Forney Engineering Co.

In the Matter Of FORNEY ENGINEERING COMPANY, EMPLOYER and LODGE No. 1015, INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER Case No. 16-RC-4418.Decided January 19, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held before James R. Webster, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial 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 Houston and Reynolds]. 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. The Employer urges that either its 1949 or its 1950 contract, allegedly with the intervening Shop Employees' Organization, con- stitutes a bar to this proceeding. We cannot agree. The 1949 con- tract is not a bar as it has been superseded.) The 1950 contract cannot I See Mountain States Telephone and Telegraph Company, 83 NLRB 773 . Moreover, the 1949 contract does not represent a collective bargaining agreement such as is contemplated by the Act, but instead constitutes the individual agreement of the employees who signed it. It provides in part : An employee must have been with the Company 6 months before he becomes eligible to sign the agreement , and until he signs he will not have any vote or voice in the handling of the affairs between shop employees and Forney Engineering Company. The concluding paragraph of the 1949 agreement provides : "Both copies of contract must be signed by employee before he is eligible for bonus ." Thereafter appear five signatures of employees , none of whom has indicated that lie has signed in other than nu individual capacity. For this additional reason the 1949 contract cannot serve as a bar to this pro- ceeding. Cf. J. I. Case v. N. L. R. B., 321 U. S. 332 ; The Ewing-Thomas Corporation, 65 NLRB 1270. 88 NLRB No. 57. 204 FORNEY ENGINEERING COMPANY 205 bar a present determination of representatives because it was executed after the filing of the petition herein 2 4. The appropriate unit : The parties agree that the appropriate unit consists of all produc- tion and maintenance employees at the Employer's Dallas, Texas, plant, excluding office and clerical employees, guards, watchmen, pro- fessional employees, technical employees, and supervisors as defined in the Act. The Petitioner took the position at the hearing that the working foreman, Wayne Davis, should be excluded from the unit as a super- visor. The Employer would include him in the unit. The Intervenor took no position on this question.. The record reveals that Davis, who is the most skilled machinist in the shop, normally works as a produc- tion employee, but substitutes for the shop foreman only on the rare occasions when the latter is ill or on vacation. It further appears from the record that Davis spends no more than 5 percent of his work- ing time each year relieving the shop foreman, and that such relief is not performed on any regular schedule. For these reasons, and because the testimony reveals that Davis has never hired or discharged any employee or made any recommendation affecting the status of an employee, we conclude that he is not a supervisor within the meaning of the Act, and shall include him in the unit.3 We find, in accordance with the agreement of the parties, that all production and maintenance employees at the Employer's Dallas, Texas, plant, excluding cfficc and clerical employees, guards, watch- men, professional employees, technical employees, and 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 .4 DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses 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- 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 s United States Time Corporation, 86 NLRB 724, and cases cited therein. a See Magnolia Petroleum Co., 79 NLRB 1027. Cf. The Texas Company, Salem Gasoline Plant, 85 NLRB 121.1. 4In accordance with the agreement of the parties employee Frederick E. Forney, son of one of the Employer ' s executives , is also to be excluded from the unit. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this Direction of Election, 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 bargain- ing, by Lodge No. 1015, International Association of Machinists.5 5 Although the Intervenor stated at the hearing that it was taking steps to comply with the filing requirements of Section 9 (f) and (h) of the Act, it has not yet affected such compliance. Accordingly, we shall not place its name on the ballot. However, if the Inter- venor does comply with those requirements within 10 days of the date of this Direction, it may have its name placed on the ballot by promptly making application in writing to the Regional Director for the Region in which this case was heard.