Heyden Chemical Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1946

66 N.L.R.B. 855 (N.L.R.B. 1946)

In the Matter of HEYDEN CHEMICAL CORPORATION and FOREMAN'S
AssOCIATION OF AMERICA, CHAPTER No. 152
Case No. 4-R-17620.-Decided March 15, 1946
Fulton, Walter and Halley, by Mr. James K. Lindsay, of New York
City, for the Company.
Mr. W. Allen Nelson, of Detroit, Mich., for the Union.
Mr. Arnold Ordman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Foreman's Association of America,
Chapter No. 152, herein called the Union, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Heyden Chemical Corporation, Fords, New Jersey, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Herman Lazarus.
Trial Examiner. The hearing was held at New Brunswick, New
Jersey, on October 9, 1945. The Company and the Union appeared
and participated.' All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing, and subsequently in its
brief, the Company moved to dismiss the petition on the following
grounds : (a) because the Union seeks to include in the bargaining
unit foremen, who do not constitute "employees" within the meaning
of the National Labor Relations Act; (b) because within the discre-
tion accorded to the Board by the Act, this petition should be dis-
missed inasmuch as the Union seeks to include in the bargaining unit
direct representatives of management; and (c) because the Union
seeks to include in the bargaining unit supervisory employees with
certain non-supervisory employees whose bargaining interests are
much more closely allied to those of the rank and file. For reasons
IInternational Chemical Workers Union , A. F. L., and The Employees Association,
Ine , although served with Notice of Hearing , did not appear
46 N. L . R. B., No. 105.
855
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated hereinafter, this motion is hereby denied. The Trial Examin-
er's rulings made at the hearing are free from prejudicial error and
are hereby affirmed. Both the Company and the Union filed briefs
with the Board which have been accorded careful consideration.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Heyden Chemical Corporation, a Delaware corporation with its
principal offices in New York City, operates plants in Fords, Gar-
field, and Princeton, all in New Jersey, and in Danville, Pennsyl-
vania. The Company also has warehouses and a sales office in Chicago,
Illinois, and a research laboratory in Brooklyn, New York. It is
engaged in the manufacture, sale, and delivery of fine organic chemi-
cals and pharmaceuticals. During the past year the Fords, New
Jersey, plant, which is the plant involved in this proceeding, used
in excess of $2,000,000 worth of raw materials, more than 80 percent
of which was shipped to the plant from points outside the State of
New Jersey. During the same period the Company sold at its Fords
plant in excess of $3,500,000 worth of its products, more than 75 per-
cent of which was shipped to points outside the State of New Jersey.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Foreman's Association of America, Chapter No. 152, is an unaffili-
ated labor organization, admitting to membership supervisory em-
ployees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Union as
the exclusive bargaining representative of certain of its supervisory
employees until the Union has been certified by the Board in an
appropriate unit.
The Company contends that its foremen are not "employees"
within the meaning of the National Labor Relations Act. This ques-
tion arose recently in the Young2 case, and we reiterated our holding
in the Packard3 and Soss4 cases that foremen, in relation to their
2 Matter of L, A. Young Spring tt Wire Corporation, 65 N. L. R. B. 298.
s Matter of Packard Motor Car Company , 61 N. L . R. B. 4, and 64 N. L. It. B, 1212,
4 Matter of Sons Manufacturing Company, et at,, 56 N . L. R. B. 348.
HEYDEN CHEMICAL CORPORATION 857
employer, are employees within the meaning of the Act. Accordingly,
we find, in consonance with these prior determinations, that the fore-
men here involved are "employees" within the meaning of the Act.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.5
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.
IV. THE APPROPRIATE UNIT
The Union seeks a unit embracing all production and maintenance
supervisory employees, excluding department supervisors and other
persons of higher rank than foremen s As indicated above, the Com-
pany contends that it is within the discretion accorded to the Board
under the Act to dismiss this petition because of the inclusion of
foremen in the requested bargaining unit, and further that the Union
is attempting to join supervisory and nonsupervisory employees in
the same bargaining unit. We shall discuss these contentions in order.
