Hussmann Refrigerator Co.

HUSSMANN REFRIGERATOR COMPANY 621 tives, temporary construction-site laborers and truckdrrvers, office clerical employees, professional employees, guards, the president, and all other supervisors as defined in the Act. [Text of Direction of Election omitted from publication ] Hussmann Refrigerator Company and Seafarers International Union of North America, Atlantic and Gulf District, AFL -CIO, M arine Allied Workers Division , Petitioner. Case No- 4-RC-3955 Decen ber 4, 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 Howard S Simonoff, hearing officer The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 1 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 Rodgers and Jenkins] 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 employees of the Employer 2 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 Petitioner seeks a unit of production and maintenance em- ployees, including inspectors, expediters, and factory clerks at the Employer's plant in Delaware Township, New Jersey The Sheet Metal Workers agrees with the Petitioner that inspectors, expediters,, and factory clerks should be included in the unit The IAM's position is not clear At the time of the hearing, there were no employees in these three job categories For this reason, the Steelworkers and the Employer urged the Board not to make a unit determination with respect to inspectors, expediters, and factory clerks However, the Steelworkers indicated that if the Board should order an election and 3 The hearing officer referred to the Board the E'mployer's motion to dismiss the petitiom on the ground that it was prematurely filed For the reasons stated hereinafter the- motion is denied 2 District $ 1, International Association of Machinists, Sheet Metal Workers Interna- tional Association, and United Steelworkers of America, API,-CIO, hereinafter referred, to as IAM, Sheet Metal Workeis, and Steelworkers, respectively, were permitted to inter- vene on the basis of separate showings of interest 125 NLRB No 73 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these classifications were filled at that time, it would ask for their inclusion in the unit. It now appears that there is at least one employee in each of these classifications.' It is established Board policy to determine the unit placement of employees who are at the time of the decision employed by the Employer.' Accordingly, we shall do so here. The Employer would exclude the inspectors, expediters, and factory clerks for two additional reasons. First, it asserts that at this and its other plants, these employees are in a different department and under different supervision than the production and maintenance employees. However, the record discloses that all of these employees work on the factory floor in tasks closely related to those of the production and maintenance employees. Thus, the expediter observes and alters the flow of production and carries out the schedules established by the production control department ; the inspector examines the quality of the product to see that it meets company standards ; and the factory clerks maintain production records and record the actual fabricating operations. It is Employer's policy to transfer production and main- tenance employees to the positions of expediter , inspector, and factory clerk when vacancies occur. All these employees have similar working hours and conditions of employment . Under all the circumstances, it is clear that there is a substantial community of interest between expediters, inspectors, factory clerks, and production and maintenance employees. Indeed the Board would normally include all three classi- fications of employees in a production and maintenance unit .5 While the Employer's administrative organization is always considered a sig- nificant factor in Board unit determinations , it is not by any means a conclusive one. Here, it is effectively counterbalanced by the presence of the other factors referred to above. Accordingly, we find the Employer's first contention lacking in merit. The Employer's second reason why these employees should be ex- cluded from the unit is that the inspectors and expediters are man- agerial or supervisory employees and that the factory clerks are confidential employees. The record shows that the inspectors' respon- sibility for the quality of the product is limited merely to reporting errors made by individual employees to the chief inspector. The expediters' functions are to determine what orders and quantities of supplies are required to keep production flowing. They do not partici- pate in establishing the production schedules . The Board has held that managerial employees are those who formulate , determine, and 8 The Board has been administratively advised that the Employer has in his employ : one inspector , one expediter , and one factory clerk. • Ryan Aeronautical Co., Torrance Division, 120 NLRB 1291. B Inspectors , Ryan Aeronautical Co., Electronics Division, 121 NLRB 1502 expediters and factory clerks, Waldorf Instrument Company, Division of F. C. Huyck Sons, 122 NLRB 803. HUSSMANN REFRIGERATOR COMPANY 623 effectuate the Employer's policies.' The record does not support a conclusion that either the inspectors or the expediters perform such functions. Hence, we cannot find that they are clothed with the status of managerial employees. The record does not indicate that the in-, spectors and expediters can discipline, reprimand, or fire or possess any other indicia of supervisory authority. Therefore, we find that they are not supervisors within the meaning of the Act. The Employer contends that the factory clerks are confidential employees because letters of reprimand may pass through their hands ,or are located in files to which they have access. The Board has con- sistently held that employees classified as confidential must "assist and :act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." 