W. D. Bryon & Sons of Maryland, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1944

55 N.L.R.B. 172 (N.L.R.B. 1944)

.In the Matter. of W. D. BYRON & SONS OF MARYLAND, INC. and IN-
TERNATIONAL Fun & LEATHER WORKERS UNION OF THE UNITED
STATES AND CANADA, CIO
Case No. 5-R-1466.-Decided February 29, 1944
Lane, Bushong cC Byron, of Hagerstown, Md., by Messrs. David W.
Byron and E. Stuart Bushong, for the Company.
Mr. Victor Hirshfield, of Hagerstown, Md., and Mr. Frank J.
,Bender, of Baltimore, Md., for the Union.
Mrs. Augusta Spaulding, of counsel to the Board.
DECISION
AND
,DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon'petition duly filed by International Fur & Leather Workers
Union of the United States' and Canada, CIO,1 herein called. the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees of W. D. Byron & Sons of
Maryland, Inc., Williamsport, Maryland, herein called the Company,
the National, Labor Relations Board provided for an appropriate
hearing upon due notice before Robert A. Levett, Trial Examiner.
Said hearing was held at Hagerstown, Maryland, on January 13,
1944. The Company and the Union' appeared, participated, and were
afforded full opportunity to be'heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded opportunity
to file briefs with the Board.
Upon the entire record in'•the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
W. D. Byron & Sons of Maryland, Inc., is engaged in the tanning
of hides at Williamsport, Maryland, and in the manufacture of inner
' The petition and other formal papers were amended at the hearing to show the correct
name of the petitioner.
55 N. L R B., No. 28.
172
W. D. BYRON & SONS OF MARYLAND, INC. 173
soles and heels at Hanover, Pennsylvania. The Company's tannery
at Williamsport is the only plant involved in this proceeding.
During the year 1943, the raw materials used by the Company at
its tannery, consisting chiefly of hides, were valued in excess of $1,500,-
000, of which more than 75 percent was shipped to Williamsport
from points outside Maryland. During the same period, the products,
finished by the Company at its tannery, consisting chiefly of leather,
were valued in excess of $2,000,000, of which more than 75 percent was
shipped to points outside Maryland.
The Company admits that it is engaged in commerce, within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Fur & Leather Workers Union of the United State
and Canada is a labor organization affiliated with the Congress of
Industrial Organizations, admitting to membership employees of the
Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 13, 1943, the Union asked the Company for a bar-
gaining, conference, alleging that it represented a majority of the
Company's employees at' the tannery. At a conference held on De-
cember 31, 1943, the Company took the position that it would not
recognize the Union until the Union had been certified by the Board.
A statement prepared by the Field Examiner and introduced into
evidence at the hearing indicates that the Union represents a sub-
stantial number of employees in the unit herein found appropriate.2
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.
2 The Union submitted 97 application cards, of which 1 was undated and the remaining
dated between September and December 1943, of which 92 cards bore the names of em-
ployees, listed on the Company ' s pay roll of December 30, 1943. There are approximately
195 employees in the appropriate bargaining unit.
On February 24, 1943, pursuant to a petition filed by the Union in Case No. R-4810, a
prior representation proceeding involving employees of the Company, the Board issued a
Decision and Direction of Election , directing that an election be held among the Com-
pany's employees at the tannery . Matter of W. D. Byron & Song of Maryland, Inc., 47
N. L. R. B . 994. The 110 cards submitted by the Union for our preliminary investigation
had not been checked against the Company 's pay roll , because the Company refused to,
submit its pay roll to the Field Examiner in charge. The election was held . Of 186 valid
votes counted , 54 were cast for, and 132 against, the Union . On March 24, 1943; the
Board dismissed the petition.
