Mine Safety Appliances Co.

.In, the Matter Of MINE SAFETY APPLIANCES COMPANY, EMPLOYER and INTERNATIONAL UNION UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL 920, A. F. L., PETITIONER Case No. 6-RC-303.-Decided July 30, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Erwin Lerten, hearing officer. The hearing officer's rulings made a.t the hearing are free from prejudicial error and are hereby affirmed.' The hearing offi- cer reserved for the Board ruling upon the Employer's several mo- tions to dismiss the petition. The motions are hereby denied for rea- sons set forth below. The request of the Employer for oral argument is hereby denied, as the record and briefs adequately present the positions of the parties. 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 Reynolds, Murdock, and Gray]. 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 Petitioner is a labor organization within the meaning of the Act, affiliated with the American Federation of Labor. The Employer moved .to dismiss the petition on the ground that the Petitioner was not the real party in interest, but was "fronting" for United Electrical, Radio and Machine Workers of America, Local 623, affiliated with the Congress of Industrial Organizations, herein ' The hearing officer refused to permit the Employer to adduce evidence in support of its contention that the Petitioner had failed to furnish its members with copies of the financial reports required by Section 9 (f) of the Act . He likewise refused to allow the Petitioner to prove that it had fully complied with the filing requirements of the Act. These rulings were proper . The compliance status of the Petitioner is a matter of admin- istrative determination not litigable by the parties . Matter of Lion Oil Company, 76 N. L. R. B . 565: and Matter of Ozark Dam Constructors, 77 N. L. R. B. 1136. We are satisfied that the Petitioner is currently in compliance . Accordingly , the Employer's motion to dismiss the petition because of the hearing officer 's adverse ruling is hereby denied. 85 N. L. R. B., No. 55. 290 MINE SAFETY APPLIANCES COMPANY 291_ called the UE. The UE is not presently in compliance with the filing- requirements of the Act. The Employer has never recognized nor had contractual relations- with any labor organization representing its employees. In 1944, the 'UE petitioned for a representation election at one of the Employer's. plants, and an election was directed by the Board.2 The petition,. however, was later withdrawn. In February 1948, the UE demanded -recognition for employees at one of the Employer's plants and there- -after called a strike which lasted approximately 32 days.3 On the day following the end of the strike, the UE once more made an oral request. for recognition.' . On March 26, 1948, the UE filed a petition with the Pennsylvania State Labor Relations Board seeking an investigation and certification of representatives. A hearing on this petition was, held on April 7, 1948. After the Employer contested the jurisdiction of the State Board, the UE withdrew its petition.5 On May 14, 1948, .nine employees of the Employer requesting a meeting to discuss the- Employer's lay-off policy. At least four of the signers were active UE. adherents.', The 1JE continued to hand out circulars to employees of the Employer until. September 27, 1948. After that date, the UE ceased to circulate any leaflets. During the UE strike of February and March 1948, some nonstrik- ing employees of the Employer approached a representative of the. Petitioner and requested the Petitioner to organize the employees. Nothing was done at that time. In the fall of 1948,' the Petitioner, began handing out circulars to the employees. Toward the end of December 1948, the Petitioner made oral demand upon the Employer for recognition. This was refused, and on January 5, 1949, the Pe- titioner filed a petition with the Board in Case No. 6-RC-295. The instant petition was filed on January 24, 1949, and the petition in Case. No. 6-RC-295 was withdrawn on the following day, with the approval of the Board. The expenses of printing the Petitioner's flyers and membership cards were paid by the Petitioner's international. The international 2 Matter of Mine Safety Appliance Co., Gallery Plant, 55 N. L. R. B. 1190. 8 The strike lasted from February 27, 1948, until the last week in March 1948. On March 5, 1948, the Employer notified the UE that it would not meet with any union committee until the union was certified by the Board. 4 The executive vice president of the Employer testified that the UE representative, "working through the established grievance procedure," stated that "some means should be found by which we could bargain with them." 5 The withdrawal of the petition was subsequently approved by the State Board. 6 The letter was composed by an international representative of the UE. The UE passed out circulars reproducing the letter, but substituting for the individual signatures the- words "Mine Safety UE Shop Committee." The circular claimed that the letter had been sent by "your UE Shop Committee." 7 A representative of the Petitioner set the date as "August or September of 1948" and - a circular introduced into evidence was passed out by the Petitioner in October 1948. 