Wayside Press

102 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1 District No 9, International Association of Machinists, A.F.L., is a labor organization within the meaning of Section 2 (5) of the Act 2 All production and maintenance employees at the Respondent's Ladue, Missouri, plant, excluding office and clerical employees, executive and professional employees, guards, and supervisory employees within the meaning of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 3 The above-named Union was on August 26, 1952, and at all times since then has been, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4. By refusing on August 27, 1951, and at all times thereafter to bargain collectively with the aforesaid Union as the exclusive bargaining representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 5 By discriminating in regard to the hire and tenure of employment of Clarence W Chapman, Robert Canman, Paul W. and Elmer J Kaufmann, Albert Scheffing, Thomas R Taylor, G. J. Gyaki, and Andrew J. Cella, Jr , and thereby discouraging membership in the above- named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. ] WAYSIDE PRESS and LOS ANGELES BOOKBINDERS AND BINDERWOMEN'S UNION NO. 63, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, AFL, Petitioner. Case No. 21-RC-2984. May 15, 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 Max Steinfeld, 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 [Chairman Herzog and Members Styles and Peterson]. Upon the entire record in this case, the Board finds: i The request for oral argument by the Employer is hereby denied as the record and the briefs, in our opinion, adequately present the issues and positions of the parties. ?At the hearing the Employer moved to dismiss the petition on various grounds. For the reasons expressed below, the motion is denied. We have repeatedly held that showing of interest is an administrative matter, not subject to direct or collateral attack. Miller Electric Company, 103 NLRB 1492. Moreover, we are administratively satisfied that the Petitioner has trade an adequate showing in the unit found appropriate. WAYSIDE PRESS 1029 1. The Employer is engaged in commerce within the mean- ing of the Act.' 2. The labor organization involved claims to represent cer- tain employees of the Employer 4 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 .5 4. The Petitioner seeks to represent all production and maintenance employees at the Employer's Los Angeles, California, commercial printing plant. The Employer con- tends, among other things, that the only appropriate units are craft units composed of press operators, composing room employees, and the like and that the Petitioner cannot repre- sent its employees on a plantwide basis as it only admits to membership employees of the bindery trade. We do not agree. No union seeks to represent the employees involved herein on a craft basis. The production and maintenance employees sought by the Petitioner constitute the conventional production and maintenance unit,' and it may clearly be an appropriate unit for employees at this plant. The Petitioner' s willingness to represent the employees in issue is controlling under the Act, rather than the eligibility of employees to membership, or the exact extent of the Petitioner's constitutional juris- diction.7 The parties disagree as to the unit placement of Lois Hazeltine, Ronnie Macias, and Alfred Berry. Lois Hazeltine , a former full-time employee in the Em- ployer's bindery department, now operates the Employer's switchboard and posts timesheets from the plant, which are used as cost records in billing customers . She spends 80 percent of her time doing office clerical work and the re- mainder of her time working in the Employer's bindery department as a production employee. As she works regu- larly in the capacity of a part-time production employee, she WWayside Press , Incorporated, 103 NLRB 11; Hollow Tree Lumber Company, 91 NLRB 635. 4The Petitioner operates under a constitution and bylaws and exists for the purpose of bargaining with employers regarding wages , hours, and other conditions of employment. It claims to represent certain employees of the Employer . Lake County Farm Bureau Co- operative Association, Inc., 101 NLRB 110. 5 We find without merit the Employer 's contention that the instant petition is untimely filed because of alleged pending 8 (a) (1) and (2) charges before the Board in Case No. 21-CA-1281. On February 25, 1953, the Board issued its Decision and Order in Case No. 21-CA-1281, ordering the Employer to disestablish Wayside Press Employees' Independent Union, Inc., 103 NLRB 11. On March 30, 1953, the Board denied the Employer's motion for a rehearing in the complaint case . Any certification which the Board may issue as a result of the instant petition may, however, upon appropriate motion, be vacated if the Board's finding respecting the legality of Wayside Press Employees ' Independent Union, Inc., be set aside by a court of competent jurisdiction. Standard Oil Company of California, 63 NLRB 471, 476. 6Nat Linzer and Saul Linzer, doing business as Ever last Process Printing Co, 98 NLRB 1313 7Fox Deluxe Foods, Inc., 96 NLRB 1132. 