Cosper Manufacturing Co., Inc.

COSPER MANUFACTURING COMPANY,-INC. 751 ; imposed by General Electric X-Ray, supra, is inapplicable. Accord- ingly, the contract between the Employer and the Intervenor does not bar this proceeding.3 We find that a question affecting commerce exists concerning the representation of certain employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 4. In substantial accord with the stipulation of the parties, we find that the following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance em- ployees at the Employer's Pittsburg, California, operation, excluding office clerical employees, guards, professional employees, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] a Arrow Candy Co., Inc., 100 NLRB 573 , 574-575 ; Look Joint Pipe Company, 106 NLRB 355, 356-357 ; Chicago Bridge & Iron Company, 88 NLRB 402, 403-405 . The applicability of these precedents is not affected by Attorney Thelen's alleged statement to Petitioner, 9 days before the petition was filed, that the Employer was not recognizing Petitioner as the employees ' collective-bargaining representative. See Arrow Candy Co., supra. Cosper Manufacturing Company, Inc., Petitioner and United Steelworkers of America , AFL-CIO. Case No. 10-RM-234 July 18,1957 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National La- bor Relations. Act, a hearing was held before Louis Lipsitz, 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 certain enr- ployees of the Employer. 3. United Steelworkers of America,. AFL-CIO, herein called the International, was, certified by the Board as representative of the Employer's production and maintenance employees on March 26, 1956.1 Thereafter, the International and. the Employer executed a contract effective from June 15, .1956, ,until June 14, 1957, containing a 60=day automatic renewal clause. By letter of April 3,1957, the In= ternational notified the Employer of its desire to negotiate modifica- tions. On April 9, 1957, the Employer replied by notifying the In- 1 Case No. 10-'RC-3405; not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 89. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ternational of its desire to. terminate the contract and questioning the International's representative status. On April 11, 1957, the Em- ployer filed the instant petition. There was no further communication between the parties until the hearing on the petition. At the hearing, counsel for the International announced, for the first time, that the In- ternational had assigned its interest in the contract to its Local Union No. 5367, herein called the Local; 2 that the International no longer had any interest in the contract and was not claiming to represent any of the employees in the unit; and that the Local was at that time de- manding recognition and serving notice on the Employer of its in- tent to strike.' As the Local is not in compliance with Section 9 (f), (g), and (h) of the Act, counsel for the International moved to dis- miss the petition on the ground that there was no question concerning representation. The Board has held that a contracting union's timely notice to an employer of its desire to negotiate changes in their agreement con- stitutes a demand for continued recognition which, when denied by the employer, raises a question concerning representation which the employer is entitled to have resolved by an election.' It is also estab- lished, as the International contends, that a question concerning representation, thus raised, may be extinguished if the union there- after clearly and unequivocally disclaims all interest in the employees covered by the employer's petition' We do not agree, however, that the International's conduct herein constitutes such a clear and un- equivocal disclaimer. On the contrary, its alleged assignment of its current contract to one of its own local unions and the assertion that such Local claims to represent the Employer's employees, is patently an attempt by the International both to keep its claim alive and to obviate the election which the Petitioner seeks. Such conduct is clearly inconsistent with its asserted abandonment of all interest in the employees involved herein. Accordingly, as the International's disclaimer was not clear and unequivocal, we find that 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. In substantial agreement with the parties, we find that the following employees of the Employer constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 2 The Local did not intervene in this proceeding. 3 Jewett & Sherman Co., 110 NLRB 806. The Act imposes no limitation with respect to whether a union claiming such recognition has previously been certified by the Board. Triangle Publications, Inc., 115 NLRB 941. 4 Franklin Square Lumber Co., 114 NLRB 519. 8 See Andrew Brown Company, 115 NLRB 886. Darling and Company, 116 NLRB 374, relied on by the'International , is not apposite as the only union in that case which had at anytime made a representation claim was the historically recognized local which was not in compliance with the Act. J. P. FLORID,& CO., INC. 753 (b) of the Act: s All production and maintenance employees at the .Employer's cast iron pipe fittings and plumbing specialties manufac- turing plant at Birmingham, Alabama, including shipping clerks, but excluding office clerical employees, plant guards, foremen, and super- visors as defined in the Act.' 5. The International has been in compliance at all relevant times. We shall therefore resolve the representation question by conducting an election in which the International's name appears on the ballot. However, Local Union No. 5367 appears to have an interest in the employees involved. Therefore, the International will be certified, if it wins the election, only if Local Union No. 5367 is in full compli- ance with Section 9 (f), (g), and (h) by the date of the election, and not later. Absent such compliance, the Board will certify only the arithmetical results of the election.' [Text of Direction of Election omitted from publication.] MEMBER MURDOCK took no part in the consideration of the above Decision and Direction of Election. The unit found appropriate is the one for which the International was certified and for which the parties contracted. 7 The Employer contends that Wendal Atchison and Floyd Hanvey , Jr., are supervisors and should be excluded from the unit . The International contends that Atchison is not a supervisor , but takes no position as to Hanvey 's supervisory status . Atchison is foreman of the specialty department, and Hanvey is foreman of the drainage pipe fitting department. Both are directly responsible to the superintendent of production . As both Atchison and Hanvey are required to use their independent judgment in the responsible direction of the employees in their departments , we find that they are supervisors and shall exclude them from the unit. 8 Cf. Calcasieu Paper Co., Inc., 109 NLRB 1186, 1188. J. P. Florio & Co., Inc. and Alvin Bocage, Gus Harvey International Longshoremen's Association (Ind.) ; General Long- shore Workers, Local 1418, ILA; and General Longshore Workers, Local 1419, ILA and Alvin Bocage, Gus Harvey. Cases Nos. 15-CA-894, 15-CA-891-1, 15-CB-163, and 15-CB- 163-1. July 19, 1957 DECISION AND ORDER On December 10, 1956, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled consolidated proceedings, finding that the Respondents had engaged in certain unfair labor practices and recommending that the Respondents cease and desist therefrom and take certain affirmative action, as set forth in a copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents each filed exceptions to the Intermediate Report and, with the 118 NLRB No. 38. 450553-58-vol. 1.18-49