Lyntex Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1952

98 N.L.R.B. 1012 (N.L.R.B. 1952)

1012 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
LYNTEX CORPORATION and TEXTILE WORKERS OF AMERICA, C. I. 0.,
PETITIONER. Case No . 1-RC-2281. April 9; 1952
Second Supplemental Decision and Certification of -
Representatives
On September 24, 1951, pursuant to a Decision and Direction of
Election,' an election by secret ballot was conducted under the,direc-
tion and supervision of the Regional Director for the First Region
among the employees of the Employer in the unit found appropriate
by the Board. Following the election, a tally of ballots was furnished
to the parties. The tally showed that of 18 valid votes counted, 11
were for, and 7 against, the Petitioner, and that there were 6 challenged
ballots 2
On October 17, 1951, the Regional Director issued and duly served
upon the parties his report on challenged ballots, in which he recom-
mended that the challenges be sustained as to four ballots and over-
ruled as to two. Thereafter, the Employer filed exceptions to the
report on challenged ballots.
On December 6, 1951, the Board issued a Supplemental Decision and
Direction ,3 in which it (1) overruled the challenges to the ballots of
Herman Huebner and Frederick Ripley, and directed that these bal-
lots be opened and counted; and (2) sustained the challenges to the
ballots of James E. Harrington and Kenneth Marshall. It made no
disposition of the challenges to the ballots of Vincent Cox and James
Accino, but directed that if, after the ballots of Huebner and Ripley
were opened and counted, it should appear that the ballots of Cox and
Accino could affect the results of the election, a hearing should be held
to determine whether or not they are professional employees .4
Upon the opening and counting of the ballots of Huebner and Ripley,
it appeared that the ballots of Cox and Accino might affect the results
of the election 5 Accordingly, on December 27, 1951, pursuant to the
Board's Direction of December 6, 1951, a hearing was held before Leo
1 Lyntea Corporation , 1-RC-2281 , September 4, 1951 , not reported in printed volumes
of Board decisions.
2 The challenged ballots were cast by Herman Huebner, Frederick Ripley, James E.
Harrington , Kenneth Marshall , Vincent Cox , and James Accino.
8 97 NLRB No. 55.
4 In its Decision and Direction of Election of September 4, 1951, the Board , pursuant to
an agreement of the parties , included in the unit "quality production employees ," a term
used at the original hearing to refer to Cox and Accino. At that time, however, no evi-
dence had been presented as to the duties of these employees Thereafter, at the election,
'the Petitioner challenged their ballots , on the ground that Cox and Accino are employees
of the laboratory and not included in the unit . The Regional Director, recommended
that the challenges be sustained on the ground that Cox and Accino are professional
employees. ,
6 A revised tally of 'ballots, issued on December 12, 1951, showed that of 20 valid votes
counted, 11 were for and 9 against the Petitioner.
98 NLRB No. 147.
LYNTEX CORPORATION 1013
J. Halloran, hearing officer, to determine the issue as to Cox and
Accino. The Employer and the Petitioner appeared and participated.
On January 24, 1952, the hearing officer issued and served upon the
parties a report of hearing officer, copy of which.is attached hereto, in
which he found that Cox and Accino are professional employees within
the meaning of the Act, and recommended that the challenges to their
ballots be sustained on that ground. The Employer filed timely ex-
ceptions to the hearing officer's report, and a supporting brief.
The Board 6 has reviewed the rulings of the hearing officer and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the hearing officer's report, the
exceptions and briefs; and the entire record in the case, and hereby
makes the following findings.
Cox and Accino are employed by the Employer as assistant chemists.
Both are college graduates, holding the degree of Bachelor of Science
in chemistry. They work in the laboratory,? under the direction and
supervision of Freeman Wilkinson, the chief chemist. Their duties
consist principally of the preparation of regular and experimental
plastic formulations 8 and the checking of the plastic during the course
of manufacture to determine whether it meets specifications. They do
no production work, are not under the supervision of any of the pro-
duction foremen, and have little contact with the production workers.
Unlike the production and maintenance employees, who are paid on
an hourly basis, with time and a half for overtime, Cox and Accino
are salaried employees, and receive no overtime pay.9 Their hours of
work, which are set by the chief chemist, differ from those of the other
employee
As to the nature of their work, the record shows that the formula-
tions are prepared originally by the chief chemist. From these, Cox
and Accino prepare test mixtures, adding pigments to meet the require-
ments of the Employer's customers. The specifications are then given
to the production department. The only experimental work Cox
and Accino do is to try out new ingredients in the formulations,
under the direction of the chief chemist. And although they occa-
sionally, in the absence of the chief chemist, change the formulations
during the course of manufacture, these changes apparently involve
merely the addition of more,dye if the color is dull, or more resin
if the material is too stiff. The record further shows that the tests
Cox and Accino use in checking the plastic require little or no scientific
8Putsuant 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 Murdock and Styles ]
7 The laboratory is located in one corner of the basement floor of the plant, separated
from the rest of the floor by a row of tables.
