National Fireworks, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1941

33 N.L.R.B. 1115 (N.L.R.B. 1941)

In the Matter of NATIONAL FIREWORKS, INC. and FEDERAL LABOR UNION
No. 22694, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. R-0718.Decided August 5, 1941
Jurisdiction : fireworks and munition manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to either of rival unions until certified by the
Board ; election necessary and directed to be conducted as early as possible
despite request of one of the unions involved for postponement pending hiring
of increased personnel contemplated by Company.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees at the West Hanover plants of the Company, including firemen or
engineers, truck drivers and helpers, and inspectors, but excluding executives,
salesmen, office clerks, plant police, engineers, draftsmen, superintendents
and their assistants, foremen, clerks in ordnance and fireworks departments,
tihiekeepers, clerks in maintenance department, gang bosses in production
department, gang bosses in maintenance and construction department, and
gang bosses or assistant foremen in fireworks plant.
Mr. Bertram H. Loewenberg, of Boston, Mass., for the Company.
Mr. A. Frank Reel, of Boston, Mass., for Local 22694.
Mr. Samuel E. Angoff, of Boston, Mass., for the United.
Mr. Louis Cokin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On May 26, 1941, Federal Labor Union No. 22694, affiliated with
the American Federation of Labor, herein called Local '22694,, filed
with the Regional Director for the First Region (Boston, Massa-
chusetts) a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of National Fire-
works, Inc., West Hanover, Massachusetts, herein called the Com-
pany, and requesting an investigation and certification of representa-
tives pursuant to Section 9 (c) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. On July 3,'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,
33 N. L. R B, No 191.
1115
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered an investigation and authorized the Regional Director to*
conduct it and to provide for-an appropriate hearing upon due notice-
On July 3, 1941, the Regional Director issued a notice of hearing,.
copies of which were duly served upon the Company, Local 22694, and
Gas & By-Products, Coke & Chemical Workers, District 50, United
Mine' Workers of America, herein called the United, a labor organiza-
tion claiming to represent employees directly affected by the investi-
gation. Pursuant to notice, a hearing was held on July 10, 1941, at
Boston, Massachusetts, before Albert J. Hoban, the Trial Examiner
duly designated by the Chief Trial Examiner. The Company, Local
22694, and the United 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. During the course of-the hearing the Trial Ex-
aminer made several rulings on motions and on objections to the admis-
sion 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.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
National Fireworks, Inc. is a Massachusetts corporation with its
principal offices in West Hanover, Massachusetts, where it is engaged in
the manufacture, sale, and distribution of fireworks and munitions.
From January 1, 1941, to July 1, 1941, the Company purchased about
3,000,000 pounds of high explosives, 15,000 pounds of paints, and over
1,000,000 pounds of other supplies,,more than 85 per cent of which were
shipped to it from points outside the State of Massachusetts. During
the same period, the Company shipped over 100 carloads of fireworks
and munitions to points outside the State of Massachusetts. This fig-
ure represented more than 50 per cent of the Company's total finished-
products during such period. The Company admits that it is engaged
in interstate commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Federal Labor Union No. 22694 is a labor organization affiliated with
the American Federation of Labor. It admits to membership employ-
ees at the West Hanover plants of the Company.
Gas & By-Products, Coke & Chemical Workers, District 50, United
Mine Workers of America, is a labor organization affiliated with the
Congress of Industrial Organizations. It admits to membership em-
ployees at the West Hanover plants of the Company.
NATIONAL FIREWORKS, I1\TC.
III. THE QUESTION CONCERNING REPRESENTATION
1117
In May 1941, Local 22694, claiming to represent a majority of the
employees, sent a proposed contract to the Company. The Company
replied that because of conflicting claims by two labor organizations it
would not recognize either until the representative had been
determined.
The parties stipulated at the hearing, and 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
Local 22694, the United , and the Company agree that all production
and maintenance employees at the West Hanover plants of the Com-
pany should be included in the appropriate unit, and that executives,
salesmen, office clerks, plant police, engineers , draftsmen , superintend-
ents and their assistants , foremen, clerks in ordnance and fireworks
departments , and timekeepers should be excluded . They disagree,
however, as to the disposition to be made of certain other classes of
employees.
Firemen or engineers . The Company employs 16 persons classified
by it as firemen or engineers . The United desires that these em-
ployees be excluded from the unit and Local 22691 and the Company
that they be included . These employees are paid on an hourly basis,
the same as other maintenance employees of the Company. We
find that firemen or engineers should be included in the unit.
Truck drivers and helpers. The United desires that these em-
ployees be excluded from the unit and the Company and Local
22694 that they be included . The United stated that it desired to
exclude these employees because they drove munitions trucks, and
that it did not wish to become involved in a labor dispute over em-
ployees engaged in such work. The truck drivers and helpers spend
the major part of their time transporting semi-manufactured prod-
ucts between the Company's buildings 1 and in addition load and
1 The Company maintains about 140 buildings , which together comprise The plant herein
involved
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unload the trucks. Under the circumstances, we find that the truck
drivers and helpers should be included in the unit.
Clerks in maintenance department. ' The United and the Company
urge that these employees be excluded from the unit. Local 22694
did not state its position with respect to these employees. The duties
of these employees are purely clerical and part of them appear on the
office pay roll and the remainder on the plant pay roll. Other clerical
workers are excluded from the unit by agreement of the parties.
We find that clerks in the maintenance department should be ex-
cluded from the unit.
