Newport News Forms Co., Inc.

NEWPORT NEWS FORMS COMPANY, INCORPORATED 471 the Board has applied the Peerless Plywood rule retroactively to pre- election speeches which antedated the establishment of that rule 3 In the Cross Company and Banner Die Fixture cases, the Board did apply the Peerless Plywood rule retroactively to preelection speeches which antedated the establishment of that rule. However, the issue as to whether the speeches in those cases interfered with the elections was raised by timely objections to such conduct, and thus was properly before the Board. In the instant case, the issue as to whether the alleged speeches before the second election interfered with that election was raised by an untimely objection, and therefore is not properly before the Board. Moreover, we find no justification for considering this objection on the merits, despite its untimeliness, on the ground that the Peerless Plywood rule was not in existence at the time of the second election to be raised as the basis of an objection to the election. The second election was held on February 7,1953, and the objection in question was not raised until May 10, 1954, over a year later. In our opinion, this represents too great a lapse of time to permit the retroactive application of the Peerless Plywood rule which the Respondent seeks. That rule was not intended to, and should not be applied to elections which were held so long ago, and which are now objected to for the first time on that basis. To hold otherwise would be to permit parties to now raise the Peerless Plywood rule as a basis for setting aside elections which have long since decided questions of representation and in some cases have established collective-bargain- ing representatives. In view of the foregoing, we find no merit in the Respondent's mo- tion for review, and we shall therefore order that the motion be denied. [The Board denied the motion.] MEMBERS RODGERS and BEESON took no part in the consideration of the above Order Denying Motion for Review. 3 The Cross Company, 107 NLRB 1267; Banner Die Fixture Co., 107 NLRB 1332. NEWPORT NEWS FORMS COMPANY, INCORPORATED and INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, AFL, PETITIONER NEWPORT NEWS FORMS COMPANY, INCORPORATED and NEWPORT NEWS FORMS COMPANY, INCORPORATED, EMPLOYEES' COUNCIL, INDEPEND- ENT, PETITIONER. Cases Nos. 5-RC-1507 and 5-RC-1513. October 25,1954 Decision, Order, and Direction of Election Upon separate petitions duly filed under Section 9 (c) of the Na- tional Labor Relations Act, a consolidated hearing was held before 110 NLRB No. 71. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Benjamin E. Cook, hearing officer.' The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in these cases, 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 employees of the Employer. 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 9 (6) and (7) of the Act. 4. International Brotherhood of Bookbinders, AFL, herein called the Bookbinders, seeks a unit of production and maintenance employ- ees at the Employer's business forms printing plant at Newport News, Virginia. The Employer and Newport News Forms Company, In- corporated, Employees' Council, Independent, herein called the Coun- cil, contend that the unit sought by the Bookbinders is inappropriate and that the only appropriate unit at the Newport News plant is one described by them as follows : All craft employees, including craft employees' assistants, pressmen, stereotypers, collator operators, cut- ters, slitters, carbon machine operators, the stock supplier in the ware- house, and an individual in the shipping department. The parties agree to the exclusion of all composing room ^ employees, guards, watchmen, and supervisors as defined in the Act ; they disagree with respect to the inclusion in the Bookbinders unit of stenographers in the shipping department and of floorladies in the bindery. The Newport News plant, a single building, includes the following departments and work areas : Composing, platemaking, press, carbon, shipping, warehouse, maintenance, and bindery. For the past 30 years Newport News Typographical Union, International Typographical Union, AFL, has represented a separate craft unit of the composing room employees, and the parties agree to the exclusion of composing room employees from the units they herein seek. For the past 3 years, the Employer and the Council have purportedly bargained collectively on an oral basis for the employees in the unit which they now contend is appropriate.2 As the sole basis for their position that the unit they seek is alone appropriate, the Employer and the Council contend that the afore- mentioned 3-year history of bargaining in their unit is controlling i The cases were consolidated during the course of the hearing by order of the Regional Director for the Fifth Region. 