The argument of the Company addressed to the administrative dis-
cretion of the Board presents an issue which was squarely before us
in the Young case . In accord with our holding in that case, we here
find that, as employees, foremen are entitled to be placed in some
appropriate unit under Section 9 (b)'of the Act.
The remaining contention involves a study of the organization of
supervisory personnel at the Company's Fords plant. The following
employees are the only workers who can possibly be viewed as
supervisory :
1 Superintendent
13 Department supervisors
7 Foremen
1 Storekeeper
1 Shipping clerk
1 Receiving clerk
2 Working foremen (including the chief electrician)
16 Shift operators
E The Field Examiner reported that the Union submitted 24 application -for-membership
cards bearing the names of 20 employees listed on the Company's pay roll of June 12,
1945, and that the cards are dated 9 in December 1944, 6 in January 1945, 5 in Febru-
ary 1945, and 4 in March 1945.
• In its petition , the Union sought the following job classifications : foremen , assistant
foremen , shift foremen , working foremen , chief engineer of power plant , chief electrician,
chief operators , and truck dispatcher . In the course of the hearing it developed that
the Company did not have certain of the job classifications referred to in the petition,
and that other classifications in the petition were not strictly correct. The Union then
stated on the record that it sought to include in the bargaining unit all production and
maintenance supervisory employees of the rank of foremen or its equivalent , or of lesser
rank.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union does not seek to include the superintendent or the de-
partment supervisors. There are six foremen. The chief engineer,
employed in the boiler room, is for all practical purposes considered
as a foreman also. These seven are admittedly supervisory employees.
The Company, subject to its objections as hereinbefore set out, does
not protest their inclusion in an appropriate unit. We shall include
the foremen and the chief engineer in the unit hereinafter found
appropriate.
The storekeeper, Ralph Rotella, is employed in the shops depart-
ment. He is responsible for keeping supplies on hand at all times.
He checks the inventory to see whether there are minimum stocks,
and, when necessary, makes requisitions on the purchasing depart-
ment for required materials . He checks materials received and de-
livers materials on requisition to various departments. He is assisted
by one clerk and two helpers and spends at least half his time at
routine storekeeping jobs. He does not have the power to make
effective recommendations concerning the hiring, firing, or disciplin-
ing of his aides . Accordingly, we shall exclude the storekeeper from
the unit hereinafter found appropriate.
The shipping clerk, Andrew Kuchtyak, is, according to the Com-
pany, a borderline case with respect to supervisory status. He is
responsible for the proper packing and loading of orders, the routing
of trucks and the keeping of shipping department records. He works
with packers, chauffeurs, and clerks on a day-to-day basis. Although
the Company concedes that Kuchtyak may have minor disciplinary
authority, it appears that the department supervisor exercises a close
supervision over the department and makes all the effective recom-
mendations as to hiring, firing, or promoting the employees in this
department . The record fails to establish that Kuchtyak has sufficient
authority to bring him into the category of supervisory employees,
within our customary definition of this term. We shall, there-
fore, exclude the shipping clerk from the unit hereinafter found
appropriate.
Richard Krauss, the receiving clerk, until September 1945 also per-
formed the duties of the shipping clerk. He has working with him
a part-time checker, who is generally borrowed from the shipping
department, and a part-time stenographer who also works for the
department supervisor. Krauss is responsible for keeping raw ma-
terials on hand, for the amount of cars in and out of the plant, for
the receipt of returnable containers, acid for various records. On
alternate Saturdays he takes over the ditties of Kuchtyak, the shipping
clerk. As in the case of the storekeeper and the shipping clerk, the
record does not reveal that Krauss possesses the requisite indicia of
supervisory authority. Consequently, we shall exclude the receiving
clerk from the unit hereinafter found appropriate.
HEYDEN CHEMICAL CORPORATION 859
There are two working foremen. Steven Smiriga was a pipe fitter
before the war. Increased employment due to the war made it neces-
sary for the Company to have an experienced employee accompany
the new men in their assignments and act as group leader with re-
spect to pipe fitting work. The record reveals that Smiriga, who was
selected for this purpose, acted as group leader only for specific
work assignments and whatever authority he possessed ceased at the
termination of the particular assignment. He has no authority to
make effective recommendations to hire, promote, discharge, dis-
cipline, or otherwise effect changes of status. The other working
foreman, Steven Kalman, is generally known as the chief electrician.
