Mac's Equipment Co.

In the Matter of MAC'S EQUIPMENT Co., EMPLOYER and UNITED STEELWORKERS OF AMERICA, LOCAL 1981, CIO, PETITIONER Case No. 01-R-3474.-Decided February 13,1947 Mr. Telford MacCallum, of Compton, Calif., for the Employer. Mr. Perry Nethington, of Maywood, Calif., for the Petitioner. Mr. E. R. White, of Los Angeles, Calif., for the IAM. Mr. F. V. McKenney, of Los Angeles, Calif., for the MTC. Mr. Leonard T. Graham, of Los Angeles, Calif., for the Sheet Metal Workers. Mr. T. A. Kettering, of Los Angeles, Calif., for the Boilermakers. Mr. Jack J. Mantel, of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Los Angeles, California, on October 8, 1946, before David Aaron, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the IAM and MTC moved to dismiss the petition. The hearing officer referred the respective motions to the Board. For the reasons stated herein- after, the motions are hereby denied. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Mac's Equipment Co. is a partnership with its principal place of business in Compton, California, where it is engaged in various types of machine work and the fabrication of motor mounts, tanks, and steel structures. During each month, the Employer purchases materials, consisting chiefly of steel angles, sheets, round and square bars, and pipe, valued at about $12,000, of which approximately 20 percent is shipped to its plant from points outside the State of California. During the same period, the Employer's sales approximate $20,000 in 72 N. L. R. B., No. 113. 583 .584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD value, of which about 5 percent represents shipments to points outside the State. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. International Association of Machinists, Lodge 1235, herein called IAM, is a labor organization claiming to represent employees of the Employer. Los Angeles Metal Trades Council, herein called the MTC, Sheet Metal Workers International Association, herein called- the Sheet Metal Workers, and International Brotherhood of Boilermakers, Iron Shipbuilders, Welders and Helpers of America, Local 92, herein called the Boilermarkers, are labor organizations affiliated with the Ameri- can Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On June 20, 1946, the Petitioner informed the Employer that it represented a majority of the employees and requested the Employer to enter into a consent election. The Employer refused this request, advising the Petitioner that on June 4, 1946, the Employer had promised the MTC that it would sign a contract with the latter in the immediate future. On June 20, 1946, following the discussion between the Employer and the Petitioner, the Employer and the MTC executed a collective bargaining agreement. The MTC signed on behalf of the IAM and several other affiliated unions. The Petitioner filed its petition herein on June 21, 1946. The MTC and the IAM contend that the 1946 contract constitutes -a bar to the instant proceeding. We find no merit in this contention, inasmuch as the record is clear that the Employer was apprised of the Petitioner's representation claim before the execution of the contract with the MTC, and the petition herein was filed within 10 days after the representation of such claim? The IAM also contends that a recognition agreement entered into with the Employer on February 4, 1946, is a bar to the holding of an election. This agreement contains no substantive provisions con- cerning conditions of employment and therefore does not constitute an effectual bargaining contract.2 Accordingly, we find that neither ' See Matter of General Electric X-Ray Corporation, 67 N L R. B 997 ; and Matter of Henry & Allen, Inc., 68 N L. R. B 724. 2 See Matter of,Standard Oil Company of Indiana, 56 N L. R B. 1101, and cases cited ,therein. MAC'S EQUIPMENT CO. 585 the recognition agreement nor the 1946 contract operate as a bar to this proceeding. 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 are in substantial agreement that all production and maintenance employees of the Employer, including leadmen, but excluding all office and supervisory employees, constitute an appro- priate unit. They are in dispute, however, with respect to foremen, whom the MTC and the TAM seek to include and the Petitioner would exclude from the unit. The MTC and the TAM would include the two or three foremen em- ployed by the Employer for the reason that they are eligible to mem- bership in these organizations. The record clearly shows that the foremen have the authority to hire and discharge the employees under their supervision, and inasmuch as they do not come within recognized exceptions to the Board's policy of excluding foremen from units comprised of rank and file employees, we shall exclude them from the unit.' We find that all production and maintenance employees of the Em- ployer, including leadmen, but excluding all clerical employees, fore- men, and all other supervisory employees 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. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Mac's Equipment Co., Compton, California, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Direc- tor for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations- Series 4, among the employees in the unit found appropriate in Sec- tion IV, above, who were employed during the pay-roll period imme- 8 See Matter of Con P. Curran Printing Co ., 56 N L. R. B. 159 ; and Matter of Jones ck Laughlin Steel Corpohation, 54 N L R B. 679 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether they desire to be repre- sented by United Steelworkers of America, Local 1981, CIO, or by Los Angeles Metal Trades Council, AFL, for the purposes of collective bargaining, or by neither.