2 At the hearing, the Council , seeking to prove that it is actively engaged in bargaining for the employees in the unit it now seeks , introduced into evidence a document which pur- ports to be the original of an unexecuted agreement with the Employer covering these em- ployees, dated October 1, 1954 The exhibit provides for recognition of the Employees' Council as the exclusive bargaining representative of these employees , "members of the Council " NEWPORT NEWS FORMS COMPANY, INCORPORATED 473 and that the Bookbinders' production and maintenance unit is inap- propriate because it is in conflict therewith. We do not agree. Al- though the unit sought by the Council purports to join all of the highest skilled employees in each department at the Newport News plant, it actually combines groups of journeymen press operators and stereotypers with some, but not all,' of the higher paid employee classifications and individual employees in the other departments, the functions of which are unrelated to those of the craft groups or to the work of any recognized traditional craft.' The unit is thus a heterogeneous grouping of employees throughout the plant without regard to the Board's established prerequisites for the establishment of separate craft or departmental units, such as the exercise of single- craft skills and the possession of group homogeneity.' Furthermore, as the 3-year oral bargaining history for the unit is likewise based on arbitrary and artificial factors, to which the Board accords little or no weight in making its unit determinations, this history cannot be deemed controlling.' Under these circumstances, we find that the unit sought by the Petitioner is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. We further find that the unit sought by the Council is inappropriate, and shall there- fore order that the petition in Case No. 5-RC-1513 be dismissed. There remains for consideration the unit status of stenographers in the shipping department and floorladies in the bindery. The stenographers, under the supervision of the shipping clerk, spend nearly their entire working time in the shipping room, typing labels for use in shipping the Employer's products. The floorladies have the power effectively to recommend the hire and discharge of em- ployees and have exercised the same. We shall therefore include in the unit herein found appropriate, stenographers in the shipping department, who we find are plant clerical employees,7 and we shall exclude from the unit floorladies in the bindery, who we find are supervisors as defined in the Act. We find that all production and maintenance employees at the Employer's printing forms plant at Newport News, Virginia, includ- ing stenographers in the shipping department and the maid, but excluding composing room employees, guards, watchmen, and floor- 3 Thus, although the Council would include a named individual in the shipping depart- ment allegedly because of the skills he exercises , it admits that it does not seek to include his counterpart on another shift , because the latter is not one of its members. 4 The Council would thus include the maintenance department , consisting of two elec- tricians who spend most of their time performing mechanical work, and individual em- ployees in the warehouse and shipping departments 5 The Waterbury Tag Company, 102 NLRB 1005 6 Standard Lime and Stone Company, 95 NLRB 1141, footnote 5, Anheuser-Busch, Inc, at al., 102 NLRB 800, 811 1International Smelting and Refining Company, Raritan Copper Works, 106 NLRB 223 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ladies, the stockman in the warehouse, and other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. [The Board dismissed the petition in Case No. 5-RC-1513.] [Text of Direction of Election omitted from publication.] ALBERS SUPER MARKETS, INC. and RETAIL CLERKS INTERNATIONAL ASSOCIATION, A. F. of L., PETITIONER. Case, No. 9-RC--2197. Oc- tober 25,1954 Order Amending Decision and Direction of Election On September 24, 1954, the Board issued its Decision and Direction of Election in the above-entitled proceeding, in which it found that the following employees constitute an appropriate unit : All grocery employees employed at the Employer's retail stores in Montgomery County, Ohio, including part-time clerks, but ex- cluding all meat department employees, guards, professional employees, store managers, assistant store managers, perishable food managers, and all other supervisors as defined in the Act. On October 4, 1954, the Employer filed with the Board a motion for reconsideration, urging that the part-time clerks be excluded from the unit, or, in the alternative, that those part-time clerks who have worked for the Employer less than 18 weeks be held ineligible to vote in the election. The Board having duly considered the motion, the evidence as to the duties and tenure of employment of the part-time clerks, and the entire record in the case, decided to grant the Em- ployer's motion in part for the reasons given below.' At the 8 stores involved, the Employer has approximately 125 full- time grocery clerks and 173 part-time grocery clerks. The latter work only during peak sales periods. Their principal duties are putting merchandise into bags and carrying the bags to customers' cars. Lists of the part-time employees are kept at the various stores, and they are scheduled to work as needed; schedules of work are posted each week for the ensuing week. There is a high turnover among these employ- ees, and the record of the 204 terminations between January 1, 1953, and April 24, 1954, shows that the average length of service was only 41/2 months and that 75 percent worked less than that length of time. Upon these facts, we are of the opinion that the part-time clerks who have worked less than 18 weeks for the Employer are not regular part- 'As the record and briefs, in our opinion, adequately set forth the facts and the posi- tions of the parties, the request of the Employer for a further hearing and oral argument is hereby denied. 110 NLRB No. 86.