8 The Employer manufactures plastic upholstery and handbag material.
8 Cox's salary is $100 a week : Accino ' s. $120. The production and maintenance em-
ployees receive from 90 cents to $1.60 an hour.
998666-vol. 98-53-65
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
training. Thus, they visually match colors, manually tear the finished
plastic to determine whether it is hard enough, and weigh it to deter-
mine its specific gravity.
Because of the routine nature of their duties, we, unlike the hearing
officer, are not convinced that Cox and Accino are professional
employees, within the meaning of the Act. However, they are clearly
technical employees, with duties, interests, and working conditions
different from those of the production employee. As the Board
normally excludes such employees from production and maintenance
units where any party objects to their inclusion," we agree with the
Petitioner that Cox and Accino should be excluded from the unit-
herein. Accordingly, we also sustain the challenges to their ballots
on this ground.
As the tally of ballots shows that the Petitioner has received a
majority of the valid votes cast, we shall certify it as the bargaining
representative of the employees in the unit heretofore found
appropriate.
Certification of Representatives
IT IS HEREBY CERTIFIED that Textile Workers Union of America,
C. I. 0., has been designated and selected by a majority of the
employees of Lyntex Corporation, in the unit found to be appropriate,
as their representative for the purposes of collective bargaining, and
that, pursuant to Section 9 (c) of the Act, the said organization is
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
Report of Hearing Officer
STATEMENT OF THE CASE ,
Upon a petition duly filed pursuant-to Section 9 (c) of the National Labor
Relations Act, as amended, herein called the Act, the National Labor Relations
Board, herein called the Board, on September 4, 1951, entered a Decision and
Direction of Election wherein it directed the Regional Director for the First
Region of the Board, herein called the Regional Director, to conduct an election
among certain employees of the Lyntex Corporation, herein called the Employer,
to determine whether or not said employees desired to be represented for the
purposes of collective bargaining by Textile Workers Union of America, C. I. 0.,
herein called the Petitioner.
Pursuant to said Decision and Direction of Election the Regional Director, on
September 24, 1951, conducted such an election. The tally of ballots cast at
said election showed that of the approximately 25 eligible voters 11 cast their
ballots for the Petitioner, 7 cast their ballots against the Petitioner, and 6 ballots
.were challenged. The challenged ballots being determinative of the results of the
10 National Cash Register Company, 95 NLRB 27, and cases therein cited.
LYNTEX CORPORATION 1015
election, the Regional Director in accordance with Section 102.61 of the Rules
and Regulations of the Board, made an investigation and on October 17, 1951,
issued his report on challenged ballots.
On October 24, 1951, the Employer filed objections to the Regional Director's
report and requested that "a formal hearing be granted. . . ." On December 6,
1951, the Board directed the Regional Director to open and count the ballots
of employees Herman Huebner and Frederick Ripley, and thereafter serve upon
the parties a supplemental tally of ballots, including therein the count of these
ballots, and that if it appeared from the supplemental tally that the ballots of
Vincent Cox and James Accino would affect the results of the election, the Re-
gional Director was directed to conduct a hearing for the purpose of determining
whether the said Vincent Cox and the said James Accino are professional em-
ployees within the meaning of the Act. Upon the opening and counting of the
ballots of the said Herman Huebner and the said Frederick Ripley it appeared
that the ballots of the said Vincent Cox and the said James Accino may affect
the results of the election.
Pursuant to the said Board direction of December 6, 1951, and after notice
to the parties, a hearing was held in Boston, Massachusetts, on December 27,.
1951, before the undersigned, the duly designated hearing officer, for the sole,
-purpose of determining whether Vincent Cox and James Accino are professional
employees within the meaning of the Act. The Employer and the Petitioner were
represented by counsel, who participated in the hearing and were given full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues. At the close of the hearing neither party
requested oral argument but the Employer requested time within which to submit
a brief, which was granted by the hearing officer over the objection of the Peti-
tioner. After the close of the hearing the Employer submitted a brief which
has been duly considered.
