Queensboro Steel Corp.

434 -DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Queensboro Steel Corporation and George and Seymour Alper, d/b/a Southern Iron & Metal Company and United Steelwork- ers of America, AFL-CIO, Petitioner. Case No. 11-RC-7933. February 15,1956 SUPPLEMENTAL DECISION, AMENDMENT, AND DIRECTION Pursuant to a Decision and Direction of Election issued by the Board in the above-entitled proceeding on March 23, 1955,' an election by secret ballot was conducted on April 4, 1955, under the direction and supervision of the Regional Director for the Eleventh Region, among the employees of the Employer in the unit found ap- propriate in the decision. At the conclusion of the election, the parties were given a tally of ballots which showed that of approximately 60 eligible voters, 22 voted for the Petitioner, 18 voted against the Pe- titioner, and 19 were challenged. As the challenged ballots were sufficient in number to affect the re- sults of the election, the Regional Director, pursuant to the Board's Rules and Regulations, investigated them and on June 7, 1955, issued and duly served upon the parties a report on challenges, in which he recommended that the challenges to five ballots be overruled and- the others be sustained. Thereafter, the Employer filed exceptions to the Regional Director's recommendation for sustaining the challenges to 12 ballots 2 On July 15, 1955, the Board issued an order directing a hearing to resolve the issues raised by the challenges to the ballots of these 12 em- ployees. A hearing was held before Harold X. Summers, hearing of- ficer, on August 9 and 10 and September 28, 1955, at which the Em- ployer and Petitioner appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. On Decem- ' ber 9, 1955, the hearing officer issued and served upon the parties his report recommending that the challenges to the 12 ballots be sustained. Thereafter, the Employer filed exceptions to the hearing officer's re- port. The Board has reviewed the hearing officer's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the hearing of- ficer's report, the Employer's exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- 1 Not reported in punted volumes of Board Decisions and Orders. 2 The Employer -did not except to the Regional Director's recommendation for overrul- ing the challenges to five ballots and foi sustaining the challenges to the ballots of Her- bert Davis and D J McBride . In the absence of exceptions , we adopt these recommenda7 tions. 115 NLRB No. 71. SOUTHERN IRON & METAL COMPANY 435 tions of the hearing officer and amends the unit finding for the rea- sons given below. The Decision and Direction of Election issued on March 23, 1955, found that Queensboro Steel Corporation, referred to herein as Queensboro, and Southern Iron & Metal Company, referred to herein as Southern, constituted a single employer; that Queensboro sold sheet, bar, and structural steel, and fabricated steel products, and that Southern bought and sold scrap metal. It described the appropriate unit at the Employer's plant at Wilmington, North Carolina, as con- sisting of production and maintenance employees with the usual ex- clusions. On February 15, 1955, the date of the original hearing, Queensboro had in its employ approximately 23 shop people, consisting of burners, welders, laborers, truckdrivers, and 2 carpenters who had been hired about 3 weeks previously. No mention was made at that hearing that Queensboro had undertaken installation and erection of its steel prod- ucts on construction projects, that it then had 2 carpenters in its em= ploy, or that it contemplated expanding its construction business and would; therefore, require additional employees to work primarily out- side the shop 3 Between the date of the original hearing and the date of the election, April 4, 1955, Queensboro began work, as a general con- struction contractor, in erecting two private dwellings for its princi- pal officers, George and Seymour Alper, who are also partners in Southern. By the date of the election, Queensboro had hired 10 addi- tional carpenters and helpers, all of whom, with the 2 hired in Janu- ary, were working on the Alper homes. It, is the ballots of these 12 carpenters which were challenged. The hearing officer found that the carpenters worked on the Alper homes or on other outside construction projects from the middle of February for as long as these projects lasted. By the tinge the hearing on the challenged ballots was concluded, September 28, 1955, most of the carpenters had quit or had been laid off because of lack of further construction work: During this period of approximately 7 months, from February through September, 3 carpenters each worked for 2 or 3 days on maintenance or construction work at the shop; the remainder of their time was spent on outside construction. By the end of Sep- tember, only one carpenter's helper was working full time at the shop, and he was primarily engaged in moving steel preparatory to building new racks. While