Virginia Gear and Machine Corp.

In the Matter Of VIRGINIA GEAR AND MACHINE CORPORATION, EM- PLOYER and UNITED STEEL WORKERS OF AMERICA, CIO, PETITIONER Case No. S-RC-385.Decided January 11, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before H. Raymond Cluster, hearing officer. The hearing officer's rulings made at the hearing are free from prej udical error and are hereby affirmed.- 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 Reynolds and Murdock]. 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 organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The parties are in general agreement that the appropriate unit should consist of all production and maintenance employees at the Employer's Lynchburg, Virginia, plant, excluding guards, officials, office clerical employees, and all supervisors within the meaning of the Act. However, they disagree as to the inclusion of the inspector, the shipping clerk, the electrical assembler trainee-leader, and the foreman of the electrical assembly department. Inspector.-This employee is the only inspector in the plant and receives approximately the same rate of pay as the machine opera- tors whose work he inspects. He checks the work coming off the ' The Employer's motion to dismiss this proceeding because the CIO is not in compliance with Section 9 (f), (g), and (h) of the Act , is hereby denied for the reasons set forth in Northern Virginia Broadcasters, Inc. et al., 75 NLRB 11. 88 NLRB No. 26. 58 VIRGINIA GEAR AND MACHINE CORPORATION 59 machines for the sole purpose of determining whether it conforms to the blueprints and specifications and reports any irregularities to the foreman. He has no authority to make any recommendations regard- ing the status of the machine operators and his opinion as to whether the defective work is caused by the machine or its operator is not sought. We have previously held that, absent authority to make recom- mendations regarding the status of employees , the duty of reporting defective work is insufficient to confer upon a particular individual supervisory or managerial status.2 Under these circumstances, we find that the inspector is not a supervisor within the meaning of the Act. Because his interests together with his duties and working conditions are closely allied to those of the production and mainte- nance employees , we shall include the inspector in-the unit hereinafter found appropriate. Electrical assembler trainee -leader.-This employee is an experi- enced assembler who helps and instructs the trainees in their work. He answers to the best of his ability any questions which arise regard- ing construction. He does not direct the trainees in the performance of their work, but merely instructs them as to the general manner in which the work is to be accomplished. The record discloses that he has no authority to recommend change in status for any other employee. We find that the electrical assembler trainee-leader is not a supervisor within the meaning of the Act. Accordingly, we shall include him in the unit. Foreman-electrical assembly.--This individual is in charge of the electrical assembly department. His duties include planning, assigning, and diziecting the work of his department. Although the Employer urges that lie has no authority to hire, discharge, discipline, or transfer employees, or effectively recommend such action, he is responsible directly to the plant superintendent for the operations of his department; moreover, the plant manager testified that this individual who is listed as a foreman is the supervisor of the depart- ment. From the foregoing it is clear that the foreman of electrical as- sembly responsibly directs the employees in his department. We be- lieve, therefore, that the foreman of electrical assembly is a super- visor within the meaning of the Act; accordingly, we shall exclude him from the unit of production and maintenance employees. Shipping clerk.-The shipping clerk is located in the plant at the end of the assembly line . He prepares the bills of lading and handles the shipping details. As the office is separated from the shop, he 2 Wm. P. McDonald Corporation, 83 NLRB 427. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has little contact with the office clerical employees. We find that the shipping clerk is a factory clerical employee and shall, accordingly, include him in the appropriate unit. We find that all production and maintenance employees at the Lynchburg, Virginia, plant of the Employer, including inspectors, electrical assembler trainee-leader, and shipping clerk, but excluding guards, official office clerical employees, the foreman of electrical as- sembly, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. The Petitioner has requested that those employees who worked the second shift prior to its discontinuance on August 4, 1949, be al- lowed to vote in any election directed by the Beard in this matter. The Petitioner contends that these 17 men are eligible to vote because they were only temporarily laid off. On the other hand the Employer contends that such individuals should not be permitted to vote because they were. permanently discharged when the second shift was dis- continued and are no longer employees of the Employer. We are advised that each of these 17 individuals is the subject of unfair labor practice charges filed by the Petitioner against the Employer in Case No. 5-CA-236, alleging violations of Section 8 (a) (1) and (3) of the Act.' Under the circumstances, we shall not at this time make a determination of their eligibility based on prospects of re- employment, but shall allow the individuals named in the charges to participate in the election by casting separate challenged ballots in accordance with Board practice.4 However, their ballots will be segregated and will not be counted unless determinative of the results of the election. In the latter event, the final disposition of this case will await the outcome of the unfair labor practice proceedings which are still under consideration. By allowing these persons to vote we are not to be taken as having passed in any way on the legality or illegality of their discharges. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes 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 super- OAS the Petitioner has filed a waiver of its right to file objections to the election based upon matters contained in the charges, we shall direct an immediate election. *The Nashville Corporation, 77 NLRB 145; Stokely Foods, Inc., 78 NLRB 842. It appears from the record that 3 of the 17 individuals involved have since been rehired. Ballots cast by any such individuals who have been rehired prior to the payroll eligibility date will not be subject to challenge on this ground. VIRGINIA GEAR AND MACHINE' CORPORATION 61 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 in the unit found appropriate in paragraph numbered 4, above, who were employed during the payroll period immediately preceding the date of this Direction of Election, including the persons alleged to have been discriminated against in the unfair labor practice charges filed in Case No. 5-CA-236,5 and including employees who did not work during said payroll 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, for purposes of collective bar- gaining, by United Steel Workers of America, CIO. 5 As indicated in paragraph numbered 5, supra, these persons willobe permitted to vote challenged ballots.