Courtaulds (Alabama) Inc.

COURTAULDS (ALABAMA) INC. 571 The present rule, applied by the majority in this case, is that a collective-bargaining contract for more than 2 years is a bar for its full term if it can be shown that "a substantial part of the industry con- cerned is covered by contracts with a similar term." 9 In practical ef- fect, this means that unions and employers have no way of knowing in advance whether a contract for a term longer than 2 years will be held a bar . They know only that a contract for more than 2 years will be a bar if at a time 2 or more years hence, when the question is raised in a representation proceeding, the Board should hold that a substan- tial part of the industry to which the employer belongs has contracts of similar duration . The present formula obviously bristles with un- certainty and the stuff of which litigation is made. How large is "substantial ?" How do we define "industry ?" Are aircraft frame manufacturers and parts manufacturers part of the same industry? Some companies are engaged in several different industries . Are they limited to 2-year contracts for part of their employees but permitted to make longer term contracts for others , depending upon the plant or operations involved ? Is the "industry" test to be applied on a na- tionwide or local basis? In determining what is "substantial," do we look at the entire industry or only the organized segment of an industry? The present rule is fraught with too much uncertainty and lends itself to arbitrary and even discriminatory application . Its inevitable effect is to create confusion and promote litigation in an area in which certainty and predictability should be our goal . Neither labor, em- ployers, the public, nor the Board is well served by it. We would overrule it and replace it with a flat 2-year rule, applicable without exception to all contracts and all industries. 9 General Motors Corporation, 102 NLRB 1140, 1143 COURTAULDS (ALABAMA ) INC. and TEXTILE WORKERS UNION OF AMERICA, CIO,' PETITIONER COURTAULDS (ALABAMA ) INC. and MOBILE METAL TRADES COUNCIL, AFL,2 PETITIONER. Cases Nos. 15-RC-1114 and 15-RC-1115. July P,9,1954 Decision and Direction of Elections Under separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before William P. Hutcheson, hearing officer. The hearing officer's rulings 1 Herein called TWUA. 2 Herein called MMTC. 109 NLRB No. 94. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made at the hearing are free from prejudicial error and are hereby affirmed. 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 certain em- ployees of the Employer.3 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act 4 4. The appropriate unit : The TWUA, in Case No. 15-RC-1114, seeks a unit of all production and maintenance employees, including chauffeurs and laboratory test- ers. The MMTC, in Case No. 15-RC-1115, seeks a unit of all mainte- nance employees. The Employer and TWUA contend that a produc- tion and maintenance unit is the only appropriate unit. The Employer at its LeMoyne plant, the only plant involved in this proceeding, manufactures rayon staple fiber from cellulose obtained from wood pulp, treated with carbon bisulphate, caustic soda, sul- phuric acid, and water. There is no history of collective bargaining at the plant.' The maintenance department is under the supervision of the chief engineer. There are about 160 employees in this department. Their classifications are, among others, maintenance mechanics, carpenters, instrument mechanics, electricians, oilers, boiler operators, compressor operators, helpers, fork lift operators, janitors, and laborers.6 Al- though a majority of the work of the maintenance employees is per- formed in the production areas, maintenance supervisors direct the 3 The TWUA's and the Employer's motions to dismiss the petition of MMTC on the ground that it was not a labor organization was referred to the Board. Among other func- tions, the MMTC acts as bargaining agent in collective -bargaining negotiations and processes grievances for its affiliated local unions We find, therefore , that MMTC is a labor organization within the meaning of Section 2 ( 5) of the Act and hereby deny the motions. Metallto Building Company, 98 NLRB 386, at pages 395 and 387, footnote 3 4 The Employer 's motion to dismiss the petition of MMTC on the ground that no proper showing of interest had been made was referred to the Board by the hearing officer. The MMTC 's showing of interest is an administrative matter which is not litigable at the hear- ing. Furthermore , the Board had administratively determined that the MMTC 's showing of interest was adequate. In these circumstances, the Employer 's motion is hereby denied. Gladdtng McBean d Company, 108 NLRB 1183. The TWUA's motion to dismiss the petition of MMTC on the ground that the unit sought by it was not appropriate for the purposes of collective bargaining was also referred to the Board by the hearing officer. For reasons hereinafter set forth, this motion is hereby denied. 