The Company contends that the present showing of representation among the employees
made by the Union, as noted above, is not sufficient to justify the Board in directing an-
other election at this time . We do not agree . As indicated by its recent cards, the Union
has extended its membership among the Company's employees . We are of the opinion
that, in the furtherance of the policies of the Act , an election should be directed at this
time. Matter of Pomona Terra Cotta Company , 50 N. L. It. B. 87.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
The Company and the Union agree, and we find, that production
and maintenance employees at the Company's tannery, including
firemen, oilers and electrical helpers, and watchmen 8 should be in-
cluded in the bargaining unit and that salesmen,4 office clerks, man-
agers, and foremen should be excluded from the bargaining unit.
The parties disagree as to pensioners. The Union would exclude.
them, and the Company would include them. The parties further
disagree as to the supervisory status of 10 named employees. The
Company lists these employees as regular production and maintenance
employees, and contends that they should be included in the bargain-
ing unit. The Union contends that they are supervisory employees
and should be excluded therefrom.
A. Pensioners
In July 1943 the Company adopted and put into practice a policy
of laying off and pensioning employees who had been faithful in
the Company's service and who, due to age or infirmities, were no
longer able to carry on their regular work at the tannery. Length
of service with the Company, the physical condition of the employee,
his eligibility for Social Security, his needs, and the needs of his
family are considerations in fixing the amount of each pension. The
Company retains the right to recall these pensioners for light work
at the tannery when any suitable work may be available for them.
The Company does not expect the pensioned employee to seek other
work outside, but no express prohibition is set against such work.
In the execution of its pension, policy, the Company laid off. and
pensioned seven men in July 1943 and one man in January 1944.5
The names of these pensioners have been retained on the Company's
regular pay roll, where they are listed- as employees in the respective
departments from which they were laid off, although none of the
pensioners is expected to return to the work which, he was adjudged
physically unable to do at the time of his lay-off. The Company has
a considerable annual turn-over in employment. None of the seven
men laid off and pensioned in July 1943 has since been recalled for
work, as no light work has been available at the tannery during this
The Company 's watchmen are neither armed nor militarized.
Salesmen were not expressly excluded from the unit found appropriate for the Com-
pany's employees in the prior representation proceeding , noted in footnote 2, above.
Otherwise , the agreement between the Company and the Union with respect to employees
to be included in the unit , and excluded therefrom , corresponds with the Board 's finding
of the appropriate unit for the Company's employees in the prior proceeding.
, In July 1943 the Company laid off Richard T. Houpt, aged 65; J. R. Banzhoff , aged 73;
Simon B. Byers , aged 63; George C. Bowser, aged 70; Charles E. Grimes, aged 70; Franklin
B. Bryan, aged 63; and George W. Sloyer, aged 63.
In January 1944 D. E. Hawbecker was laid off at the age of 65.
W. D. BYRON & SONS OF MARYLAND, INC. 175
6-month period. The Company does not know when suitable work
will be available. Since it appears that the pensioners have little
expectation of active employment at the tannery, we shall exclude
them from the bargaining unit of regular production and maintenance
workers.
B. Supervisory employees
The Company's tannery operations are scattered over approxi-
mately 3 acres of ground, upon which there is a large main building
and 6 smaller ones , varying from 1 to 4 stories. The buildings are
for the most part connected by passageways. In its 13 departments
of the tannery, the Company employs approximately 200 workers.
Some few employees are paid on a piece-work basis, but, the great
majority of the production and maintenance employees are paid on
an hourly basis, for an 8-hour day and a 40-hour week.
The superintendent of the tannery is in charge of all its operations
and has the sole power to hire and to discharge employees therein.
The assistant superintendent and the 13 foremen in direct charge of
the several departments of the tannery have power to recommend the
hire and discharge of employees working under them. As noted above,
the Company and the Union agree that managers, including the super-
intendent, the assistant superintendent, and the foremen should be
excluded from the bargaining unit. The Union would also exclude
from the bargaining unit James L. Poffenberger, Jacob Turner, Ben-
jamin. F. Taylor, James M. Sword, Jr., Samuel L. McCauley , Samuel
W. Shank, George S. Lizer, Richard W. Mellott, Russell M. Turner,
and John G. Henry, on the ground that they also are supervisory em-
ployees. The Company disagrees.
