Paraffine Companies, Inc.

In the Matter Of PARAFFINE COMPANIES, INC., EMPLOrEit and GENERAL WAREHOUSE, FOOD PROCESSORS, AND CANNERY WORKERS UNION, LOCAL 655, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. L., PETITIONER Case No. 20-RC-495.-Decided July 25, 1919 DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, a hearing 1 was held before Robert V. Magor and David Karasick,2 hearing officers of the National Labor Relations Board. The hearing officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed.8 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 [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case , the Board finds : 1. The Employer, a Delaware corporation , has plants in New Jersey and California, and operates a mine in Nevada . The plant involved herein is located in Redwood City, California, where the Employer is engaged in the manufacture of asbestos -cement products ' At the outset of the hearing, International Longshoremen's and Warehousemen's Union, Local No. 6, herein referred to as the Intervenor , which has not complied with Section 9 (f), (g), and (h) of the Act, was permitted to intervene on the basis of a currently existing contract with the Employer. 'Hearing officer Karasick was substituted for hearing officer Mager during the hearing. 'The Intervenor's motion to dismiss the petition, on the ground that the Petitioner's amendment of the petition at the hearing with respect to the description of the appropriate unit did not comply with the Board' s regulations concerning sufficiency of notice, was referred to the Board for ruling. As all parties were afforded full opportunity to litigate any issues raised by the amendment to the original petition, the Intervenor was In no way prejudiced by the timing of the amendment. Accordingly, the motion Is hereby denied. After the close of the hearing, the Intervenor moved to reopen the record for the purpose of demonstrating that one of the Petitioner's witnesses gave false testimony at the hearing. The motion is hereby denied . The testimony offered by this witness was entirely cumulative of the testimony of other witnesses, and no findings made herein require that we pass on the credibility of the witness in question. 85 N. L. R. B., No. 65. 325 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and heat insulations. The parties agree, and we find, that the Em- ployer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent employees of the Employer. 3. The question concerning representation: The amended petition in this proceeding was filed on March 31,. 1949. The Intervenor urges that its contract of June 15, 1947, which by its terms is to be effective until May 31, 1950, constitutes a bar to this proceeding. We do not agree. This Board has held that a con- tract for a term of more than 2 years is presumed to be of unreason- able duration and no bar to an election, in the absence of a showing that such contracts are customary in the industry in question.'- Although the Intervenor introduced as exhibits in this proceeding a number of collective bargaining agreements of more than 2 years' duration which it has executed with other employers, the record fails to establish that these employers are engaged in the same industry as the Employer in this case. On the contrary, the record indicates that in the case of the Johns Manville Co., which is apparently one of the few companies in the Redwood City area engaged in operations similar to the Employer, the Intervenor itself has executed a 1-year contract. We note, moreover, that prior to the present 3-year con- tract the Employer and Intervenor had consistently executed con- tracts of only 1 year's duration. In these circumstances, we believe that the Intervenor has failed to demonstrate a custom of 3-year con- tracts sufficient to rebut the presumption that such contracts are of unreasonable duration.5 Accordingly, the contract in question does not bar a present determination of representatives.6 We find, therefore, that a question affecting commerce exists 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 : The Petitioner seeks a unit composed of all production and main- tenance employees at the Employer's Redwood City plant, excluding guards, professional and office employees, and supervisors as defined in the Act. The Employer and Intervenor agree that, if an election is 4 Matter of An.sco, A Division of General Aniline and Film Corporation, 79 N. L. R. B. 79; Matter of Boulevard Transit Lines, Inc., 71 N. L. R. B. 719. Cf. Matter of California Walnut Growers Assoc ., 77 N. L. R. B. 756. 6 Having found that because of its duration the Intervenor's contract cannot bar a present determination of representatives , it becomes unnecessary for us to pass upon the Petitioner's contention that, in any event, the contract could not operate as a bar because: ( 1) it contains an unlawful union -security clause, and (2) since the contract was executed , a substantial change in the scope of the Employer 's operations has occurred. PARAFFINE COMPANIES, INC. 327 directed, the unit sought is appropriate. The requested unit, in :substance, includes the same group of employees covered by the exist- ing contract between the Intervenor and the Employer. We find that the following employees at the Employer's Redwood City plant constitute a unit appropriate for the purposes of collective tbargaining within the meaning of Section 9 (b) of the Act : all pro- duction and maintenance employees,7 excluding guards," professional and office employees, and supervisors as defined in the Act. 5. The determination of representatives : The Petitioner has requested that the Board use as the basis for voting eligibility the Employer's pay roll for the period ending closest to February 23, 1949, the date on which the original petition in this proceeding was filed. In support of its request, the Petitioner avers that since the original petition was filed there has been a large turn-over of personnel at the Employer's Redwood City plant. How- ,ever, such a turn-over, standing alone, affords no justification for departing from our usual practice of using a current pay-roll period for voting eligibility. On the contrary, if the large turn-over of personnel suggested by the Petitioner has in fact occurred there is .all the more reason for using a current date, for an earlier one would have the effect of disenfranchising a substantial portion of the Em- ployer's present employees. Accordingly, we shall adhere to our customary practice and direct that an election be held among the employees in the unit herein found appropriate who were employed during the pay-roll period immediately preceding the date of the .Direction of Election. DIRECTION OF ELECTION 9 As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, an election by TALI parties agree that the following classifications of employees may properly be included in the unit: chief inspectors, inspectors, maintenance foremen, shipping foremen, assistant shipping foremen, and head mill man. These individuals have been included in the unit bargained for by the Intervenor in the current, as well as previous , contracts with the instant Employer . It is clear that, despite their job titles, the only supervision these individuals exercise is of a routine nature, and they are not clothed with the authority to hire or fire, or effectively to recommend such action . Accordingly , they are hereby included in the unit . See Matter of San Marcos Telephone Company, 81 N. L. R. B. 314. 8 The regular watchmen , who are not uniformed , armed , or deputized, and who generally spend more than 50 percent of their working time on ordinary maintenance work, are included within the unit. Matter of Welding Shipyards, Inc., 81 N. L. R. B. 936. However , the week-end and holiday watchmen, unlike the regular watchmen , spend all of their working time as watchmen ; they have never been bargained for by the Intervenor ; and they are not regarded by the parties as properly included within the appropriate unit. We shall, therefore , exclude these individuals from the unit. Matter of Manhattan Coil Corp., 79 N. L. R. B. 187. 9As the Intervenor has not complied with Section 9 (f), (g), and ( h) of the Act, or initiated steps to effect compliance , it will not be placed on the ballot. 328 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD 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, 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 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 General Warehouse, Food Processors, and Cannery Workers Union, Local 655, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. L.