857820-50-vol. 85-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has exonerated the Petitioner from initiation fees and dues until such time as it has attained bargaining rights for the employees, hence none of the Petitioner's members have been required to pay such fees or dues. Originally the organizing of the Employer's plants in the fall of 1948 on behalf of the Petitioner was conducted solely by Meredith Powell 8 and William J. Augustine, international representatives of the Petitioner. Powell is not shown to have had any previous con- nection with the UE. Augustine was formerly recording secretary and chief shop steward of a local of the UE, but was expelled from office in 1945 as the result of a court decree.9 From that time on, Augustine has been entirely disassociated from the activities of the UE. From about January 1, 1949, employees of the Employer became active on behalf of the Petitioner. During the following month, the members of the Petitioner elected officers. They are : Harry E. Hitson, president ; '0 Theodore Pierson, vice president ; Nelson McMul- lin, financial secretary-treasurer. A Mr. Klingensmith and Joseph Arrigo are members of the Negotiating Committee." Hitson had been a member of the Mine Safety UE Shop Committee and a steward for the UE. He appeared at the State Board hearing as president of the UE. He signed the letter of. May 14, 1948,. referred to above, and his name appeared on approximately six UE circulars distributed at the Employer's plants. Hitson testified that he last attended a meeting of the UE in April 1948, and that he resigned from the UE orally on June 1, 1948. The membership dues records of the UE show that Hitson paid dues to the UE on June 1 and July 2, 1948, but not since. His name does not appear in the UE card file of active and inactive members. He first attended a meeting of the Petitioner in December 1948, and testified that he has had no connection or affiliation with the UE since the filing of the instant petition. His name has appeared, with others, on "practically all" the literature passed out by the Petitioner. Pierson was head steward for the UE in one of the Employer's plants in March or April 1948. The record does not disclose that either 'McMullin or Klingensmith had any previous connection with the UE. Arrigo had been a steward for the UE, and had signed the letter of May 14, 1948. The day following the end of the UE strike, he, went to see an official of the Employer to request bargaining rights for 8 Also referred to as Marty Powell. 9 Augustine testified that, so far as he knew, there was still an outstanding injunction effective against him. 10 Also referred to as temporary president. 11 Also referred to as the Bargaining Committee. MINE SAFETY APPLIANCES COMPANY 293 the UE. He last attended a meeting of the UE in July 1948. He testified that he resigned orally from the UE in July or September 1948, and turned in his UE membership card. The membership dues records of the UE indicate that Arrigo paid dues to the UE on May 21 and July 22, 1948, but not since. His name does not appear in the UE card file of active and inactive members. The last contact he had with an officer of the UE was in September 1948. He has attended meetings of the Petitioner, and his name has appeared on many of the flyers put out by the Petitioner. He testified that he has no present connection with the UE. From the foregoing facts, the Employer seeks to establish that the community of interest between the UE and the Petitioner con- stitutes the latter a "front" for the noncomplying UE. Looking at the evidence in the light most favorable to the Employer's contention, the most that has been proved is that the UE distributed leaflets up to a certain time, then ceased, then the Petitioner began handing out circulars ; and that several active leaders of the Petitioner had formerly been strong adherents of the UE. It was not shown that the Petitioner's present leaders are now connected with the UE in any way. These events, in our opinion, do not bespeak "fronting." They are consistent with abandonment of the UE in favor of a rival or- ganization. There is nothing here to indicate that the Petitioner, if successful in the election, would not represent the employees in- volved.12 This conclusion is bolstered by the fact that the UE and the Petitioner each owe allegiance to rival parent federations. Ac- cordingly, we find that the Petitioner is not a "front" for the UE but is the real party in interest herein, and we therefore deny the Employer's motion to dismiss the petition.13 13 Matter of Mississippi Products, Inc., 78 N. L. R. B. 873; Matter of McGraw Curran Lumber Co., Inc., 79 N. L. R. B. 795; Matter of Tin Processing Corporation, 80 N. L. R. B. 1,369 ; Matter of Gluck Bros., Inc., 83 N. L . It. B. 683; Matter of Morrison Turning Company, Inc., 83 N. L. It. B. 687 ; Matter of Stokley Foods, Inc., 83 N. L. It. B. 795; andMatter of Modern Upholstered Chair Company, Inc., 84 N. L. R. B. 95. But compare Matter of R. J. Reynolds Tobacco Company , 83 N. L. It. B. 348. The cases of Matter of Sampsel Time Control, Inc., 80 N. L. It. B. 1250; Matter of New Indiana Chair Company, Inc., 80 N. L. It. B. 1686; and Matter of Campbell Soup Company, 76 N. L. It. B. 950, cited by the Employer , are not to the contrary. They are all dis- tinguishable on their facts from the instant case. 13 The Employer moved to dismiss the petition on the grounds that ( 1) the Petitioner's jurisdiction does not extend to the lines of work in which the Employer is engaged ; and (2) the Petitioner 's constitution is contrary to public policy because it discriminates on the basis of race, establishes the international officers as "virtual dictators," and exonerates the international union for responsibility