James L. Poffenberger: Poffenberger is employed in the grain-tun-
nel department. The Company classifies him as a handy man, able to
run a setting machine, tack leather, and oil off leather. His principal
job is the operation of the setting machine, which removes wrinkles
from leather. Another employee in the same department does similar
work. The highest wage rate paid in the department is 671/2 cents per
hour; the lowest rate is 521/2 cents per hour. Poffenberger and 16 of
the-23 men in the department receive the highest rate paid in the de-
partment. The foreman of the grain-tunnel department has 1 week's
vacation each year. In .addition to his regular vacation, the foreman
is absent approximately2 days in each 3-month period. In the absence
of the foreman, Poffenberger relays to the men in the department
orders which are given. to him by the assistant superintendent. Dur-
ing the foreman's absence, Poffenberger performs his regular work.
He does not check upon the production of other men in the department.
Jacob Turner: Turner is employed in the beam-house department,
where he is classified as a reeling and floor man. His principal work
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is in reeling hides and placing lime in'the vats . Turner receives 921/2
cents per hour, which is the lowest rate paid to any man in his depart-
ment. The highest rate in the department is 971/2 cents per hour. The
foreman of the department, in addition to his regular yearly vacation
of 1 week , is absent upon the average of 1 day in 3 months . During
the absence of the foreman, Turner weighs out material for the puring
wheel, a function usually performed by the foreman. Weighing out
material normally consumes about 15 minutes per day. There are 14
employees in the department.
Benjamin F. Taylor: Taylor is employed in the liquor-yard depart-
ment. He is the operator of an electric pump which propels the tan-
ning liquor from the leach house through pipes to the tanning yard,
where the 'liquor is used. Taylor receives 721/2 cents per hour ,,which
is the uniform rate for all 12 employees in this department: Em-
ployees in this department have routine duties . The foreman of the
department, in addition to his regular yearly vacation of 1 week, is
absent from work about 1 day each month . During the foreman's
absence, Taylor acts as leadman and passes on instructions from the
office with respect to the materials to be used . When the foreman is
absent, the assistant superintendent visits the department at least 6
times during the work day . Taylor performs his regular work as
pump operator , whether or not the foreman is present.
James M. Sword, Jr.: Sword is employed in the chrome-room de-
partment and classed as a split-machine feeder. He receives 80 cents
per hour, which is the highest rate paid in his department. The lowest
rate is 521/2 cents per hour. There are four or five employees in this
department . The assistant superintendent is the foreman of the de-
partment . Sword 's father is the operator of the machine of which
Sword is feeder , and has the more highly skilled job. Orders for work
in this department are given in advance , and the men are accustomed
to carry on their work without continual supervision . Sword has no
additional duties during the absence of the foreman , which for the
past year, in addition to his regular yearly vacation of 1 week, has
amounted to 2 days.
Samuel L. McCauley: McCauley is employed in the wet and dry-
room department and classed as a rough -leather sorter. He receives
821/2 cents per hour , which is the highest rate in the department. The
lowest rate is 521/2 cents. There are 27 employees in the department,
4 of whom receive over 80 cents per hour. McCauley's work consists
of turning and classifying leather . A marker records the grade of
the leather with a hand punch . In the absence of the foreman, which
occurs about 1 day per month, in addition to the regular yearly vaca-
tion of 1 week, McCauley relays the superintendent 's instructions to
the employees concerning the colors for dyeing the leather . The as-
W. D. BYRON & SONS OF MARYLAND, INC. 177
sistant, superintendent visits this, department, daily when the foreman
is present, and,oftener if the foreman is, absent.
Samuel W., Shank: Shank-is employed in. the case-finishing de-
partment. - He is a paint mixer.. He spends his time mixing . paint
and matching colors. He receives 70 cents per hour. Six other em-
ployees_ in ,the department receive 70.8 cents per hour. , The lowest
rate in the department is 621/. ,cents per hour. There are 11 employees
in this department. In the absence of its foreman, .the foreman of an-
other department takes charge of the, work.
