Clarostat Mfg. Co., Inc.

20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge, the head operator millwright, the head edge gluer, and all other supervisors as defined in the Act." [Text of Direction of Election omitted from publication.] 4 We have excluded employees serving on the Employer's board of directors, because they are a clear management group. We have also excluded, as supervisors, the sander-in-charge, the head operator millwright, and the head edge gluer because the record shows that they have power to recommend the hire and discharge of other employees, to recommend trans- fer of employees from one position to another, and to assign work to the employees under their supervision CLAROSTAT MFG. CO., INC. and INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS LOCAL 242, CIO, Petitioner. Case No. 1-RC-2295. May 27, 1953 SUPPLEMENTAL DECISION AND ORDER AMENDING CERTIFICATION OF REPRESENTATIVES Following the filing of a petition in the above-entitled pro- ceeding a representation hearing was held on July 17, 1951, before George A. Sweeney, hearing officer. At this hearing, the parties stipulated that the following unit was appropriate:' All factory production, maintenance, and clerical em- ployees at the Employer's Dover, New Hampshire, plant, excluding executive and office clerical employees, super- intendents, foremen and general foremen, engineers, inspectors of the engineering department, guards, and supervisors as defined in the Act. Following a Board=directed election on August 30, 1951, in that unit, the Board on September 10, 1951, issued a Certification of Representatives in which the Union was certifiedas bargain= ink representative for said unit. Thereafter, on November' 14, 1952, counsel for the Union filed a motion requesting that the certification be clarified by amending the unit to include spe- cifically production control clerks and inspectors who work in the production areas. The Union based its motion upon the ground that the Employer refused to bargain collectively for those employees whom it claimed were not properly included in the bargaining unit in accordance with the parties' stipula- i The record shows that the original petition called for a unit of factory production and clerical employees including inspectors and sweepers. At the preelection hearing, the unit was amended so as to exclude inspectors in the engineering department The Employer's counsel agreed to the change except that he would substitute the word "of" for the word "in" before the phrase "the engineering department." The record does not reveal the reason why the Employer's counsel urged this change. In any event, the Union agreed to the substitution and the unit as amended was stipulated by the parties. 105 NLRB No. 2. CLAROSTAT MFG. Co., INC. 21 tion .z On December 11, 1952, the Board issued an order to show cause why the Union' s motion should not be granted. Thereafter , the Employer filed an answer in opposition to the request of the Union for clarification of the unit . On January 7, 1953, the Board directed the Regional Director of the First Region to hold a hearing on the issues raised by the Union's request . Pursuant to said order , a hearing was held before Leo J. Halloran, hearing officer . All parties appeared and participated in the hearing . Full opportunity was afforded the parties for filing briefs on the issues raised at the hearing. For reasons hereinafter stated , the hearing officer' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the basis of the evidence adduced at said hearing and on the entire record of the case , the Board ' hereby makes the following supplemental findings: Apart from the merits of the case , the Employer raises a number of procedural objections to this proceeding : (1) That the hearing officer presiding at the reopened hearing made rulings which showed bias and prejudice in favor of the Union, which would justify the Board in remanding the case for further hearing ; ( 2) that the hearing officer readinto the record excerpts from the field examiner 's investigative files, which were prejudicial to the Employer; (3) that the Board' s remand order was erroneous as no labor unrest exists among the disputed groups of employees ; and (4) that the remand order was erroneous on the ground that the proper remedy for the Union , to have followed was through a complaint case under Section 8 (a) (5) of the Act for the refusal to bargain for the specified employees. We find no merit in the first two contentions based on the hearing officer ' s rulings and his conduct at the hearing. The record is detailed and exhaustive in view of the issues in- volved . There is no basis in the record for a finding that the hearing officer showed bias and prejudice in favor of the Union. Moreover , although the hearing officer did refer to certain information in the files pertaining to a number of classifica- tions of employees with a view to clarifying the issues on the composition of the unit , such use of the Board' s file was not improper , nor was the Employer prejudiced thereby.