Upon the entire record in the case, and from his observation of the witnesses,
the hearing officer makes the following :
FINDINGS of FACT
1. Geographical layout of plant
The Company's plant in Lynn, Massachusetts, where plastics and plastic prod-
ucts are manufactured, is located in a three-story building. On the first or base-
ment floor are the shipping, calendering, and milling departments in addition
to the laboratory. The laboratory is located in one corner of the basement floor,
which is separated from the rest of the floor by tables which are used in connec-
tion with the work of the laboratory. The second and third floors are used for
offices and other production departments.
2. Educational and employment background of James Accino and Vincent T. Cox
James Acoino graduated from Providence College in 1938 with the degree of
Bachelor of Science in chemistry. Following his graduation, for a period of
about a year, he was employed at the du Pont Company, plant in New Jersey as a
chemist in the explosive department. He was then transferred to the Company's
Oklahoma plant where he remained until about 1945, serving as a production
supervisor and chemist. Following his employment with du Pont, he worked
for about 6 months in a plumbing and heating company in a type of occupation
requiring no knowledge of chemistry. His next position was as a plastics chemist
in Cranston, Rhode Island. After 3 years at this plant he accepted employment
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a plastics chemist in a plant located in Southbridge, Massachusetts. About
May 1951 he was offered and accepted a position as chemist at the Lyntex Com-
pany plant, where he has been employed to the present date. His salary is $120
per week.
Vincent T. Cox was educated in Boston College, where he majored in chemistry
and upon graduation received the degree of Bachelor of Science in chemistry.
Following his graduation he was employed as a chemist in the Bolta Company,
Lawrence, Massachusetts, and the Boston Woven Hose Company, Cambridge,
Massachusetts, manufacturers of rubber and plastics. After about 2 . years
employment at the latter company, he was approached by an official of Lyntex
to go to work as a chemist for that Company. He accepted the offer and has
been working for it for about' 13 months. His salary is $100 per week.
3. Nature of work performed by Accino and Cox and other conditions of
employment 2
Chief Chemist Freeman Wilkinson directs, supervises, and defines the work of
his assistants Accino and Cox. Other than Wilkinson orders are on occasion
taken from Plant Superintendent Harrington or his assistant when the latter
is filling in for Harrington. Neither of these men is a chemist. No orders are
taken from any production or maintenance supervisors, except Superintendent
Harrington or his assistant.
Accino and Cox have duties primarily connected with the laboratory and
involve to a large extent the preparation of regular and experimental plastic
formulations. They prepare the plastic compound from various ingredients
according to charts and specifications. In addition, Accino and Cox match
colors ; prepare experimental formulations under the direction of the chief
chemist ; test raw materials ; and check the finished product to determine
whether the plastic being produced is of the proper quality and satisfied specifica-
tions. In the event that the product is not in accordance with specifications
they make, either with or without the approval of the chief chemist, additions
or changes in the formulations. Specifically the main function of Accino and
Cox is to prepare the mixture from which a formula and specifications will be
prepared ; see that the mixture is properly compounded ; and then make certain
that the resulting product meets the specifications.. The formulations in the
industry are pretty well standardized, but on occasions when a new type of
standard ingredient, such as a pigment, is received it is put through various
tests for the purpose of comparing it with the ingredient already in use.
In connection with their work, Accino and Cox check samples of 'material
and in the absence of the chief chemist have the authority to approve samples
of the product. They also check the weight and thickness of the material by
various mathematical calculations and if they find it is running too heavy
or too light, indicate to the calender operator how the error should be corrected.
In connection with certain types of tests precision instruments are used. There
are occasions when Accino and Cox make their own determination and use their
own judgment as to whether changes should be made when material is causing
trouble in production. In the case of checking colors, regardless of the opinion
of the calender operator that no correction need be made in the color, the
decision of Accino and Cox governs.
i This testimony was received in the form of a stipulation of the parties.
2It was stipulated at the hearing that the testimony of Vincent T Cox was the same
in all material respects as would have been the testimony of James Accino and of Chief
Chemist Freeman Wilkinson, who were in the hearing room but who were not called
to testify because their testimony would have been merely cumulative.
LYNTEX CORPORATION 1017
The only direct contact that Accino and Cox have with the other employees is
limited to inquiries to one Ripley in a production department on the third floor
of the plant as to what types and quantity of scrap he has available for produc-
tion and instructions to Ripley as to how much to be put into a compound batch ;
to giving the formulation card to the compound man and checking to see that the
specifications are complied with ; and to advice to the calender man as to whether
certain batches should be run separately or mixed. To a minor extent Accino
and Cox confer with the shipper relative to the weight of rolls to be shipped.
