Heckett Engineering Co.

HECKETT ENGINEERING COMPANY .749 busy in the performance of their duties, the night managers, who themselves do varying amounts of cooking and other work, have no indicia of supervisory status. Thus, the record shows that the night managers are respectively responsible to the Beckley assistant man- ager and the Bluestone and Morton managers to whom they make regular reports. Unlike most of the latter officials, the night managers do not order supplies, do not attend management meetings, do not make recommendations as to hiring, discharging, or promotions, do not authorize replacements or extra help, do not apprise employees of their benefits, do not grant employees time off, and do not have the power to alter their own hours or the 6-day workweek which they share with full-time employees. Accordingly, we find that the powers of direction of the night managers are merely routine and that there- fore they are not supervisors as defined in the Act. We shall therefore include them in the unit." 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 (h) of the Act: All full-time, regular part-time, and on-call employees at the Employer's Beckley, Bluestone, Morton, and Charleston establishments, including the Beckley, Bluestone, and Morton night managers, but excluding the bookkeeper, the musician, guards, the overall manager, the Beckley assistant manager, the Bluestone manager, the Morton manager, the Charleston manager- trainee, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 11 See Wm. R. Whittaker Co., Ltd., 117 NLRB 339; Frank G. Shattuck Company, 106 NLRB 838, 841-844. Heckett Engineering Company and Operating Engineers, Local No. 3 of the International Union of Operating Engineers, AFL- CIO, Petitioner. Case No. 20-RC-3217. July 18,1957 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 Shirley N. Bingham, hear- ing 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 [Members Rodgers, Bean, and Jenkins]. In view of our disposition of this case , we do not find it necessary to pass on the hearing officer's refusal, on the ground of privilege, to compel the production of a letter from the Employer to its attorney. 118 NLRB No. 92. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 employees of the Employer? 3. The Employer and the Intervenor assert that the petition, filed on January 11, 1957, is barred by a collective-bargaining agreement which they executed on the same date. Relying on General Electric X-Ray Corporation, 67 NLRB 997, they contend that in order to avoid defeasance by this contract the Petitioner was required to file its petition within 10 days of its initial demand for recognition, which was made no later than December 26, 1956. Petitioner asserts that the contract is not a bar because it was executed when the Employer allegedly had knowledge that the petition had been filed. In view of our disposition of this case, we find it unnecessary to pass on Petitioner's contention. On December 24 or 26, 1956, Kinchloe, the Petitioner's business representative, informed Fitzgerald, who was in charge of the Em- ployer's labor relations, of the Petitioner's majority status, and asked Fitzgerald to recognize it as their collective-bargaining representative and to sign a contract with it. Fitzgerald discussed wage rates with Kinchloe and asked him to send a proposed agreement to the Em- ployer's main office, where Fitzgerald's office was located. At Kinch- loe's request, Fitzgerald agreed to get in touch with Clem, Petitioner's business manager, as soon as Fitzgerald received the proposed agree- ment. On December 31, in response to Clem's inquiry, Fitzgerald admitted that he had received the proposed agreement, but he objected to the wage scale sought by Petitioner and asked Clem to submit another proposed agreement. Fitzgerald told Clem that "he, had labor agreements with Operating Engineers in certain of his opera- tions throughout the United States" but suggested that "the negotiat- ing of an agreement over a long distance phone could get rather expensive'' and that Clem should get in touch with Attorney Thelen "who was his representative for purposes of collective bargaining in the area." Petitioner filed its petition, and the Employer executed its: contract with the Intervenor, on January 11, 1957. These facts establish that the Employer did not question Petitioner's claim to majority status, and led Petitioner reasonably to believe that it had been recognized without a Board determination. Petitioner's failure to file its petition within 10 days after its initial bargaining demand cannot, therefore, be attributed to a desire to delay valid collective bargaining to strengthen its position. It is well `settled that under such extenuating circumstances the 10-day limitation 2 The United Steelworkers of America, AFL-CIO, intervened in the proceeding on the basis= of a contract with the Employer. 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.' 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.] 8 Arrow Candy Co., Inc., 100 NLRB 573, 574-575 ; Lock Joint Pipe Company, 106 NLRB 355, 356-357 ; Chicago Bridge S 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 em- 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.' 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- 3 Case No . 10-1tC-3405, not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 89.