George S. Lizerr,Lizer is employed in the shipping department as
a packer and shipper. There are 11,employees in the department.
Lizer receives 80 cents per hour. The highest, rate paid, in the depart-
ment is 95 sentsper hour, and the lowest rate is 55 cents per hour. Two
employees in the department receive- higher rates than Lizer. In the'
absence of the, foreman, Lizer relays orders,from the, office to other
employees in the department, and, carries, on, his regular work.,
Richard,-W. Mellott:, Mellott is employed in the hide-house depart-
ment and is classed as a general laborer.. There are 11, employees in
the department. Mellott receives 571/2 cents per hour, which is the
highest rate paid in the department. The- lowest rate is 521/2 cents per
hour. Mellott unloads hides, extracts, and other materials, and for
about 2 hours per day drives a, truck hauling ashes to the dump. 'Ex-
clusive of his, yearly vacation,' of 1 week; the foreman is'abseilt from
fhe department about 1 day in every 3 months. ' In the absence of the
foreman, the assistant superintendent takes direct charge of the
department.
Russell M. Turner: Turner is employed in the carpenter and ma-
chine shop . He is a mechanic. 'There are 10 employees in the shop.
Turner receives 65 cents per hour, which is the highest rate paid in the
department; the lowest is 60 cents. ' Turner is the son of R. P., Turner,
the foreman' of the department. ' I '
'John G. Henry: Henry is employed in the buffing department and
operates a buffer for smoothing the leather. He receives 721/2 cents
per hour, the highest rate paid to any of the five employees in the
department The lowest rate paid in the department is 60 cents.
The assistant superintendent of the plant testified 'that none of the
above-named employees was considered a supervisory employee by the
Company and that none of them had any authority to discipline em-
ployees or make recommendations concerning their status. The Union
offered no testimony in support of its claim that the named employees
had supervisory status, within our usual definition of-that term. In
the former representation proceeding involving the employees" of the
Company noted above, the Union claimed that McCauley, Shank,
Lizer, Mellott, and J. Turner were supervisory employees, and the
578129-44-vol. 55-13
178 DECISIONS OF- NATIONAL- LABOR RELATIONS BOARD
Board in its decision ruled that the -evidence was insufficient to es-
tablish that arty of them was a supervisory employee'and, accordingly,
the Board-included all of them in the,appropriate'bargaining unit.
•The,'present duties ,of these 5' employees are the same-as those which
they performed at- the time of the 'prior 'hearing. Since 'upon- the
present record it does not'appear that'any of the 10 named employees
claimed by the Union to be supervisory possesses .any supervisory
powers within our usual definition of- the term, we shall -include the
above-named employees within the bargaining unit. We shall exclude
-all• supervisory employees, within our usual definition of that term.
We, find' that all production and maintenance employee's 6 at' the
Company's Williamsport tannery;-including firemen, oilers and elec-
trical-helpers, and watchmen, but excluding pensioners; salesmen, office
clerks,' managers, foremen, and all other supervisory employees with
authority to' hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such,
action, 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 representation which
has arisen be resolved,by an election by secret ballot among the em-
ployees in the appropriate unit. who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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, it is hereby
DIRECTED that, as part of the, investigation to ascertain representa-
tives for, the, purposes of collective bargaining with W. D. Byron
& Sons of, Maryland, .Inc., Williamsport, Maryland,, an selection 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 Fifth Region, acting
in this matter, as agents for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules,and Regula-
Since we have not found,that James L Poffenberger, Jacob Turner, 1^enjamin F Taylor,
James M: Sword, Jr, Samuel L McCauley, Samuel W: Shank, George' S. Lizer, Richard ' W
Mellott,-, Russell. M. Turner, and John. G.. Henry are supervisory employees,'. they are in-
cluded within the unit as production and maintenance employees.
W. D. BYRON & SONS OF' MARYLAND, INC. 179
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date ofthis Direction, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion 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 any 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
International Fur & Leather Workers Union of the United States and
Canada, affiliated with the Congress of Industrial Organizations, for
the purposes of collective bargaining.