The Cessna Aircraft Co.

THE CESSNA AIRCRAFT COMPANY 855 We still have one other allegation in the complaint to dispose of and that is that Fritz Whitmer, steward for Local 513, on or about September 15, 1957, threatened to inflict bodily injury to certain of the employees of Harrison and Snodgrass in furtherance of the Respondent Union's illegal conduct.9 The only testimony in the record that could possibly apply to this allegation in the complaint is Eichel- berger's testimony to the effect that Whitmer told him that Davis told him that "if you wasn't satisfied with the whipping that he'd come back and give you an- other." Whitmer's version of the conversation was that Eichelberger started the conversation and told him that he had a permit to carry a gun and that "if he had to he was going to use it." To which he replied, "Well, now I will tell you, Charlie, if you don't like the way the boy did it [meaning Davis] I believe he'd be glad to come back and do it over." Whitmer's testimony stands uncontradicted and un- denied in the record. Eichelberger was present in the hearing room at the time Whitmer testified but was not called to rebut this important testimony. Whitmer impressed the Trial Examiner as an honest witness. On the other hand, Eichelberger impressed the Trial Examiner as loquacious and inclined to exaggerate at times, and a bit impressed with his own self-importance, as evidenced by his conduct at the time the fight started. In the circumstances the Trial Examiner is inclined to and does credit Whitmer's version of the above incident. As the Trial Examiner sees it, the shoe is on the other foot, so to speak, insofar as the allegation in the complaint as to the activities of Whitmer. In the circumstances the Trial Examiner will recommend below that this allegation in the complaint be likewise dismissed. The complaint also alleges that one Charlie Estes engaged in certain illegal con- duct as an agent of the Respondent Union. The only reference in the record as to Estes is found in the testimony of Snodgrass. He testified that Estes threatened to "teach" him some of the union rules. Though the Trial Examiner credits Snodgrass' testimony in this regard, he is unable to find any substantial evidence in the record that Estes was ever designated an agent of the Respondent Union. Nor is there any evidence in the record that Estes at times material herein held any office in the Union. In the circumstances the Trial Examiner will recommend that the allegation in the complaint as to his misconduct on behalf of the Respondent Union be also dismissed in its entirety. Conclusions After long and careful consideration of the entire record, the General Counsel's brief, and the above findings, the Trial Examiner concludes that the Respondent Union did not violate Section 8(b) (1) (A) and (2) of the Act as alleged in the complaint. [Recommendations omitted from publication.] 9 See supra. The Cessna Aircraft Company and International Association of Machinists, District Lodge No. 70, AFL-CIO, Petitioner. Case No. 17-RC-2782. April 22, 1959 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 William J. Cassidy, 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 organization involved claims to represent employees of the Employer. 123 NLRB No. 103. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The question concerning representation : The Employer contends that its existing contract with the Peti- tioner is a bar to the present petition because the Petitioner, by con- tract, had agreed not to represent (employees of the inspection department (the employees sought in its present petition) during the term of the current agreement. The Petitioner contends that the current agreement provides only that these employees will not neces- sarily be automatically included but that it had not at any time bar- gained away its right to represent them. On October 21, 1957, the parties executed a collective-bargaining agreement effective November 15, 1957, to remain in effect through November 14, 1959, with a provision for opening for wage negotia- tions 60 days prior to the first annual anniversary date. The unit described in the contract consists of "all employees engaged in produc- tion, maintenance work and parts room at the Hutchinson, Kansas, plant of the Employer, including working supervisors, but excluding the following classifications: nonworking suprvisors, engineers in any department, office workers, watchmen, guards and janitors." Im- mediately after this unit description appears the following provision : It is understood and agreed that messenger boys, timekeepers, employees of the inspection department, and inen engaged in looking after warehouses and storerooms are part of the account- ing or administration personnel and as such are classified as office workers. [Emphasis supplied.] In support of its contention that the Petitioner, by virtue of the quoted provision, has in fact agreed not to seek to represent the employees of the inspection department during the term of the current agreement, the Employer relies on the Briggs Indiana doctrine 1 that where a collective-bargaining agreement contains a provision by which the union obligates itself to refrain from seeking to represent certain employees, the Board will not during the life of that agreement entertain a. petition for representation of such employees by that union. However, as this doctrine is, in a sense, a limitation upon the rights of employees to select representatives of their own choosing, its applica- tion has in the past been limited to such situations where it is clear that the union obligated itself not to represent them during the contract term, and thus a mere exclusionary clause, without more, has not been deemed sufficient to invoke the Briggs Indiana rule.2 An analysis of the language of the pertinent provisions of the contract in the instant case leads us to the conclusion that while the employees of the inspec- 'Briggs Indiana Corporation, 63 NLRB 1270. 