Sinclair Rubber, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1944

57 N.L.R.B. 800 (N.L.R.B. 1944)

In the Matter of SINCLAIR RUBBER , INC. and ' HousTox LABOR AND'
TRADES COUNCIL, A . F. L.
In the Matter of SIxmAIR RUBBER , INC. and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS , DISTRICT LODGE No. 37, A. F. L.
Cases Nos. 16-8-877 and 16-R-887 respectively.-Decided, Judy 31,
1944
Mr. H. L. Pelzer 'and Mfesers. Baker, Botts, Andrews, and Wharton,
by Mr. Torn M. Davis, of Houston, Tex., for the Company:
Mcssrs: Wood, Gresham, McC.orquodale, and Martin, by Mr. M. •S.
1lMcCorquodale, of Houston, Tex., for the Trades Council.
Messrs. W: L. Grand and A. H. Houser, of Houston, Tex:, fortthe
I.A.M.
Mr.'Bliss Daffan, of Dallas, Tex., and Mr. Lindsay P. Walden, of
Fort Worth, Tex., for Local No. 227.
Messrs. E. D. Brister and Clyde Ingram, of Houston, Tex., for the
International.
Mfrs. Platonia P. Kaldes, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon, petitions duly filed by Houston Labor` and Trades Council,,
A. F. L.,1 herein called the Trades Council, and International Associ-
' The Trades Council, in its 'petition, designated the following affiliated organizations as
having an interest in the proceeding.
( 1) Carpenters and Millwrights Local Union #213.
(2) Painters Local Union'#130
(3) Bricklayers Local Union #7.
( 4) Electrical Workers Local ##716.
(5) Pipe-fitters Local Union #195.
( 6) Engineers Local Union #450.
( 7) Building and Common Laborers Local Union #18.
( 8) Truck'Drivers, Ware House Workers Local #968.
( 9) Boilermakers Local Union #74.
(10) Any other organization affiliated with the Trades Council, having jurisdiction in
the matter.
57 N. L. R. B., No. 134.
800
I
SINCLAIR RUBBER, INC. 801
ation of Machinists, District Lodge No. 37, A. F. L., herein called
the I. A. M., each alleging that a question affecting commerce, had
arisen concerning the representation of employees of Sinclair Rubber,
Inc:, Houston, Texas, herein called the Company,, the,N,ational Labor
°r-Relations' Board`or'dered'that the proceedings' be consolidated' and''
provided for an appropriate hearing upon due notice before Robert F.
Proctor, Trial Examiner. , Said hearing was held at Houston, Texas,
on May 23 and 24, 1944. During the course of -the proceedings, the
Oil Workers International Union, C. I. 0., herein called the Inter-
national, filed with the Board's Regional Director, on its own behalf
and on behalf of its affiliate, Local No. 227, herein called Local No. 227,
both collectively referred to as-the Oil Workers, a motion to intervene
in the proceedings. This motion was referred to the Trial Examiner
for appropriate action. The Trial Examiner granted the motion. The
Company, the Trades Council, the I. A. M., and the Oil Workers
appeared and participated in the hearing. '
During the course of the hearing the Company and the Oil
Workers each moved to' dismiss the petitions herein. In support of
its motion to dismiss, the Company contended that neither is it en-
gaged in commerce nor is it an employer within the meaning of the
Act. ,In support of its motion to dismiss, the Oil Workers contended
that (1) an existing collective bargaining agreement between 'it and
the Company is 'a bar to a present determination of representatives,
(2) the petitioning unions failed to show sufficient representation
among the employees sought by each, and (3) in any event, the unit
sought by the I. A. M. in Case No. 16-R-S87 is inappropriate for the
purposes of collective bargaining. The afore-mentioned motions to
dismiss were referred to the Board. For reasons hereinafter set
forth, we hereby deny the Company's motion to dismiss, and the Oil
Workers' motion, to dismiss in Case No. 16-R-877, and we hereby
,grant the Oil Workers' motion to, dismiss in Case No. -16-R-887 on
the ground that the unit therein sought is inappropriate.
All parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon'
the issues. The Trial Examiner's rulings-made at the hearing are
free from prejudicial error and are hereby, affirmed. All parties
were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company is a Delaware corporation having its principal of-
fices at Houston, Texas. It is a wholly owned subsidiary of the
601248--45-vol. 57-52
8p2 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
Sinclair Refining Company, herein called the Refining Company, a
corporation _directly engaged in interstate commerce.
