Clayton Mark & Co.

In the Matter of CLAYTON MARK & COMPANY, EMPLOYER and INDE- PENDENT METAL WORKERS UNION, PETITIONER Case No. 13-K-4429.Decided February 16, 1948 Seyfarth, Shaw d Fairweather, by Messrs. Henry E. Seyfarth and Charles D. Preston, of Chicago, Ill., for the Employer. Mr. John F. Cusack, of Chicago, Ill., for the Petitioner. Meyers, Meyers & Rothstein, by Mr. David B. Rothstein, of Chi- cago, Ill., and Mr. Louis Torre, of Chicago, Ill., and Mr. David Scribner, of New York City, for the Intervenor. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Chicago, Illinois, on June 20, 1947, before Robert Ackerberg, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. The Intervenor moved to dismiss the petition on the ground that the Petitioner would not consent to a "pre-transfer" election. The hearing officer referred this motion to the Board. As the Petitioner is not obligated to agree to an election, this motion is 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 Clayton Mark & Company, a Delaware corporation having its sole plant and principal office in Evanston, Illinois, is engaged in the man- ufacture, sale, and distribution of steel tubing, water well supplies, and other steel products. During the past year, the Employer purchased substantial quantities of raw materials, of which in excess of $50,000 in value was shipped to the plant from -points outside the State of Illi- nois. During the same period, the Employer's sales included more than $50,000 worth of products shipped to points outside the State. 76 N L. R. B, No 33. 230 CLAYTON MARK & COMPANY 231 The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is an unaffiliated labor organization claiming to represent employees of the Employer. United Electrical, Radio and Machine Workers of America, herein called the Intervenor, is a labor organization affiliated with the Con- gress of Industrial Organizations , claiming to represent employees of the Employer. 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 exists concerning the representation of employees of the Employer , within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit of all production and maintenance employees, including watchmen, the outside truck driver, inspectors, firemen, maintenance electricians , and the shop clerk, but excluding laboratory assistants , commissary clerks, nurses , timekeepers, office and clerical employees , production and planning clerks, time -study clerks, part-time and seasonal employees , division superintendents, foremen, assistant foremen, turn foremen and all other supervisory employees. The Intervenor and the Employer agree with the aforesaid unit except that they would exclude the outside truck driver , and the Employer, in addition, would exclude watchmen, inspectors , firemen, maintenance electricians, and the shop clerk.' In 1944, the Board found appropriate substantially the same unit now sought by the Petitioner.' No specific mention of outside truck drivers, inspectors, firemen, maintenance electricians , or the shop clerk was then made in the unit finding. However, the Intervenor, which won the election, and the Employer thereafter entered into a bargain- ing contract which excluded the outside truck drivers from its coverage, ' The Employer also desires to exclude "relief foremen ," The record shows no such fob classification, although non -supervisory production and maintenance employees may on occasion substitute for regular foremen when acting as supervisors , rank and file produc- tion and maintenance workers will be excluded from the unit ; at all other times they will be included Matter of Clayton Ill ark t Company, 59 N. L. R B 464. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but included inspectors, firemen, and maintenance electricians. The parties were unable to agree on whether the shop clerk was included in the Board's unit finding. The outside truck drive), is covered by a bargaining contract between the Employer and a local union affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. In accordance with our practice, we shall exclude him from the unit." The firemen and maintenance electricians are clearly maintenance employees. Their duties have-not changed since the Board's previous determination. However, the Employer urges their exclusion at this time because they participated in a strike in 1946 together with other employees in the unit. We find in this fact no basis for altering our previous unit finding. The watchnnen protect plant property against theft and maintain order among employees in the plant. They appear to be guards within the definition contained in Section 9 (b) (3) of the amended Act. Accordingly, as required by the Act, we shall exclude them from the unit. The shop clerk is hourly paid and works in the shop under the direc- tion of a production foreman. We shall, in accordance with our practice, include him in the unit.4 The inspectors were included in the production and maintenance unit in our prior determination, and were thereafter covered by the contract between the Employer and the Petitioner. Both the Peti- tioner and the Intervenor would continue to include the inspectors in the production and maintenance unit; the Employer, however, would now exclude them because (a) their authority has been increased since the last Board decision, (b) they are now in a separate depart- ment, apart from the other production employees, and (c) their determinations affect the earnings of the production employees. The 12 inspectors here involved are hourly paid, like the production and maintenance employees generally, and earn, as a base rate, ap- proximately 15 percent more than production employees. The latter, however, also earn incentive pay. The inspectors are trained on the job, requiring neither special schooling nor technical knowledge. Their duties are to inspect materials and either pass or reject them. An inspector may order a machine shut down if materials are not being run in accordance with specifications, and material rejected by the inspector as faulty must be rerun by the operator at the day-work rate rather than at an incentive rate. 3 Matter of E M Goldberg, d/b/a Farmers P; odnce Company, 72 N L R. B. 714. 