W. J. Voit Rubber Corp.

National Labor Relations Board - Board Decisions

Jun 1, 1942

41 N.L.R.B. 585 (N.L.R.B. 1942)

In.the Matter Of W. J. VOIT RUBBER CORPORATION and UNITED RUBBER
WORKERS OF AMERICA, LOCAL, 225, C. I. O.
Case No. R-3'7244.-Decided June 1, 19.4.2
Jurisdiction: rubber manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal of Company to bargain with petitioner because of contract with rival
organization ; contract which will expire within 2 months of date of Direction
of Election no bar to determination of representatives within next 30 days for
next contract year ; election necessary.
Unit Appropriate for Collective Bargaining : all production and maintenance
employees, including inspectors and truck drivers, but excluding a named em-
ployee, office and clerical employees, watchmen, executives, superintendents
and foremen who have the power to hire or discharge or to recommend hire or
discharge, who have two or more subordinates directly under their control, who
receive as minimum pay at least $30 per week, and who do not engage in the
same type of work that the subordinates do for more than 20 percent of the
work week.
Mr. TV. J. Voit, of Los Angeles, Calif., for the Company.
Faries c McDowell and Mr. Leonard S. Jainofsky, of Los Angeles,
Calif., for the Rubber Workers.
Mr. J. Howard Sullivan, of Los Angeles, Calif., for the Association.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by United Rubber Workers of America,
Local 225, CIO, herein called the CIO, alleging that a question
affecting commerce had arisen concerning the, representation of em-
ployees of W. J. Voit Rubber Corporation, Los Angeles, California,
herein called the'Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before John Paul
Jennings, Trial Examiner. Said hearing was held at Los Angeles,
California, on April 16, 1942. The Company, the Rubber Workers,
and W. J. Voit Rubber Corporation Employees' Association, herein
called the Association, appeared, participated, and were afforded full
41 N L. R. B , No. 114.
585
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
W. J.- Voit Rubber Corporation is engaged in the manufacture of
rubber-covered athletic equipment, camelback for retreading tires, and
miscellaneous moulded rubber items. The principal raw material used
by the Company, is crude rubber. During 1941 the Company pur-
chased approximately 350 tons of such rubber. During this period,
the Company purchased materials, valued at $250,000, which originated
outside California. During the same period, the Company's sales
amounted in value to $950,000, approximately 50 percent of which was
made to customers outside California.
H. THE ORGANIZATIONS INVOLVED
United Rubber Workers of America, Local 225, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, admitting
to membership employees of the Company. -
W. J. Voit Rubber Corporation Employees' Association is an,un-
affiliated labor organization, admitting to membership employees -of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On February 6, 1942, the Rubber Workers requested a conference
with the Company, and a day was appointed for this conference. On
the day before the proposed conference, the president of the Rubber
Workers was informed by a foreman of the Company that the Com-
pany would discuss personal grievances with the Rubber Workers, but
that the Company was under contract with the Association and'could
not, therefore, discuss a bargaining contract with the Rubber Workers.
On July 29, 1941, the Company entered into a contract with the
Association, formally recognizing the Association as sole bargaining
agent of its employees. The contract provides that it remain in force
for 1 year, subject to renewal or change upon written notice of thirty
(30) days before the expiration date.' The Association contends that
' At the bearing the Rubber workers alleged that the contract had been entered into
at a time when the Association did not represent a majority of the employees covered there-
under , and was consequently invalid. The record , however, does not'support this conten-
W. J. VOLT RUBBER CORPORATION 587
this contract is a bar to'a determination-of representatives at this time.
We have repeatedly held that contracts similar to 'the contract be-
tween the Company and the Association constitute a bar to a determi-,
nation of representatives during the first year of their existence?
Since, however, the contract will expire within 2 months, we find that
the contract is not a bar to a determination of representatives within
the next thirty (30) days, pursuant to our .usual Direction of Election.
Any certification of representatives, however, which we may issue as
a result of the election, shall be for the purpose of designating repre-
sentatives to negotiate a new contract to succeed the contract now in
effect.3
A statement prepared by the Regional Director indicates that the