The Colnpany was organized by the Refining Company in 1942
at the request of an agency of the i :Tnited States Governmelit for the
sole purpo'se' of•managing and, operatinga butadiene pro`ducinb`plant_
located at Houston, Texas. The plant and all its equipment ai•e
owned by Defense Plant Corp'oratio'n, a subsidiary of Reconstruction,
Finance Corporation. All raw materials used in the plant and all
the finished products are owned by Rubber Reserve Company, also
a subsidiary 'of Reconstruction Finance Corporation. ' '
Butadiene, the principal 'product manufactured by the'Coinpany,
is processed from petroleum. It is a raw material used in tlie.manu-
facture of synthetic rubber and, as such, its, production is an im-
portant part' of the National Defense Program. A substantial
amount of the raw materials used in" producing butadiene is shipped
to the Company's plant from points outside the State of Texas.2 All
of the butadiene produced at the Company's plant is delivered, at the
direction of the, Rubber. Reserve Company, within the-State'of Texas
to the Goodyear Tire and Rubber Company. The latter, in ' turn,
uses the butadiene for the manufacture of synthetic rubber and syn-
thetic rubber products, which are used throughout the world in con-
nection with the prosecution of 'the war effort.3
`The Company employs approximately 640 non-supervisory em-
ployees. The Company has full control over the hiring and dis-'
charging of all personnel and their working''conditions, with. the
exception of supervisory employees whose employment is approved
by Rubber Reserve Company. The labor relations policies of the
Company''are determined by the ,Refining Company with the only
limitation being that such policies are not to be contrary to anything
,contained in the operating agreement and lease agreement between
the Company and the owning corporations created by the Govern=-
ment. One of the said agreements specifically provides that the
employees of the Company are in no event to be considered employees
of'the United States. Except for incorporating in one or the other
of the said agreements provisions which are applicable generally at
the present time to all industries, such as payment of minimum
wages, payment for overtime work, and non-discrimination against
any employee"because of race, sex, or religion, the agreements con-
tain no limitations on the labor relations policies which the Company
may pursue. The employees are paid by checks drawn on a joint
2 A substantial amount of all such raw materials is supplied by the Sinclair Refining
Company., I -
After extracting butadiene from petroleum, it is possible to produce a certain number
of byproducts. These byproducts are usually shipped by the Company, upon orders from
the Rubber Reserve Company, to companies located outside the State of Texas.
SINCLAIR RUBBER, INC. -803
bank account of Rubber Reserve Company and Sinclair Rubber, Inc.,
with money supplied by Rubber ' Reserve Company. ' From the em-
ployees' earnings, the Company makes certain authorized deductions;
including Social Security deductions. -
The', Company-contends-that it is,neither engaged in commerce nor.
is an employer, within the meaning of the National Labor Relations
Act. We find no merit in either contention.4 Upon the facts stated
above, we find that the Company ,is an employer, within the meaning
of Section 2 (2) of the National Labor Relations Act, and that it is
engaged in commerce within the meaning of Section 2 (6) and (7)
of • `the, National Labor Relations Act. '
-II. THE ORGANIZATIONS INVOLVED
Houston Labor and Trades Council, affiliated with the American
Federation of.Labor, is'a labor organization admitting to membership
employees of the Company.
International Association of Machinists, District Lodge No.. 37,
affiliated with the American Federation of Labor, is a labor organ-
ization admitting to membership employees of the Company.
Oil Workers International Union, Local No. 227, and Oil Workers
International Union, affiliated -with the. Congress of Industrial Or-
ganizations,- are, labor organizations admitting to membership em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION IN CASE NO . 16-R-877;
THE ALLEGED QUESTION CONCERNING REPRESENTATION IN CASE NO.
16-R-887
A., Case No. 16-B-877-
On or about March 16,-1944, a representative of the Trades Council
called upon an official of the Company and requested recognition as
the exclusive bargaining representative of all production and main-
tenance, employees. The Company replied that it could, not accord
such recognition,-inasmuch as it had a contract with the Oil Workers
covering the employees in question which was in full force and effect.
On March 20, 1944, the Trades Council filed its petition herein.
On April 30, 1943, the Company and Local No. 227 executed a
collective bargaining contract pursuant to which Local No. 227, was
recognized by the Company as the exclusive representative of all em-
ployees of the Company, excepting technical, clerical, and supervisory
employees. By its terms, the said contract is effective from May 1,
I See N. L R. B v. Fainbldtt , 306 U. S. 601 ; Matter of Copolymer Corporation, 52
N. L R B 578; cf. N L. R B v Hearst Publications , 322 U S 111 ; N L. R. B. v.
Carroll, 120 F. (2d) 457 (C. C. A. 1), enf'g Matter of William H. Carroll, 29 N L. R. B.
