Supreme Transformer Corp.

164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supreme Transformer Corporation 1 and Vera Crain, Mildred Mifflin, Ralph Headean, Petitioners and Lodge 1986, Inter- national Association of Machinists, AFL-CIO z Case No. 14-RD-144. July 17, 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 G. Haynes, hearing 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 Fanning]. 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 theEmployer.4 UMW and CIU were permitted to par- ticipate at the hearing on the basis of their showing of interest. IAM asserts that although UMW, served its motion to intervene upon the Regional Director on April 9, 1959, it was not served with this motion until after the close of the hearing. It further asserts that it has no knowledge as to whether CIU made any motion to intervene whatso- ever as the IAM was never served with a CIU motion, nor did it receive any ruling by the Regional Director on the motion. There. was no ruling by the hearing officer relating to intervention. In these circumstances, IAM has moved to bar the intervention of UMW and CIU on the ground of their failure to comply with Section 102.65 of the Board's Rules and Regulations, Series 7.' We do not believe that 1 The name of the Employer appears as corrected at the hearing. Hereinafter called TAM. a IAM's request for oral argument is denied as, in our opinion , the issues and positions of the parties are adequately presented in the record and the briefs. 4 IAM refused to stipulate that District 50, United Mine Workers of America, and Congress of Independent Unions, hereinafter called UMW and CIU, respectively, are labor organizations within the meaning of the Act. As there was no testimony in the record relating to the nature and purposes of either of these organizations , IAM moved to re- open the record to correct this omission . However, we have taken official notice of other Board proceedings wherein both the UMW and the CIU were found to be labor organizd tions within the meaning of the Act. See Concrete Joists & Products Co., Inc., 120 NLRB 1542, and J. C. Bonnot Construction Company, Case No. 14-RC-3553, unpublished. We therefore deny the motion. 5 This section provides in pertinent part : Motions; Interventions.-(a) All motions, including motions for intervention pur- suant to paragraph ( b) of this section , shall be in writing or, if made at the hear- ing, may be stated orally on the record and shall briefly state the order or relief sought and the grounds for such motion . An original and four copies of written motions shall be filed and a copy thereof immediately shall be served upon each of the other parties to the proceeding. Motions made prior to the hearing shall be filed with the regional director, and motions made during the hearing shall be filed with 124 NLRB No. 20. SUPREME TRANSFORMER CORPORATION 165 JAM was prejudiced by the failure of UMW and CIU to take the proper procedural steps to intervene, as JAM was put on notice by the petition and the notice of representation hearing, wherein both UMW and CIU are listed, that they had an interest in the proceed- ings. Furthermore, UMW and CIU both filed appearances at the hearing and participated fully without objection by JAM. Moreover, by failing to bring these procedural defects to the attention of the hearing officer at the proper time, JAM has no standing for its demand that the record now be reopened to correct an insubstantial oversight. We find that there was de facto intervention by UMW and CIU, and accordingly we deny IAM's motion to exclude them from the ballot. 3. JAM contends that the petition should be dismissed, asserting that (1) its offer to participate in a consent election was refused by the Petitioners, and (2) the Petitioners were fronting for UMW, a noncomplying union. At the hearing JAM offered to agree to a con- sent election if UMW and CIU were excluded from the election. The Petitioners' refusal to agree to this proposal is not grounds for dismissal of their petition, as the right of UMW and CIU to appear on the ballot in a decertification election is clear,' and could not, in any event, be conditioned upon the approval of any other parties. We likewise find no merit in the second contention. The record establishes that UMW did not provide the impetus for the instant petition, but rather that it was the Petitioners (two of whom are UMW members) who sought UMW assistance on the proper pro- cedure for decertification. At the Petitioners' request, a UMW official informed them of the showing of interest requirement and supplied them with a blank petition as well as a sample unit description. He also informed the Petitioners that UMW intended to have its name appear on the ballot if the Petitioners were successful in their en- deavor. Upon these facts, we find that there is no reason to believe that the Petitioners were acting on behalf of UMW.' We find that a question affecting commerce exists concerning the representation of certain employees of the Employer, within the mean- ing of Section 2 (6) and (7) of the Act. 4. IAM also contends that the petition should be dismissed as the unit sought does not conform to the unit description of the contract. The Employer and JAM have bargained collectively for the hearing officer. After the close of the hearing all motions shall be filed with the Board. . . . The regional director may rule upon all motions filed with him, causing a copy of said ruling to be served upon each of the parties, or he may refer the motion to the hearing officer : . . . . G Standard Oil Company of California, 113 NLRB 475 ; The Hertner Electric Company, 115 NLRB 820. 7 The Glidden Company, 121 NLRB 752. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a unit of "all production and maintenance employees of the Com- pany, including factory clerical workers," since 1950. The Peti- tioners' unit description is identical with that of the contract unit except for the omission of "factory clerical workers." The essen- tial difference between the unit positions is that the Petitioners contend that there are no employees within that classification, but IAM contends that Doris Jones, Cora Sue Knight, Henry Terry, and Joe Howell should be considered as factory clerical workers. Doris Jones now works in the general manager's office as his secretary. Al- though she was, at one time, a production worker, her present duties are no different from those of other office clericals. Cora Sue Knight works in a room a part from the production employees, assisting the laboratory technician. She has never been considered as a member of the bargaining unit. Both employees have little contact. with produc- tion employees. As it is clear that neither of these employees is a fac- tory clerical worker, and as their interests and duties differ from those of the other employees within the unit, we shall exclude them. Al- though the parties stipulated that Terry and Howell, classified as "packers" by the Employer, should be included in the unit, IAM con- tends that they should be classified as "factory clerical workers." The primary duties of these employees are to pack transformers for ship- ping, and then seal and label the shipping cartons. They also keep records of the number of transformers which are to be packed and shipped each day. The parties agree that Terry and Howell should be included on the basis of their duties as packers. We accept that stipulation without finding it necessary to decide whether they are factory clerical workers. Nevertheless, we shall include the classifica- tion of "factory clerical workers" so that the unit in which we are now directing an election will conform to the present contract unit. As it is clear that the Petitioners were not attempting to sever a smaller unit from the recognized unit, but were objecting only to the inclusion of certain employees within the unit, we deny IAM's motion to dis- miss.8 We therefore find that the following employees constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9 (b) of the Act: All production and maintenance em- ployees at the Employer's plant at Ordill, Illinois, including factory clerical workers, but excluding office clerical employees, technical and professional employees, guards, watchmen, and supervisors as defined by the Act. [Text of Direction of Election omitted from publication.] 8 afinneapolis Star and Tribune Company , 115 NLRB 1300.