Dura Steel Products Co.

DURA STEEL PRODUCTS COMPANY 179 were signed by all the members of the Association. In certain cases, it was stipulated at the hearing, some members of the Association signed separate contracts, which may have been identical to the master contracts. Of the employees requested by the Petitioners about whom testimony was adduced at the hearing, the record shows that the drivers and helpers of all the Members receive identical pay, work identical hours, and enjoy identical working conditions. On the basis of these facts and on the record as a whole, we find that the Members have indicated an intention to be bound in collective bargaining by group rather than by individual action. In view of this fact, and in the absence of unequivocal evidence that the Members intend to abandon their practice of bargaining jointly," we are satis- fied that the multiemployer unit sought to be continued by the Petitioners is appropriate? Accordingly, we find that all warehousemen and keg and bottle drivers and helpers employed by the Members, excluding checkers, watchmen, guards, office clerical employees, 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.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Election. 8 That the Association itself has not signed any contract on behalf of the Members, or that all the Member; were not bound by their joint negotiations nor had uniformly signed the single master contracts resulting therefrom, does not preclude the establishment of a multiemployer unit. Samuel Bernstein & Co., 98 NLRB 1144; Bryant's Marina, Inc., et al, 92 NLRB 718. 6 The position taken by the Members at the hearing indicates that they would prefer to continue their past practice of joint bargaining. DURA STEEL PRODUCTS COMPANY and LOCAL 990, INTERNATIONAL UNION, UNITED AUTOMOBILE WORKERS OF AMERICA (UAW-AFL), PETITIONER . Case No. 21-RC-3477. July 16, 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 Fred W. Davis, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The Employer moved to dismiss the petition as the Intervenor, United Electrical, Radio and Machine Workers of America, Local 1421, had not filed a waiver of 109 NLRB No. 18. 334811-55-vol. 109-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice charges which it had filed in Case No. 21-CA- 1919. Ruling on this motion was referred to the Board. We deny the motion as the Regional Director, on February 19, 1954, refused to issue a complaint on the basis of the charges and his action was sustained by the General Counsel on May 7,1954. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in the manufacture of building special- ties at Los Angeles, California. During 1953, its verified direct sales outside the State of California amounted to $108,002.17. We find that the Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner and the Intervenor are labor organizations claim- ing to represent certain employees of the Employer. The Employer objected to the motion to intervene made by the Intervenor chal- lenging its showing of interest and its status as a labor organization. We permit the intervention on the basis of the Intervenor's contractual relation with the Employer, and find that it is a labor organization as the contract with the Employer covered wages, hours, and working conditions of the Employer's employees.' 3. The Intervenor contends that the collective-bargaining agree- ment executed by the Employer and the Intervenor on January 2, 1953, effective until May 1, 1954, and thereafter from year to year unless notice of modification is made at least 60 days before expiration date, is a bar to this proceeding. On February 8, 1954, the petition herein was filed, and on February 23, 1954, the Employer gave notice of the termination of the contract on or before May 1, 1954. Both the Employer and the Petitioner urge that the contract cannot bar the present petition which has been timely filed. Moreover, it is urged that the contract contains an illegal union-security and pref- erential hiring clause and no separability clause, which provisions are further reasons for holding the contract no bar. We find it unneces- sary to rule on these latter contentions. Inasmuch as the petition was timely filed in regard to the automatic renewal date, and the contract has expired, we find it is not a bar to the present petition. We find a question affecting commerce exists concerning representation of em- ployees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer is engaged in the manufacture of light gauge sheet metal products and also does some jobbing business, i. e., buying and warehousing merchandise until sale is made. All parties are in general agreement that the appropriate unit, sub- ject to resolving the disputed classifications discussed below, should include all production and maintenance employees, including all plant 1 Sec. 2 (5) of the Act. DURA STEEL PRODUCTS COMPANY 181 clericals, the shipping and receiving clerks, truckdrivers, and janitors, but excluding salesmen, guards, professional employees, and super- visors as defined in the Act. Working foremen: Both the Petitioner and the Employer urge the exclusion of this classification from the unit as supervisory; how- ever, the Intervenor contends that persons in the classification are not supervisors and should be included in any unit found appropriate. This classification was included in the recently expired contract be- tween the Employer and the Intervenor under the title "leadmen," and later referred to in a supplementary agreement as "working foremen," the title change being made, primarily, because of wage rate changes during the existence of the Wage Stabilization program. The Em- ployer contends that subsequent to January 11, 1954, when a strike occurred at the plant, the duties and responsibilities of persons oc- cupying this classification were greatly increased pursuant to a general reorganization. The record shows the following organizational structure of the Employer : under the general manager are three supervisors : The as- sistant manager in charge of sales and purchasing; the auditor in charge of the accounting department, and the plant manager. Imme- diately under the plant manager are 2 general supervisors who are responsible for the activities of the 6 working foremen, who, in turn, are responsible for their departments. Two of the working foremen were employed after the strike and each was employed on a monthly salary. The other 4 were trans- ferred from positions in the plant at their same method of payment, 3 at an hourly rate and 1 at a monthly rate. All were