Superior Sleeprite Corp.

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drafting room, 15 but excluding all other salaried clerical employees, chemists in the main laboratory, salaried truck- drivers, employees listed on the Employer' s exempt list and their successors, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.) 15As already stated, the unit placement of these employees is subject to redetermination in case of challenges to their ballots. SUPERIOR SLEEPRITE CORPORATION and DIE & TOOL MAKERS LODGE NO. 113, INTERNATIONAL ASSOCIATION OF MACHINISTS, Petitioner. Case No. 13-RC-3364. July 21, 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 Richard B. Simon, 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 Houston, Murdock, and Styles]. 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 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. The Employer and the Intervenor, Mattress, Spring & Bedding Workers Union, Local No. 185, AFL, contend, without merit, that no question concerning representation was raised by the Petitioner because it did not effectively demand recognition of the Employer before filing its petition. The filing of the petition itself constitutes a sufficient demand.1 Moreover, the Employer stipulated that it would decline the Petitioner's demand if it were made at the hearing. The Employer further contends that the contract is a bar "when tied up with other facts in this case ." The contract in question was made effective for a period of about 1 year, until May 31, 1953, and for yearly periods thereafter, unless either party gave notice 60 days before expiration of a desire to amend, change, or terminate the contract. By letter dated 'See American Fruit Growers, Inc , 101 NLRB 740. 106 NLRB No 57. SUPERIOR SLEEPRITE CORPORATION 229 May 11, 1953, the Petitioner requested recognition of the Employer, and on May 12, 1953, filed the petition herein. Neither the Employer nor the Intervenor contends that the contract is a bar by virtue of the automatic renewal of the contract and the untimely filing of the petition . Although no evidence was introduced t the hearing that notice under the contract was given by either of the contracting parties which would operate to prevent automatic renewal of the contract, it appears in the record that these parties had been negotiating a new contract in the period preceding May 31, 1953 , and that the new contract had not been executed before the filing of the petition . As no issue was raised or litigated that the contract was automatically renewed , we find in these circumstances that the contract does not constitute a bar to a present deter- mination of representatives. 4. The Petitioner seeks to sever from the existing produc- tion and maintenance unit separate units of employees at the Employer's Chicago, Illinois, plant : ( 1) All to6lroom em- ployees and experimental employees , and (2 ) all machine repairmen in the maintenance department . The Employer and the Intervenor oppose the units sought on the ground that they are inappropriate. In the Employer's toolroom there are five employees, who are separately located and supervised. These employees work on tools, jigs , and fixtures for the Employer , and all operate, or are qualified to operate , the machine precision tools in the toolroom , e.g., lathes , grinders , and milling machine . They are paid a straight hourly rate , as distinguished from the production employees who are paid on a piece - rate basis . The wage rates for the classification of toolmaker, as provided in the Inter- venor's contract , are the highest in the plant . There is no apprenticeship training program conducted by the Employer. However, the record shows that fully experienced and skilled employees for the toolroom are hired by the Employer directly from outside the plant , or employees are trained on the job. There was general testimony on the part of the Employer that the Employer "uses minimum requirements of a toolroom," and does not call for "high precision work." There are two experimental employees sought by the Peti- tioner to be included with the toolroom employees . They func- tion , under the engineering department , in designing and developing new and improved parts for manufacture by the Employer , and dissemble and reconstruct parts already pro- duced for testing and comparison purposes . Their duties also involve the construction of models for new parts . The experi- mental employees work with machinist hand tools and operate, when necessary , the machine precision tools in the toolroom. It is apparent from the record that these employees were selected by the Employer for their mechanical versatility and have long experience in modelmaking and machinist work. There are five machine repairmen , under the maintenance department , whom the Petitioner seeks to represent separately. The other employees in the maintenance departments are 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD