Bisbee Linseed Co.

National Labor Relations Board - Board Decisions

Aug 14, 1941

34 N.L.R.B. 272 (N.L.R.B. 1941)

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.