John Oster Mfg. Co.

In the Matter of JOHN OSTER MFG. COMPANY, EMPLOYER and INTER- NATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 309 & 309 A, A. F. L., PETITIONER Case No. 13-RC-461.-Decided September 27, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before Allen P. Haas, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 labor organizations involved claim to represent certain employees of the Employer. 3. The question concerning representation : The Employer and the Intervenor, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW-CIO), Local 627, had entered into a collective bargaining agreement on December 1, 1947, to be effective for 1 year, and from year to year thereafter absent 60 days' notice of desire to terminate or modify. The petition herein was filed after the Intervenor notified the Em- ployer of its desire to modify the contract in several material respects, and negotiations as to these proposed modifications had begun. The contracting parties, having agreed that they would abide by the terms of the original contract until a new one was executed, contend that their contract is therefore still in effect and constitutes a bar to the instant proceeding. In view of the Intervenor's notice of desire to modify the contract and of the negotiations which ensued, how- ever, we find that the contract does not constitute a bar.' Accordingly, 1 Matter of Thomas Truck & Caster Company, 72 N. L. R. B. 847. 86 N. L. R. B., No. 25. 113 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we find that a question affecting commerce exists concerning the repre- sentation of employees of the Employer within the meaning of Sec- tion 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner seeks a unit consisting of all the stationary engineers and firemen at the Employer's Terminal plant in Racine, Wisconsin. The Intervenor contends that this unit is inappropriate, and that the only appropriate unit is one consisting of all the production and maintenance employees at the Employer's two plants in Racine, Wis- consin. The Intervenor has represented the employees at both plants of the Employer since its certification pursuant to the results of a consent election in July 1945. The employees sought by the Petitioner are the four firemen, who operate, maintain, and repair the boiler which heats the Terminal plant. They also maintain the pipes of the heating system, burn rubbish, and keep the boiler room clean. The boiler room operates on a three-shift basis, one man in each shift, and one relief man. Only firemen work in the boiler room, which is separated from the rest of the plant by a firewall. The fireman working on the day shift re- lieves the elevator operators when necessary. The firemen working on the swing and night shifts act as the sole elevator operators and answer the door bell; they also make hourly rounds as watchmen, checking lights, faucets, windows, etc. Witnesses at the hearing estimated that firemen on the night and swing shifts spend from 30 to 35 minutes of every hour in the boiler room and the rest of their time on their other duties. The fireman on the day shift spends most of his time in the boiler room.2 The boiler room is shut down for 31/2 months during the summer. The boiler room employees utilize this time to clean the boilers and flues, run the hot water heater, repair windows, and paint and fix frames. The employees sought by the Petitioner, together with two elevator operators and three sweepers, comprise the maintenance department at the Employer's Terminal building.3 This department is super- vised by a chief engineer. The employees of the maintenance depart- ment are hourly rated, whereas the production employees work on a piece rate. The firemen, together with the elevator operators, are the lowest paid employees of the Employer. 2 The dissenting opinion points out that in Matter of Broadway Department Stores, Inc., 82 N. L. R. B. 176, the Board held that a unit of boiler room and powerhouse employees would be found appropriate only if "the employees therein devote the major part of their working time to powerhouse duties ." The petition in that case was dismissed because only 2 of the 15 employees in the unit met this requirement. In the instant case, however, all the employees involved spend at least 50 percent or more of their time in the perform- ance of their boiler room duties. 3It does not appear from the record that any firemen are employed at the Employer's Ann and 16th Streets building. JOHN OSTER MFG. COMPANY All the employees sought by the Petitioner are licensed by the city of Racine, Wisconsin. Although it takes only approximately 3 weeks to train firemen to operate the type of boiler in use at the Employer's Terminal plant, the city of Racine requires 2 years' experience before it will issue a license . Because of this requirement , no transfers have been made to the boiler room. No boiler room employees have been transferred to other jobs in the maintenance department or to the production department . The boiler room employees work on a 24- hour shift basis, while the other employees work on an 8-hour shift only. In view of the foregoing facts, we find , contrary to the contention of the Intervenor , that the employees sought by the Petitioner con- stitute a homogeneous, identifiable group, traditionally found capable of bargaining as a separate unit.' However, we shall make no unit determination at this time pending the outcome of the election here- inafter directed. We shall direct an election by secret ballot among the firemen and stationary engineers at the Employer's Terminal building in Racine, Wisconsin, excluding supervisors and all other employees . If the em- ployees in this voting group select the Petitioner , they will be taken to have indicated their desire to constitute a separate bargaining unit. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purpose 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 su- pervision 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 voting group 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 world 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 they desire to be represented , for purposes of collective bargaining, by International Union of Operating Engineers, Local Union No. 309 & 309 Al A. F. L., or by United Automobile, Aircraft and Agricul-. ' Matter of Jacobsen Manufacturing Company, 82 N. L. R. B . 1404 and cases cited therein, 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tural Implement Workers of America, (UAW-CIO), Local 627, or by neither. CHAIRMAN IIERZOG and MEMBER GRAY, dissenting : We find no justification from the facts presented in this case for severing the boiler room employees from the more comprehensive unit presently established. Although we feel ourselves bound by the Jacobsen decision,5 upon which the majority of the Board relies in its decision, we believe that the facts here go beyond and are distinguish- able from those in that case. In the Jacobsen case, the employees involved constituted an admin- istrative section of the Employer's operations , and worked under the separate supervision of an engineer . In the present case, the firemen, who are part of the Employer's maintenance department, do not work under separate supervision. The firemen here, because of city license requirements, must have 2 years' experience. The record, however, shows that they do not need or use any special skills in their work at this Employer's plant. For 31/2 months of each year, during the shut-down of the boiler room in the summer, the firemen do general maintenance work which prob- ably could be done by ordinary unskilled laborers. Moreover, even during the remainder of the year, the firemen on the night and swing shifts, spend about half of their time on duties unrelated to those of operating and maintaining the boiler. The firemen on the day shift also do work unrelated to their classification, such as burning rubbish, keeping the boiler room clean, and running the elevators.5 In a recent decision 7 the Board said : "Although the Board has frequently found appropriate a unit of boiler room and powerhouse employees, it has required as a condition for finding such unit appro- priate that the employees therein devote the major part of their working time to powerhouse duties." Because only 2 of the 15 em- ployees involved spent most of their time in operating and maintaining boiler room equipment,8 the Board concluded in that case that the unit sought was not "such a functionally coherent group as would be required for an appropriate unit of powerhouse employees," and dismissed the petition. We can perceive no fundamental distinction between the facts in that case and those in the present one. IIere, only the employee on the day shift, only one of the four employees involved, ' Matter of Jacobsen Manufacturing Company , 82 N. L . R. B. 1404 (Member Gray dis- senting). 6 While the firemen in the Jacobsen case also did some work outside of the boiler room, it took only a minor portion of their time. 7 Matter of Broadway Department Stores, Inc., 82 N. L . R. B. 176. 8 As in the present case , the engine rooms were part of the Employer's maintenance division. JOHN OSTER MFG. COMPANY 117 spends the greater part of his time in operating and maintaining boiler room equipment. In no sense can it be said that the employees in the unit sought "devote the major part of their working time to power- house duties," a standard which the Board has said should be met as a condition of finding such a unit appropriate. We are therefore convinced that the working interests and duties of these employees are not sufficiently distinct from those of the other production and maintenance employees to warrant severing them from the already existing unit. We would dismiss the petition. 867351-50-vol. 86-0