The Mountain Copper Co., Ltd.

1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the bargaining history on a.separate plant basis, we be- lieve that the employees at the Del Valle- plant 'may constitute. a, sep- arate unit. On the other hand, they may also be included with other field operations employees in a Statewide unit. In these circum- stances, we, shall make no unit determination until we have first as- certained the desires of the employees involved. If a majority vote for the Teamsters, they will be taken to have indicated their desire to continue as a separate unit. If a majority vote for the Independent, they will be taken to have indicated their desire to be included in the State-wide unit now represented by the Independent and the latter may bargain for them as part of such unit. - We shall direct an election among the following employees : All production and maintenance employees at the Del Valle absorp- tion and compresser plant of the Employer, Los Angeles County, Cali- fornia, including roustabouts, assistant operators, maintenance repair men, mechanics, chemists, boiler foremen, pipefitters, and carpenters, but excluding office and clerical employees, watchmen, guards, pro- fessional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] THE MOUNTAIN COPPER COMPANY, LTD.' and UNITED STEELWORKERS OF AMERICA, CIO, PETITIONER. Case No. 20-RC-1334. October 02i, 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 Benjamin B. Law, 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-mem- ber*panel [Chairman Herzog and Members Reynolds and Murdock]. 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 2 involved claim to represent certain em- ployees of the Employer.3 The name of the Employer is hereby amended to show its correct designation. $ The Petitioner contends that Local No. 391, International Union of Mine , Mill and Smelter Workers , has ceased to exist since March 13, 1951, the date on which a vote with respect to the alleged schism took place, and hence is no longer a labor organization within the meaning of the Act. Local No. 391 has represented the bulk of the Employ- er's employees for the purpose of collective bargaining for a number of years, and the Petitioner admits that this local was a labor organization prior to March 13, 1951. The Employer, apparently still regarding the local as capable of representing the employees at its plant, continues to deduct dues from the employees ' salaries in accordance with 96 NLRB No. 133. THE MOUNTAIN COPPER COMPANY, LTD . 1019 3. There exists a collective bargaining agreement between the Employer and International Union of Mine, Mill and Smelter Work- ers, for itself and on behalf of its Local No. 391, which is effective until November 15, 1951, subject to automatic renewal, from year to year unless notice to terminate or amend is given 60 days-prior to the anni- versary date. The Employer asserts that this contract is a bar to an election at this time.' The Intervenors maintained at the hearing that the current contract is a bar, but subsequently stated that they desired that an election be held among the employees in the unit de- scribed in the petition! The Petitioner contends that the present agreement is not a bar. In support of this contention it argues, first, that a schism has taken place within Local No. 391; and secondly, it believes that this decision will issue at a date close to the Mill B e date of the existing contract. The record reveals that a special meeting of Local No. 391 was held on March 13, 1951, at which meeting the members of this local' passed unrevoked authorizations to do so, and is holding the dues until a court determination is made as to which of the rival unions herein is properly entitled to them. The Inter- national has not revoked the charter of the local , and has appointed an administrator to conduct the affairs of the local. Moreover, the local still has members and several meetings have been held since March 13, 1951. Under the above circumstances , we are satisfied that Local No 391 now exists for the purpose of admitting employees to membership and dealing with the Employer on matters relating to wages and other working conditions . Accordingly, we find that Local No. 391, International Union of Mine , Mill and Smelter Workers, is not defunct and is a labor organization within the meaning of the Act. See Electric Products Company, 89 NLRB 218; White Sewing Machine Corporation, 89 NLRB 1284 ; Air Reduction Sales Company, 89 NLRB 1486 ; Maurice A. Knight, Jr., and Edmund H. Knight d/b/a, Maurice A. Knight Son's Co., 84 NLRB 816. 8International Union of Mine , Mill and Smelter Workers and Its Local No. 391 were allowed to intervene on the basis of an existing collective bargaining agreement with the Employer. 4 The Employer also asserts that if the Board should hold an election it should decide whether the bargaining representative which may be certified should assume the current contract . It is not for the Board to decide in a representation proceeding whether a certified representative must assume a preexisting contract . See Boston Machine Works Company, 89 NLRB 59. "The desire of the Intervenors for an immediate election is revealed by the "Motion to Dismiss or to Order Immediate Election ," filed after the close of the hearing , wherein they set forth the following facts : Certain officials of the Intervenors having jurisdiction of the affairs of Local No. 391 were out of the State on business at the time the petition in this proceeding was filed, and for approximately 2 months thereafter. For this reason they were unable to devote sufficient time to the matters raised by this petition to be able to form an opinion as to whether to consent to an election . On the basis of the advice of the attorney for the Intervenors , the officials instructed the attorney to raise the current contract between the Employer and the Intervenor as a bar to this proceeding at the bearing. After the close of the hearing, the officials had an opportunity to fully investi- gate the matter for the first time, and reached the conclusion that they should formally consent to an election among the employees