Magnode Products, Inc.

596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD change in the seasonal pattern of the Employer's business and indicat- ing that peak periods now occur monthly rather than semiannually. In the circumstances it appears that an immediate election may be appropriate. Accordingly, we incorporate in this Supplemental De- cision an order directed to the parties to show cause why an election should not be held within 40 days of this Supplemental Decision- allowing 10 days for response to the show cause order-on a date of peak employment as determined by the Regional Director. [The Board amended the Direction of Election previously issued in this case to include on the ballot the International Mailers Union, and to delete from the ballot the Independent Mailers' and Addressers' Union, which was disestablished subsequent to the said Direction of Election.] [The Board ordered that the parties herein shall show cause why an immediate election should not be held and the Decision previously issued herein amended to find that the peak seasons occur monthly rather than in April and October. If no cause be shown within the said period, the Board's Decision shall be so amended.] CHAIRMAN LEEDOM and MEMBER BEAN took no part in the considera- tion of the above Supplemental Decision on Motions, Order Amend- ing Decision and Direction of Election, and Order To Show Cause. Magnode Products, Inc. and District 13, Lodge No. 1850, Inter- national Association of Machinists, AFL-CIO, Petitioner. Case No. 9-RC-3585. August 19, 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 John H. Arbuckle, 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 [Chairman Leedom and Members 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 organization involved claims to represent certain em- ployees of the Employer. IF or reasons set forth below, the Employer 's motion to dismiss the petition is denied. Its request for oral argument is also denied , because in our opinion the record and the Employer's brief adequately set forth the issues and the positions of the parties. 124 NLRB No. 78. MAGNODE PRODUCTS, INC. 597 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act' 4. The parties generally agree, and we find, that a unit of the Employer's production and maintenance employees is appropriate. They fail to agree as to the unit placement of shift leaders and the leadman. The Employer, with approximately 80 production and maintenance employees, is engaged at its Trenton, Ohio, plant in the manufacture of aluminum and magnesium extrusions and of magnesium anodes. All employees work under the overall supervision of the plant super- intendent and company officers. The three shift leaders work in the extrusion operation. The Em- ployer conducts this operation on a three-shift basis, and each of the three shift leaders is in charge of one of the shifts. They direct em- ployees in their work and have authority to transfer them from one job to another. The leadman works in the anode operation. There is no other supervisor in this operation, except one of the company officers. The leadman directs employees in their work, assigns work to them, and transfers them from one job to another. In these cir- cumstances, and particularly because it appears that shift leaders are the only persons who direct the employees on their respective shifts in the extrusion operation and that, apart from the company officer, the leadman is the only person who directs the employees in the anode operation, we find that the shift leaders and the leadman responsibly direct employees in a manner involving the exercise of independent judgment, and are therefore supervisors. Accordingly, we exclude them from the unit.' Upon the entire record in this case, we find that the following em- ployees of the Employer constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's ex- trusion and anode plant at Trenton, Ohio, excluding all employees in the main office, all salaried employees not directly connected with pro- duction and maintenance, office clerical employees, part-time janitors, tool designers, co-op students, part-time employees not regularly scheduled, professional employees, guards, shift leaders in the extru- 2 On November 21, 1956, the Employer and Magnode Employees' Independent Union, hereinafter called the Independent , entered into a contract , covering employees sought herein , effective from September 23, 1956, to September 22, 1959 , and thereafter, in the absence of notice of a desire to negotiate a new contract. The instant petition was filed in February 1959. It is not clear whether this contract is urged as a bar. In any event, as the contract has been in effect for more than 2 years , we find that it is not a bar. Pacific Coast Association of Pulp and Paper Manufacturers , 121 NLRB 990. $ Massachusetts Mohair Plush Company, 115 NLRB 1516 at 1523 and 1524. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion operation, the leadman in the anode operation, and all other supervisors as defined in the Act. 5. The Employer contends that no election should be directed be- cause (1) the Independent was not properly served with notice of the instant hearing, and (2) the officers of the Independent, without authorization of its members, are seeking to oust the Independent as the representative of the employees. The record shows that in Janu- ary or February 1959, at a meeting of about 40 of the 65 to 70 mem- bers of the Independent, a majority voted to obtain representation by another union 4 On or about March 23, 1959, in response to an in- quiry from the Board as to whether the Independent claimed to rep- resent any employees in the unit, the officers of the Independent advised the Board that they had "no desire to represent any part of the present Independent Union and that it will not be considered a bar in negotiating for an outside union." The president of the Inde- pendent appeared at the hearing but failed to intervene. He stated, in effect, that the Independent did not wish to participate in the elec- tion, and that, if the Petitioner won the election, the Independent would dissolve, but that otherwise the Independent would continue to administer the existing contract. On these facts, we find as to the question of the validity of service of the notice of hearing on the Independent through its officers, that the letter of March 23 does not, as the Employer contends, invalidate such service. In the light of its context and the other circumstances cited above, we construe such letter, though inartistically phrased, as not disavowing any desire on the part of the officers to act for the members of the Independent, but as merely disclaiming any desire on the part of the Independent to act as the representative of the em- ployees in the unit. Accordingly, for this reason, apart from any other consideration, we reject the Employer's contention that service on the Independent through its officers was not binding upon the Independent. As to the Employer's contention that the activities of the Independent's officers on behalf of the Petitioner preclude the holding of a free election, we find that such activities, including the decision not to intervene herein or appear on the ballot, were con- sistent with the wishes of the members of the Independent as ex- pressed at the meeting described above.5 Accordingly, we find no merit in any of the Employer's foregoing contentions. [Text of Direction of Election omitted from publication.] 4 We note that, in support of its petition , the Petitioner submitted authorization cards signed by 40 employees , representing a majority of the employees in the unit. 5 The Employer contends that the action taken at such meeting was not in accord with the Independent 's constitution and bylaws . However, it is not the policy of the Board to inquire, under such circumstances , into the conformity of a union's action with its internal regulations . See Benjamin Air Rifle Company, 107 NLRB 104.