Howard-Cooper Corp.

HOWARD-COOPER CORPORATION 753 A disclaimer of representation must be clear and equiv- ocal . When a union engages in conduct inconsistent with its express disclaimer, the Board holds such disclaimer to be equivocal and therefore ineffective to remove the question con- cerning representation in an employer petition.' Accordingly, as it appears in the instant case that the Unions' activity in cutting off the Employer's interline freight business was due to, and remained an affirmation of, their original demand for recognition, we find their alleged disclaimer ineffective.5 The Unions' motion to dismiss the petition on the ground of their disclaimer is therefore denied. 4. We find that all over-the-road truckdrivers, city drivers, and helpers, and dockmen and helpers employed by the Em- ployer at its York, Nebraska, terminal, excluding clerical employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining.6 [Text of Direction of Election omitted from publication.] 4Kimel Shoe Company, 97 NLRB 127, and cases cited therein 5Cf. Coca-Cola Bottling Co of Walla Walla, Washington, 80 NLRB 1063. 6 This is the unit set forth in the petition The Unions took no position as to the appropriate unit HOWARD-COOPER CORPORATION' and GARAGE EMPLOY- EES UNION LOCAL NO. 44, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A.F. of L., Petitioner. Case No. 19-RC-1297. June 25, 1953 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 Donald D. McFeely, 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 [Members Murdock, Styles, and Peterson]. 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 organization involved claims to represent certain employees of the Employer. 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. i Name appears as amended at the hearing. 105 NLRB No. 118 7 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The Petitioner and Employer agree that a unit of parts room employees including the parts clerks, shipping and receiving clerks, pickup and delivery driver, and toolroom clerk is appropriate. The Employer contends that the head parts clerk and shop clerk should also be included in the unit, while the Petitioner contends that the head parts clerk should be excluded because he is a supervisor, and that the shop clerk should be excluded because his duties are primarily clerical and differ from those of the other employees in the unit. The head parts clerk performs duties similar to those per- formed by the other parts clerks, which consist chiefly in filling customers' orders for automotive parts. In addition, he orders replacements for the parts stock, subject to the approval of the office manager , helps other employees to locate parts requested by customers, and relays to the other parts clerks orders of the office manager. He does not hire or discharge employees. The only evidence that he has the power to recom- mend changes in status of employees is that on one occasion he reported deficiencies in the work of an employee and recommended that he be transferred or discharged. The em- ployee was subsequently discharged by the office manager. However, other employees, includingthe branch manager, made similar reports about the same employee, and the record does not show to what extent the office manager's action was based on the recommendation of the head parts clerk. Upon the entire record, we are not satisfied that the head parts clerk can effectively recommend changes in status of, or responsibly directs, other employees. We find, therefore, that the head parts clerk is not a supervisor, and will include him in the unit. The shop clerk relieves one of the parts clerks for half an hour every day, and he has clerical duties which are similar to those of the parts clerks. In addition, he procures parts from local suppliers which he delivers to the Employer's mechanics. His location is adjacent to that of the toolroom clerk. While he has frequent contact with the mechanics in the Employer's shop, who are represented in a separate unit, the extent of such contact is no greater than that of the tool- room clerk and one of the parts clerks, whom the parties have agreed to include in the proposed unit. The foregoing circum- stances indicate that he has sufficient community of interest with the other employees in the proposed unit to warrant his inclusion therein. However, there is evidence in the record which suggests that, in procuring parts from local suppliers, he may have authority to pledge the Employer's credit. If he does in fact have such authority, we would exclude him as a managerial employee. 2 As the record does not permit a determination of this question at this time, we shall permit him to vote subject to challenge. If, in resolving such challenge, we find that he has authority to, and does, pledge the Em- ployer's credit, we will exclude him. Otherwise he will be included. 2 See Florence Stove Company, 98 NLRB 16 BELL AIRCRAFT CORPORATION 755 We find that all parts room employees of the Employer at its Seattle plant, including head parts clerk, parts clerks, shipping and receiving clerks, pickup and delivery driver, shop clerk, and toolroom clerk, but excluding all other em- ployees, mechanics , salesmen, office clerical employees, guards, professional employees , 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.] BELL AIRCRAFT CORPORATION and HOWARD E. NIEBER- GALL LOCAL 501, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO and HOWARD E. NIEBERGALL. Cases Nos. 3-CA-593 and 3-CB-158. June 26, 1953 DECISION AND ORDER On March 26 , 1953, Trial Examiner Albert P. Wheatley issued his Intermediate Report in this consolidated proceeding, finding the Respondent Bell Aircraft Corporation , herein called the Employer, and Respondent Local 501 , International Union, United Automobile , Aircraft & Agricultural Implement Workers of America , CIO, herein called the Union , had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter , the General Counsel, the Employer, and the Union filed exceptions to the Intermediate Report. The General Counsel and the Employer also filed supporting briefs. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Intermediate Report, the exceptions , the briefs , and the entire record in these cases , and hereby adopts the Trial Examiner's findings , conclusions , and recommendations with the following additions and modifications. 1. We agree with the Trial Examiner that the Employer violated Section 8 (a) (1) and 8 (a) (3), and the Union Section 8 (b) (1) (A) and 8 (b) (2) by bringing about the discriminatory demotion and transfer of Howard E. Niebergall in June 1952. As indicated in the Intermediate Report, Niebergall with- drew from the Union-sponsored strike of 1949 while it was still in progress . Niebergall , who had been a member of the Union during the strike , thereafter resigned from the Union but was not readmitted when he applied for membership in December 1950 . In returning to work before the termination 105 NLRB No. 130.