American Tobacco Co., Inc.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the salaried clericals worked in the main office building. The Em- ployer now contends that salaried and hourly paid clerical employees work together in the same departments and that many of the jobs per- formed by salaried clericals are now also performed by the hourly paid clerks. It therefore urges that only a single unit of all clerical employees be found appropriate. We find that the salaried clerks can be represented apart from the other clericals either because (a) as asserted by the Petitioner and the Intervenor, they are the only office clerical employees, or (b) assuming arguendo that, as contended by the Employer, all the clerks now have similar interests, the salaried clerks are the residual, unrepresented part of that broader clerical unit .2 We find that all salaried clerical and technical employees 3 at the Employer's Niagara, Globar, and Wheatfield, New York, plants, ex- cluding all production and maintenance employees, hourly paid cleri- cal employees, confidential and professional employees, and employees exempt under the Fair Labor Standards Act as managerial employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' [Text of Direction of Election omitted from publication.] 2 'Westinghouse Electric Corporation (Elevator Division), 112 NLRB 590. 3 There is apparently no dispute as to the inclusion of technical employees in the event the Board finds that the requested clericals may function separately from the other clericals . The parties stipulated to include time-study technicians and employees paid on a semimonthly (salary ) basis at the Employer 's ceramic fibre project. 'The parties stipulated ' to exclude , as confidential employees , 13 secretaries to the executive group of the Corporation, 25 secretaries to the branch managers , superintendents, and vice presidents , 5 clerical employees in the office of the director of industrial relations, 7 clerical employees in the office of the director of industrial relations -bonded abrasives division , 1 secretary to members of the Employer's negotiating committee, 1 secretary to the staff assistant in the office of the president , the receptionist, the file clerk who handles the central files for the executive group, and the secretary in the office of the director of manufacturing. The parties agreed to exclude chemists , the job analyst, the x-ray tech- nician, and nurses as professional employees. The part ies also stipulated to exclude the senior time-study technician as a supervisor and the office maintenance men as guards. Further, the parties stipulated to exclude six production management trainees, sales trainees , employees at the Employer's Buffalo Avenue residence, and the fire inspector as they do not perform any clerical functions. American Tobacco Company, Incorporated and Local Union 369, International Brotherhood of Electrical Workers, AFL-CIO. Petitioner. Case No. 9-RC-2656. January 23, 1,956 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 William G. Wilkerson, hear- 115 NLRB No. 34. -AMERICAN TOBACCO COMPANY, INCORPORATED 219 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 National Labor Relations Act. 2. The labor organizations named below claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of 2 maintenance electricians and an electrician helper at the Employer's Louisville plant, where the pro- duction and maintenance unit of approximately 133 employees is represented by Local 247, Tobacco Workers International Union, AFL-CIO, the Intervenor, under contract expiring December 31, 1955, Separate units of pipefitters and of machinists also exist at this plant, resulting from severance elections directed by the Board in 1954. See American Tobacco Company, Incorporated, 108 NLRB 1211. It appears from this record that the employees here sought constitute a separate department of the plant, with a separate supervisor, and that they do nothing but electrical repair work. The more skilled of the two classified as electricians received his training in electrical work in the armed services, after serving as an electrician helper with this Employer. The other received his training on the job. The present helper has been in that classification for almost 3 years, with prospec- tive advancement somewhat blocked by lack of need for another skilled electrician. The Employer moved to dismiss the petition on the ground of inappropriate unit, emphasizing that it is too small to merit sever- ance. The Intervenor contends that only a production and main- tenance unit is appropriate. The Employer has no on-the-job training or apprentice program. Its district manager testified, although its brief indicates the contrary, that electrical employees do not return to production work after having achieved the electrical classifications, and its chief engineer testified that the "average person" requires 31/2 to 4 years to qualify as an electrician at the plant, although 1 electrician was in the helper category only 27 months because he demanded a higher salary. The record shows that these electrical workers report for work earlier than production employees, and are in no sense utilized as production employees or production specialists. Compare : Hyster Company, 106 NLRB 347, 350; Kwikset Locks, Inc., 107 NLRB 247, 250. Despite the absence of a training program or specific policy of ad- vancement we think the group here sought performs electrical craft work and is a skilled group entitled to separate representation as a craft group if it wishes. We deny the motion to dismiss. 