General Engineering, Inc.

.586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Engineering, Inc., and Harvey Aluminum 1 and Alumi- num Workers Council of The Dalles, Oregon, Petitioner. Case No. 36-RC-1376. April 2, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed a hearing was held before a hearing Officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection With this case to a three-member panel [Members Rodgers, Jenkins, :and Fanning]. Upon the entire record in this case, the Board finds : 1. General Engineering, Inc., herein called General, and Harvey Aluminum, herein called Harvey, contend that they are separate 3 The name of Harvey Aluminum appears as corrected at the hearing. 2 The Employer moves for a dismissal on the ground that it was denied a fair hearing because ( 1) the hearing officer disqualified himself by asking a question with respect to General Ore , Inc., a corporation allegedly involved in this proceeding ; ( 2) a Board agent, 3 weeks after the hearing, expressed an opinion adverse to the Employer in regard to one -of the issues herein ; and ( 3) there is a conspiracy between Board agents and the Petitioner . We have carefully examined the record made herein , and find that : ( 1) The :hearing officer withdrew his question regarding General Ore, Inc. ; (2 ) his rulings and questions at the hearing reflect neither bias nor hostility ; ( 3) the Employer was afforded full opportunity to present all relevant data bearing upon the issues herein; and ( 4) there is no evidence of a conspiracy between the Petitioner and any Board agent. The motion to dismiss is hereby denied. The Employer's motion for a new hearing on the ground that the hearing officer disqualified himself is also denied. We find no merit in the Employer's contention that the Board should determine the authenticity of the Petitioner's showing of interest by verifying the authorization cards submitted . Showing of interest is an administrative matter not litigable by the parties. Fox Manufacturing Company, 112 NLRB 977. The Board has administratively deter- mined that the Petitioner is in compliance. The Employer also objected to the introduction in evidence of, and requests that the Board return to the Employer , certain documents ( one of which describes an industrial process ) on the grounds that the documents were purloined from the Employer and that they are of a confidential nature. Allegedly purloined documents are admissible , unless an agent of the Government has been 'a party to their unlawful seizure, and no absolute privilege for trade secrets is recognized . Air Line Pilots Association, 97 NLRB 929; 8 Wigmore on Evidence ( 3d ed . 1940), p. 158. As there is no evidence that a Government agent was involved in the alleged theft, and as there was no clear showing that the exhibits should be treated as privileged communications , the objections are overruled. Furthermore , upon a showing of good cause why these documents should be kept con- fidential , the Board will order that they shall not be available for public inspection or examination . Board's Rules and Regulations , Section 102 .94. As the exhibits have become matters of official record, the request that they be returned is denied . In the event that the Employer needs information contained in the documents , the Board 's Rules and Regulations provide for a procedure whereby copies may be secured. The hearing officer referred to the Board the Employer's objections to the introduction of several other exhibits . Such rulings are within the discretion of the hearing officer. See Father & Son Shoe Stores, Inc., 117 NLRB 1479; Rules and Regulations , Section 102.65 ( a). However, as the exhibits in question have been transferred 'to the Board, we shall treat his ruling as one to admit the evidence . As representation proceedings are not governed by technical rules of evidence , and as the documents have some bearing on the issues herein and were adequately identified , we find that no prejudicial error was com- mitted by the hearing officer. See Jerome E. Mundy Co., Inc., 116 NLRB 1487. 123 NLRB No. 85. GENERAL ENGINEERING, INC., AND HARVEY ALUMINUM 587 entities whose sole relationship is that of building contractor and cus- tomer. General has its own certificate of incorporation, Oregon electrical contractors license, nominal stockholders, officers and di- rectors, general manager and supervisors; it carries its own work- men's compensation and unemployment insurance, pays Federal withholding taxes, and plans to perform construction services for a customer other than Harvey. General was organized by three attorneys, at the request of Law- rence Harvey, executive vice president of Harvey. The day after its certificate of incorporation was filed, it commenced work for Harvey under a contract, called the "purchase order," negotiated by the same Lawrence Harvey. The attorneys who formed General are its sole stockholders, officers, and directors. One of these attor- neys testified that he is under a moral obligation to dispose of his stock in General pursuant to directions from "the Harvey interests." Harvey engineers and family members oversee the work done by General ;3 Harvey employees review General's "accounting . . . :[and its] purchasing functions"; Harvey "reviewed" the initial wage rates paid by General ; General's general manager and personnel manager were recommended for their jobs by Lawrence Harvey; and the personnel manager is an ex-Harvey employee who still performs services for Harvey. The safety rules, rules of conduct, a shift schedule, and certain work instructions used at the plant appear on stationery bearing the name "Harvey Aluminum, Inc." Harvey owns the plant and the bulk of the equiment, cosigns payroll checks, reimburses General for its costs, including labor costs, and has been General's sole source of income. The "purchase order" is terminable at will. When called upon to produce the contracts between itself and Harvey, General stated that it would object to the admission of these. documents. In view of the described interrelationship between the two corpora- tions, we find that General is not an independent contractor and that the two corporations constitute a single employer within the meaning of Section 2(2) of the Act.4 The record in a recent repre- sentation hearing which involved Harvey,5 of which we shall take official notice,6 reveals that during the year preceding June 1955, Harvey shipped goods valued in excess of $50,000 to customers 3 The general manager testified that he takes " recommendations and orders " from cer- tain Harvey personnel employed at the plant and members of the Harvey family. The Harvey employees at the plant include, among others, individuals whose titles are "plant superintendent," "chief electrical engineer," and "chief chemist." • See Aabel Corporation, 111 NLRB 180. The Employer contends that Harvey has no employees in the unit sought and is therefore not a proper party herein, and it moves to strike Harvey from the petition . In view of our finding that the two corporations con- stitute a single employer, the motion is denied. 