John F. Jelke Co.

In the Matter of 1 JOHN F. JELKE COMPANY , EMPLOYER and DAIRY EMPLOYEES' UNION, LOCAL 754, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , C. W. & H. OF AMERICA, AFL, PETITIONER and UNITED GAS, COKE & CHEMICAL WORKERS OF AMERICA, CIO, INTERVENOR In the Matter of JOHN F. JELKE COMPANY, EMPLOYER and LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER Cases Nos. 13-RC-398 and 13-RC-479, respectively.Decided May 9,1949 DECISION AND DIRECTION OF ELECTION AND DIRECTION On November 18, 1948, a Stipulation for Certification Upon Consent Election was executed by the Employer and the two Unions in the first case, the Petitioner, herein called the Dairy Employees' Union, and the Intervenor, herein called the United Gas Workers. On No- vember 26, 1948, Local 134, International Brotherhood of Electrical Workers, AFL, herein called the IBEW, filed a petition for a separate electrical maintenance unit. In a letter dated November 29, 1948, the Regional Director notified the Employer of the IBEW petition. On the same day, pursuant to the Stipulation, an election was conducted among the employees in the unit set forth in the Stipulation.2 In view of the pending IBEW petition, the Board agent challenged the ballots of the voters covered thereby. Upon completion of the election, a Tally of Ballots was served upon the parties in the Dairy Employees case. The Tally shows that there were approximately 199 eligible voters, and that 189 ballots were cast. Of these,. 76 were for the Dairy Employees' Union, 16 were for the United Gas Workers, 91 were for neither labor organization, 5 were challenged, and 1 was void. On December 2, 1948, and December 3, 1948, respectively, the Em- ployer and the Dairy Employees' Union filed Objections to the elec- tion. The Employer contended in its Objections that the void ballot 1 For convenience, the cases will be referred to as the Dairy Employees case and the IBEw case. 2 This stipulated unit was specified as follows : "All inside hourly paid employees engaged in manufacturing, packing, filling, churning, printing, shipping, and receiving of margarine, mayonnaise, salad dressing, and potato chips, also cafeteria , laboratory , garage, utility, and maintenance workers in the Chicago plant and garage at 759 and 748 Washtenaw Avenue, and shall exclude employees in the office , engine room , printers, truck drivers, professional and supervisory employees " 83 N. L. R. B., No. 69. 442 .i " 'JOHN F. JELKE COMPANY 443 "should have been recorded as valid.3 As the void ballot and'the chal- lenged ballots were sufficient in number to affect the outcome of the election, the Regional Director investigated the issues raised by these disputed ballots. Thereafter, on December 14,1948, the Regional Di- rector issued his Report on Challenged, Ballots and Objections, in which he recommended that the Dairy Employees and the IBEW cases be consolidated for hearing, inasmuch as two of the five em- ployees whose votes were challenged are also involved in the IBEW case. On January 7, 1949, the Board issued an Order consolidating the two cases and directing a hearing on Challenged Ballots and Objections. On January 25,1949, a hearing was held before Philip Licari, hear- ing officer of the National Labor Relations Board. The Employer, the Dairy Employees' Union, and the IBEW appeared and partici- pated in the hearing. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 4 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 [Members Houston, Reynolds, and Murdock]. Upon the entire record in these cases, the Board finds : . IBEW Case : 13-RC-479 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The IBEW claims to represent certain employees of the Employer. 9 The Dairy Employees' Union only argued in its "Objections " that three of the challenged voters should be ruled ineligible. 'The Employer moved to dismiss the IBEW petition on the following grounds : (1) there was no demand on the Employer for recognition prior to the filing of the petition, and although there was such a demand and refusal at the hearing , it is inequitable to apply the rule of Advance Pattern Company, 80 N. L. R. B. 29, because such an eleventh hour petition for a craft election results in harassing the employer , which in this case has already agreed to a production and maintenance election with other unions, (2) the peti- tion was not timely filed because it was filed on the eve of the election and, therefore, could only impede the election ; (3) no copy of the petition or notice thereof was given to the Employer until a day after the election , when it received the Board 's letter of notification. We deny the motion for the following reasons : ( a) the absence of a demand for recogni- tion and refusal does not negate the existence of a question concerning representation. Advance Pattern, supra . ( b) a petition is timely filed although it is filed subsequent to a stipulation for consent election and prior to the date of the election. Dover Appliance Company, 76 N. L . R. B. 1131 . ( c) although the Employer did not receive notice of the petition until after the election was held, it