Mission Appliance Corp.

17 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office with 2 other employees: the shipping clerk and the re- ceiving clerk. However, the 4 do not have common supervision, the clerk typist and the receiving clerk being on the plant pay- roll, with supervision by the plant superintendent, and apparently being considered part of a receiving department. On the other hand the shipping clerk and the posting clerk are on the sales department payroll, and are supervised by the sales manager. The shipping clerk arranges for the shipping all articles and he is on call at all hours of the day and night. Part of his duty is to map routes for the outside truckdriver. The parties agree that the shipping clerk should be excluded from the production and maintenance unit. As to the truckdriver, it appears that there is only 1 such employee to deliver products out of the Fort Worth plant, but supervision over this classification comes from the sales manager . On the whole the record indicates that the outside truckdriver, the posting clerk, the clerk typist, and the receiving clerk all have duties dealing with shipping and receiving, and work in relatively close contact with each other. All except the truckdriver appear to be plant clerical employees. Therefore, despite the differences in supervision which exist with respect to these 4employees,we shall include them in the production and maintenance unit. We find that all production and maintenance employees of the Employer at its Fort Worth, Texas, plant, including maintenance electricians, the clerk typist, the receiving clerk, the posting clerk, and the truckdriver, but excluding the shipping clerk, salesmen, office clerical employees, professional employees, guards, watchmen, 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. [The Board dismissed the petition in Case No. 16-RC-1425.] [Text of Direction of Election omitted from publication.] Member Beeson took no part in the consideration of the above Decision, Order, and Direction of Election. MISSION APPLIANCE CORPORAT ION and SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL 371, AFL and INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 196, AFL, Joint Petitioner s .1-Case No. 21-RC-3461. April 7, 1954 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 Karl W. Filter, hearing officer. ,Herein called the Sheet Metal Workers and the Teamsters respectively. 108 NLRB No. 37. MISSION APPLIANCE CORPORATION 177 Over the objection of the Employer, the hearing officer permitted amendment of the petition at the hearing to add the Teamsters as a joint petitioner. The Employer thereupon re- quested adjournment of the hearing so that it might have time to consider what effect the addition of another petitioner would have on its collective bargaining and plant operations. The hearing officer refused to adjourn the hearing, but suggested that the Employer make an offer of proof on these points in its brief. Without abandoning its position that the denial of an adjournment was prejudicial, the Employer's brief offers to prove that the wages and fringe benefits paid its truckdrivers and warehousemen have been based primarily on intraplant considerations, that the historical relations: existing between these classifications and factory classifications would be seriously disrupted by the proposed bargaining arrangement of the joint Petitioners, and that the Teamsters seeps to repre- sent so great a percentage of the total number of employees that a substantial question is involved which can only be settled by reopening the hearing. The Board affirms the hearing officer's denial of an adjournment. Since inclusion of the Team- sters as a joint petitioner did not affect the composition of the unit which was originally petitioned for, the Employer was not deprived of an opportunity to introduce all the evidence available to it on that question.2 The Employer also contends that the hearing officer is not qualified under section 11 of the Administrative Procedure Act to permit such an amendment of the petition at the hearing, and that his ruling constitutes a "recommendation" to the Board, prohibited by Section 9 (c) (1) of the National Labor Relations Act. Proceedings for the certification of employee representatives are specifically excepted from the detailed procedural requirements of sections 5, 7, and 8 of the Admin- istrative Procedure Act, and need not, therefore, be conducted by hearing examiners qualified under section 11 of that Act.' Further, Section 102.57 of the Board's Rules and Regulations (Series 6, as amended) provides, in part: "The hearing officer shall rule . . . upon all motions filed at the hearing . . . except that he shall refer to the Board for appropriate action all motions to dismiss petitions, at such time as the Board con- siders the entire record." Granting a motion to add a party as joint petitioner is a procedural ruling and not a recommendation as to whether a question of representation affecting commerce exists, which is the kind of recommendation proscribed by Section 9 (c) (1). The Employer's motion to dismiss upon the grounds set forth supra is hereby denied. 2General Electric Corporation (River Works), 107 NLRB 70, (footnote 3). 9Section 5 (6) of Administrative Procedure Act, (Public Law 404, 79th Cong., Chapter 324; 5 USC Sect. 1001 et seq.). The Borden Company, 101 NLRB 203. 