Specialities Appliance Corp.

In the Matter of SPECIALITIES APPLIANCE CORPORATION, EMPLOYER and FABRICATED METAL SPECIALTY WORKERS UNION No. 22561, A. F. OF L., PETITIONER Case No. 13-R-4071.--Decided April 4,1947 Mr. Max Chill, of Chicago, Ill., for the Employer. Daniel D. Carmell, by Messrs. Joseph E. Gubbins and Robert E. Martin, of Chicago , Ill., for the Petitioner. Mr. Irving D. Rosenman, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES Upon a petition duly filed, the National Labor Relations Board on January 24, 1947, conducted a prehearing election, among employees of the Employer in the alleged appropriate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of cols^ctive bargaining. At the close of the election, a Tally of Ballots was furnished the parties. The Tally shows that there were approximately 55 eligible voters, and that 50 of these eligible voters cast ballots, of which 37 were for, and 10 were against, the Petitioner, and 3 were challenged. Thereafter, a hearing was held at Chicago, Illinois, on February 14, 1947, before Robert Ackerberg, 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 the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Specialties Appliance Corporation, an Illinois corporation, is engaged at its plant in Chicago, Illinois, in the manufacture, assembly, and sale of equipment for frying and cooking foods. In 1946 the Employer purchased for use at this plant in excess of $60,000 worth 73 N. L. R. B., No. 31. 181 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of steel, its principal raw material, of which 15 percent represented shipments from places outside the States of Illinois. During the same period, the Employer produced in excess of $200,000 worth of finished products, more than 50 percent of which represented shipments outside the State. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION,INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Em- ployer.' III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties generally agree that the appropriate unit for bargaining purposes should consist of all production and maintenance employees, including short-hour workers,2 but excluding office and clerical em- ployees, truck drivers, and supervisory employees.3 The sole dis- agreement between the parties relates to employees Ray Kelly and Michael Prate, whom the Employer would exclude as supervisory employees 4 The Employer conducts its operations on the third, fourth and fifth floors of a building. Kelly and Prate work on the fourth floor where the sheet-metal fabrication and welding work is performed. R. 0. Van Fleet, an admitted supervisory employee, is in charge of the work of all 16 employees on that floor, as well as the work of all 10 em- ployees on the fifth floor who are engaged in assembling and preparing for shipment largo units of equipment. While Van Fleet is assisted by Foreman Kuszykowski, also concededly supervisory, the latter ' The United Automobile Workers, A F of L, was served with a copy of the petition and notice of hearing, but failed to appear 2 These employees work an average of 25 hours a week, while enjoying educational bene- fits as veterans under the G I. Bill of Rights. The parties stipulated that they are regu- lar permanent employees 3 The election was held among employees in the alleged appropriate unit. * At the hearing, it was stipulated that Frank Labik, a third employee, whom the Em- ployer originally desired to exclude from the unit , was, in fact , a non-supervisory employee. We so find and shall include him in the unit. SPECIALITIES APPLIANCE CORPORATION 183 functions only on the fifth floor. It is apparently the position of the Employer that Kelly and Prate aid Van Fleet in the performance of his supervisory functions on the fourth floor. Ray Kelly: This employee sets up and operates the punch presses and the press brakes, devotes 90 percent of his time to manual labor, assists in training new employees, shows the men what to do when Van Fleet is occasionally absent,5 relays orders to about three em- ployees, and helps the others on the floor if they have any difficulty. His wage scale is only slightly higher than that of most employees on this floor, and is equalled by three of them. He has no authority to hire, discharge, or discipline employees or effectively to recommend such action. Although in the past few years he has suggested to Van Fleet raises for three employees, his recommendations were ineffective, inasmuch as the raises had already been given to two of the employees and the third employee had quit before any action was taken. On the basis of the foregoing facts, it appears that this employee does not possess sufficient indicia of supervisory authority to warrant his ex- clusion from the unit. We shall include him in the unit. Michael Prate : This individual directs about three or four men in the assembling and cutting of parts for counter models, and reports directly to Van Fleet. He earns less than Kelly. Apart from the responsibility of regulating the flow of work in the counter model section he has virtually identical duties with those of the men he directs, and devotes 90 percent of his time to manual labor. Although there is some evidence that Prate substituted for 1 week last year as supervisor of the fourth floor during Van Fleet's illness, it is clear that, in the usual course of his work, Prate has no power to hire or discharge any employees and he has never effectively recommended a change of status with respect to any employees. In view of the foregoing, we believe this individual is merely an experienced worker who functions as a-leader in his group, and that his relationship to his fellow worker is not one of supervisor to subordinate.e Accord- ingly, we shall include him in the appropriate unit. We find that all production and maintenance employees ° of the Employer, including short-hour workers, but excluding office and clerical employees, truck drivers, and supervisory employees 8 with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective -bargaining within the meaning of Section 9 (b) of the Act. Van Fleet testified that he considered Kelly as his assistant on the fourth floor. Matter of Hall Level d Manufacturing Works, 72 N L. It. B. 165. S Including employees Kelly, Prate, and Labik. 8 This includes employees Van Fleet, Kuszykowski and Storms . The latter is admittedly a supervisor in charge of operations on the third floor. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE DETERMINATION OF REPRESENTATIVES The results of the election held previous to the hearing show that the Petitioner has secured a majority of the valid votes cast, irre- spective of the counting of the three challenged ballots.' Under these circumstances we shall certify the Petitioner as the collective bargain- ing representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that Fabricated Metal Specialty Workers Union No. 22561, A. F. of L., has been designated and selected by a majority of all production and maintenance employees of the Em- ployer, including short-hour workers, but excluding office and clerical employees , truck drivers, and supervisory employees with authority to hire, promote, discharge, discipline , or otherwise effect changes in the status of employees , or effectively recommend such action, as their representative for the purpose of collective bargaining , and that pur- suant to Section 9 (a) of the Act , the said organization is the exclusive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Certification of Representatives. BAlthough the record is not clear in this respect, it would appear that the challenged ballots were those of Kelly, Prate, and Labik.