Efco Manufacturing, Inc.

EFCO MANUFACTURING, INC. 263 EFCO MANUFACTURING, INC. and UNITED STEEL WORKERS OF AMERICA, CIO, PETITIONER. Case No. 1-RC-2307. December-4,1951 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 Sidney A. Coven, 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 [Chairman Herzog and Members Houston 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 involved claim to represent certain em- ployees of the Employer. 3. The Employer and the Jewelry Workers contend that a contract between the Efco Workers Union (herein called the EWU) and the Employer effective from February 1, 1950, to February 1, 1952, is a bar to this proceeding. The Petitioner asserts that a schism within the contracting union prevents the contract from being a bar. We find it unnecessary to resolve the schism issue. The contract is automatically renewable-unless notice of termination is given within ,60 days of the expiration date. Because the Mill B 2 date has passed, we find the contract no bar to a present determination of repre- sentatives.3 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. ' The hearing officer referred to the Board a motion by the Intervenor, Amalgamated Jewelry Workers Union, Local 18, International Jewelry Workers Union, AFL (herein called the Jewelry Workers ), that the hearing be voided because the testimony of certain wit- nesses was taken in its absence . At the beginning of the third day of the hearing, which was a Saturday, the hearing officer received a telegram from the Jewelry Workers' repre- sentative, A. H. Barenboim , saying that illness prevented his attendance that day, but mak- ing no request for a continuance . At the Employer's request , the hearing was recessed long enough to enable the Employer to communicate with Barenboim, who authorized the Employer's attorney to request a continuance in his behalf . The hearing officer denied the continuance, but gave Barenboim an opportunity to recall for cross -examination those witnesses who had testified in his absence and to present rebuttal evidence if desired. Barenboim did not avail himself of the opportunity . For this reason , and because the rela- tively simple issues here involved were adequately explored, we can perceive no prejudice to the Jewelry Workers in the hearing officer 's action. The motion to void the hearing is therefore denied. I Mill B, Inc , 40 NLRB 346. $ General Box Co., 93 NLRB 789. 97 NLRB No. 49. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Employer and the Petitioner are in agreement that a unit of production and maintenance employees, excluding office clerical employees, is appropriate. On the other hand, the Jewelry Workers, contends that office clerical workers should be included. These workers were expressly excluded from the scope of the EWU's 1950- 1952 contract. In accordance with the'Board's practice, we shall ex- clude them from the production and maintenance unit' There is disagreement among the parties as to the proper unit place- ment of the following individuals : Frederick West is classified as a shipping clerk and takes his orders. from the office. The Employer would exclude him on the ground that, he is an office employee, whereas the Petitioner and the Jewelry Workers would include him. He spends his time roving around the plant making sure that finished work is shipped out promptly. We- find that he is essentially an expediter and shall include him.5 Thomas Reynolds, whom the Petitioner would include, but whom the Employer would exclude as a managerial employee,6 is assistant to the plant superintendent. He does most of the plant's time-study work and sets incentive rates on most new jobs. When a group leader- feels that a prevailing incentive rate in his department needs adjust- ment, he usually applies to Reynolds for a redetermination of the rate. We find that Reynolds' interests are different from those of the produc- tion and maintenance employees. We shall exclude him.' Lead men: The Petitioner would include, whereas the Employer and_ the Jewelry Workers would exclude, 6 lead men. Each lead man directs the work of from 3 to 10 employees in his particular depart- ment. He decides which jobs are to be worked on next, by which, employees, and on which machines. He sets up the machines and gets them running properly. From time to time he checks the product to• make sure that the machines have remained in proper adjustment and are being properly operated. If the job is like one run before, the lead man goes to the file of old incentive rates maintained in the superintendent's office and ascertains the applicable rate. If the job is of a new variety, the lead man some- times sets a temporary incentive rate for it until Reynolds, the time- study man, establishes a more precise rate. Moreover, all lead men make effective recommendations to Reynolds or to the front office for- changing rates which they believe to be too low or too high. They also, sign the daily production cards for the men in their departments. 4 Shell Oil Company, 72 NLRB 516. 6 Worthington Pump and Machinery Corp., 44 NLRB 779, 781. 6 The Jewelry Workers takes no position with respect to Reynolds. 7 Keystone Steel 4 Wire Co., 65 NLRB 274, 280. THE' WHITING LUMBER COMPANY 265 The lead men are generally responsible for the performance and behavior of the men under them, and their recommendations regarding transfers, promotions, and dismissals are frequently effective. We find that they are supervisors and shall exclude them." We find that all production and maintenance employees of the Employer at its East Greenwich, Rhode Island, plant, including the shipping clerk 9 but excluding the assistant to the superintendent,10 the lead men, office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate 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.] 6 United States Gypsum Co., 93 NLRB 91; Metal Textile Corp., 88 NLRB 1326, 1330 <group leader). 0 Frederick West. 10 Thomas Reynolds. ERNEST WHITING, ARTHUR WHITING, E. I. WHITING AND R . E. WHIT- ING D/B/A THE WHITING LUMBER COMPANY; LESLIE WYATT AND ERNEST WYATT D/B/A WYATT & WYATTAND CHARLES SWAN and NORTHERN ARIZONA DISTRICT COUNCIL OF LUMBER AND SAWMILL WORKERS, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 21-CA-849. December 6, 1951 Decision and Order On February 7, 1951, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent Whiting filed exceptions to the Intermediate Report and a brief in support thereof.' 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. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except as modified herein. I Respondent Whiting's request for oral argument is hereby denied as the record and brief adequately present the issues and positions of the parties. 97 NLRB No. 60.