2 See, for example, Chase Brass <G Copper Co., Incorporated, 102 NLRB 62 ; Standard Oil Company, 107 NLRB 1524. THE CESSNA AIRCRAFT COMPANY 857 tion department were excluded from the unit embraced by the contract, such exclusion did not have the effect of creating an obligation on the part of the Union not to seek their representation during the life of the contract, and the Briggs Indiana rule is therefore inapplicable here. Nor do we find merit in the Employer's further contention based upon the language in the contract that these employees, among others, "are part of the accounting or administration personnel and as such are classified as office workers," as we find, infra, on the basis of the record that the employees of the inspection department are neither office employees nor have interests in common with them. As is well known, the Board has during the past year reevaluated its contract-bar policies and restated those policies in a. series of lead cases. As the instant case involves an aspect of contract bar which the lead cases did not embrace, it is deemed appropriate at this time to restate the rule with respect to agreements not to represent certain employees which has become known as the Briggs Indiana doctrine. A union which agrees by contract not to represent certain categories of employees during the term of a collective-bargaining agreement may not during that period seek their representation. However, this rule will be applied only where the contract itself contains an express promise on the part of the union to refrain from seeking representa- tion of the employees in question or to refrain from accepting them into membership ; such i promise will not be implied from a mere unit exclusion, nor will. the rule be applied on the basis of an alleged understanding of the parties during contract negotiations. Where an international union is a party to a contract containing a provision within the meaning of this rule, the rule will be applied to any locals of the international as well as to the international itself, and where a local is a party to such a contract, this rule applies to any other local of the same international. union. The rule is inapplicable to a con- tract by a certified union which contains a provision not to represent certain of the employees in the certified unit.' 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. 4. The appropriate unit: As already indicated, the Petitioner seeks a unit of all employees in the inspection department. The Employer contends that the inspec- tors are supervisors or, in any event, that their interests are aligned with management and therefore should not be included in a produc- tion and maintenance unit. However, the record shows that the re- sponsibilities, duties, and functions of the inspectors in this case are 'All cases inconsistent with this statement of the rule are hereby overruled. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not unlike those of plant inspectors generally. The Board has con- sistently found inspectors such as these nonsupervisory in character and has generally included them in production and maintenance units 4 Nor do we find such alignment or close ties with management that would require us to reach a different result here. We find that the inspectors are employees and not supervisors within the meaning of the Act. Although the Employer, in support of its contract-bar contention, referred to the language in the contract clause which de- scribed the exclusions from the unit as characterizing the inspectors as "part of the accounting or administrative personnel and as such are classified as office workers," the Employer does not contend either in the record or in its brief that they are in fact office employees; more- over, there is nothing in the record that would support such a finding. Although the position of the Petitioner is not clear from the record or in its brief whether it seeks to add these employees to its existing pro- duction and maintenance unit or to bargain for them separately in the event it is successful in a Board-directed election, as the employees in the inspection department have interests in common with the pro- duction and maintenance employees, Board precedent would require that a self-determination election be directed affording the employees an opportunity to indicate whether or not they desire to be included in the existing unit.' We shall direct an election among employees in the following vot- ing group : All employees in the inspection department employed by the Employer at its Hutchinson, Kansas, plant, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined by the Act.6 If a majority of the employees in the voting group vote for the Peti- tioner, they will be taken to have indicated their desire to be included in the existing production and maintenance unit at the Employer's Hutchinson, Kansas, plant, currently represented by ' the Petitioner, and the Regional Director conducting the election is instructed to issue a certification of results to that effect. [Text of Direction of Election omitted from publication.] MEMBER FANNING took no part in the consideration of the above Decision and Direction of Election. 4 F. C. Russell Company, 114 NLRB 38. We are not convinced by the Employer's attempt to distinguish the inspectors in this case from those in Russell. Whatever dif- ferences exist do not in any event warrant a finding that the inspectors are supervisors. 5ldem. 8 The parties did not agree with respect to whether Lundry, a lead inspector on the. second shift, was a supervisor . As the record is inconclusive with respect to him, we will permit him to vote, subject to challenge.