283230 0 - 54 - 66 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is entitled to representation as to such work . Accordingly, we shall include her in the unit.' Ronnie Macias is the Employer ' s bicycle messenger who spends his full time delivering copy and proofs back and forth between the plant office and the customers . He has no contact with the production and maintenance employees and has no interests in common with them. Accordingly , we shall exclude him from the production and maintenance unit.' Alfred Berry is janitor for the building in which the Em- ployer occupies the entire third floor . Jointly employed by the Employer and the building owner, Berry spends 70 percent of his time cleaning the third floor space occupied by the Employer , and the remainder of his time cleaning the rest of the building. Because his substantial duties and interests appear to lie with the Employer's production and maintenance employees , we shall include him in the unit.'° There remains for consideration the status of Frederick J. Bailey, Herbert Stephens , Henry T. Schubert , William A. Scott, Garrett De Korte , John W. Bain , and Otto P. Werler. The Petitioner contends and the Employer denies that these individuals are supervisors. Bailey , Stephens , and Schubert were found by the Board to be supervisors in Case No . 21-CA-1281 . They are working foremen and their duties have not changed since the time of the earlier hearing. We conclude that Bailey , Stephens, and Schubert are supervisors as defined in the Act. Scott , the Employer ' s bindery working foreman , relays the plant manager ' s orders to his subordinates , assigns their work, grants them time off, and laid off one employee working under his direction . He also directs the truckdriver as to routes. Accordingly , we find that Scott is a supervisor as defined in the Act , " and we shall exclude him from the unit. DeKorte , the Employer ' s stoneman , locks forms for the cyl- inder and job presses . He exercises an essential skill in the plant and is paid more per hour than some other production and maintenance employees . He merely relays orders promul- gated by the plant manager and has no authority over other employees . Accordingly , we find that DeKorte is not a super- visor as defined in the Act,12 and we include him in the unit. There is no evidence in the record that Bain , who is employed in the Employer ' s press department , exercises any super- visory authority . Accordingly , we shall include him in the unit. Werler, assistant to Working Foreman Stephens , only ex- ercises Stephens ' supervisory authority when Stephens is ill or on vacation and not as a regular duty. As he only sporadically exercises any supervisory authority , we find that Werler is not a supervisor as defined in the Act ,l' and we shall include him in the unit. e Andrews Company, 98 NLRB 11. 9 Mississippi Products , Inc., 78 NLRB 873. 10See Byron Jackson Company, 83 NLRB 1012. 11 National Food Corporation , 88 NLRB 1500. 12 Wm. Cameron & Co , Inc ., 98 NLRB 969. 13 Phillips Oil Company, 91 NLRB 534. DIXIE DAIRIES DIVISION OF THE BORDEN COMPANY 1031 Accordingly, we find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees 14 at the Em- ployer's commercial printing plant, including the truckdriver, but excluding all office clerical employees, the bicycle mes- senger , professional employees, watchmen, guards, and all supervisors 15 as defined in the Act. 5. At the hearing the Petitioner alleged that Pickett, a production and maintenance employee of the Employer, should be allowed to vote in any election directed by the Board. On February 25, 1953, in Case No. 21-CA-1619, the Petitioner filed a charge against the Employer alleging the discriminatory discharge-of Pickett. 16 In view of the pendency of this charge, we will hold in abeyance the eligibility of Pickett and permit him to vote a challenged ballot in the election hereinafter directed, 17 impounding the ballot. [Text of Direction of Election omitted from publication.] 14Included as such are Lois Hazeltine, Garrett DeKorte, John Bain, Otto Werler, and Alfred Berry. 15 Excluded as supervisors are Frederick Bailey, Herbert Stephens, Henry Schubert, and William Scott. 16 The pending charge is still under investigation. On March 6, 1953, the date of filing the instant petition, the Petitioner filed a "Request to Proceed" with the Regional Director. 17Cf. The Ocala Star Banner, 95 NLRB 569. DIXIE DAIRIES DIVISION OF THE BORDEN COMPANY and IN- TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 859, AFL, Petitioner. Case No. 10-RC-2075. May 15, 1953. SUPPLEMENTAL DECISION, ORDER, AND CERTIFICATION On January 21, 1953, the Board issued its Decision and Direction of Election herein' in a uni,: composed of all wholesale and retail milk route men, relief milk route men, milk route helpers, and ice cream route men. Subsequently, on February 18, 1953, an election by secret ballot was con- ducted under the direction and supervision of the Regional Director for the Tenth Region among the eligible employees of the Employer in the unit found appropriate by the Board in its decision. Upon completion of the election, a tally of ballots was furnished to each of the parties. The tally of ballots revealed that of approximately 36 eligible voters, 34 cast ballots, of which 18 were for the Petitioner, 15 were against the Peti- tioner , and 1 was challenged. The single challenged ballot was insufficient to affect the results of the election. 1102 NLRB 460. 104 NLRB No. 119.