that- these employees do not have, any supervisory duties inasmuch as a working foremen is always present on the job. An' employee of the Company, who is also a member of the Union, testified that Morris and Mills are considered by the other employees to be foremen and that they give orders to other employees. Morris and Mills are paid on an hourly basis, the same as the other machinists and carpenters in the plant. Under these circumstances, we shall include Morris and Mills in the unit. J. E. Mullin is classified by the Company as an operator at its" Newark, New Jersey, plant. The Union seeks to exclude him from 8 See Matter of Cleveland Equipment Workers and The United Electrzoal , Radio and Machine Workers of America, Local 707, 6 N. L. R B. 773 AMERICAN CYANAMID COMPANY 1181 the unit on the'ground that he is a supervisory employee. Mullin was employed by the Company as head watchman at one of its other plants until shortly before the hearing in this case. At that time he was transferred to the Newark, New Jersey, plant and is employed as an ordinary operator at the present time. We find that Mullin should be included in the unit. William Shaw is employed by the Company as a night mechanic and is' paid on an hourly basis. The Union seeks to exclude him from the unit on the ground that he is a supervisory employee. Shaw is the only mechanic that works in the plant at night and no one has ever worked under his direction or in cooperation with him. An employee of the plant, who is also an officer of the- Union, testified that Shaw is considered by the employees to be a representative of the management. We find that Shaw should be included in the unit. William Bender is, classified by the Company. as a production helper. The Union seeks to exclude him from the unit on the ground that he is a supervisory employee. Bender is paid on an hourly basis and it does not appear from the record that Bender has any super- visory duties. We shall include Bender in the unit. ^ Edward Werner is classified by the Company as a yard supervisor. The Union seeks to exclude him from the unit on the ground that he is a supervisory employee. His duties consist of routing the various trucks on the Company's premises and directing the various truck drivers as to where to pick up and unload materials. Under these circumstances, we shall include him in the unit. We find that all production and maintenance employees in the Newark, New Jersey, plant of the Company, including watchmen, but excluding executives, superintendents, foremen, assistant foremen, supervisory employees, office and clerical employees, timekeepers, laboratory assistants, and salaried employees, constitute a unit appro- priate for the purposes of collective bargaining and that such 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 The Union seeks to be certified on the basis of the record. There was introduced in evidence the Company's pay roll of September 10, 1940. This list shows that the Company at that time employed ap- proximately 174 employees in the appropriate unit. In support of its claim of majority representation, the Union produced applications for membership in the Union signed by slightly over 50 per cent of the 174 employees in the appropriate unit. The Company stated that it 1182 _ DECISIONS OF\ NATIONAL LABOR RELATIONS BOARD would prefer an election as a basis for certification rather than the applications introduced by the Union. Under these circumstances, we believe that the question concerning representation can best be" resolved by means of an.election by secret ballot.4 We shall direct that the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were em- ployed during the pay-roll period immediately "preceding the date of the Direction of Election herein, including employees who did not work during such pay-roll period because they were ill or on vacation and employees who were then or have since been temporarily laid off, but excluding those who.have since quit or been discharged for cause. 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 American Cyanamid Company, Newark, New Jersey, 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 at the Newark, New Jersey, plant of the Company, including watchmen, but excluding executives, superintendents, foremen, assistant foremen, supervisory employees, office and clerical employees, timekeepers, laboratory as- sistants, and salaried employees, constitute a unit appropriate for the purposes 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 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 American Cyanamid Company, Newark,' New Jersey, 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, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the National Labor Rela- 4 Armour & Company and United Packinghouse Workers, Local Industrial Union No. 1,4 of Packinghouse Workers Organizing Committee, afflliated with CIO, 13 N. L., R. B. 567. AMERICAN CYANAMID COMPANY 1183 tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees at the Newark, New Jersey, plant of the Company who were employed during the pay,-roll period immediately preceding the date of this Direction, including watchmen, employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who were then or have since been temporarily laid off, but excluding' executives, superintendents, foremen, assistant foremen, supervisory employees, office and clerical employees, timekeepers, laboratory assistants, salaried employees, and employees who have since quit or been discharged for cause, to determine whether,or not they desire to be represented by United Mine Workers of America, Gas, By-Products, Coke and Chemical Workers, District No. 50, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining.