Brodhead-Garrett Co.

BRODHEAD-GARRETT CO. 669 auxiliary machines and equipment, as well as factory buildings and dwelling houses at each of the Employers' four locations. It is not necessary for us to decide, however,. Whether under other circum- stances the maintenance departments at each plant could constitute appropriate bargaining units. The Board has held that where main- tenance employees, including, as here, diversified classifications of workmen, have previously been represented in collective bargaining in plant-wide units, they may not be severed into separate bargaining units." Consistent with that policy, we also reject the Petitioner's alternative unit request. As none of the units requested by the Petitioner is appropriate for purposes of collective bargaining, we shall dismiss the petitions.' Order Upon the entire record in these cases, the National Labor Relations Board hereby orders that the petitions filed herein be, and they hereby are, dismissed. 6 The Nestle Company, Inc, 92 NLRB 1250. T Because of our finding respecting the bargaining unit, we do not pass upon the con- tract bar issue raised by the parties. BRODHEAD-GARRETT Co. ' and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LUMBER AND SAW MILL WORKERS, LOCAL 509, AFL, PETITIONER. Case No. 8-RC-1294. October 8, 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 Philip Fusco, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial 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 [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer 2 i The name of the Employer appears as amended at the hearing. 2 Local 52, International Brotherhood of Firemen and Oilers, AFL, hereinafter referred to as the Intervenor, was granted permission to intervene at the hearing upon showing of a contractual interest in the representation of these employees. 96 NLRB No. 90. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Intervenor contends a contract with the Employer bars the instant proceeding. The Employer takes no position as to this issue. The Intervenor and the Employer have negotiated consecutive con- tracts since 1941, all of which have included the employees sought_by the Petitioner within their coverage. On April 1, 1950, an agreement was signed between these parties for a term ending March 31, 1952, with provision for, reopening on wage provisions. This agreement also. contained a clause providing that full-time, employees must become members of the Intervenor within 30 days after their employment. No election under the terms of Section 9 (e) of the Act was held to 'provide authorization for a union-security agreement at the plant. The April 1, 1950, contract was reopened on March 28, 1951, and a second contract was executed on June 8, 1951, for a 2-year term run- ning until March 31, 1953. This contract also contained a union-shop clause with the modification that it was not to become effective until a referendum under Section 9 (e) had been held. The petition in this. case was filed on May 24, The union-shop provision in the 1950-52 contract as originally executed is clearly unauthorized as it was not preceded by the pro- cedures set forth in the statute. Accordingly, it cannot bar the instant proceedings .s While this clause was suspended in the execution of the second contract midway in the term of the first, the suspension did not take place until after the petition in the instant case was filed and therefore cannot act to preclude a present determination of representa- tives 4 On the entire record, the Board finds 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). 4. The Petitioner requests that the Board find appropriate a unit consisting of all employees in the Employer's lumberyard and sawmill, including working foremen but excluding office and clerical employees, truck drivers, boiler room operators, guards and watchmen, profes- sional employees, and supervisors as defined in the Act. The Em- ployer and the Intervenor agree with the general composition of the unit but would exclude the working foremen and include employees working in the Employer's warehouse. The Employer has 10 employees in the classification of working foreman. These employees spend the great majority of their time in manual labor with their crews but are paid a wage differential and have authority to hire and discharge as well as responsibly direct the operations of other personnel. We shall therefore exclude the work- ing foremen from the unit hereinafter found appropriate inasmuch as 8 See National Foundry & Furnace Company, 88 NLRB 1083, and cases cited therein 4 See Allen Wales Adding Machine Division of the National Cash Register Company, 94 NLRB 1288, and cases cited therein. FRANKLIN SIMON & CO. INC. 671 they have supervisory authority as defined in Section 2 (11) of the amended Act. Employees in the warehouse department, whom the Petitioner would also exclude, work in close proximity to, and under the same general supervision as, the remainder of the employees in the unit. The work of the warehouse personnel is predominantly manual and there is considerable interchange between employees assigned to the warehouse and those working at the mill and lumberyard. All em- ployees in the three groups have the same hours, wage rates, and general working conditions. Warehouse employees have consistently been included in the unit represented by the Intervenor for the past 10 years. As the Petitioner advances no reason for the exclusion of these employees; other than a disinclination to assume jurisdiction over warehouse work, and as the warehouse employees have the same interests and conditions of employment as the remainder of the em- ployees, we shall include them in the unit .5 The Board finds that all employees in the Employer's lumberyard, sawmill, and warehouse at Cuyahoga Heights, Ohio, excluding office and clerical employees, truck drivers, boiler room operators, profes- sional employees, guards, watchmen, working foremen and all other supervisors as defined in the amended Act, 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.] S See Pennington Bros., Inc., 92 NLRB No. 78; Camp Concrete Rock Company, 94 NLRB 296, and cases cited therein . The reluctance of a labor organization to assume jurisdiction over certain classifications of employees , we have consistently held , does not constitute a cogent reason for exclusion from an otherwise appropriate unit. See Tennessee Packers. Inc., 87 NLRB 90, and cases cited therein. FRANKLIN SIMON & Co. INC. and DEPARTMENT STORE EMPLOYEES UNION5 LOCAL 2, AFFILIATED WITH RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL, PETITIONER. Case No. 2-RC-3777. October 9, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before I. L. Broadwin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are.hereby affirmed.l ' The hearing officer referred to the Board the Employer's motion to dismiss the petition herein on the ground, inter alia, that the Petitioner had failed to make an adequate Show- Ing of representation In an appropriate unit. The Board has consistently held that the adequacy of a union's showing of interest is a matter for administrative determination, 96 NLRB No. 103.