4 Matter of Grand Central Airport Company, 70 N L. R. B 1094; Matter of Goodman Manufacturing Company, 58 N. L. R. B. 531. CLAYTON MARK & COMPANY 233 Before 1946, the inspectors were supervised by production foremen. Since the Employer rearranged its inspection system in January 1946, they have been in a separate department, under the direction of a chief inspector. With the change in supervision, the authority of inspectors was somewhat enlarged: the inspectors may now, as indicated, order a machine shut down on detection of defective work, whereas formerly they reported to the production foremen, who alone had such authority. The Board has, for same time, generally included inspectors within production units.' In October 1946, Mr. Reynolds dissented from a decision that included inspectors whose duties demanded the exercise of individual judgment and discretion, and whose determinations directly affected the earnings of production workers .6 The legislative history of the Labor Management Relations Act, 1947, reveals that Congress originally gave specific consideration to the status of inspectors. As passed, however, the law only directs the Board to take particular action in representation cases with respect to three types of persons : supervisors, professional employees, and plant guards. It is silent with respect to inspectors, although enacted 8 months after the Luminous Processes decision had become a matter of public record. Inspectors were originally included within the definition of "super- visor" in the House Bill,7 and were, as such, denied employee status, but they were not included within the definition of "supervisors" in the final Conference Bill." It is clear, therefore, that these inspectors 6 See, for example, Matter of-General Cigar Co, The, 64 N L R B 300, Matter of North Woods Thurber Company, 60 N L R B 863 When inspectors have not constituted part of existing pioduction units, and the bargaining representative of the other employees has requested that inspectors be added, the Board has dneeied self-determination elections among the inspectors Matter of Allis-Chalmers Manufacturing Company, 61 N L R B. 631 Matter of Luminous Processes, Inc, 71 N L R B 405 7 Section 2 (12) of H R 3020 read as follows "The term `supervisor' means any individual (A) who has authoiity, in the interest of the employer- s 2 p t * i C (n) . . . to determine, or make effective recommendation with respect to, the amount of wages earned by any individuals employed by the employer, or to apply, or to make effective recommendations with respect to the application of, the factors upon the basis of which the wages of any individuals employed by the employer are deter- mined, if in accordance with the foregoing the exeicise of such authority is not of a merely routine or clerical natuie, but requires the exeicise of independent judgment Implicit in the entire legislative history is the conclusion that inspectors who do not, by their determinations, affect the earnings of rank and file employees are no different from other production workeis and should be tieated accordingly Our dissenting colleagues apparently are of the same opinion \Ir Reynolds so indicated by joining in the decision in Matter of Duramold Drvhsson of Fairchild Engine if Airplane Corporation, 72 N. L R. B. 1112, decided after the Luminous Processes case, sup? a Confeience Report (House Report No 510, 80th Cong, 1st Sess , pp 35, 36) "(8) Supervisors-The House bill defined as `supervisors,' however, ceitain cate- gories of employees who were not treated as supervisors under the Senate amendment These were generally, (A) ceitain personnel who fix the amount of wages earned by 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are not supervisors within the meaning of Section 2 (11) of the amended Act.9 It is equally clear, in our opinion, that the amended Act and its legislative history do not authorize the classification of inspectors as "professional employees" merely because, by the exercise of indi- vidual judgment and discretion, they may sometimes affect the earn- ings of production employees.10 The legislative history reveals that this kind of inspector was treated in the same manner as time-study employees in the original House Bill, in which both were meant to be included within the definition of "supervisor," and in the final Conference Bill, in which neither was included within the definition.11 Despite the similar treatment of inspectors and time-study employees at that stage, the later Conference Report indicates that, while it was contemplated that time-study employees might be regarded as pro- fessional employees 12 and therefore entitled to representation in a separate unit, there was no intention to require similar treatment of inspectors. Finally, neither the amended Act nor its legislative history indi- cates a Congressional intent to place inspectors in the same position as plant guards, with respect to whom we may no longer certify any rank-and-file uidon.13 We cannot agree with our dissenting colleagues that the Board is now under a mandate to restrict inspectors to rep- resentation by a separate union, unaffiliated with any union that rep- resents other employees, or that we are authorized to exercise any discretion to do so. Congress having been silent on the