{ The t Prior to taking this position , the Employer supplied an eligibility list to the Regional Office of the Board , which list included the names of persons in the disputed categories. These employees voted with the others in the election without challenge by the Employer. After the election and certification of the Union for the stipulated unit, the parties executed a contract , on January 11, 1952, incorporating the description of the unit as stipulated herein It was not until the latter part of April or early May, 1952, that the Employer took the posi- tion that the inspectors were not properly in the bargaining unit and refused to bargain con- cerning them. Still later , the Employer took the same position as regards the production control clerks. The Union thereupon filed this motion for clarification. a 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 Peterson]. 4Jackson Daily News, 103 NLRB 207 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer had full opportunity to introduce all the evidence it saw fit and to cross - examine on the excerpts referred to by the hearing officer . As noted above , we find that the hearing officer' s rulings are free from prejudicial error. In its third contention, the Employer argues that as no question of representation exists, the remand order was erroneous . We do not agree . The Board has held that , although it will dismiss a petition for certification in the absence of a question concerning representation , it will entertain a motion to amend an existing certification , notwithstanding that there exists no question concerning representation .' The Employer's contention grounded on the alleged necessity of finding a ques- tion concerning representation as basis for the present motion for clarification and amendment is, therefore , rejected. The fourth and final procedural contention of the Employer, 'namely, that the Board erred in issuing an order reopening the representation proceeding rather than requiring the Union to pursue its remedy in a complaint proceeding , is likewise without merit . Although , under the facts of this case , it appears that the Union might have also sought a unit determination for those employees in a complaint proceeding , the Board does not, as a matter of practice , require that the complaint procedure be utilized exclusively in resolving issues of this type.6 With respect to the merits of the proceeding , the Union con- tends that inspectors who work within the engineering depart- ment and who do not work on the floor of the production areas were intended to be excluded , but that all inspectors doing inspection work in the production areas should be included in the unit . As to production clerks, the Union contends they were clearly embraced by the term "factory clericals ," that they were always in the unit , and that they were intended to be in- cluded as distinguished from office clericals who were spe- cifically excluded therefrom . The Employer contends that inspectors had always been classified as personnel of the engineering department and were not intended to be covered in the stipulation . As to production control clerks , the Employer argues that these employees , though working in the production departments , perform responsible administrative tasks and are virtually office clericals , to be excluded from the unit. At the outset of the reopened hearing, the Employer took the position that the purpose of the hearing was to determine the intent of the parties in agreeing to the stipulated unit and not to make a record showing the duties of the disputed categories of employees . In answering this contention , it maybe observed 5See J. C. Pepper & E. R. Ferguson, d/b/a Bluff City Broadcasting Co , 102 NLRB 102, Tidewater Associated Oil Company, 101 NLRB 570 The Board has held that such a proceeding does not amount to a new certification or recertification but is a clarification of the original decision Bushnell Steel Company, 96 NLRB 218 6The Board has processed petitions for the amendment of certifications notwithstanding the fact that the employer has refused to bargain for the disputed employees , thereby giving rise to an unfair labor practice issue subject to remedy under the Board's complaint pro- cedure. See Bausch and Lomb Optical Company, 92 NLRB 139 See also Hughes Tool Com- pany, 104 NLRB 318 CLAROSTAT MFG. CO., INC. 23 that if the parties had clearly intended by the stipulation to exclude the disputed classifications , the Board would , follow- ing its usual practice , have approved such agreement , unless clearly in violation of law or contrary to established Board policy.? It is, however , abundantly clear from the record before us that there was no meeting of the minds as to such employees; that the Employer intended to exclude all inspectors on the ground that these workers are administratively " of the en- gineering department ," and that the Union intended to exclude only those inspectors who actually work in the engineering department . As it is apparent that the parties from the beginning placed construction on the language describing the unit, the Board must of necessity make its own unit determination as to those employees as well as the production control clerks. We shall