220 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following employees of the Employer may constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act: All maintenance electricians and electrician helpers of the Em- ployer at its Louisville, Kentucky, plant, excluding all other em- ployees and supervisors as defined in the Act. It has been the practice of the Board when it directs a craft sever- ance election to provide a place on the ballot for a "neither" or "no union" choice. We have reconsidered that practice in the light of certain craft severance principles established by the Board in the American Potash 1 case and subsequent cases and decided that it is no longer appropriate. Thus, in American Potash the Board held that severance would be granted only if a majority of the employees in the severable group voted for the union seeking to represent them sepa- rately. In later cases 2 the Board has refused to permit severance for decertification purposes. More recently the Board has held that the American Potash rule "makes it clear that no runoff was intended in craft severance elections as craft severance was to become effective only if a majority of the employees voted for the union seeking severance." 3 Application of these established principles to the conventional sever- ance case requires that a vote for "neither" be construed only as a vote against severance. For, if the "neither" vote were counted as a vote against representation, it would permit decertification in a unit smaller than the certified unit, a result precluded by the Camp -ll Soup principle. Nothing in the Act or its legislative history, which we have carefully examined, expressly or impliedly requires that em- ployees in a craft severance election be afforded an opportunity to return to nonunion status. Consistent with the aforementioned prin- ciples of Board law and mindful of the absence of any statutory re- quirement for a "neither" choice in the conventional severance case, it is our considered opinion that the "neither" or "no union" choice serves no useful purpose and should be eliminated from the ballot in elec- tions limited to the severance issue. Accordingly, in this case and all future cases, involving elections for severance purposes only, we shall not provide a place on the ballot for a "neither" or "no union" choice. If a majority vote for the Petitioner they will be taken to have indi- cated their desire to constitute a separate appropriate unit, and the Regional Director conducting the election directed herein is instructed to issue a certification of representatives to the Petitioner for the unit described in paragraph numbered 4, which the Board, under, such cir- 1 American Potash & Chemical Corporation, 107 NLRB 1418, 1426. 0 Campbell Soup Company, 111 NLRB 234; Menasco Manufacturini Company. 111 NLRB 604; Standard Oil Company of California (Richmond Refinery), 113 NLRB 475, Great Falls Employers Council, Inc., 114 NLRB 370. 3 Sutherland Paper Company, 114 NLRB 211. CHEMICAL TANK LINES, INC. 221 cumstances, finds to be appropriate for purposes of collective bargain- ing. In the event a majority do not vote for the Petitioner, these em- ployees shall remain a part of the existing unit and the Regional Director will issue a certification of results of election to such effect. [Text of Direction of Election omitted from publication.] Chemical Tank Lines, Inc. and Chauffeurs, Teamsters & Helpers Local Union No. 175, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,' Petitioner. Case No. 9-RC-2522. January 2/,1956 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harold M. Kennedy, 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 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 employees of the Employer 3 ' 3. No 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, for the following reasons: The Employer ' is eilgaged in the interstate` transportation of `liquid chemicals in tank-trailer trucks. The Petitioner seeks to represent a unit of "all truckdrivers" at the Employer's St. Albans, West Virginia, terminal. In its operations at this terminal, the Employer utilizes three types of drivers. The Employer's so-called "regular drivers" are concededly employees of the Employer, who drive only tractors owned by the,Employer. In addition, the Employer uses drivers known, as "owner-operators," who own and'drive tractors whi6li-they lease to the Employer, and drivers known as "nonowner-operators," who drive tractors of the owner-operators leased to the Employer. The Petitioner seeks to include in the unit all drivers in the above- ' The AFL and CIO having merged subsequent to the healing in this proceeding, the identification of the Petitioner's affiliation is amended accordingly 2 In view of our Decision and Order dismissing the petition herein on other grounds, we find it unnecessary to pass on the motions of the Employer and the Intervenor to dismiss the petition on the ground of contract bar. - As we are dismissing the petition herein on other grounds , we find it unnecessary to pass on the Petitioner 's contention that the Intervenor should not be permitted to partici- pate in a Board election because it is allegedly not a labor organization or is affiliated with a parent organization which has not complied with the filing requirements of the Act. 115 NLRB No. 35.