343
804 , DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
1943, until May 1, 1945, and thereafter, "until terminated by either
party upon thirty (30) days' written notice 'by the party.electing to
terminate." • The Oil Workers contends that this contract is a bar to a
present determination - of representatives. The record establishes,
however, that - at ,the time the' said, contract -was-, made, production
operations had not been, begun at the Company's plant and that,,except
'for 18 employees who were then being trained at the Refining Com-
pany's plant for, production' or maintenance work, the Company em-
ployed no production or maintenance employees. In fact,' production
was not started at the Company's plant until April 1944,,and the full
complement of approximately, 640 non-supervisory employees,was not
acquired until May 1944. We regard these facts as determinative of
the issue and conclude that the existing contract between the Com-
pany and Local No. 227 is not' a bar to a present determination of
representatives."
A statement of a Board agent, introduced into evidence at the hear-
ing, as supplemented by a statement of the Trial Examiner made on
the record,indicates that'- the= Trades Coulicil,''and, the Oil Workers
each represent, a substantial number of employees in the; appropriate
-unit e
We find that a question affecting commerce 'has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
B. Case •No. 16-1-887
Since, as we find in Section IV, below, the bargaining unit sought to
be established by, the I. A. M. is inappropriate for the purposes of
collective bargaining, we find that no question affecting commerce has
arisen concerning the representation of the employees of the Company
involved in the above-numbered proceeding.
5 See Matter of Ball Brothers, 54 N. L. R. B. 1612; cf. Matter of Aluminum, Corporation
of America, 51 N. L. R. B. 1295; Matter of Aluminum Corporation of America, 49
N. L. R. B. 1431. 1
e The,following table summarizes the authorization evidence submitted :
Names on desig-
I
Appromimate no. nations appearing
Designations of employees on company's pay-
submitted in unit rail records
Trades Council --------------------- 239* 640 216
Oil Workers, Claim of interest based on contract.
*Fifty-two' of these cards were submitted by the Trades Council to the Trial
Examiner. The latter made a spot check of each tenth card against the Company's
pay-roll records. This check revealed that the cards bore names of persons appear-
ing on such records and that all signatures appeared to be genuine. The Field
Examiner, to whom the, remaining cards, had been, submitted'•prior to the hearing,
made a,complete check of all the cards against the Company's pay roll dated March
15, 1944. '
ti
SINCLAIR RUBBER, INC. 805
IV. THE APPROPRIATE UNIT IN CASE NO. 16-R- 877; THE ALLEGED APPRO-
PRIATE UNIT IN CASE NO. 16-R-887
In Case No. 16-R-877 the Trades Council requests a unit comprised
if all production and maintenance employees of the Company, exclud-
ing supervisory, technical, clerical, and plant-protection employees.
In, Case No. 16-RL887, the I. A. M.' requests a unit comprised of\all
employees in the Machinists Department (including maintenance
machinists and helpers)' all employees in the Garage Department of
the Company (including mechanics, porters, washers, and greasers
regularly assigned to the Garage Department), but excluding super-
visory, technical, and clerical employees.
The Oil Workers'contends, and the Company agrees, that the only
appropriate unit herein is one embracing all employees of the Com-
pany, exclusive of technical, clerical, plant-protection, and supervis-
ory employees, and that the unit sought by the Trades Council in Case
No. 16-R-877 is substantially such a unit.
.Since;_as.the record.revealsthe, emp)oyees sought by the.I. A. M. in
Case No. 16-R-887' are employees embraced by the unit alleged to be
appropriate by the Trades Council, the Oil Workers, and the Company,
we are presented with the issue as to whether, or not they may function
separately for collective bargaining purposes. Among others, it is
the contention of the Oil Workers that the employees in question do
not form a homogeneous group of employees, and that, under such cir-
cumstances, their segregation from a plant-wide unit of production
and, maintenance workers would not be appropriate. We agree with
this contention. The record establishes that the unit petitioned for,
by the I, A. M. is comprised of various groups of employees in two dif-
ferent departments of the plant whose interests and skills are not
reasonably interrelated. Thus, the unit includes, not,only skilled em-
ployees, such 'as: mach-inists-and,machinists' helpers, but also common
laborers and ordinary maintenance employees such as washers and
car greasers, whose duties doj not involve the exercise of any particular
skill. We see no reason, therefore, to segregate these employees, for
the purposes of collective bargaining, from a unit of production and
maintenance workers. We find, therefore, that the unit sought by the
I. A. M. in Case No. 16-R-887 is not appropriate for-the purposes 'of
collective bargaining. '
There remains, for consideration the exact composition of the appro-
priate unit. The Trades Council would exclude, while the Company
and the'Oil Workers would include, receiving clerks, stock clerks, and
head shift testers. While all parties have agreed to include gang
t 1, t , a
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaders,7 we feel'that the facts established by,.the evidence warrant
our examination of their status. The record discloses the following
facts with respect to each of the afore-mentioned groups of employees.