was not prejudiced thereby . The Employer was given an opportunity at the hearing to express its views on the unit requested by the IBEW. After the hearing, the Employer moved the Board to refuse to consider , either in its entirety or specified portions thereof, a brief of the Petitioner on the ground that it con- tained information not produced at the hearing . As each party is entitled , under the Board's Rules and Regulations, to file a timely brief commenting on the evidence and setting forth its position , we shall deny the motion insofar as it pertains to striking the entire brief. However, we shall grant the motion with respect to any information not presented at the hearing. Our decision in the instant cases is not in any wise based upon consideration of factual material presented for the first time in the Petitioner's brief but solely upon evidence introduced into the record 'at the hearing. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. t 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 IBEW seeks a unit of electricians, electrician helpers, and apprentices. The proposed unit consists of Everett Workman, a fore- man, and two assistants, Arthur Johnson and Russell Peterson .-5 The IBEW takes the position that because Workman is a working foreman, he belongs in the unit along with the assistants. The Dairy Employees' Union is of the opinion that the assistants alone constitute a separate and distinct unit. The Employer opposes the electrical maintenance unit as inappropriate, contending that the assistants do not possess the skill and training of "true craftsmen," and that,E' in Pany ,event, Workman should be excluded as a supervisor if the Board finds the unit appropriate. Johnson and Peterson, who originally started in another depart- ment, have been working as electrician assistants under the authority of Workman for about 6 and 8 years, respectively. While there has been no formal apprenticeship program, they have been trained by' Workman to perform electrical maintenance work, such as cleaning motors, changing light bulbs, and wiring light fixtures, the electrical time clock, and the push button door. Production employees are not permitted to touch a fuse box when a machine blows a fuse; this as well as all other electrical maintenance tasks is the province of the electrical department.,' The electricians have a shop of their own to which only they are permitted access. However, their various elec- trical duties are performed throughout the whole plant. Johnson is paid $1.89 an hour, and Peterson, $1.95, as compared with a plant average of between $1.58 and $1.60. The Employer's opposition to the establishment of an electricians' unit is grounded primarily on the assertion that their duties require very little electrical skill and training. While it is true that- some of the' work performed by the electricians, such as changing bulbs, is routine in character, it is clear that a portion of their work, such as wiring, requires the exercise of the degree of skill which is tradition- ally associated with the electrical craft. Their electrical tasks are distinctly different from those operations which constitute an integral part of the production process. Upon all the evidence presented, we are persuaded that the electrician assistants constitute a clearly iden- tifiable, homogeneous, and skilled craft group, and that they may con- s The Board agent challenged the votes of Johnson and Peterson , whose names were included on the eligible list submitted by the Employer in the Dairy Employees case. O The Employer , in support of its position as to the inappropriateness of the electrical maintenance unit , pointed to the testimony of Frederick Barr (whose status is discussed, infra, in another connection ), that he was among other things an electrician before the time of the election. However , there is nowhere else in the record any indication that he has done electrical maintenance work since that time. JOHN F. JELKE COMPANY 445 stitute a separate bargaining unit if they so desire.' Accordingly, we shall make no final determination with respect to the appropriate unit pending the outcome of the election directed hereinafter. Workman has charge of the electrical department. Upon securing the approval of the general superintendent of the plant, L. F. Culkin, as to any changes or new installations, he orders equipment. While some of his time is spent on such work as installation of fuses and electric light bulbs, the greater part of his day is devoted to studying blueprints and plans for installations. He is paid on a salary basis, as are all other foremen at the plant. Unlike the procedure for hourly rated employees, no deductions are made from his weekly wage of $90 when he takes sick leave. As a member of the Foremen's Council, he is in the same insurance category as other foremen. He directs the work of the two electrician assistants and has responsibility for adjusting their grievances. Although he has the power to hire and discharge employees, he has taken no such action for 15 years. It is clear from the foregoing that Workman adjusts grievances and exercises