Goodyear Rubber Sundries, Inc.

National Labor Relations Board - Board Decisions

Jan 17, 1951

92 N.L.R.B. 1382 (N.L.R.B. 1951)

In the Matter of GOODYEAR RUBBER SUNDRIES, INC. and UNITED
RUBBER, CORK, LINOLEUM AND PLASTIC WORKERS OF AMERICA, CIO
Case No. 1-CA-656.Decided January 17, 1951
DECISION AND ORDER
On October 19, 1950, Trial Examiner C. W. Whittemore, issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
The Board has reviewed the rulings made by the Trial Examiner at
the-hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
brief, and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.2
We find that the Respondent has refused to bargain with the Union
as exclusive bargaining representative of its employees in violation of
1 In its brief the Respondent contends that the Board is without jurisdiction to entertain
the complaint because the CIO was not in compliance with the filing requirements of the
Act at the time of the issuance of the complaint . For the reasons stated In J. H. Rutter-
Rex Manufacturing Co., Inc. , 90 NLRB 130 , this contention is rejected . Nor is the, com-
pliance status of the CIO available to the Respondent as a defense to an allegation of a
refusal to bargain under Section 8 ( a) (5) of the Act . It Is sufficient that we have
administratively determined that at all times material herein the Union has been in com-
pliance. J . H. Rutter-Rex Manufacturing Co., Inc ., supra; Rubin Brothers Footwear, Inc.,
et al., 91 NLRB 10.
2 The Trial Examiner 's Intermediate Report contains a minor inaccuracy which does
not affect our ultimate findings. The Trial Examiner erroneously stated that "no new
evidence was offered at the hearing" with respect to the Respondent 's contention regarding
the eligibility status of certain employees whom it claims were not supervisors . The record
shows, and we find , that the Respondent proffered evidence regarding the status of these
employees , and that the Trial Examiner properly rejected the same as their status had
been considered previously in Case No . 1-RC-913, Supplemental Decision and Direction
(unpublished ), issued February 15, 1950. Under the settled rule that u'nless there is
evidence which was newly discovered or unavailable to the Respondent at the time of
the representation proceeding , which was not the case here , it cannot be permitted to-
relitigate in the instant proceeding the question of the Union 's majority or the appropriate
unit. See Clark Shoe Company, 88 NLRB 989.
Contrary to the Respondent 's contention , we find nothing in the record or Intermediate
Report reflecting bias or prejudice by the Trial Examiner in either the conduct of the hearing
or in his findings , conclusions , and recommendations . Accordingly , we deny the Respond-
ent's motion to dismiss the complaint on this ground.
92 NLRB No. 208
1382
GOODYEAR RUBBER SUNDRIES, INC. 1383
Section 8 (a) (5) and 8 (a) (1) of the Act, and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. We shall order the Respondent
to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Goodyear Rubber Sundries,
Inc., New Haven, Connecticut, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America, CIO, as the exclusive rep-
resentative of all production and maintenance employees at its New
Haven, Connecticut, plant, excluding guards, foremen and foreladies,
and all other supervisors as defined in the Act;
(b) In any other manner interfering with the efforts of said union
to negotiate for or represent the employees in the aforesaid unit as
exclusive bargaining agent.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America, CIO, as the exclusive rep-
resentative of all its employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment, and, if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post at its plant at New Haven, Connecticut, copies of the
notice attached to the Intermediate Report marked Appendix A.3
Copies of said notice, to be furnished by the Regional Director for
the First Region, shall, after being duly signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including-all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered, defaced, or
covered by any other material;
. s This notice , however, shall be and it hereby is amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiher" and substituting
in lieu thereof the words "A Decision and Order ." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be inserted in the notice before
the words : "A Decision and Order ," the words "A Decree of the United States Court of
Appeals Enforcing."
1384 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
(c) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order what steps Respond-
ent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Torbert H. MacDonald , for the General Counsel.
Messrs. W. F. Bradley, of Waterbury, Conn., and John F. Sullivan, of New
York, N. Y., for the Respondent.
Messrs. Daniel Baker, of Bridgeport , Conn ., and Edward Collins , of Seymour,
Conn ., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by United Rubber, Cork, Linoleum and Plastic Workers
-of America, CIO, herein called the Union, the General Counsel of the National
Labor Relations Board' by the Regional Director for the First Region (Boston,
Massachusetts), issued a complaint dated, September 7, 1950, against Goodyear
Rubber Sundries, Inc., New Haven, Conn., herein called the Respondent, alleging
that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act.
