Wilson & Co., Inc.

In the Matter Of WILSON & CO., INC., EMPLOYER and LODGE No. 831 of THE INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER In the Matter Of WILSON & CO., INC., EMPLOYER and UNITED PACKING- HOUSE WORKERS OF AMERICA , C. I. 0., LOCAL No. 3,1 PETITIONER Cases Nos. 18-RC--'x'.24 and 18-RC-233, respectively.Decided February 8, 1949 DECISION AND DIRECTION OF ELECTION AND ORDER Upon separate petitions duly filed, a consolidated hearing was held before a hearing officer of the National Labor Relations Board. Ex- cept as indicated below, the hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed? Upon the entire record in the case, the Boards finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner in Case No. 18-RC-224, hereinafter called the I. A. M., is an unaffiliated labor organization claiming to represent employees of the Employer. The Petitioner in Case No. 18-RC-233, is a labor organization affiliated with the C. I. 0., claiming to repre- I This Petitioner's name appears as amended at the bearing ; it will be referred to here- inafter as Local No. 3. 2 The hearing officer properly excluded evidence purporting to show the non-compliance of Local No. 3 and United Packinghouse Workers of America , C. I. 0., hereinafter called the International, with Section 9 (h) of the Act , and the Employer's motion to dismiss because of such alleged non -compliance is hereby denied. Matter of Lion Oil Company, 76 N. L. R. B. 565. The Employer's motion to dismiss because of the pendency of unfair labor practice charges in Cases Nos. 13-CA-108 and 18-CA-56 is hereby denied, as the charging unions have filed appropriate waivers with the Board . The Employer's conten- tion that these waivers are ineffective because copies were not served on the Employer is hereby rejected. Nothing in the Act or in the Board's procedures requires such service. The purpose of the waivers is to preclude the charging unions from urging the unfair labor practices alleged in the charges as a basis for setting aside any election that may be held in these cases . The Employer , accordingly, cannot be prejudiced in any way by its failure to receive a copy of such waivers. a 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 [Houston, Reynolds, and Gray). 81 N. L. R. B., No. 93. 504 WILSON & CO., INC. 505 sent employees of the Employer. Amalgamated Meat Cutters and Butcher Workmen of North America, A. F. of L., Local 142-B3, here- inafter called Local 142-B3, is a labor organization claiming to repre- sent employees of the Employer.4 3. A question affecting commerce exists in Case No. 18-RC-233 con- cerning 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 appropriate unit. A. In Case No. 18-RC-224 The I. A. M. seeks to sever from the existing plant-wide unit a unit of certain employees at the Employer's Cedar Rapids, Iowa, plant engaged in the installation, repair, and maintenance of machinery, consisting of maintenance machinists, millwrights, housemen, their handymen and welders, and the powerhouse maintenance mechanic. The other parties oppose such severance. Local No. 3 and the Inter- national have bargained for these employees since 1940 as part of the over-all unit of production and maintenance employees. The maintenance machinists repair the production machinery and plant equipment. One welder is assigned to this group. The mill- wrights are engaged in moving, installing, maintaining, and perform- ing major repairs on the heavy machinery and equipment in the plant. There is one welder in this group. The housemen inspect, oil, and grease the production machinery and perform minor repairs. The powerhouse maintenance mechanic, who works under the chief engineer in the plant's powerhouse, is charged with the repair and maintenance of the machinery in the powerhouse. These employees do not have common immediate supervision,5 and are not physically segregated from other production and maintenance employees. They often work in association with such other em- ployees. Employees not included in the proposed unit do work sim- ilar to that of the welders and the maintenance mechanics. In view of the foregoing, we do not believe that the unit sought by the I. A. M. is appropriate for collective bargaining purposes, and we will, therefore, dismiss the I. A. M.'s petition s 4 Local 142-B3's motion to intervene in both the cases at bar was granted by the hearing officer without objection . However, as Local 142-B3 is not in compliance with the filing requirements of Section 9 of the Act, it was not entitled to intervene . The hearing officer's ruling permitting intervention is, accordingly , overruled and Local 142-B3 will not be placed on the ballot in the election hereinafter directed. 0 There is one foreman for the millwrights, housemen , and steamfitters. Another fore- man supervises the maintenance machinists . The chief engineer supervises, in addition to the powerhouse maintenance mechanic , all the other employees in the boiler room and engine room. See Matter of Owens-Corning Fiberglas Corp ., 79 N. L. it. B. 594. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. In Case No. 18-RC-232 Local No. 3, its predecessor union, and the International have since 1934, represented the production and maintenance employees in the Cedar Rapids plant.? The unit as defined in the last contract, reads : All production and maintenance employees, and hourly paid checkers, scalers, gang leaders, livestock handlers and restaurant employees, but excluding superintendents, foremen, assistant fore- men, plant clerical employees, buyers, general office employees, truck drivers and all other supervisory employees. The parties have agreed to amend the unit description to read as follows: All production and maintenance employees,8 excluding office employees, clerical and sales employees, laboratory employees, plant clerks, timekeepers, planning and methods employees, em- ployment and casualty employees, medical employees, receiving office employees, watchmen, wholesale market employees, truck drivers, livestock buyers, and weekly-paid scalers. In addition, the Employer would exclude, and the other parties include, the following categories : Hourly paid shrink and yield scalers, checkers, office janitors, firemen, restaurant employees, livestock handlers, storeroom dis- tributors, dressing room matrons and dressing room custodians. The hourly paid shrink and yield scalers These employees, who are under the supervision of the chief clerk, weigh the Employer's output before and after processing to determine shrink and yield for statistical and cost accounting purposes.9 All 7 The predecessor union in 1934 and thereafter represented the production and main- tenance employees in this plant in adjusting grievances , and, beginning in 1936, reached oral agreements with the Employer on wages and other matters. In January 1940, the Board determined that the predecessor union was the exclusive representative of the production and maintenance employees at this plant and ordered the Employer to bargain with such representative and to embody any agreement reached in a written contract . 19 N. L. R B. 990 . Since 1943, the International, on behalf of Local No. 3 and on its own behalf , has executed with the Employer three master agree- ments ( the last of which apparently expired in 1948 ), in which the International was recognized as the representative of the production and maintenance employees in the Cedar Rapids plant. No issue of contract bar is raised in the instant case. D The Employer proposes , and the other parties to this case oppose, use of the qualifying phrase all "hourly -paid" production and maintenance employees . However, it appears that all the production and maintenance employees are hourly paid . Moreover, in the absence of agreement of the parties on this point , it would be contrary to Board policy to distinguish between employees solely on the basis of manner of payment . Matter of Wilson & Co., Inc., 81 N L. R B. 501. Other scalers weigh the product only for the purpose of packing and shipments to cus- tomers ; they are all hourly paid. The parties have agreed to their inclusion. WILSON & CO., INC. 507 but five of these scalers are weekly paid and the parties have agreed to exclude them. The only dispute is as to the inclusion of the five hourly paid scalers in this category. They have consistently been included in the plant-wide unit in this plant, as in the majority of the Em- ployer's plants 10 The Employer contends that these five employees should be excluded on the ground that they are clerical, confidential, and managerial. They do not formulate or determine management policies, nor do they act in a confidential capacity to persons who exercise managerial functions in the field of labor relations. While their duties are chiefly 11 clerical in nature, in view of their special bargaining history we shall include them in the unit 12 The checkers: This group includes seven employees who check against customers' orders on outgoing products as they are loaded into cars or trucks, and seven others who work in various production departments and check the quantity and quality of incoming and out- going products, materials, or supplies. They are under the super- vision of the production foremen in the department to which they are assigned and their operations are integrated with the production process. The checkers have been consistently included in the plant- wide bargaining unit since it was first established in 1934, and checkers have been included in the plant-wide unit in most, if not all, of the other plants of the Employer. The Employer contends that they should now be excluded from the unit as clerical, confidential, and managerial employees. We reject the contention that they are con- fidential and managerial, for the same reasons as are given above with respect to the scalers 13 Although their work is primarily cleri- cal, in view of the fact that they work with production and mainte- nance employees, are supervised by production foremen and have been included for 14 years in the bargain unit, we will include them in the unit herein found appropriate.14 Office janitors: These employees have been consistently excluded from the plant-wide unit. They do clean-up work in the general office, are on the general office pay roll and are supervised by the office man- ager. The parties have agreed to exclude office employees generally. We will exclude the office janitors. Firemen: The firemen, who are under the supervision of the fire chief, maintain fire prevention equipment throughout the plant, elimi- 10 The weekly paid group on the other hand has been consistently excluded from the unit in this, and all other, plants of the Employer. 