for any strikes and debts of its locals. We find no merit in the Employer 's motions. As to the first ground, the Petitioner is willing to represent the employees of the Employer , and there is no showing that it will not adequately do so. Matter of NAPA New York Warehouse, Inc., 75 N. L. It. B. 1269; Matter of Sampsel Time Control, Inc., supra ; and Matter of Modern Upholstered Chair Company, Inc., supra. As to the second ground, the Board will not inquire into a union 's constitution in the absence of proof that such union will not accord effective representation . Matter of 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer, within the meaning of Section 9 (a) (1) and Section 2 (6) and (7) of the Act.14 4. The parties are in substantial agreement that the appropriate unit should consist of all production and maintenance employees at the Employer's three Pittsburgh, Pennsylvania, plants and the Gal- lery, Pennsylvania, plant, including hourly rated inspectors, factory storekeepers and stores attendants, and janitors, but excluding office clerical employees, factory clerks, time-study men, timekeepers, pro- duction expediters, medical divison employees, watchmen and guards, professional employees, and supervisors. Questions have arisen, how- ever, with respect to the inclusion or exclusion of firemen at the Main Plant, firemen-guards at the Callery Plant, salaried inspectors, and employees of the Shipping Department.. a. Firemen There are six firemen at the Main Plant whom the Employer seeks to exclude as "guards." . One is a licensed engineer and the other five are licensed firemen. Their duties are to maintain high pressure steam for the various manufacturing processes, to see that the steam lines are properly maintained, to check the sprinkler systellm, and to watch over the operations of automatic stokers. The Employer's works manager testified that the firemen pack valves, repair leaks, repair control instruments, and lubricate the air compressor, but that major repair jobs on the steam lines are handled by the maintenance crew. He further estimated that the firemen spend between 60 and 70 percent of their time in the boiler room, which is their headquarters, and the balance of their time checking valves throughout the plant. Witnesses for the Petitioner testified, however, that the firemen spend approximately 98 percent of their time in the boiler room, that all repair Work on steam pipes and valves is done by maintenance em- ployees, and that firemen never check the valves. We deem it unneces- sary to resolve this conflict. Whatever the details of the firemen's The Baldwin Locomotive Works, 76 N. L. R. B. 922; Matter of Teams & Pacific Motor Transport Company, 77 N. L. R. B. 87; and Matter of Modern Upholstered Chair Company, Inc., supra . Accordingly, we hereby deny the Employer's motions to dismiss the petition. 14 The hearing officer rejected various requests by the Employer for permission to examine the cards submitted by the Petitioner to substantiate its representative interest and the Employer's offer to demonstrate that the Petitioner does not represent a substantial number of employees in the appropriate unit . These rulings were proper . We have repeatedly held that a labor organization's showing of interest is an administrative matter not sub- ject to direct or collateral attack. Matter of 0. D. Jennings & Company, 6S N. L. R. B. 516; and Matter of McGraw Curran Lumber Co., Inc., 79 N. L. R. B. 795 . See also Norris, Incorporated v. N. I. R. B., 177 F. 2d 26 (C. A. D. C.) decided May 27, 3 949. The Employer's motion to dismiss the petition because of these rulings of the hearing officer is hereby denied. MINE SAFETY APPLIANCES COMPANY 295 duties, it is clear that they are not "guards" within the meaning of the Act, as they are not employed "to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises." 15 This is true even though, as the Employer maintains, they occasionally enforce safety rules or see to it that other employees do not tamper with the valves ,or gauges. They are employed primarily as firemen to run the boilers, and their duties to enforce rules are only incidental to their main task.16 This conclusion is inescapable, especially in view of the fact that there ,are other full-time guards at the Main Plant. Accordingly, we find that the firemen at the Main Plant are not "guards" within the mean- ing of the Act, and we shall include them in the unit. b. Firemen-guards The Employer also would exclude as "guards" three firemen-guards at the Callery Plant. They maintain the boilers and the heating 'equipment, and also perform watchmen's duties throughout the plant, making regular rounds. They are not armed or deputized. There are no other guards or watchmen at the Callery Plant. In the aver- age 8-hour day, these firemen-guards spend about 3 hours in making rounds and guarding the plant gate, about 4 hours tending the boilers in the boiler room, and the remaining hour making repairs and main- taining the lines, checking the'valves, and seeing that nobody tampers with the equipment. It thus appears that they devote less than half their time to guard duties. Accordingly, we find that they are not `'guards" within the meaning of the Act, and we shall include them in the u nit.17 c. Salaried inspectors The Employer seeks the exclusion from the unit of the six salaried inspectors. Two of these salaried inspectors, who are female, do no inspecting but are employed solely as clerks in the office of the Super- intendent of Quality Control. They handle all clerical work in that office including paper work and necessary reports. Essentially they do the same general type of work as do other office clerical employees, whom the parties have agreed to exclude from the unit. Accordingly, we shall exclude them. 1' Section 9 (b) (3). 