With respect to the unfair labor practices, the complaint alleges, in substance,
that: (1) In June 1949, at a Board election, a majority of employees in an
appropriate unit designated and selected the Union as their representative for
the purposes of collective bargaining; (2) that since June 1949, the Union is and
has been at all times the exclusive representative of all the employees in the
appropriate unit; (3) that since February 1950, the Respondent has refused to
bargain collectively with the Union; and (4) that by such refusal the Respondent
has interfered with, restrained, and coerced its employees in the exercise of.
rights guaranteed by the Act.
Pursuant to notice, a hearing was held at New Haven, Connecticut, on October
3, 1950, before the undersigned duly designated Trial Examiner. The General
Counsel, the Respondent, and the Union were represented by counsel, all partici-
pated in the hearing, full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded to all
parties.
Prior to the hearing no answer was filed by the Respondent. At the opening
of the hearing, counsel for the Respondent orally admitted certain allegations of
the complaint, but denied the commission of any unfair labor practices.
All counsel waived opportunity to argue orally before the Trial Examiner.
Briefs were received from the Respondent and the General Counsel.
Upon the entire record in the case, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE ItESPONDENT
Goodyear Rubber Sundries, Inc., is a Connecticut corporation, having its prin-
cipal office and place of business in New Haven, Connecticut, where it is engaged
i The General Counsel and his representative at the hearing are herein referred to as the
General Counsel ; the National Labor Relations Board as the, Board.
GOODYEAR RUBBER SUNDRIES, INC. 1385
in the manufacture, sale, and distribution of rubber and plastic sundries and
related products.
In the course and conduct of its business the Respondent causes large quanti-
ties of rubber, starch, threads, resins, and elastics used by it to be purchased
and transported in interstate commerce from and through various States of the
United States other than Connecticut. and causes substantial quantities of rub-
ber and plastic sundries to be sold and transported from its plant in interstate
commerce to States of the United States other than Connecticut and to foreign
countries.
At the hearing the Respondent admitted the allegations of the complaint as
to commerce matters.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, CIO, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The setting and issues
The historical facts herein set forth were stipulated by all parties.
On February 24, 1949, the Union filed with the Board , at its First Regional
Office, a petition for representation . ( Case No. 1-RC-913 .) A consent election
was not obtained , but a hearing was held in New Haven on April 14, 1949. On
May 20 the Board issued a Decision and Direction of Election , in which it made
the following pertinent findings : "The following employees of the Employer
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 ( b) of the Act: All production and maintenance employees
at Employer 's New Haven , Connecticut , plant, excluding guards, foremen and
foreladies ,' and other supervisors as defined in the Act.
Pursuant to the Board order, an election was held on June 16 . At its con-
clusion , a tally of ballots was furnished the parties showing that 78 valid
ballots had been cast for the Union , 81 against the Union , and that 40 ballots
had been challenged-36 by the Respondent and 4 by the Union. No objections
to the conduct of the election were filed within the time provided therefor.
Since the challenged ballots were sufficient in number to affect the results of
the election , the Regional Director caused an investigation to be conducted. On
August 24 he issued and served upon the parties a report on challenges , in which
he recommended that the challenges as to 8 ballots be sustained , that a ruling
as to 1 ballot be held in abeyance , and that the challenges as to 31 ballots be
nnverruled and these ballots be opened and counted.
i The Employer would include in the unit as nonsupervisory employees, 7 working
foreladies and 8 working foremen. The Employer has a complement of 235 employees
working in 15 departments located in 3 interconnected buildings of from 1 to 5 floors in
height. Each department has from 3 to 27 employees and is under the direction of a
forelady or a foreman. The Employer asserts that supervisory authority is exercised
only by the factory manager or by the production manager. We do not agree. Although
the foreman and foreladies do not have authority to hire, discharge, or discipline employees,
they do responsibly direct the work of subordinates. Accordingly, we find that, with the
exception of Ralph DeMaio, they are supervisors within the definition of the Act. We shall
exclude them. Ohio Power Company, 80 NLRB 1334; Morowebb Cotton Mills Company,
75 NLRB 987. Ralph De Maio is a mechanic who, together with an assistant, spends all
his time repairing machines. We find that he is not a supervisor. We shall therefore
include him in the unit."