independent judgment in directing the work of elec- trician assistants. Therefore, we believe that, despite the lack of opportunity' to exercise his power to hire and discharge employees in his department, the foreman is a supervisor within the meaning of the Act, and we shall exclude him from the electrical maintenance vot- ing group." In accordance with the foregoing, we shall direct an election among the electrical assistants at the Employer's Chicago, Illinois, plant, excluding the foreman. If, in this election a majority select the IBEW, they will be taken to have indicated their desire to constitute a separate bargaining unit .9 Dairy Employees Case : 13-RC-398 The Void Ballot The election was conducted with a ballot having three spaces, two designating the Unions involved, and one marked "Neither." The instructions required the voter to place an "X" in the square of his choice. At the counting of the ballots, the Board agent voided a ballot in which the voter drew a square above the square contained in the "Neither" space. The Employer objects on the ground that the voter clearly indicated his intention to vote against representation by either participating Union. We find that the ballot does not clearly reflect 4 General Tire and Rubber Company, 79 N L it. B 580; Hunter Packing Company, 79 N. L. R. B 197; Celanese Corporation, 80 N L R B. 61 9 Celanese Corporation, supra. P As the Dairy Employees' Union disclaimed all interest in representing the employees sought by the IBEW, and the United Gas Workers did not appear or participate in the hearing, we are not placing their names on the ballot. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the intention of the voter, and for that reason we sustain the. action of the Board agent in ruling the ballot void.'° - The Challenged Ballots Arthur Johnson, Russell Peterson: We- have found that these employees may constitute a separate bargaining -unit and we shall therefore sustain the challenges of the Board agent to their ballots. Frederick Barr: The Dairy Employees' Union challenged the, ballot of this worker, claiming that he is a supervisor. The Employer. con- tends that he is not a supervisor. Barr is employed at an hourly rate during the second shift in the Mix Kwik department which has a minimum of about 25 employees." In charge is the, foreman, George Schoenfeld, who is paid on a weekly basis. Barr as an all-around man submits daily production records to the foreman, adjusts ma- chines, makes some repairs, and sees to it that boxes are properly sealed and glued. When the department'is short-handed, he assists by work- ing in the production line. Barr, as well as the foreman and some of the experienced workers, instructs new employees as to their duties. Barr can neither discipline employees nor receive their grievances. Occasionally, he reports cases of infractions of the rules to the fore- man whose responsibility it is to deal with the employees involved. Barr does not have the power to hire or discharge employees or to recommend effectively such action. The foreman spends about 90 percent of his time on the floor. When he is off on Thursday nights, he asks the utility gang foreman to take charge of the department" Barr admitted membership in the so-called Foreman's Club, which he stated was a social organization consisting of foremen and' nonfore- men as well. He is not in the foreman's class of the insurance pro- gram, and does not belong to the Foreman's Council, which is restricted to foremen. On the basis of the foregoing, we find that, as he does not responsibly direct any employees and has no authority to discipline or effectively to recommend their hire or discharge, Barr is not a supervisor.13 We shall therefore overrule the challenge to his ballot and include him ° in the unit. Anna Czuj: The Dairy Employees' Union challenged the ballot of '0 Fred W. Mears Heel Company, 71 N. L R. B. 18. 11 Prior to October 28, 1948, Barr was employed on the third shift , which was abolished after that date. '$ One Earl Partin, a production worker in the Mix Kwik department, testified that Barr was in charge on Thursday nights. Even if we assume, arguendo, that this was the fact, we have held that such sporadic exercise of authority does not in itself confer supervisory status. Electrical Equipment Company, 76 N L. R. B 1060. 'a The Dairy Employees ' Union contends that Barr's duties were drastically changed and "watered down" after January 1, 1949 , so that it would appear that he was not a super- visor in the preceding months. The weight of the evidence leads us to conclude that the description of Barr's duties applies to the entire period of his employment on the second shift from October 28, 1948, to January 25, 1949 , the date of the hearing. ' JOHN F. JELKE COMPANY 447 this worker'on the ground that she is a cafeteria supervisor. The Em- ployer contends that she is not a supervisor. Czuj testified that she works in the cafeteria along with four other employees. She prepares vegetables and bakes cakes and puddings. Her hours extend from 6 a. in. to 2: 30 p. in. In the morning, she and the cook are in the kitchen