in question. Inasmuch as we are ordering an election in this decision , the Intervenors' motion to dismiss the petition is hereby denied. O The words "Mill B " apparently refer to the principle set forth in Mill B, Inc., 40 NLRB 346. I Local No 391 included in its membership approximately 50 employees of the Employer 'and approximately 110 employees of Gladding, McBean & Co ., an employer unrelated to the Employer in this proceeding. ' 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three resolutions. The first resolution provided for disaffiliation from the International Union of Mine, Mill and Smelter Workers; the second provided for affiliation with the Petitioner; and the third pro- vided that the officers of Local No. 391 would continue to act as officers of Local 4534 of the Petitioner. These resolutions passed by votes of 63 to 2, 66 to 1, and 66 to 1, respectively. Shortly thereafter, 72 members of Local No. 391 who could not attend the March 13 meet- ing ratified in writing the action taken at the March 13 meeting. On March 16, 1951, the former officers of Local No. 391 addressed a letter to the Employer claiming that Local 4534 had succeeded to all the rights of Local No. 391. The present situation is similar to that in Boston Machine Works Company,8 and for the reasons stated therein we find that the contract between the Employer and the Intervenors is not a bar to a present determination of representatives .9 We conclude that the conflicting claims of the labor organizations involved can best be resolved by an election io 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 appropriate unit: All parties are in agreement concerning the composition of the unit and have stipulated that the unit requested by the Petitioner is an ap- propriate one. However, we are required by the Act to exclude two categories of employees from the unit whom the parties would include. The part-time watchmen: These employees work on a rotation basis on the late afternoon and night shifts. Although they are not uni- formed, armed, or deputized, they carry watchmen's clocks, watch for fires and theft, and generally watch over the property of the Employer to protect it from damage. We find that while performing these duties 3 Supra, footnote 4. Other cases which follow Boston Machine Works Company, and on which we also rely, are The Bassick Company, 89 NLRB 1143, and New York Ship- building Corporation, 89 NLRB 915. 0 The Employer points out that its current agreement is with the International Union of Mine, Mill and Smelter Workers, for itself and on behalf of Local No 391 of said international union; and apparently contends that since no evidence has been introduced to indicate a schism in the ranks of the international union , as distinguished from its local, the contract must bar this proceeding In our opinion the facts of schism in the circumstances of this case indicate disaffiliation not only from the international 's local, but from the international organization itself. Consequently there is the same confusion as to the representative status of the international as there exists with respect to the local. We therefore find that this contract is not a bar to this proceeding. See Felt and Tarrant Manufacturing Company, 90 NLRB No. 236 ; Air Reduction Sales Company, footnote 2, supra. 10 In view of our finding that the contract is no bar for the reason set forth above, we do not find it necessary to pass on Petitioner's secondary contention that the current con- tract is no bar to this proceeding because this decision will issue so close to its Mill B date. FLORIDA CITRUS CANNERS COOPERATIVE, INC. 1021 these employees are acting as guards as defined in the Act. 11 Approxi- mately 80 percent of their time is spent in this manner, and the balance of their time is spent tending the boilers and checking operating units that are not tended by regular operators. As these watchmen spend more than half their time performing the duties of guards, we find that they are guards as defined in the Act, 12 and shall exclude them from the unit. The working supervisors: These employees are in charge of a crew of men and spend between 20 to 80 percent of their time in physical work along with the crew. During the balance of this time, they ar- range working schedules, consult with their own supervisors, and give directions to the crew. They do not hire or discharge employees, nor does it appear that they effectively recommend such action. However, in accordance with the terms of the present contract between the Em- ployer and the Intervenors, these working supervisors represent man- agement in the first stage of processing grievances. Accordingly, we find that these employees are supervisors as defined in Section 2 (11) of the Act, 13 and we shall exclude them from the unit. We find that all production and maintenance employees employed at the Martinez, California, plant of the Employer, excluding office personnel, engineers, laboratory chemists, truck drivers, guards, 14 and supervisors within the meaning of the Act, 15 constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act.16 [Text of Direction of Election omitted from publication in this volume.] 11 See Southland manufacturing Company, 91 NLRB No. 38; Thomas A. Edison Co., Inc., 30 NLRB No. 154; St. Paul and Tacoma Lumber Company, 81 NLRB 434. 12 See Scott S Williams, Inc., 92 NLRB No. 153. 13 See United States Gypsum Company,'85 NLRB 9; John F. Jelke Company, 83 NLRB 442; Public Service Electric and Gas Company of New Jersey, 81 NLRB 1191. 14 Excluded under this classification are the part-time watchmen discussed above. is Excluded under this classification are the working supervisors discussed above. 18 With the exception of the part-time watchmen and the working supervisors, the unit is in the same form as stipulated to by the parties. FLORIDA CITRUS CANNERS COOPERATIVE , INC. and INTERNATIONAL UNION OF UNITED BREWERY, FLOUR, CEREAL, SOFT DRINK AND DISTILLERY WORKERS, CITRUS & ALLIED WORKERS, LOCAL 247, CIO, PETITIONER. Case No. 10-RC-14{92 . October 23, 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 Clarence D. Musser, hearing 96 NLRB No. 153.