the carpenters were engaged in outside work they were super- vised by their own foreman, and observed a different schedule of hours Queensboro had previously erected or assembled on the site the steel structural parts which it sold. But this construction work was performed by permanent shop employees temporarily assigned to such work 436 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD from that of the shop employees. At all times, the journeymen car- penters were paid substantially more than any nonsupervisory em- ployee at the shop. The hearing officer concluded that the Board had not had an oppor- tunity to consider the status of the carpenters when it defined the ap- propriate unit as comprising all production and maintenance em- ployees at the Employer's plant. He therefore found that none of the 12 carpenters whose votes had been challenged were eligible to vote under the Board's Decision and Direction of Election. The Employer has excepted to these conclusions, asserting that the carpenters were, in fact, production employees who were engaged in the construction part of the Employer's business, and were thereby automatically in- cluded in the unit. We agree with the hearing officer that our unit description was drawn in ignorance of the fact that there existed a substantial group of employees who did not work in the shop. There is no doubt that if the Employer's expansion of its construction business had been made known at the time of the original hearing, we would have specifically dealt with the status of the outside employees. The differences in working conditions, supervision, and rates of pay, between the shop and the outside or construction employees, lead us to conclude that the interests of the latter employees are sufficiently different from those of the shop employees to warrant the specific exclusion of the construc- tion employees from the unit requested by the Petitioner.' We shall, therefore, amend the unit description in the Decision and Direction of Election previously issued herein. We now find that all production and maintenance employees at the Employer's Wilmington, North Carolina, plant, including truckdrivers and crane operators, but excluding outside construction employees, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In accordance with the above unit finding and with the recommen- dation of the hearing officer, we find that M. J. Bonner, James B. Bur- ton, Robert Shackleford, William H. Kay, George Deal, Kenneth Tay- lor, Charles H. Fields, Steadman Futrell, Robert J. Herring, Claude B. Tucker, Foster J. Brown, and Grady Roberts were ineligible to vote in the election. We hereby sustain the challenges to their ballots. We also sustain the challenges to the ballots of Herbert Davis and D. J. Mc- Bride in the absence of exceptions to the recommendation of the Re- gional Director to that effect. In accordance with the recommendations of the Regional Director and in the absence of exceptions thereto, we hereby overrule the chal- 4 Marble Contractors' Association of Allegheny County, 99 NLRB 217 , and the cases cited in footnote 6 thereof. -PASCO PACKING COMPANY 437 lenges to the ballots of James Keaton, Louis McLean, Orman Hender- son, Thomas Dyson, and Edward Long, and shall direct that these ballots be opened and counted. [The Board directed that the Regional Director for the Eleventh Region shall, within ten (10) days from the date of this Direction, open and count these ballots and serve upon the parties a revised tally of ballots.] Pasco Packing Company and Teamsters, Chauffeurs and Helpers Local Union No. 79, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO.' Case No. 10-CA-?&925. February 17, 1956 DECISION AND ORDER On June 14, 1955, Trial Examiner Sidney Lindner issued his Inter= mediate Report in the above-entitled proceeding, finding that-the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, Respondent filed exceptions to the Intermediate Report and a supporting brief thereto. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions noted below. Service of Process on Respondent The Trial Examiner based his finding that service of process on Re- spondent was effectuated on the "reasonable [assumption] that all Congress contemplated when authorizing the effectuation of service of process by registered mail was that the Post Office Department ten- der the registered process to the addressee." We agree. Manifestly if Respondent, by its wilful refusal to accept registered mail, clearly labeled as originating in the Board's Regional Office, can thwart serv- ice of process, and require the Regional Director to effectuate service of process by one of the more cumbersome alternative methods listed in Section 11 (4) of the Act, then the provision authorizing service of process by registered mail, becomes a dead letter with respect to this 3 The AFL and CIO having merged subsequent to the hearing in this proceeding, we are amending the identification of the affiliation of the Union accordingly. 115 NLRB No. 74.