janitors , elevator operators , and boilerroom employees. The machine repairmen spend most of their time around the plant installing , repairing , and maintaining the Employer's ma- chines and equipment . As indicated in the record, these em- ployees have had long experience in their trade, with the exception of 1 "learner ," who has been employed in this capacity for 2z years. In our opinion , the record sufficiently establishes that all the employees in the three categories sought by the Petitioner are highly skilled craftsmen performing related machinist func- tions . That a single unit of these employees would be appro- priate for severance purposes is amply demonstrated in the numerous Board cases in which craft units have been established of toolmakers grouped with machinists or machine repairmen, including modelmakers or experimental employees, of the same general type as are herein involved .2 However, as noted, the Petitioner has requested two units of these employees. In the circumstances of this case , we do not believe there is a suffi- cient distinction in craft and skill between the toolroom and experimental employees on the one hand, and the machine repairmen on the other , to warrant their severance as separate appropriate units . We find rather that the two groups comprise a single craft in the Employer's operations , and that their establishment as separate units would therefore operate to split the craft into two untenable segments, in derogation of Board policy.' Consistent with the foregoing, we shall direct that an election be held among the employees in a single voting group, as set forth below. These employees, we find, may constitute an appropriate unit for collective -bargaining purposes , depending upon the results of the election . However, as our unit determina- tion is at variance with the request of the Petitioner, we shall permit the withdrawal of the petition upon timely request to the Regional Director. The voting group shall consist of: All toolroom employees , experimental employees , and ma- chine repairmen at the Employer ' s Chicago , Illinois , plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. If a majority vote for the Petitioner they shall be taken to have indicated their desire to constitute a separate appropriate unit , and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described above, which the Board, under such circumstances , finds to be appropriate for purposes of collective bargaining . In the event a majority vote for the Intervenor, the Board finds that they remain appropriately a 2 See, e g., Toledo Scale Company, 101 NLRB 851; General Electric Company, 101 NLRB 1341; The Standard Register Co., 100 NLRB 981; Wagner Electric Corporation , 99 NLRB 815; Bell Telephone Laboratories , Inc, 94 NLRB 1559; American Seating Company, 85 NLRB 269. 3See Douglas Aircraft Co., Inc., 101 NLRB 515; International Harvester Company, McCormick Works, 92 NLRB 1504; cf., Westinghouse Electric Corporation, 101 NLRB 441. LOCAL NO. 63 231 part of the existing unit, and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.]. LOCAL NO. 63, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL, AND KENNETH PEARL and ELVIN G. JACOB AND DELVYN SMITH and J. L. WROAN, SR. AND J. L. WROAN, JR., d/b/a J. L. WROAN & SON, a partnership , et al., Parties to a Contract . Cases Nos. 13- CB-187 and 13 -CB-191. July 21, 1953 DECISION AND ORDER On April 8, 1953, Trial Examiner Robert L. Piper 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 therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the rulings made by the Trial Examiner at the hearing 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 findings, conclusions, and recommendations of the Trial Examiner with the following modifications. 1. In accord with the Trial Examiner, we find that the Re- spondents violated Section 8 (b) (2) and 8 (b) (1) (A) of the Act. However , our finding is based solely upon the renewal, en- forcement, and continued existence of a collective-bargaining contract between the Respondent Union and the Contractors of Bloomington-Normal, which contains a provision requiring the Contractors of Bloomington-Normal to employ only mem- bers of, or applicants for membership in, the Respondent Union who secure working cards from it.' 2. The Trial Examiner also found that the Respondents violated Section 8 (b) (2) of the Act by refusing to grant work- ing cards to Smith and Jacob, thereby attempting to cause and causing contractor J. L. Wroan, Sr. and J. L. Wroan, Jr., d/b/a J. L. Wroan & Son, a partnership, et al., hereinafter called Wroan, discriminatorily to refuse to hire them. We disagree. 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Houston, Murdock, and Peterson]. 2 The Respondents' request for oral argument is hereby denied as the record and the briefs, in our opinion, adequately present the issues and the positions of the parties. 3 Philadelphia Iron Works, 103 NLRB 596. 106 NLRB No. 46.