The Company concedes that with respect to supervisory duties, he is
a borderline case. His duties involve the maintenance of electrical
equipment throughout the plant. He has four nien working under
him. On receiving a requisition, Kalman inspects the equipment
needing repair. If the job is a minor one, he does the work himself.
Major repairs he assigns to the men under him. ' He spends only a
couple of hours a week doing actual physical work. He has the
authority to make effective recommendations with respect to firing
employees under his control and has done so on several occasions
during 1945. He is on call 24 hours a day and is responsible directly
to the plant superintendent. In view of the foregoing facts, we shMll
exclude Smiriga from the unit hereinafter found appropriate, but
include Kalman.
There remains for consideration a group of 16 chief shift operators,
1 of whom is an acting chief shift operator. These employees are
highly skilled workers, and generally are employees of long service
with the Company. Three of the 16 actually work on a shift basis; the
remainder do not. Of the total number, 7 work as operators, and have
no employees under them. The remaining 9, the Company contends.
are merely group leaders with no supervisory authority. The 3 chief
shift operators above referred to, who work on a shift basis, have the
authority during the afternoon or night shifts to send home any
employee who reports to work intoxicated,7 or who refuses to accept
a work assignment. But in such cases, the chief shift operator is
directed to instruct such employees to report to the department super-
visor in the morning. One chief shift operator, Steve Faczak, on
rare occasions substitutes for his foreman, and, while so doing, exer-
cises to some extent the authority of his foreman. In such cases the
department supervisor maintains stricter control over the department.
In any case, this infrequent substitution does not alter Faczak's
general status. Aside from these differences and others too minor
to warrant mention, the status of chief shift operators is quite clear.
7 Plant guards have the same authority.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
They are paid on an hourly basis at a slightly higher rate than Class
A operators. They recently participated in a 15-percent increase
which the Company gave to most of its employees. With respect to
overtime pay, vacations, sick leave benefits, and tardiness in reporting
to work, they are treated as rank and file employees in contradistinc-
tion to the treatment given to foremen and other admitted supervisors.
Furthermore, even those chief shift operators who are group leaders,
generally speaking, perform the same type of work as the men under
them, although it may be of less routine character. The record fails
to establish that any of the chief shift operators possess sufficient
indicia of supervisory authority to warrant their inclusion, and,
consequently, we shall exclude them from the bargaining unit herein-
after found appropriate.8
We find that all foremen employed at the Company's Fords, New
Jersey, plant, including the chief engineer and the chief electrician,9
but excluding the working foreman doing pipe fitting work,10 the
storekeeper , the shipping clerk, the receiving clerk, the chief shift
operators , and all supervisory employees above the rank of foreman,
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
f V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll pe-
riod immediately preceding the date of the Direction 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 Rela-
tions 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-
8 We note that in Matter of Heyden Chemical Corporation, Case No. 4-R-1848, in which
a consent election was held , the chief shift operators and working foremen were included
in the voting unit of rank -and-file employees . Because of their questionable status, how-
ever , it was decided to vote under challenge any of such employees who appeared at the
election. Ten of the chief shift operators did appear and their votes were challenged.
In his preliminary report on challenged ballots, the Regional Director indicated that he
would issue a final report which would conform to the Board 's decision in the instant
case insofar as it determined the supervisory status of these employees.
G Steven Kalman.
10 Steven Smiriga
HEYDEN CHEMICAL CORPORATION 86 1
tives for the purposes of collective bargaining with Heyden Chemical
Corporation, Fords, New Jersey, 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 Fourth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Sections 10 and 11, of said Rules and Regulations, among
employees in the unit found appropriate 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
said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding 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 or not they desire to be represented
by Foreman's Association of America, Chapter No. 152, for the pur-
poses of collective bargaining.
AIR. GERARD D. REIr LY, dissenting :
For the reasons stated in my dissenting opinion in Matter of Pack-
ard Motor Car Company," I am constrained to disagree with the
majority opinion.
"Matter of Packard Motor Car Company, 61 N. L R. B. 4