therefore consider the duties of the several disputed categories of the employees as they appear in the record.8 Inspectors The evidence at the reopened hearing went into great detail as to the functions of the inspectors involved in this proceeding. It appears that traditionally the inspectors were classified as having been assigned to the engineering department. The Employer , however, clearly concedes that the function of these inspectors at Clarostat "is much the same as that done by employees who are classified under the same name in other plants, and are therefore quite familiar to the Board ."9 It is well established in Board decisions that inspectors , perform- ing duties as indicated by the Employer , are customarily in- cluded in a production unit . " The fact that for administrative or other organizational purposes , the Employer has classified these workers as part of or assigned to or in the engineering department is not controlling. These employees are not tech- nical or professional employees and their inclusion depends on their community of interest withthe other employees in the unit. We therefore find no merit in the Employer ' s contention that because inspectors have been assigned to the engineering de- partment for purposes of classification , they are for that reason alone to be excluded from the bargaining unit. ' Worth Food Market Stores , Inc., 103 NLRB 259. 8 The Employer also urges that a consideration of the duties of the disputed groups is im- material upon the ground that the Board 's approval of the stipulated unit is a binding deter- mination We find no merit in this contention . It is well established that a certification of a stipulated unit imports no determination by the Board as to the proper composition of the unit Sonotone Corporation , 100 NLRB 1127 ; Hygrade Food Products Corporation , 85 NLRB 841 9That the inspectors are the type of employees whom the Board has included in a produc- tion unit is made abundantly clear by the Employer ' s own description in its brief, of their duties, the essence of which is that they check goods to see that they conform in quality to standards established largely by the customers of the Employer , which duties they perform by the use of certain mechanical instruments. 10 Oliver Iron and Steel Corporation, Berry Division , 98 NLRB 1110 ; Hawthorne School of Aeronautics , 98 NLRB 1098 291555 0-54-3 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Production Control Clerks Although the evidence shows no reference or discussion pertaining to production control clerks at the preelection hearing, extensive and detailed testimony was introduced by the Employer at the reopened hearing concerning the duties and functions of these clerks. This evidence may be summa- rized as showing that production clerks are plant clericals who keep records of the location and flow of materials through the various stages of the production process and whose duty it is to see that the work is progressing according to schedule. Production control clerks are under the administrative control of the production control supervisor. They work at desks on the production floor advising the production foremen of the sections to which they are assigned. The Employer states in its brief that "the function of production control at Clarostat is to schedule and expedite the production of goods ordered by the customers of the company so that there is an orderly, speedy and economic system of production." It is undisputed that the production control clerks work under the same con- ditions and have the same facilities as, and receive com- parable wages to, the production workers. The Employer contends, nevertheless, that the duties of the production control clerks are, highly responsible and are virtually administrative and executive in character. We do not agree. The fact that the production control clerks perform certain clerical tasks does not make them alternatively either office clericals, administrative, professional, or executive personnel to be excluded from the unit. On the contrary, it appears upon the admission of the Employer that these em- ployees are "expediters" of the type whom the Board cus- tomarily includes as plant or factory clerks in a production unit. u In view of the foregoing, we find that the inspectors and the production control clerks are properly included in the unit. We shall, accordingly, amend our Certification of Representa- tives with respect to the classification of employees included in the unit by specifically including inspectors who work on the floor in the production areas and the production control clerks. ORDER IT IS HEREBY ORDERED that the Certification of Repre- sentatives issued herein to International Union of Electrical, Radio and Machine Workers, Local 242, CIO, be, and it hereby is, amended specifically to include in the certified unit in- spectors who work on the floor in production areas and the production control clerks , employed at the Dover, New Hampshire , plant of the Employer." t"Efco Manufacturing, Inc., 97 NLRB 263, General Electric Company, 81 NLRB 654. 12 This is not to be construed as a new certification.