point, although other employees, such as inspectors, checkers , weigh-inspectors, and time-study person- nel . . . The conference agreement, in the definition of 'supervisor,' limits such term to those individuals treated as supervisors under the Senate amendment, . . . The con- ference agreement does not treat time-study personnel or guards as supervisors, as did the House bill Since, however, time-study employees may qualify as profes- sional personnel , the special provisions of the Senate amendment . . . applicable 11 with respect to professional employees will cover many in this category. . . . ° This is not to say that there are no inspectors who are supervisors within the statutory definition There may well be inspectors who, in the course of their duties, exercise super- visory functions within the meaning of the amended Act It is clear from the record herein, however, thit this Employer' s inspectors do not have any of the'supervisory duties set forth in Section 2 (11) of the Act. 10 Just as the duties of a particular inspector may bring him within the definition of "supervisor" in the Act, some inspectors may be professional employees within the mean- ing of Section 2 (12) of the Act, if their training and duties comport with the definition therein But that is not the situation here. n See footnote 2, supra lx In Matter of Worthington Pump and Machinery Corporation, 75 N. L. R. B 678, the Board referred to this language of the Conference Report in finding that time-study employees were professional employees " Section 9 (b) (3) of the amended Act provides that " no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organi- zation admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards " CLAYTON MARK & COMPANY 235 the status of inspectors was generally considered, the legislative his- tory bearing on congressional intent is, if anything, to the contrary. We find, accordingly, that the inspectors herein should be included in the unit of production and maintenance employees i4 We find that all production and maintenance employees of the Employer, including firemen, maintenance electricians, inspectors, and shop clerks, but excluding watchmen, outside truck drivers, laboratory assistants, commissary clerks, nurses, timekeepers, office and clerical employees, production and planning clerks, time-study clerks, part- time employees, seasonal employees, division superintendents, fore- men, assistant foremen, turn foremen, and guards and other super- visors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Sec- tion 9 (b) of the Act. DIRECTION OF ELECTION 15 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Clayton Mark & Company, Evanston, Illinois, 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 Director for the Thirteenth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regula- tions-Series 5, among the employees in the unit found appropriate in Section'IV, above, who were employed during the pay-roll period immediately 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, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by Independent Metal Workers Union for the purposes of collective bargaining. 14 Chairman Herzog is of the opinion that strong arguments frequently prevail for estab- lishing a separate unit of inspectors when that is sought by one of the parties to a repre- sentation case. Inspectors' own interests are often sharply divergent from those of ordi- nary production employees, and employers may also feel that such segregation will help to encourage the loyalty of their inspectors. The Board created separate inspector units in 1944. (Matter of Consolidated Vultee Aircraft Corporation, 58 N. L R B. 1009 ) That, however, is not the issue before the Board in this case, where the employer seeks the com- plete exclusion of inspectors from any unit, rather than their segregation , and the Peti- tioner does not request a separate unit . The Chairman therefore joins Mr. Houston and Mr Murdock in this Direction of Election. 13 Having failed to achieve compliance, or to initiate steps for compliance, with the filing requirements of Section 9 (f) and (h) of the Act, as amended, the Intervenor will not be accorded a place on the ballot. Matter of Sigmund Cohn & Co., 75 N. L. R B 177 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBERS REYNOLDS and GRAY, dissenting in part : As stated in Luminous Processes, Inc ,16 inspectors of the type which the majority of the Board would here include in the unit, do not possess, in our opinion, the community of interest with other employees which we consider essential to the finding of an appropriate bargaining unit. These inspectors perform duties which constitute an important final step in the management technique and in the execution of such duties they are required to exercise independent judgment and discretion di- rectly affecting the remuneration of production employees. Further- more, as representatives of management in this vital phase of the pro- duction process, inspectors should not be subject to the control and dis- cipline of the same union which controls those very production em- ployees. There should be no room for compromise in loyalty on the part of inspectors and the Board should not create or perpetuate a bar- gaining relationship which places managerial representatives in a posi- tion where their obligations as fellow union members of rank-and-file employees come in direct conflict with their primary duty to manage- ment. Accordingly, not only would we exclude the inspectors from the appropriate unit herein, but in addition we would not permit these employees to be represented by the same union which represents rank- and-file workers in the Employer's plant. 16 Matter of Lamvnous Processes, Inc, 71 N. L R. B 405, 408