16 In Matter of Radio Corporation of America (R. C. A. Victor Division), 76 N. L. It. B. 826, at page 827 , the Board said : "It seems to us equally , if not more, reasonable to consider an individual to be employed as a "guard " only if his guard duties constitute a dominant aspect, and not merely an incidental feature, of his total work pattern ." (Emphasis supplied. ) 17 Matter of Morowebb Cotton Mills Company, 75 N. L. it. B. 987 ; and Matter of Radio Corporation of America (R. C. A. Victor Division ), supra. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The other four salaried inspectors, who are male, work out of the office of the Superintendent of Quality Control. They establish quality control for specific departments, including test procedures and other pertinent specifications. They also check the quality of the materials received from suppliers and are sometimes required to visit the suppliers' plants for this purpose. The parties have agreed to include in the unit the 18 hourly rated. inspectors who are stationed in specific departments. They check parts for dimensions and are responsible for testing the product coming from their particular department. They report any defects. they may find to the head inspector or the Superintendent of Quality Control. If the hourly rated inspectors have any problems that they cannot solve themselves, they look to the salaried inspectors for guid- ance. On occasion, the salaried inspectors tell the hourly rated inspec- tors what to do. The Employer's manager of manufacturing testified without contradiction that, if an hourly rated inspector is not doing the inspection job properly or not adhering to the inspection pro- cedures, the salaried inspectors have authority to discipline him.. Moreover, the salaried inspectors can recommend the hire, discharge, transfer, suspension, lay-off, recall, or promotion of hourly rated in- spectors, although the Superintendent of Quality Control would con- duct an independent investigation before taking action.18 In view of this testimony, we find that the four male salaried inspectors are super- visors within the meaning of the Act, and we shall exclude them from the unit. i d. Employees in the Shipping Department A question has arisen as to whether or not the 30 Shipping Depart- ment employees should be included in the unit. The Shipping De- partment occupies two rooms in the Main Plant, and is under the supervision of a general supervisor who also has jurisdiction over some clerical employees and the Receiving Department. Asa general practice, there is no interchange of employees between the Shipping Department and other departments. The employees who work in the Shipping Department consist of storekeepers, packers, a male clerk,19 checkers, and shippers. Their duties are taking materials to be shipped from the shelves, packaging, preparing appropriate bills of lading,. and loading the packaged goods into vehicles. They are hourly paid,. as are other employees in the unit. As noted above, the parties have is The manager of manufacturing could not recall any instance during the year before the hearing in which a salaried hspector recommended the discharge or discipline of an' hourly rated inspector. However, the test is the existence and extent of the salaried' Inspector 's authority , and not the frequency with which it has been exercised. 19 The male clerk types bills of lading. As the parties have agreed to exclude from the. unit factory clerks, we shall exclude the male clerk in the Shipping Department. MINE SAFETY APPLIANCES COMPANY 297 agreed to include factory storekeepers whose duties are, presumably, substantially similar to those of the storekeepers in the Shipping Department. In view of all the facts, we shall include in the unit employees of the Shipping Department. We find that all production and maintenance employees of the Employer employed at its Pittsburgh, Pennsylvania'20 and Gallery, Pennsylvania, plants, including hourly rated inspectors, factory store- keepers, stores attendants, Shipping Department employees,21 firemen, firemen-guards, and janitors, excluding salaried inspectors, the male clerk in the Shipping Department, office clerical employees, factory clerks, time-study men, timekeepers, production expediters, medical division employees, watchmen and guards, professional employees, and supervisors as defined in the Act, constitute an appropriate unit 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 Mine Safety Appliances Com- pany, Pittsburgh and Gallery, Pennsylvania, 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 super- vision 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, among the employees described 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 dis- charged for cause and have not been rehired or reinstated 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, for purposes of collective bargaining, by In- ternational Union United Automobile Workers of America, Local 920, A. F. L. 20 Main Plant, 201 North Braddock Avenue, Pittsburgh, Pennsylvania ; R. J. Building, 7501 Thomas Boulevard, Pittsburgh, Pennsylvania ; and Wappat Building, Braddock & Meade Streets, Pittsburgh, Pennsylvania. 21 Except the male clerk.