11 They do some manual work in handling the articles to be weighed. 12 See Matter of Wilson & Co., Inc., 68 N. L. R. B. 592; Matter of Wilson & Co., Inc., 81 N. L. R. B. 497. 13 See Matter of Wilson & Co , Inc., 68 N. L. R. B . 592, 595. 14 See Matter of Wilson & Co ., Inc., supra, at p. 595. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nate fire hazards, report violations of no-smoking rules to the fire chief or chief of police, and may enforce such rules, themselves, by admon- ishing offenders. However, as this enforcement function is merely incidental to their other duties, we reject the Employer's contention that these employees should be excluded as "guards." 15 We find, also, contrary to the Employer's contention, that there is sufficient com- munity of interest between the firemen and the production workers, particularly.n view of the fact that the firemen have been included since 1934 in the plant-wide unit, to warrant their continued inclusion in that unit. Restaurant employees: These employees serve food to all the other employees in the plant cafeteria, which is located in one of the produc- tion buildings. They have for the past 5 years been included in the plant-wide unit, as have similar employees in the three other plants in which the Employer operates plant cafeterias. We will include them in the unit.1' Livestock handlers: These employees receive, feed, and care for livestock in the Employer's stock yard. The Employer would exclude them, contending that they lack community of interest with the rest of the production and maintenance employees and citing the fact that, unlike the rest of the employees, the livestock handlers are under the supervision, not of the plant superintendent, but of the livestock buyer. However, the livestock handlers have been consistently included in the plant-wide unit, and we will include them in the unit herein found appropriate. Storeroom distributors: These employees maintain records of sup- plies entering and leaving the storeroom department, keep inventories of supplies in the storeroom, and make deliveries of such supplies to other departments in the plant. They have consistently been in- cluded in the plant-wide unit. We will include them in the unit herein found appropriate.17 Dressing room matrons and dressing room custodians: These ma- trons and custodians are employed in the women's and men's dressing rooms, respectively, where they do clean-up work, provide supplies and supervise the lockers. The custodians also clean certain of the plant offices. The matrons and, to a lesser extent, the custodians have certain monitorial duties. However, we are not satisfied from the record that they are employed primarily as "guards" within the mean- ing of Section 9 (b) of the Act. They have heretofore been included "Matter of Carbide and Carbon Chemicals Corporation , 79 N. L. R. B. 932 ; Matter of Wilson & Co., Inc., 81 N. L. R. B. 497. 1e See Matter of Wilson & Co.. Inc., supra. li For the same reasons as are cited above with respect to the scalers , we reject the Em- ployer's contention that the storeroom distributors are managerial and confidential em- ployees. WILSON & co ., INC. 509 in the plant-wide unit, and we will include them in the unit herein found appropriate. The following employees at the Employer's Cedar Rapids, Iowa, plant 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, including hourly paid shrink and yield scalers and all other hourly paid scalers, checkers, firemen, restaurant employees, livestock handlers, storeroom distribu- tors, dressing room matrons, and dressing room custodians, but exclud- ing office employees, office janitors, clerical and sales employees, laboratory employees, plant clerks, timekeepers, planning and methods employees, employment and casualty employees, medical employees, receiving office employees, watchmen, wholesale market employees, truck drivers, livestock buyers, weekly paid scalers, and all supervisors as defined in the Act. ORDER IT is HEREBY ORDERED that the petition filed by Lodge No. 831 of International Association of Machinists in Case No. 18-RC-224, be, and it hereby is, dismissed. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Wilson & Co., Inc., Cedar Rapids, Iowa, 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 Eighteenth Region, 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 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 temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented by United Packinghouse Workers of America, C. I. 0., Local No. 3, for the purposes of collective bargaining.