The Seymour Manufacturing Co.

THE SEYMOUR MANUFACTURING COMPANY 33. boilerhouse operators serving as part-time guards, guards, profes- sional employees, and supervisors as defined in the Act, constitute a. unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER RoDGERS took no part in the consideration of the above Decision and Direction of Election. The Seymour Manufacturing Company and International Union,. United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-AFL-CIO), Petitioner. Case No. I -RC-4847. June 6,1957 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 Joseph Lepie, hearing officer.. The hearing officer's rulings made at the hearing are free from prej- udicial 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 [Chairman Leedom and Members Murdock and Bean]. 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 organization involved claims to represent certain em- ployees of the Employer. 3. The Employer moved to dismiss the petition on the ground that the Petitioner agreed to "bar" itself from representing the employees here sought under a contract due to expire on November 15, 1958, In 1945 the Petitioner was designated as collective-bargaining repre- sentative for the Employer's production and maintenance employees, excluding employees in the laboratory department. On November 15, 1955, . the parties executed a 3-year agreement including all hourly rated production and maintenance employees, but excluding, inter .alia, laboratory department employees. The Employer contends that. the Petitioner's agreement to exclude laboratory department employees from the contractual unit constituted a waiver of its right to represent these employees for the term of the existing contract. In Briggs Indiana Corporation,' the Board established a policy of refusing to direct an election at the insistence of a petitioner who had contractually waived the right to represent the employees sought. 163 NLRB 1.270. 118 NLRB No. 1. 450553-58-vol. 118-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Board has also ruled that, in order for a waiver to be effective, the parties must have agreed not only to exclude- the em- ployees in question, but the contract must contain a promise, either express or implied, that the petitioning labor organization would refrain from seeking to represent the excluded employees.2 We have carefully reviewed the contract between the parties herein and find no express or implied promise on the part of the Petitioner to relinquish its right to represent the laboratory department em- ployees during its term. We therefore find that a question concerning the representation of employees of the Employer exists within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. Accordingly, the Employer's motion to dismiss the petition is denied. 4. The Petitioner seeks to add to the production and maintenance unit, which it currently represents, the employees in the laboratory department. The Employer opposes the Petitioner's unit request. There are 12 laboratory department employees whose job classifica- tions include physical testers, spectographic analysts, and chemical analysts. The duties of these employees involve the performance of physical tests and chemical analyses to determine the physical proper- ties and composition of the nonferrous materials which come off the Employer's production line.' These employees, who are supervised by a chief metallurgist and work in a separate department, receive the same vacation, holiday, and insurance benefits as do the production and maintenance employees, are subject to the same working condi- tions, and receive approximately the same comparative rates of pay. In view of the foregoing, and the entire record in this proceeding, we find that the interests of the laboratory department employees are substantially the same as those of the production and maintenance employees 4 Accordingly, we shall direct an election among employees in the following voting group : All laboratory department employees at the Employer's plant in Seymour, Connecticut, excluding all. other em- ployees, executives, guards, foremen, subforemen, and all other super- visors as defined in the Act. If a majority of the employees in the voting group vote for the Petitioner, they will be taken to have indicated their desire to be included in the existing production and maintenance unit at the Employer's Seymour, Connecticut, plant currently represented by the Petitioner, and the Regional Director conducting the election is instructed to issue a certification of the results of election to that effect. [Text of Direction of Election omitted from publication.] 2 The F. C. Russell Company, 114 NLRB 38. 3 There is no contention that these individuals are either professional or technical employees, and the evidence is insufficient to warrant the conclusion that they are. 4 See Arnold Hoffman 4 Co., Incorporated , 95 NLRB 907, 909-910.