339676 0 - 55 - 13 17 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.4 Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce withing the meaning of the Act. 2. The Petitioners and the Intervenor, District Lodge No. 94, International Association of Machinists, AFL, referred to herein as the IAM, are labor organizations claiming to repre- sent certain employees of the Employer. 3. A question affecting commerce exists concerning the re- presentation of the employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The joint Petitioners and the IAM agree that a unit con- sisting generally of production and maintenance employees is appropriate. They would include plant clerical, and exclude office clerical, employees. Without taking a definite position, they appear to be in favor of excluding technical employees, although they have stated their willingness to accept a unit including any fringe groups which the Board finds should be included in the production and maintenance unit. The Employer contends that an appropriate unit should include all hourly paid, nonsupervisory employees, including clerical employees, both office and plant, and technical employees. The Employer is engaged in the manufacture and distri- bution of water and space heaters, employing approximately 300 persons in its plant at Hawthorne, California. To support its contention that all clerical and technical employees should be included in the unit, the Employer relies on bargaining his- tory since 1940 covering all nonsupervisory employees as part of a single unit,, the alleged close relationship, both physical and functional, between office clerical and production employees, the alleged frequency of transfers between the clerical and factory groups, and other personnel practices which are applied equally to all employees. Our examination of the record reveals that there does not exist such a similarity of interests and functions between the 4 The Employer's brief renewed a motion made at the hearing that the petition be dis- missed because the Petitioner's showing of interest was "highly questionable." The Board has consistently held that two or more labor organizations may appropriately bargain as joint representatives, and that the adequacy of a showing of interest, on behalf of single or joint petitioners is not litigable. Sonoco Products Company, 107 NLRB 82 (footnote 1). In any event, we have administratively determined that the authorization cards submitted by the joint Petitioners are adequate and meet the Board's requirements. 5 We note, however, that in 1950, in Case No. 21-RC- 1126, a consent election was held in a unit from which office, clerical, and sales employees, and draftsmen were excluded by stipulation of the Employer and certain labor organizations which are not parties hereto. Subsequently, the Employer and Association of Gas Appliance Workers, which had won the election, entered into an agreement covering all noiisupervisory employees, despite a certification for the unit which the parties had stipulated as appropriate. The Association, which was the bargaining representative until March 24, 1954, did not intervene in the present proceeding. MARTINOLICH SHIPBUILDING CO. 179 office clerical and factory groups as to warrant departure from our usual rule of excluding office clerical employees from a production and maintenance unit. Nor will we "accord con- clusive weight to a [bargaining ] history which is repugnant to established Board policy respecting the composition and scope of bargaining units ."' Accordingly, we shall exclude office clerical employees from the unit, but include plant clerical employees. 7 We shall follow our normal policy of excluding technical employees from a production and maintenance unit, where one of the parties objects to their inclusion.' We find that all production and maintenance employees at the Employer' s Hawthorne , California, plant, including fabri- cation, assembly,.tooling, stores , warehouse , service shipping and receiving employees , truckdrivers, and plant clerical em- ployees, but excluding office clerical , technical , and profes- sional employees , guards, watchmen , 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.] Member Beeson took no part in the consideration of the above Decision and Direction of Election. 'General Electric Company (River Works), supr, page 4. 7 The Employer's classification system divides the employees into two groups- -production and maintenance and office and technical . The job descriptions indicate that some of the office and technical classifications , for example, material control man, production planning clerk, and dispatcher , production planning , are actually plant clerical, rather than office clerical, jobs. Such classifications are included in the unit . In listing the above examples we do not mean to exclude other job classifications which also fall within the plant clerical category as that term is used by the Board. Whiting Corporation 107 NLRB 493. 8 Swift & Company, 98 NLRB 746, at 747. MARTINOLICH SHIPBUILDING CO. land LOCAL UNION 230, UNITED ASSOCIATION OF JOURNEYMEN AND APPREN- TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, AFL, Petitioner. Case No. 21 -RC-3436. April 8, 1954 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman H. ' This case was originally consolidated with Cases Nos. 21-RC-3434 and21-RC-3435 (Harbor Boat & Yacht Co.), and Case No. 21-RC- 3437 (National Steel & Shipbuilding Corp.). During the course of the hearing the Petitioner moved to withdraw the petitions in these cases. The hearing officer referred the motion to the Regional Director who approved the withdrawals without prejudice. 108 NLRB No. 45.