American Lawn Mower Co.

In the Matter of AMERICAN LAWN MOWER COMPANY, EMPLOYER and INTERNATIONAL UNION. UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER Case No. 35-RC-41.-Decided August 31, 1948 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. At the hearing, the Employer moved to dismiss the petition upon the grounds that notice of hearing was not served on Lawn Mower Workers Federal Union, Local No. 22649, AFL. For the reasons discussed in footnote 1, infra, the motion is hereby denied. 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-man panel consisting of the undersigned Board Members.* 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. 9. The labor organization named below claims to represent em- ployees of the Employer. 3. The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The most recent contract covering the employees involved herein was entered into on July 29, 1942, by and between the Employer and Lawn Mower Workers Federal Union, Local No. 22649, AFL, to remain in effect for 1 year, and thereafter until terminated by either party upon 30 days' notice. There has been no modification in writing of this contract since May 7, 1945, although it appears that several oral modifications have been made since that time. The Employer urges this contract as a bar to the present proceeding, because no notice of termination has been given by either party. *Chairman Herzog and Members Houston and Reynolds. 79 N. L. R B., No. 51. 367 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner contends that the contract is no bar because the con- tracting union is defunct.' It becomes unnecessary to pass upon the allegation of the defunctness of Local No. 22649 advanced by the Petitioner, because the Board has-frequently held that such an agree- ment, after the initial 1-year period, is terminable at will and cannot operate as a bar to a question of representation' We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance employees at the Muncie, Indiana, plant of the Employer, excluding guards, office and clerical employees, and supervisors. The Employer agrees to this general description of the unit, but would exclude the watchmen-firemen as guards, the shipping clerk and inspectors as supervisors, and also a part-time employee. The Petitioner opposes such exclusions. Of the watchmen-firemen, all except one spend one-third of their time in watchman duties and the remaining two-thirds of their work- ing time in maintenance and boiler-firing duties. The remaining em- ployee in this case spends nearly all of his working time as a boiler fireman. Since less than half of the working time of all of these employees is spent performing the duties of watchman, we shall, in accordance with our established rule, include them in the production and maintenance unit .3 The shipping clerk is the only employee in the shipping department, except for a period of approximately 1 month at the height of the Christmas shipping season and again in the spring for a comparable period when three other employees are hired to help with the extra volume of work. We find, in view of-the character of this employee's I On May 19. 194S , prior to the date of the hearing , the Lawn Mower Workers Fedeial Union, Local No 22649, filed with the Board a statement that it did not wish to intervene in the case ; that it did not claim its contract to be a bar to the in esent proceeding ; and that it waived its right to further notification of the proceedings in the case The Employer moved to dismiss the petition because notice of the hearing was not served upon Local No 22649 This contention is rejected , inasmuch as the Board has held that only labor organizations which exhibit an active interest in employees affected by a representation proceeding- are entitled to notice of the hearing therein Matter of United Boat Service Corporation, 55 N L. R. B. 671 The Board has further held that although a union has shown some active interest in the employees , where such union expressly states that it has no interest in the proceeding , a waiver relieves that union of a light to further notification of proceedings in the case Matter of National Plastic Prod,u is Conipany, 69 N L R B 288. 2 Matter of Wtiseonstin Telephone Company, 75 N L R. B 993 Also Matte, of South- western Associated Telephone Company, et al., 76 N . L. R B. 1105 , Matter of The Flintkote Company, 63 N. L R B 914. 3 Matter of Carolina Metal Products. Inc , 76 N L R B. 644 Matta of Steelnrl'l l'quip- ment Company, Inc, 76 N. L. It. B. 831 AMERICAN LAWN MOWER COMPANY 369 regularly assigned duties, that he is not a supervisor and should be included in the appropriate unit' The inspectors check the product •for perfection of the item rather than for the skill and workmanship of a particular employee. The Board has held that inspectors of like authority are not supervisors within the meaning of the Act as amended: Accordingly, we find that the inspectors herein should be included in the unit of production and maintenance employees. The part-time employee works regularly 5 hours per days Inas- much as he is regularly employed a substantial number of hours each week, this employee has it sufficient interest in the conditions of em- ployment to warrant his inclusion in the unit.' We find that all production and maintenance employees employed at the Muncie, Indiana, plant of the Employer, including watchmen- firemen, inspectors, and part-time employees, but excluding guards, office and clerical employees, and supervisors, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 clays from the date of this Direction, under the direction and super- vision of the Regional Dirppetor for the Region in which this case was heard, and subject to Sections 203.61 amid' 203.62 of National Labor Relations Board Rules and Regulatiorls-Series 5 anloug the em- ployees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding 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, and also excluding em- ployees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargannng, by International Union, United Automobile, Aircraft and Agrlcilltural Implement Workers of America, CIO. 4 Matter of General Motors Con poration , Buu,k Motoi Division . 78 N I, R. B 72 , 1atte, of Ironton Fire Brick Conzpan,f, 76 N L R. B. 764. Mattel of Clayton Mark cC Company, 76 N L. R B. 230 The record indicated that there may be other part -time emplo.Neef, but specific intonua- tion was not presented in connection with then employment An.N such emplo .N ees, it the.N work regularly- a substantial numher of hours each week , should be included in the unit _ifattrr of Deep Oil Dee lopn'ieiret Corn pane, 74 N L It B 941