In addition employees from time to time seek information and suggestions from
Accino and Cox in connection with the employees' work.
As previously indicated Accino and Cox are salaried employees, receiving
$120 and $100 per week respectively. The production and maintenance em-
ployees are hourly paid workers, with a rate range of approximately 90 cents to
$1.60. The $1.60 rate is paid to the head maintenance man (not a supervisory
employee). The next highest rate of about $1.50 per hour goes to the calender
man. The mill operator receives about $140 per hour. The employees below
the mill operator receive rates scaling down to 90 cents per hour. Time and one-
half is paid to hourly paid employees over 40 hours. Accino and Cox receive
no overtime pay.'
Cox received a week's vacation with pay in 1951. -The hourly, paid employees
do not receive a vacation. The salaried employees, including Accino and Cox,
received a Christmas bonus of 1 week's salary. The hourly paid employees
received a turkey and a drink of liquor. While the hourly paid employees must
punch a time clock, Accino and Cox do not have to punch a clock, their hours
of work being established by the chief chemist, and varying from time to time.
Accino and Cox perform no production or maintenance work and do not come
under the supervision of the foremen in departments performing such work.
4. Accino and Cox are professional employees
From the testimony adduced at the hearing and all reasonable inferences
to be drawn therefrom , I find that Accino and Cox are professional employees
within the meaning of Section 2 (12) of the •Act in that they perform worx
which is "predominantly intellectual and varied in character" ; perform work
which is to a considerable extent involves the "exercise of discretion and judg-
ment"; and work which requires "knowledge of an advanced type in a field of
science customarily acquired only by a prolonged course of specialized intel-
lectual instruction and study in an institution of higher learning ."' I further
find that Accino and Cox are performing a type of work of a scientific nature
that cannot be performed by the rank and file of production and maintenance
employees of the Company . In addition I find that Accino and Cox have abso-
lutely no community of interest with the production and maintenance employees
as is shown in the difference in method of payment for work done , hours of
work, vacations , Christmas bonus, supervision , punching time cards , and type
and nature of work performed.
Recommendation of the Hearing Officer
In accordance with the foregoing I recommend that the challenges to the
ballots cast by James Accino and Vincent T. Cox be sustained, on the ground that
3 These rates were testified to by witness Cox and were based on information received
by him. The evidence was admitted over the objection of counsel for the Company, who
stated that he did not know the rates and had no one present from the Company who
could furnish him with the information.
4 American Smelting & Refining Company, 92 NLRB 1451.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they are professional employees within the meaning of the Act, hence ineligible
to be included in the production and maintenance unit previously established
by the Board in this case.
In accordance with the Board 's Order dated December 6, 1951, any party to
this proceeding may, within 10 days from the issue of this report , file with the
Board in Washington , D. C., an original and six copies of exceptions thereto.
Immediately upon the filing of such exceptions , the party filing the same shall
serve a copy thereof upon each of the other parties, and shall file a copy with
the Regional Director. If no exceptions are filed thereto, the Board will adopt
the recommendations of the hearing officer.
WESTERN ELECTRIC COMPANY, INCORPORATED and COUNCIL OF WESTERN
ELECTRIC TECHNICAL EMPLOYEES-NATIONAL, PETITIONER . Case No.
2-RC-1753. April 0, 1952
Decision and Direction of Elections
Upon a petition duly filed, a hearing was held before I. L. Broadwin,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Styles].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. The Association contends that a current contract between it and
the Employer, covering a small group of the employees whom the
Petitioner seeks to represent in this proceeding, is a bar to a present
determination of representatives. This contract, limited to some of
the employees at the Employer's Baltimore, Maryland, plant, one of
its many manufacturing locations, was executed on November 3,
1950, as a supplemental extension of an earlier agreement expiring on
December 1, 1950. The petition was filed on October 31, 1949. As
i The Employer moved for dismissal of the petition on the ground that the unit sought
is inappropriate . Point Breeze Salaried Employees Association , Inc., herein called the
Association , an independent labor organization , and the Point Breeze Committee , a group
of employees affected by this proceeding , both of which were permitted to intervene,
Joined in the Employer ' s motion, and also made several other motions to dismiss the
petition on grounds related to the question of the appropriate unit. For the reasons set
forth in section 4 , below, these motions are denied.
The Association also moved to dismiss the petition on the ground that the Petitioner
had not made a sufficient showing of interest . The motion is denied.
98 NLRB No. 154.