Tennessee Corp.

U. S. PHOSPHORIC PRODUCTS DIVISION 7 of an objection, the question of Lyons' eligibility to vote, where that employee failed to exercise her right to vote subject to challenge. Such objection is thus in the nature of a postelection challenge, a type of challenge which the Board has uniformly rejected .s Ac- cordingly, we find no merit in this objection. As we have overruled the Employer's objections and as the Peti- tioner has secured a majority of the valid votes cast in the election, we shall certify the Petitioner as the representative of the employees in the unit heretofore found appropriate in the Board's Decision and Direction of Election. Certification of. Representatives IT Is HEREBY CERTIFIED that Local 416, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, has been designated and selected by a majority of the employees of the Em- ployer in the unit heretofore found by the Board to be appropriate, as their representative for the purposes of collective bargaining and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 8 See, e. g., Halliburton Portland Cement Company , 92 NLRB 1552. U. S. PHOSPHORIC PRODUCTS DIVISION , TENNESSEE CORPORATION and INTERNATIONAL CHEMICAL WORKERS UNION, A. F. OF L., PETITIONER. Case No. 10-RC-1182. September 6,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Morgan C. Stanford, I t5 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 Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : ' At the hearing, and in its brief, the Intervenor, U. S. Phosphoric Products Corporation Employees Association, moved to dismiss the petition on grounds relating generally to the existence of a question concerning representation. For reasons stated in paragraph num- bered 3, infra, the motion is denied. 96 NLRB No. 5. DECISIONS OF NATIONAL LABOR RELATIONS BOARD. 1. The Employer is engaged in commerce within the meaning of, the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. On'July 11, 1949, after a consent election, the Intervenor was certified as the statutory bargaining representative of the employees involved herein. These employees were covered at the time by a con- tract between the Employer and the Intervenor which had been en- tered into on February 14, 1949, effective until February 11, 1951, and automatically renewable for annual periods thereafter, absent 30 days' notice before the end of the contract term to terminate or modify the agreement. The Petitioner requested recognition on December 4 and December 7 and filed its petition on December 11, 1950. The Intervenor and the Employer contend, in effect, that the 1949 contract is a bar to a present determination of representatives. The Intervenor further contends that its certification constitutes a bar 2 We do not agree. It is clear that, as the Petitioner's claim was asserted and its peti- tion filed before the automatic renewal date of the 1949 agreement, the existing contract is not a bar' And the certification is also not a bar where, as here, more than a year had elapsed before the petition was filed 4 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. 4. The parties agree generally that all employees of the Employer at its Gibsonton, Florida, plant, with the usual exclusions, constitute 2 The Intervenor also contends that the petition should be dismissed on the grounds that : (1) The Petitioner made no showing that it represents a majority of the employees ; (2) the record does not prove nor does the Petitioner have a 30 percent showing as alleged in the petition ; ( 3) an unfair labor practice charge filed by the Petitioner against the Employer is pending ; ( 4) the filing of the petition herein constitutes an unfair labor practice against the Intervenor and the Employer. We find these contentions to be without merit for the following reasons: As to (1), a labor organization need not allege representa- tion of a majority of the employees sought to raise a question concerning representation, nor establish its majority status in advance of the election . Bank of America, N. R. & S. A., 71 NLRB 342; Landis Machine Compaivj, Inc., 71 NLRB 282. As to (2), the adequacy of a petitioner's showing is an administrative matter and is not litigable . Moreover, we are administratively satisfied that the Petitioner has an adequate showing of interest. Swift & Company, 94 NLRB 917: As to (3), the Petitioner, the charging party in Case No. 10-CA-1153, has filed a waiver of any right to urge any matters in that case as a basis of objection in this proceeding . And, as to ( 4), the Board has repeatedly held that it will not hear charges of unfair labor practices in a representation proceeding. See, e. g., Marine Optical Manufacturing Co., 92 NLRB 571. 8 Bond Brothers, Incorporated, 86 NLRB 514. Contrary to the Employer's contention, the pendency of unfair labor practice charges filed by the Petitioner against the Employer at the time of the representation claim and petition does not alter the effectiveness of such claim and petition in raising a question con- cerning representation . Cf. United States Smelting, Refining and Mining Company, 93 NLRB 1280. Also, contrary to the Intervenor 's contention , the alleged failure of the Board to process the petition until June 12, 1951 , does not render the petition untimely. Cf The Baltimore Life Insurance Company, 73 NLRB 848. 