929979-51-vol. 92-89
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 9 the Respondent filed exceptions to a part of this Report, claim-
ing that 26 of the employees whose votes were challenged had been permanently
"laid off, and that 1 was not a supervisor at the time of the election. Thereafter,
on September 27 and October 14, 1949, the Board issued an Order and an Amended
Order directing that a hearing be held on the issues raised by the Respondent's
exceptions. A hearing was held on October 26 and 27. On November 25 the
hearing officer issued and served upon the parties a report in which he recom-
mended that the Board overrule the challenges to the ballots of the 26 laid-off
employees on the ground that they had been in fact temporarily laid off, and
sustain the challenge to the ballot of the individual claimed by the Respondent
not to have been a supervisor.
Following the issuance of this report the Respondent duly filed exceptions.
On February 15, 1950, the Board directed that the 26 voters involved were eligi-
ble to vote, the challenges as to them were overruled, and the Regional Director
was ordered to open and court their ballots. It likewise overruled the chal-
lenge as to the individual claimed by the Respondent not to have been a super-
visor. Likewise the Board passed upon certain other, recommendations previ-
ously made by the Regional Director, as to certain challenged ballots.
On February 21, 1950, the Regional Director issued a revised tally of ballots,
in which he found that it "majority of the valid votes has been cast for United
Rubber, Cork, Linoleum and Plastic Workers of America, CIO." .
On March 2, 1950, the Board issued a Certification of Representatives, finding
that the Union had been selected by a majority of employees in the appropriate
unit as their collective bargaining agent. The Respondent thereafter filed with
the Board a motion to reconsider the decision. On March 8 the Board denied
the motion.
By letter to the Respondent, on March 20, 1950, the Union requested recognition
for purposes of collective bargaining, and asked for a meeting date for the
purpose of negotiating a contract.
At all times thereafter, and specifically on June 7, 1950, the Respondent has
refused to negotiate and bargain with the Union as the exclusive representative
.of employees in the appropriate unit.
The Respondent readily admits that it has refused to bargain, and continues
to refuse to bargain, with the Union. It offers two reasons for its refusal:
(I.) The fact that at the time the Board election was held the officials of the
CIO had not complied with provisions of Section 9 (h) of the Act ; (2) its claim
that the Board's determination as to the supervisory status of certain employees
.was erroneous.
B. Conclusions
The Board has already issued its determination as to the appropriate unit.
and as to the eligibility status of the employees claimed not to have been super-
visory by the Respondent. At the bearing counsel for the Respondent conceded
that no motion had been filed subsequent to the Board findings requesting an
opportunity to produce additional or new evidence to support its contentions
as to these individuals. No new evidence was offered at the hearing before the
undersigned. Therefore it is concluded and found that there is no merit to
the Respondent's claim that the Board's unit determination was erroneous.
In accordance with Board policy, set forth in J. H. Rutter-Rex Manufacturing
Company, Inc., 90 NLRB 130, the Trial Examiner finds no merit in the Respond-
ent's. position that,it is justified in refusing to bargain with the Union because
CIO officials had not , at the time the representation case was initiated , complied
with certain provisions of the Act.
GOODYEAR RUBBER SUNDRIES, INC . 1387
It is therefore concluded and found that: (1) In June 1949, the Union was
and at all times since then has been the exclusive representative of all employees,
for the purposes of collective bargaining, in an appropriate unit consisting of all
production and maintenance employees of the Respondent at its New Haven
,plant, exclusive of guards, foreman, foreladies, and all other supervisors as
defined in-the Act; (2) at all times since March 20, 1950, the Respondent has
refused and continues to refuse to bargain collectively with the Union as the
exclusive representative of its employees in the said appropriate unit; and (3)
by such refusal to bargain the Respondent has interfered with, restrained, and.
coerced its employees in the exercise of rights guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. Since
it has been found that the Respondent has refused to bargain with the Union
as the exclusive representative of its employees in the appropriate unit, it will
be recommended that upon request the Respondent bargain collectively with
the Union.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following :
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees at the Respondent's New Haven,
Connecticut, plant, excluding guards, foremen and foreladies, and other super-
visors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. United Rubber, Cork, Linoleum and Plastic Workers of America, CIO,
was on June 16, 1949, and at all times since then has been the exclusive repre-
sentative of all employees in said unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By failing and refusing to bargain collectively with the Union as the exclu-
sive representative of its employees in the appropriate unit the Respondent lids
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]