Herndon Rock Products

.570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD STEWART AND Nuss, INC., AND CLAIIDE E. Nuss AND CHARLES STEWART, D/B/A HERNDON ROCK PRODUCTS and INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 87, AFL, PETITIONER. Case No. 20-RC-151Y., June 9,1952 Supplemental Decision and Certification of Representatives On March 7, 1952; pursuant to a Board Decision and Direction of Election dated January 18, 1952,1 and election was held under the direction and supervision of the Regional Director for the Twentieth Region among certain employees of the Employer. Thereafter, a tally of ballots was furnished the parties; the tally showed that of the ap- proximately 21 eligible voters, 19 cast valid ballots, 16 for the Petitioner, 2 for the Intervenor, International Union of Operating Engineers, Local No. 3, AFL, and 1 for no union. In addition, 28 employees cast ballots which were challenged by the Board's agent. On March 13, 1952, the Intervenor filed objections to conduct affecting the results of the election. On April 11, 1952, after investigating the challenges and objections, the Regional Director issued his report on challenged ballots and objections, in which he recommended that the objections be overruled and that 21 of the challenges be upheld? On April 18, 1952, the Intervenor filed exceptions to the Regional Director's report and recommendations. The bargaining unit in this case (set forth verbatim below) is limited to the Employer's heavy duty mechanics, machinists, combina- tion welders, and their helpers and apprentices, wherever located. The names of the 21 employees in question did not appear on the eligibility list used at the election. The Regional Director's investi- gation revealed that they spend most of their time operating machinery 'and equipment, and only occasionally make minor repairs on the machinery or assist the mechanics when the latter perform major repairs. From these facts the Regional Director concluded that they are machine operators rather than mechanics, and therefore not included in the voting group. The Intervenor does not claim that these 21 employees--called operators-are misclassified, nor does it dispute the fact that only an incidental part of their time is spent on machine repair work. Indeed, the facts as reported by the Regional Director are fully in accord with the testimony received at the hearing on the representation petition, where the Petitioner disputed the Intervenor's attempt to join con- struction-site repair mechanics in the same unit with machine oper- 1 97 NLRB 1250. 2 Because elimination of these 21 challenged ballots would finally determine the results of the election, the Regional Director did not consider the remaining 7 challenges. 99 NLRB No. 90. STEWART AND NUSS, INC. 571 ators. 'In these circumstances, we find, like the Regional Director, that the disputed employees are not mechanics or machinists, and therefore were ineligible to vote in the election. Accordingly, we adopt the Regional Director's recommendation and we hereby sustain the challenges to the ballots of Eugene Vance, ;Odie B. Shelton, Al Steits, George Thomason, Ola Coulson, Carl Simmons, Floyd Peter- son, Carl Nix, Leo Ely, William Redman, Pat Sant Agata, Matthew Etcheverry, Lester Clay, Arthur Harrah, Wayne Gibson, Lloyd Dunkin, James Thompson, Arthur Rickey, Virgil Azlin, Othal Hardy, and Fred Lindsey. As the objections rest only on the same assertion that these employees should have been permitted to vote, we hereby also overrule the objections. At heart, the Intervenor's argument in support of both of its objec- tions to the election and of the asserted eligibility of the 21 challenged employees, is a reiteration of its principal contention urged at the original hearing. It attacks the scope of this machine repairmen's unit as being too broad because it includes mechanics who may be sta- tioned at construction sites, away from the Employer's permanent re- pair shop at Fresno, California. The Board has fully considered this contention in its Decision and Direction of Election, and no new mat- ters are raised here to justify either a change in the unit finding or any further discussion of the matter. The Intervenor's statement in its exceptions, that if the Employer should in the future expand its operations to include construction sites hundreds of miles away from Fresno, or even outside the continental United States, the unit as now described, might create unforeseen difficulties, is premature. The Board will consider the effect of material changes in the Employer's operations when and if such matters are presented to it in proper proceedings. With the 21 challenged ballots thus considered eliminated, from the count, the tally of ballots shows that the Petitioner has been chosen as bargaining representative by a*majority of the employees in the unit. As we have overruled the Intervenor's objections, and as the remaining challenges cannot affect the results of the election, we shall certify the Petitioner as representative 'of the employees described in our Decision and Direction of Election. Certification of Representatives It is hereby certified that the International Association of Machin- ists, District Lodge No. 87, AFL, has been designated and selected as their representative for the purpose of collective bargaining by a ma- jority of the employees of Stewart and Nuss, Inc., and Claude E. Nuss and Charles Stewart, d/b/a Herndon Rock Products, Fresno, California, in the following unit : All heavy duty mechanics, machin- ists, combination welders, and their helpers and apprentices, and all 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD utility painters and parts room clerks employed at the Employer's Fresno shop, or at gravel pits or construction sites operated by the Employer, excluding all other employees, watchmen, guards, office and clerical employees, and supervisors as defined in the Act, and pursuant to Section 9 (a) of the Act, said organization is the exclu- sive representative of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. MEMBERS STYLES and PETERSON took no part in the consideration of the above Supplemental Decision and Certification of Representa- tives. MOORESVILLE MILLS and TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 34f-CA-202. June 10, 1952 Decision and Order On August 27, 1951, Trial Examiner Allen MacCullen 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 In- termediate Report attached hereto. Thereafter, the General Counsel, the Respondent, and the Union filed exceptions to the Intermediate Report ; the General Counsel also filed 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. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. As set forth in the Intermediate Report, on March 22, 1950, shortly after the Union filed a petition for an election with the Board, the Respondent announced certain benefits to "improve" the work- ing conditions of its employees. These were : 2 hours minimum re- porting pay, a 5-cent differential in pay for the third shift, and five holidays, with time and one-half for work performed on such holi- days..The Trial Examiner found, and we agree, that by granting the first two benefits the Respondent violated Section 8 (a) (1) of the Act. Because it was not affirmatively shown that the employees had not previously enjoyed these holiday benefits, he found nothing im- proper in the holiday announcement. We do not agree with this latter conclusion. 99 NLRB No. 96.