4 Cf Weber Showcase and Fixture Company, 85 NLRB 1202. U. S. PHOSPHORIC PRODUCTS DIVISION 9 an appropriate unit. However, there are questions raised with regard to the unit placement of the following categories : Yardmaster, head mechanic, shift foreman, head welder, head pipe- ftter, head painter, head labor foreman, head warehouse clerk, head electrician, head boilermaker and sheet metal worker, head carpenter, (lead operator, head lead burner, head brickmason: The record shows that each of these individuals responsibly directs the work of a sub- stantial number of employees and has power effectively to recommend their hire or discharge. We find that they are supervisors and shall exclude them. Labor foreman: This category is presently involved in unfair labor practice charges .-9 As previously noted, the Petitioner has filed the usual waiver, stating that it will not base objections to the conduct of the election on any activities of the Employer alleged in the charges as violations of the Act. Therefore, in accordance with our usual prac- tice, we shall permit the individuals in this category to vote subject to challenge and- segregate their ballots. Their ballots will not be counted unless determinative of the election. In the event that they are determinative, the final disposition of this case will await the out- come of the unfair labor practice proceeding. By allowing these indi- viduals to vote, we are not to be taken as having passed upon the issue of their supervisory status or any of the issues in the unfair labor practice proceedings e Gatemen: These employees prevent unauthorized persons from en- tering the plant and the unauthorized removal of all materials, tools, and equipment from the Employer's premises. They may require the surrender of tools or equipment for which proper removal authoriza- tion is not presented and may detain employees who attempt to take such material fr6in the plant. We find that the gatemen are guards within the meaning of Secion 9 (b) (3) of the Act and shall exclude them.7 Watchmen: There are three employees in the construction depart- ment classified as watchmen. They perform miscellaneous tasks for the Employer, such as driving employees to their homes, which are unrelated to the protection of the Employer's property or to the en- forcement of its rules. We shall, therefore, include them in the unit. We find.that all employees of the Employer at its Gibsonton, Flo- rida, plant, including the head laboratory samplers and watchmen, but excluding office clerical employees, the personnel clerk,9 gatemen, 5 Case No. 10-CA-1153. 6 Cf. Jackson Daily News, 86 NLRB 729. 7 C. V. Hill d Company, Inc., 76 NLRB 158.. 8 The head laboratory sampler does not appear to be vested with supervisory authority. We shall, therefore , in accordance with the agreement of the parties , include him in the unit. e The record indicates that the personnel clerk is a confidential employee, and, accord- ingly, this category is excluded from the unit. 10 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD guards, professional employees, the yardmaster, head mechanic, shift foreman, head welder, head pipefitter, head painter, head labor fore- man, head warehouse clerk, head electrician, head boilermaker and sheet metal worker, head carpenter, head operator, head lead burner, head brickmason, and all other supervisors, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] JOSEPH J. MICIIALIK, D/B/A SERVICE METAL INDUSTRIES and INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA (UAW-CIO). Case No. 7-CA- 446. September 6, 1951 Decision and Order On May 15, 1951, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in this case,3 and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel [Members Houston, Reynolds , and Styles]. 2 The Respondent moved to dismiss the complaint on the ground , inter alia, that the UAW-CIO and its Local 408 had not complied with Section 9 (f) and ( g) of the Act in that they had not furnished an annual financial report to their members. The fact of compliance by a labor organization which is required to comply , is a matter for adminis- trative determination and is not litigable by the parties. Moreover, the Board is admin- istratively satisfied that UAW-CIO and its Local 408 were in compliance at least as of the time of the issuance of the complaint and all material times thereafter . See Sunbeam Corporation , 94 NLRB 825 ; Cf. Highland Park Manufacturing Co., 71 Sup. Ct. 489. Under the circumstances , we affirm the Trial Examiner 's denial of the motion to dismiss the complaint on this ground. 3 The Respondent's request for oral argument is hereby denied, because the record, exceptions, and brief, in our opinion , adequately present the issues and positions of the parties. 4 In finding that the Respondent independently violated Section 8 ( a) (1) of the Act, we do not rely on the statement of Ruth Young, found by the Examiner in Sectidn III E of the Intermediate Report, that rather than vote for the Union it would be more advantageous in the settlement of their grievances to form a committee of 4 or 5 employees that could meet with management. 96 NLRB No. 6.