Gang bosses in production department. The Company has 32 per-
sons in this department classified by it as gang bosses. The United
urges that these employees be excluded from the unit on the ground
that they are supervisory employees. Local 22694's position with
respect to these employees is not clear in the record. The Company
took no position with respect to these gang bosses. A representative
of the Company testified that these employees spend about 98 per
cent of their time performing supervisory duties, that they are paid
on a weekly basis, and that they recommend the hire and discharge
of employees working under them. We find that gang bosses in the
production department should be excluded from the unit.
Gang bosses or assistant foremen in fireworks plant. The United
urges that these employees be excluded from the unit on the ground
that they are supervisory employees. The Company and Local 22694
urge that they be included in the unit. Although these employees
are paid on an hourly basis, they receive a higher rate than other
employees and make recommendations to the foremen with respect
to the hire or discharge of employees in the fireworks plant. We
find that gang bosses, or assistant foremen in the fireworks plant
should be excluded from the unit.
Ganq bosses in maintenance and construction department. The
United urges that these employees be excluded from the unit on the
ground that they are supervisory employees. The Company and
Local 22694 contend that these employees should be included in the
unit. Although these employees spend about -90 per cent of their
time performing actual manual labor, the remainder of their time
is spent in supervisory functions. It does not appear from the
record whether these employees have the right to recommend the
hire or discharge of employees. We are excluding the other gang
bosses from the unit. Under the circumstances, we find that gang
bosses in maintenance and construction departments should be
excluded from the unit.
Inspectors. The Company employs about 25 persons classified
by it as inspectors. The Company and the United contend that
NATIONAL FIREWORKS, INC. 1119
these employees should be excluded from the unit and Local 22694
that they be included . A representative of the Company testified
that the work of the inspectors is of a confidential nature in that
they have knowledge of the formulae for mixing powder. These
employees appear on the Company 's pay roll under the classification
of production laborers . They , are paid on an hourly basis. It is
their duty to see that production proceeds according to specifications
and they have authority to stop a job if it is being done improperly.
Under the circumstances , we find that the inspectors should be
included in the unit.2
We find that all production and maintenance employees at the
West Hanover plants of the Company , including truck drivers and
helpers, firemen or engineers , and inspectors , but excluding execu-
tives, salesmen , office clerks , plant police , engineers , draftsmen , super-
intendents and their assistants , foremen, clerks in ordnance and
fireworks departments , timekeepers , clerks in maintenance depart-
ment , gang bosses in production department , gang bosses in main-
tenance and construction department , and gang bosses or assistant.
foremen in fireworks plant, constitute a unit appropriate 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
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. The
United and Local 22694 stated that in the event the Board directs
an election, eligibility to vote should be determined by a pay roll
of the Company as of the date of the election. The superintendent
of the Company testified that due to an expansion program which
was in progress at the time of the hearing, the Company expected
to hire approximately 1100 new employees in the immediate futures
depending on the ability of the Company to procure needed raw
materials . The United contends that no election should be held
until such time as a representative vote can be held, that is, sometime
after the Company has hired the increased personnel contemplated
by it. Local 22694 urges an immediate election. We shall direct
an election to be conducted as early as possible but not later than
thirty (30) days from the date of the Direction herein. In accord-
ance with our usual practice, we shall direct the employees of the
2 The British and United States Governments keep inspectors in the plant also They are
not employees of the Company and all parties agreed that they should be excluded from the
unit
3 At the time of the hearing the Company employed approximately 900 persons.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company 4 eligible to vote in the election shall be those employees in
the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election, subject
to such limitations and additions as are set forth in the Direction
hereinafter.
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 National Fireworks, Inc., West Hanover,
Massachusetts, 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 West Han-
over plants of the Company, including firemen or engineers, truck
drivers and helpers, and inspectors, but excluding executives, sales-
men, office clerks, plant police, engineers, draftsmen, superintendents
and their assistants, foremen, clerks in ordnance and fireworks de-
partments, timekeepers, clerks in maintenance department, gang
bosses in production department, gang bosses in maintenance and
construction department, and gang bosses or assistant foremen in
fireworks plant, 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 the National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIREcTFD that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargain-
ing with National" Fireworks, Inc., West Hanover, Massachusetts,
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,
under the direction and supervision of the Regional Director for
the First 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 at the West Hanover plants of the Company who-were-
employed during the pay-roll period immediately preceding the date
4 The British and United States inspectors are not eligil)le to vote in the election See
footnote 2, supra.
NATDONAL FIREWORKS, INC. 1121
of this Direction, including firemen or engineers, truck drivers and
helpers, inspectors, employees who did not work during such 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, salesmen, office clerks, plant police, engineers,
draftsmen, superintendents and their assistants, foremen, clerks in ord-
nance and fireworks departments, timekeepers, clerks in maintenance
department, gang bosses in production department, gang bosses in
maintenance and construction department, gang bosses or assistant
foremen in fireworks plant, and employees who have since quit or
been discharged for cause, to determine whether they desire to be
represented by Federal Labor Union No. 22694, affiliated with the
American Federation of Labor, or by Gas & By-Products, Coke &
-Chemical Workers, District 50, United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, for the pur-
pose of collective bargaining, or by neither.
EDWIN S. SMITH, dissenting in part and concurring in part :
The inspectors are engaged in work that places them on the fringe
of the functions of employees admittedly in the unit. Following
the long-established rule of the Board in the case of such "fringe
.groups," I would hold that the above-named employees should be
excluded from the unit on the ground that one of the labor organiza-
tions involved desires their exclnsion.5
I concur in the remainder of the Board's Decision and Direction
,of Election.
5 See my concurring opinions in Matter of Union Switch and Signal Company and
United Electrical , Radio and Machine Workers of America, Local 610, 30 N L. R B 922,
Matter of Pidgeon Thomas Iron Company and Steel Workers Organizing Committee,
-32 N. L R B 295, and cases cited therein.