5In a prior case involving this same plant, Courtaulds (Alabama ) Inc, 102 NLRB 1609, the TWUA and certain local unions affiliated with the MMTC agreed that a production and maintenance unit was appropriate for the purposes of collective bargaining . The Board therein found appropriate a production and maintenance unit and an election was held on March 12, 1953 Neither union won the election and no bargaining resulted therefrom. There has been no change in the basic operations of this plant since the prior hearing e A few unskilled employees such as fork lift operators , laborers , and janitors are at- tached to other departments . The MMTC seeks only those employees who are in the main- tenance department. COURTAULDS (ALABAMA) INC. 573 manner in which the work is to be performed. The maintenance em- ployees have headquarters located in a separate building in which their tools and other equipment are located. Some of the Employer's main- tenance work is performed on a planned basis and some of it is per- formed pursuant to emergency repair requisitions from production foremen. About 75 percent of the maintenance employees work in the daytime, whereas the other 25 percent work on the remaining shifts. Maintenance supervisors are on duty only in the daytime, and on the other shifts production foremen assign maintenance work to the maintenance employees. The production foremen do not, however, instruct the maintenance employees concerning the manner in which their work is to be performed, and if technical supervision is required, a maintenance supervisor is always on call for this purpose. The Em- ployer admits that it hired employees in the maintenance department on the basis of their skills and that their wage rates are higher than those of the production employees. There has been very little inter- change between the production and the maintenance employees and the employees transferring to the maintenance department were usually classified as helpers therein. We are of the opinion that the employees in the maintenance de- partment possess interests in common, distinct from those of the pro- duction employees which are sufficient to warrant their original establishment in a separate unit. Thus, where as here, there is no collective-bargaining history on a broader basis, we find that the em- ployees in the maintenance department may constitute a separate appropriate unit, if they so desire.' An overall production and maintenance unit may also be appropriate. In view of the foregoing, we shall make no final unit determinations at this time, but shall direct that the questions concerning representa- tion be resolved by separate elections by secret ballot among the fol- lowing groups of employees at the Employer's LeMoyne (Mobile County), Alabama, plant : (a) All production department employees, including chauffeurs and laboratory testers, but excluding office clerical employees, technical employees, professional employees, the maintenance employees in- cluded in voting group (b), guards, and supervisors as defined in the Act. (b) All maintenance department employees, excluding supervisors as defined in the Act, and all other employees. If a majority of the employees in voting group (b) vote for the MMTC, they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director conducting the elections herein is instructed to issue a certification of representatives T Carboloy Department of General Electric Company, 104 NLRB 596 ; Westinghouse Elec- trio Corpoi atwon, 108 NLRB 556. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the MMTC for such unit, which the Board, under the circum- stances, finds appropriate for the purposes of collective bargaining. If a majority of the employees in voting group (b) vote for the MMTC and if a majority of the employees in voting group (a) vote for TWUA, the Regional Director is instructed to issue a certification of representatives to the TWUA for a separate unit of production em- ployees, which the Board, under the circumstances, finds appropriate for the purposes of collective bargaining. However, if a majority of the employees in voting group (b) do not vote for the MMTC, such group will be appropriately included in the same unit with the employees in voting group (a) and their votes will be pooled with those in voting group (a).$ The Regional Di- rector conducting the elections is instructed to issue a certification of representatives to the TWUA if that labor organization is selected by a majority of the employees in the pooled group, which the Board, in such circumstances, finds to be a single unit appropriate for the pur- poses of collective bargaining. [Text of Direction of Elections omitted from publication.] MEMBER PETERSON took no part in the consideration of the above Decision and Direction of Elections. 8 If the votes are pooled, they are to be tallied in the following manner : The votes for the union seeking a separate unit of maintenance employees shall be counted as valid votes, but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation by the union seeking the comprehensive group or for no union. See Westinghouse Electric Corporation, 108 NLRB 556, footnote 14. ASSOCIATED FOOD DISTRIBUTORS, INC. and MISCELLANEOUS DRIVERS, LOCAL 223, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER. Case No. 36-RC-982. July 29,1954 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 E. G. Strumpf, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer' is engaged in commerce within the meaning of the Act. i The Employer is a voluntary bargaining association of which the following firms, all of Portland, Oregon, are members : Wadhams & Co., United Grocers, Inc., Hudson House, Inc., General Grocery Co. Inc., and Northwest Grocers. 109 NLRB No. 86.