instructed as to their duties and responsibilities by the plant manager at the time they replaced the leadmen. Each foreman has complete authority within his department to assign work, assign employees to a machine or project, to recommend promotions based on his independent judgment and appraisal, and to recommend disciplinary actions. He has been informed of his right to discharge, but the less experienced foremen have been cau- tioned to discuss a discharge with one of the general supervisors before taking action until they become more familiar with management policy. Each foreman has been informed of his right to hire and when occasion has arisen since his employment in this position, has exercised this right after an applicant has been interviewed by the plant manager and sent to the foreman for final approval. No em- ployee may be transferred into a department without the foreman's approval. In addition to performing some production work, the amount vary- ing with the department, the foremen receive information from the general supervisors as to items planned and approximate time mate- 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rial will arrive, and schedule their work accordingly. Each has a desk or table in his department where he reviews timecards to insure the proper job numbers have been used and that the quantity produced is posted on the card. On the worksheet they receive designating the quantity to be produced, they note the quantity produced and mate- rials used. It is their further responsibility to obtain materials they need from the stockroom and have it ready when items in process of being manufactured come to them for their part of the operation. In view of the foregoing, it is clear that the working foremen are supervisors within the meaning of the amended Act and we so find. We, therefore, exclude them from the unit hereafter found ap- propriate. Office clerical employees: Both the Petitioner and the Employer agreed that the office clerical employees should be excluded from the appropriate unit. The Intervenor, however, urges that they should be included for the reason that since 1940 they have been considered within the terms of the collective-bargaining agreements executed between the Employer and the Intervenor although the recently ex- pired contract does not specifically refer to office clerical employees nor contain any provision applicable only to them. There are seven office clerical employees who perform the usual office clerical duties. They are under the direct supervision of the assistant manager in charge of sales and purchasing and the auditor in charge of accounting. The office is located in the northwest corner of the plant, separate from the factory area. Office employees use a separate entrance and do not punch a time clock as do factory em- ployees. All office employees are paid a monthly salary while the factory employees are paid on an hourly basis. Different working schedules are maintained for office and factory employees. No trans- fers were made from the office to the factory, or vice versa, during the year 1953. There is some communication between office and factory personnel, especially the plant clericals and the office clericals, but this communication consists primarily of picking up orders received by the office and turning over records maintained by the plant clericals for processing as routine office and accounting practice. It is apparent that the interest and working conditions of the office clerical employees are separate and distinct from those of the produc- tion and maintenance employees. In accordance with our customary practice, we shall therefore exclude the office clerical employees, not- withstanding their historical association with the bargaining unit of production and maintenance employees? Timekeeper: The timekeeper's desk is located near the time clock where, as part of his job, he can observe the punching of timecards. He sees that the timecards are properly placed in the racks, makes The Texas Company, 104 NLRB 197; Cutter Laboratories, 98 NLRB 414 at 416. OTTENHEIMER BROS. MFG. CO., INC. 183 entries on them when employees fail to punch in or out, enters time on job tickets, and tabulates not only in hours, but also in dollars and cents, the time spent on the job. These records he turns over to the cost clerk; payroll records are turned over to the clerk handling the factory payroll. He has never been considered within the scope of the bargaining unit, and is a salaried employee paid on a monthly basis. The Employer considers him a confidential employee as the information he compiles determines productive and nonproductive jobs. In addition to the above duties, the timekeeper has the authority and responsibility of disposing of scrap material, and seeing that all rub- bish and scrap is collected throughout the plant and put in its proper place. He negotiates for the sale of the scrap material, prices it, weighs it, and sees that it is properly loaded on trucks. His super- vision is divided : for his scrap material activities, he is under the plant manager; he is under the auditor for his handling of the time- cards and job ticket computations. The Petitioner and the Employer urge the exclusion of this job from the unit; the Intervenor, its inclusion. However, all parties stipulated that the present employee now filling this job should be excluded from the bargaining unit. We find this employee's inter- ests are different from those of other employees in the unit. We shall therefore, exclude the timekeeper from the unit. We find that all production and maintenance employees at the Employer's operation located at 1774 East 21st Street, Los Angeles, California, including all plant clericals, the shipping and receiving clerks, truckdrivers, and janitors, but excluding office clerical em- ployees, working foremen, the timekeeper, salesmen, professional em- ployees, guards, 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. 5. As indicated above, a strike was in progress at the time of the hearing. We shall permit all strikers to vote subject to challenge as the record is incomplete as to their eligibility to vote. [Text of Direction of Election omitted from publication.] OTTENIIEIMER BROS. MFG. Co., INC. and INTERNATIONAL LADIES' GAR- MENT WORKERS' UNION AND LOCAL 386, ILGWU, AFL, PETITIONER. Case No. 32-IBC-352. July 16,1954 Second Supplemental Decision, Order, and Direction of Third Election On May 27, 1953, the Board issued a Supplemental Decision, Order, and Direction of Second Election in the above-entitled proceeding, 109 NLRB No. 29.