Rubber Workers represents a substantial number of employees in the
appropriate unit .4
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The Rubber Workers and the Association agree, and we find, that
all production and maintenance employees of the Company, including
inspectors and truck drivers, but excluding office and clerical em-
ployees, watchmen, executives, superintendents; and foremen who have
power to hire and discharge or to recommend hire and discharge, who
have two or more subordinates directly under their control, who re-
ceive as minimum pay at least $30 per week, and' who do not engage
in the same type of work that the subordinates do for, more than 20
percent of the work week, should be included in the bargaining unit.
Employees included in the categories of the proposed unit are covered
by the contract between the Company and the Association..
The Rubber. Workers and the Association disagree with respect-to
the inclusion in the unit of Russell Fisher. The Rubber Workers
would exclude, and the Association would include, Fisher. '
tion. In any event , for the purpose of securing an election , the Rubber Workers has filed
with the Board a waiver of any and all unfair labor practices which the Company may
have engaged in. Said waiver is hereby made part of the record.
2 See Matter of Houde Engineering Corporation and International Union, U. A. W -C. I. O:,
Local 850, 36 N . L. R. B. 587, and cases cited therein.
3Matter of Chrysler Motors Parts Corporation and International Union, United Automo-
hile, Aircraft and Agricultural Implement Workers of America, af7tliated with Congress of
Industrial Organizations, 38 N. L . R. B. 1379.
6 The Rubber Workers submitted to the Regional Director 123 applications for membership
cards, of which not less tban ' 119 bear the apparently genuine signatures of persons whose
names appear on the Company 's pay roll of about February 15, 1942, which contains 263
names.
The Association presented no evidence of representation , apparently relying upon its con-
tract with the Company as proof of the substantiality of its interest - '
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fisher is primarily a carpenter. He works considerably longer
hours than other production employees. He has no supervisory du-
ties. Fisher lives next door to the Company's plant. His carpentry is
usually done in a shop on his own property. He also does repair
work in the plant. When, Fisher works- in his own shop, the Com-
pany considers him an independent contractor. When he works in
the plant, the Company considers him an employee. The record does
not disclose what percentage of the time the Company, considers
Fisher, an employee. At times, Fisher is engaged in regular produc-
tion work, such as cementing, mixing cement, or the work of a regular
employee who may be ill and absent from work. Fisher also serves
as relief watchman and is deputized for such work. Since Fisher's
employment by the Company is notably different from that of other
production and maintenance employees, we shall exclude Fisher from
the bargaining unit.
We find that all production and maintenance employees of the
-Company, including inspectors and truck drivers,' but excluding
Fisher, office and clerical employees, watchmen, executives, superin-
tendents, and foremen who have the power to hire or discharge or to
recommend hire and discharge, who have 'two or more subordinates
directly under their control, who receive as minimum pay at least $30
per week, and who do not engage in the same type of work that the sub-
ordinates do for more than 20 percent of the work week, constitute
a unit appropriate 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 the representation of
employees of the Company, be resolved by, an election by secret ballot
among the--,employees within the appropriate unit who were employed
during the pay-roll period immediately preceding the date of our
Direction of Election, subject to the limitations and additions set
forth therein.
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 I
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with W. J. Voit Rubber
Corporation, Los Angeles, California, an election by secret ballot
W. J. VOIT RUBBER CORPORATION 589
shall be conducted as early as possible but not later than thirty (30)
days from the date of this Direction of Election, under the direction
and supervision of the Regional Director for the Twenty-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 employees of the Company within the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
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 employees
who have since quit or been discharged for cause, to determine whether
they desire to be represented by United Rubber Workers of America,
Local 225, CIO, or by W. J. Voit Rubber Corporation Employees'
Association, for the purposes of collective bargaining, or by neither-