7 Per- forming such ministerial tasks as physically handling letters of reprimand or having access to files containing such letters does not establish the factory clerks as confidential employees.' In view of the foregoing, we find the Employer's second contention without merit. Accordingly we shall include the inspectors, expe- diters, and factory clerks in the unit. 5. The Employer and Sheet Metal Workers contend that the petition should be dismissed because of expanding operations. Peti- tioner and IAM oppose the motion to dismiss. The Steelworkers takes no position. The record shows that at the time of the hearing on August 12, 1959, there were 30 production and maintenance em- ployees and 12 of about 23 prospective job categories were filled. The schedule, with the inclusion of the disputed categories, was : on September 15, 1959, about 19 of about 23 eventual classifications were to be filled ; on October 1, 1959 there were to be 48 employees and only 2 unoccupied job categories; 9 on November 1, 1959, there were to be 70 employees and all job categories were to be filled; and on January 1960, there were to be 85 employees. The evidence indicates that the employment figures after January 1960 would be a mere guess. On the basis of the record, we find that the working force of production and maintenance employees when the election herein directed takes place will constitute a substantial and representative segment of em- ployees in the unit within the next 6-month period. We therefore see no reason for departing from our usual policy of directing an immediate election.10 9 Swift & Company, d/b/a New England Processing Unit, 124 NLRB 899. 71The B. F. Goodrich Company, 115 NLRB 722. Swift & Company, footnote 6. e These are metal finisher (A) and spray painter (A). Both positions will be filled by promoting men who will be working in the (B) categories of both jobs. io Kermac Nuclear Fuels Corp., 122 NLRB 1512 ; Ryan Aeronautical Co., Torrance Divi- sion, supra, footnote 4. There may be as many as 70 employees in all job classifications at the time the election herein is conducted. We are'administratively satisfied, however, that in this event the Petitioner would still have an adequate showing of interest. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find accordingly that the following employees constitute an appropriate unit for purposes of collective bargaining, within the meaning of Section 9(b) of the Act: 11 All production and maintenance employees at the Employer's Delaware Township, New Jersey, plant, including inspectors, expe- diters, and factory clerks, excluding all other employees, including office clerical employees, supervisors, and guards as defined in the Act. [Text of Direction of Election omitted from publication.] u The Board has been administratively advised that the Employer now has one Individ- ual in its employ who is classified as a general inspector. The Employer contends that he is a supervisor . The Board is unable to conclude from this record whether or not the general inspector is a supervisor . Since we cannot at this time determine his unit placement, we will permit him to vote subject to challenge. Continental Aviation and Engineering Corporation , Toledo Divi- sion and National Industrial Workers Union, National Inde- pendent Union Council. Case No. 8-CA-1842. December 7,1959 DECISION AND ORDER On August 5, 1959, Trial Examiner Phil Saunders issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in certain unfair labor practices as al- leged in the complaint and recommending that the complaint be dis- missed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the In- termediate Report and a supporting brief. 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 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 Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dation of the Trial Examiner, with the modification set forth below. We agree with the Trial Examiner that the record does not estab- lish the required preponderance of credible evidence that the Re- spondent promulgated and enforced a rule prohibiting solicitation by the Union on nonworking time, in violation of Section 8(a) (1) of the Act. In so doing, we do not agree with the Trial Examiner that in certain material respects the testimony of the employees vis-a-vis the foremen is not in conflict. However, the Trial Examiner credited the testimony of the foremen who testified that the employees were pro- d25 NLRB No. 75.