5 Harvey Aluminum, 114 NLRB 935. e Aabel Corporation, 111 NLRB at 180-181. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD located outside the State of California. Accordingly, we find that the Employer is engaged in commerce and that it will effectuate the policies of the Act to assert jurisdiction. 2. The labor organizations involved claim to represent certain employees of the Employer.? The Employer moves to dismiss the petition on the grounds that (1) the Petitioner is not a labor organization as defined in the Act and (2) it improperly utilized the designation "AFL-CIO" in its name. The Petitioner comprises nine local unions, including Local 883 of the Teamsters, and an international union. As to (1), the record shows and we find that the Petitioner exists for the purpose of dealing with employers concerning wages, hours, and conditions of work, and is therefore a labor organization for the purposes of the Act." As to (2), we do not find that any prejudice has resulted to warrant dismissal of the petition.' Accordingly, the motion is denied. However, as the Teamsters have been expelled from the AFL-CIO, and as one of the Petitioner's constituent unions is a Teamsters local, and in order to eliminate any possibility of con- fusion, Petitioner's name shall appear on the ballot and in any cer- tification which it may obtain herein without the characterization "AFL-CIO.710 3. General moves to dismiss the petition on the grounds that (1) the . Employer has filed unfair labor practice charges against the Petitioner, (2) certain individuals, allegedly in behalf of the Peti- tioner, have filed unfair labor practice charges against the Employer which the Petitioner has not waived, (3) the Petitioner's constituent unions have been discriminatorily expelling employees from mem- bership, and (4) the Employer has secured injunctions against some or all of the Petitioner's constituent unions. With respect to (1), as the charges were dismissed by the Regional Director on November 26, 1958, and January 15, 1959, the petition may be processed." As there is no evidence that the individuals who filed charges acted as agents of the Petitioner, we find no merit in (2).12 Contention (3) has reference to the internal affairs of a labor organization, which are not within the purview of the Board.13 As the Board is not a party to the civil suits referred to in contention (4), they are no obstacle to this proceeding. Accordingly, this motion is denied. 7 The United Steelworkers of America, AFL-CIO, intervened on the basis of a showing of interest. 8 See Anheuser-Busch, Inc., 102 NLRB 800, 801-802. 51d. at 802. 10 Id. 71 Langenberg Hat Company, 116 NLRB 198, 199. 'a See Fax Manufacturing Company, 112 NLRB 977. 13 Foundation Company, 120 NLRB 1453. GENERAL ENGINEERING, INC., AND HARVEY ALUMINUM 589 The Employer contends that the petition should be dismissed or the election postponed on the ground that an election at this time would be premature. It is argued that after General completes the plant, it will be turned over to Harvey, which may effect changes in the employee complement. The purchase order, as extended for 6 months by a supplementary agreement executed about a month be- fore the hearing, will expire June 30, 1959. Thus, the Employer maintains that the changeover will occur on or before that date. At present, General is installing machinery and constructing a building which will contain showers and lockers. The plant is presently producing some aluminum. General's general manager testified that when the operation is "making as much money as [it is] . . . spending . . .," General will turn the plant over to Harvey; that there are approximately 600 employees at the plant of whom 55 to 60 are supervisors or clerical employees and 15 to 20 percent is presently engaged in the direct production of aluminum; and that there are some employees in each of the four production and maintenance classifications, but that two or three job classifications, including an "engineering construction superintendent," will be added. The general manager estimated that the plant, when taken over by Harvey and in normal production, will need 400 to 450 employees. There is testimony that General is conducting a train- ing program wherein it is training "people who would be conducive to production work." We have already found that Harvey and General constitute a single employer for purposes of jurisdiction. In light of this finding, and the further facts that Harvey and Gen- eral regularly collaborate with respect to the work at the plant, that employees there are currently being trained for future operations, and that if and when Harvey takes over the plant, there would be a labor surplus, we find it speculative that Harvey will replace to any material extent the present work force, exclusive of the clericals and supervisors. We find that the unit employees presently at the plant are entitled to representation if a majority of them select a bargaining agent,14 and, in any event, that these employees con- stitute a substantial and representative segment of the projected work force. Accordingly, we deny the motion to dismiss, and see no reason to depart from our usual rule in directing an immediate election.15 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. 'A See E. I. du Pont de Nemours and Company (Dana Plant), 117 NLRB 1048, 1052-1053. 7e The American Brass Company, 120 NLRB 1276; Vickers, Incorporated, 117 NLRB 1767, 1768-1769. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. We find that the following employees of the Employer con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at The Dalles, Oregon, plant, excluding lab • technicians, office clerical employees, guards, professional employees, and supervisors as defined in the Act.- [Text of Direction of Election omitted from publication.] 1e In view of its contention that the petition is premature , the Employer took the posi- tion that no unit is appropriate . This position is rejected . No other objection to the composition of the unit was advanced. Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO and Chas. Weinstein Company, Inc. Case No. 1-CB-418. April 3, 1959 DECISION AND ORDER On October 31, 1958, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging 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. The Trial Exam- iner also found that the Respondent had not engaged in other unfair labor practices and recommended dismissal of the complaint with respect thereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 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 Intermediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addi- tions. The Trial Examiner found various incidents which occurred dur- ing the course of the Respondent's strike against the Employer con- sisting of assaults, threats, and the blocking of ingress and egress, responsibility for which he attributed to the Respondent, to have constituted activity violative of Section 8(b) (1) (A) of the Act. We adopt these findings. 123 NLRB No. 72.