(1)• Receiving clerks and stock clerks are engaged in receiving,
distributing, and checking in materials and supplies, keeping records
thereof, checking invoices, and doing other 'related work. The Trades
Council contends that because their work is largely clerical in natures
they therefore fall within'the class of clerical employees whom the
parties would exclude from the unit. The record-shows, however,
that unlike the regular clerical force, which is physically separated
from the employees here involved, receiving and stock clerks perform,
their duties in the midst of the production and maintenance workers,
and that they are paid on an hourly basis, while the office clerical
employees are paid on a salary basis. The duties of receiving clerks
and stock clerks are analogous to those of toolroom clerks and process
clerks, all of whom the parties'would include. ' We are persuaded by
the, foregoing facts that the interests of receiving clerks and stock
clerks are more intimately related to those of production and main-
tenance employees than'to those of office clerical employees whom the
parties would exclude. We,shall, therefore, include recei'ving.clerks
and stock clerks in the appropriate'unit.'
(2) Head shrift testers. Although the parties agree, and the record
establishes, that employees classified 'as head shift testers do not pos-
sess 'supervisory status within the meaning of our customary definition,
the Trades Council seeks to exclude those presently engaged as head
shift testers due to the fact that they are soon to be promoted to
clearly supervisory positions. It is undisputed, however; that when
these employees are promoted they, will no longer be classified as
head shift testers of the Company and that other employees will
probably replace them as head shift testers. We shall include all
employees classified on- the Company's pay roll as head shift testers.
(3) Gang leaders. While all the parties agree to include gang
leaders within the, unit,, we are of the opinion that. they. possess. super-
visory,-status since the, evidence reveals that' they, have authority
effectively to recommend the discharge of employees whose work they
direct. We shall, accordingly; exclude gang leaders/from the appro-
priate unit., '
7 The parties, also , agree , and the record shows , that the assistant welder foreman and
electrical subforeman are super isory employees within the meaning of our customary
definition and that stillmen are not. We shall exclude the assistant welder foreman and
electrical subforeman and include the stillmen.
8 While receiving clerks and stock clerks spend a substantial proportion of their time in
clerical work, they also perform some manual labor in connection with the receipt of
materials or the distribution of stock.
SINCLAIR RUBBER, INC. 807
We find that all production and maintenance employees of the Com-
pany, including employees classified on the Company's pay roll, as
receiving clerks, stock clerks, head shift testers , and stillmen , but ex=
eluding technical employees, clerical employees, plant-protection em-
ployees, assistant welder foremen , electrical subforemen , gang leaders,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective. bargaining within the meaning
of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen in Case No. 16-R-877 be resolved by an- election by- secret
ballot among the employees in the appropriate unit who-were employed
during the pay-roll period immediately preceding the date of the
tion of Election herein, subject to the limitations and additions set
forth - in the Direction. '\
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 9, of National Labor Relations,
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa -
tives for the purposes of collective bargaining with Sinclair Rubber,.
Inc., Houston , Texas , 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 Sixteenth Region, acting in this matter as agent for
the National Labor Relations Board, and subject to Article III, Sec-
-'tions 10 and X11, of said Rules and Regulations , among the employees
in theunit found appropriate in-'Section IV, aboye; whowere employed
during the pay-roll period immediately preceding the'date of this
Direction , including employees who did not work during the -said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including 'employees in the armed forces of the United
States who present themselves in person at the polls , but excluding
those employees who have since quit or been discharged ' for cause
and have not been rehired or reinstated prior to the date of the election,.
to determine whether they desire to be represented by Houston Labor
and Trades Council, affiliated with the American Federation of Labor,,
i
808 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or by Oil Workers International Union, Local No. 227, affiliated with
the Congress of Industrial Organizations, for the purposes of collec-
tive bargaining, or by neither.
ORDER
Upon the-,,basis of the above'findi'ngs-of fact arid, on the-' ihtire'-iecord
in the proceedings, the National Labor Relations oard hereby orders
that the petition for investigation and certification of representatives
of employees of Sinclair Rubber, Inc., Houston, Texas, filed in Case
No. 16-R-887 by International Association of Machinists, District
Lodge No. 37, A. F. L., be, and it hereby is, dismissed.