preparing food for the day. She also serves and works on the steam table in the rush hour and during the afternoon rest period helps the others by taking cash and serving coffee and ice cream. The three women other than the cook also serve, take cash, make coffee and salads, and arrange the various food items on the counter. Czuj, who has had no special training as a dietician, is senior in cafeteria service and receives $1.50 an hour. The cook is paid $1.60 an hour and the others receive $1.17 an hour. Czuj is not in the foremen's class of the insurance program. In addition to his responsibilities as personnel manager for the en- tire plant, Jerome J. Lyons manages the cafeteria 14 Lyons does the buying, checks invoices, pays the bills, determines prices, and plans menus. He gives orders to all the cafeteria workers, whose grievances are directly submitted to him. He also provides a substitute employee from the plant when absences occur. Lyons directs the work of the cafeteria either by frequent visits or by making and receiving tele- phone calls as to its activities. According to Czuj, the cafeteria staff knows its work so well that it is not necessary for anyone to make assignments.' She testified that she does not transmit orders, is not responsible for discipline, and that, at most, she sometimes informs the others of the foods which have been selected for the day in order that they may make the necessary preparations., No testimony wap offered to show that Czuj has authority to recommend firing and dis- charging of employees. We find that Czuj is not a supervisor, within the meaning of the Act. We shall therefore overrule the challenge to her ballot and include her in the unit. Helen Brown: The Dairy Employees' Union challenged the bal- lot of this employee on the ground that she is an office worker and as such comes within the exclusions from the stipulated unit. The Em- ployer contends that she is a cafeteria worker whose vote should be counted because this group of employees is included in the stipulated unit. Brown works on a part-time basis from about 9: 30 a. in. to 3 p. in. She spends the first half hour or hour in the office occupied by the personnel manager's secretary. There she enters cafeteria bills in 14 L. F. Culkin , chief chemist and general superintendent, supervises the manufacturing of the plant, which has about 238 employees . Directly below him is Lyons, who has charge of employment and pay rolls. 11 One Charles D'Angelo, an employee in the shipping department , testified that during his visits to the cafeteria he saw Czuj assigning employees to their tasks . Lyons testified that Czuj does not possess this power. As D'Angelo's opportunity for gaining such knowl- edge is limited, we are relying on Czuj 's testimony, as supported by Lyons, concerning her lack of authority in this regard. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a book and staples bills to invoices. In the ensuing period of more than 3 hours'16 she works'in the cafeteria where she is in charge of the cash register. On those occasions when help is needed, she also makes coffee, serves cake, and washes containers. She completes her day by picking up Lyon's mail, which she takes to his office. In contrast to the office employees, she is paid on an hourly basis. In view of the fact that she spends the greater part of her working day in the cafeteria, we find that Brown is primarily a cafeteria worker. We shall therefore overrule the challenge to her ballot and include her in the unit. We have found that Frederick Barr, Anna Czuj, and Helen Brown were eligible to vote. As the results of the election may be determined upon the counting of the challenged ballots herein declared valid, we shall direct that they shall be opened and counted. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer in Case No. 13-RC- 479, 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 supervision 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 described. in paragraph numbered 4, above, who were employed during the pay-roll period immediately pre- ceding 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 excluding em- ployees on strike wl* are not entitled to reinstatement, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Local 134, International Brotherhood of Electrical Workers, AFL. DIRECTION It is hereby directed that the Regional Director for the Thirteenth Region shall, within ten ( 10) days from the date of this Direction, open and count the ballots cast by Frederick Barr , Anna Czuj, and Helen Brown, in case No. 13-RC-398 and thereafter prepare and serve upon the parties to' this proceeding a Supplemental Tally of Ballots, including therein the count of said challenged ballots. '- One Jerry Greco , an employee in the shipping department , testified that he saw Brown working in the cafeteria from 10: 45 a in to 1 p. m only He also stated that he occa- sionally noticed her carrying time cards on her way to the office . As Greco's opportunity for observation is limited , we are relying on Brown's testimony with respect to the nature of her duties and the amount of time spent thereon.