Wilson & Co., Inc.

In the Matter of WILSON & Co., INC., EMPLOYER and UNITED PACK- INGHOUSE WORKERS OF AMERICA, C. I. 0., LOCAL No. 6,1 PETITIONER In the Matter of WILSON & Co., INC., EMPLOYER and HARRISON LUKENS AND RICHARD SMITH, EMPLOYEES, PETITIONERS and UNITED PACK- INGHOUSE WORKERS OF AMERICA, C. I. O. LOCAL No. 6, UNION Cases Nos. 18-RC-234 and 18-RD-22, respectively.Decided February 8,1949 DECISION AND DIRECTION OF ELECTION Upon separate petitions for certification and decertification duly filed, a consolidated hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 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. 2. Local No. 6 claims to represent certain employees of the Em- ployers The Petitioners in the decertification case, employees of the Employer, assert that Local No. 6 is no longer the representative of the Employer's employees within the meaning of Section 9 (a) of the Act. I The name of this Petitioner, hereinafter called Local No. 6, appears as amended at the hearing. 2 The Employer moved to dismiss the petition in Case No . 18-RC-234, because of the pendency of unfair labor practice proceedings instituted against the Employer by Local No. 6 and its International , in Cases Nos. 13-CA-108 and 18-CA-60. This motion is denied inasmuch as waivers with respect to those cases have been filed with the Board by the charging unions. The Employer's motion to dismiss the RC petition herein on the ground that United Packinghouse Workers of America, C. I. 0., hereinafter called the International , has not complied with Section 9 (h) is also denied, the Board having determined administratively that said Union is, in fact, in compliance with Section 9 (h). The hearing officer properly rejected the Employer's offer of proof on this point. Matter of Lion Oil company, 76 N L. R. B. 565. The Petitioners in the RD case moved to sever that case from the RC case. This motion is denied , as is the motion of Local No . 6 to dismiss the RD petition and to direct an election on the basis of the RC petition alone . Matter of General Motors Corp., 79 N. L. R. B. 1525 *Houston, Reynolds, and Gray. B On September 3, 1940 , the Board certified Local No. 6 as the representative of the employees as indicated in paragraph 4, herein. See 14 N. L. R. B. 283, 291 ; 24 N. L. R. B. 731. Thereafter the International executed a series of contracts with the Employer cover- ing the instant employees. 81 N. L. R. B., No. 92. 501 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit: On September 3, 1940, the Board certified Local No. 6 as the repre- sentative of the production and maintenance employees at the Em- ployer's Albert Lea plant, excluding clerical and office employees, teamsters, checkers, foremen, assistant foremen, and "supervisory employees." In addition to the foregoing exclusions, the Employer and the RD Petitioners seek, and Local No. 6 opposes, the exclusion of garage maintenance employees, scalers, and restaurant employees. The Em- ployer and the RD Petitioners would, moreover, include in the unit only "hourly paid and piece work" production workers. Local No. 6 opposes the quoted limitation. (1) The proposal that we distinguish between employees solely on the basis of difference in the mode of payment is, in the absence of agreement of the parties, rejected as contrary to Board policy. Mat- ter of E. I. du Pont de Nemours and Company, 63 N. L. R. B. 1387. (2) Garage maintenance employees. These employees grease, wash, repair, and otherwise maintain the Employer's trucks. Since 1944, when the maintenance garage was first established, these em- ployees have been treated by the parties as within the contract unit. No other union has sought to represent them. In Matter of Wilson & Co., Inc., 80 N. L. R. B. 560, the Board declined to sever similar em- ployees from the plant-wide unit at another plant of the Employer. We will, accordingly, include the garage maintenance employees in the unit. (3) The scalers. These employees determine and record the weight of products, which they report to the plant office. Their reports are used as a basis for billing customers and in determining production and labor costs. The Employer would exclude them either as clerical workers or as confidential employees. Part of the scalers (hourly paid) have been treated as within the contract unit in this plant and in the majority of the Employer's other plants; the weekly paid scalers have however, been excluded from such plant-wide unit in this and in all other plants of the Employer. While the duties of hourly paid and weekly paid scalers are substantially identical, the hourly paid, but not the weekly paid, scalers, interchange with the production em- ployees and often assist in production work while scaling. We find that the work of the scalers is not such as to require their exclusion from the unit as confidential employees. See Matter of Wilson cfi Co., Inc., 68 N. L. R. B. 592. While the duties of the scalers are in the main WILSON & CO., INC. 503 similar to those of the plant clerks, who are excluded from the unit, we believe that, in view of the special bargaining history of the hourly paid scalers in this plant and other plants of the Employer, and their interchange with production workers, they may appropriately be in- cluded in the unit 4 Absent any similar factors in the case of the weekly paid scalers, they will be excluded. (4) The restaurant employees work in the plant cafeteria, where they serve production employees, among others. They were not spe- cifically named in the Board certification of Local No. 6, but from 1940 to 1944 were treated as within the contract unit. For reasons stated in Matter of Wilson & Co., 81 N. L. R. B. 497, we will include the restaurant employees in the unit. We find, therefore, that the following employees of the Employe 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 the Employer's plant in Albert Lea, Minnesota, including the garage maintenance employ- ees, restaurant employees, and hourly paid scalers, but excluding clerical and office employees, teamsters, checkers, weekly paid scalers, foremen, assistant foremen, and all other supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and supervi- sion of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees 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 vacation 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 exclud- ing employees on strike who are not entitled to reinstatement, to deter- mine whether or not they desire to be represented, for purposes of collective bargaining, by United Packinghouse Workers of America, C. I.O., Local No. 6. i See Matter of Wilaon A Go., Inc., 68 N. L. R. B. 592 (where weekly paid scalers in the Employer's Chicago Wholesale Market were included in a production unit, the Board relying in part on their prior voluntary inclusion in that unit).