Edward Aaron Corp.

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives of management in large areas under their jurisdiction in which they engage, and inspect the work of independent contractors They direct the work both of relief assignments and of employees regularly assigned to them at stations to which employees are regu- larly assigned They also hire temporary employees when needed When labor gangs are operating at a station chief main line engineers are in charge of the gang foremen, who are conceded to be supervisors, and instruct them concerning the work to be performed Their monthly salary is comparable to that of gang foremen, they receive no overtime compensation, they determine their own working hours, and attend supervisors' meetings We find that chief maid line engi- neers are supervisors and we, accordingly, exclude them from the unit Area supervisor The Union disputes the supervisory status of one area supervisor stationed at New Iberia, Louisiana The record in- dicates this area supervisor assigns and directs the work of three dis- trict gaugers and usually of one mechanic first class He surveys and makes recommendations, which are invariably acted upon, with respect to the amount of work to be performed by district gaugers Through the gang foremen, he also directs the work of labor gangs assigned to his area He receives a monthly salary which is substantially higher than the compensation of employees under his direction, he receives no overtime compensation and he attends supervisors' meetings He grants or denies time off and receives and acts upon grievances We find that this area supervisor is a supervisor within the meaning of the Act and exclude him from the unit We find, in accordance with the foregoing, that the following employees 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 operating and maintenance employees of the Employer's Wichita Falls, Houston, and Lafayette divisions excluding office clerical, technical and professional employees, guards, mechanical maintenance foremen, electrical maintenance foremen, chief main line engineers, and all other supervisors as defined in the Act [Text of Direction of Election omitted from publication ] Edward Aaron Corporation and Amalgamated Meat Cutters & Butcher Workmen of North America, Food Handlers Local 425, AFL-CIO, Petitioner. Case No 17-RC-3034 December 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 J Cassidy, hearing - 125 NLRB No 92 EDWARD AARON CORPORATION 841 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 organizations involved claim to represent certain em- ployees of the Employer.' 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 (() of the Act. In September 1957, the Employer entered into a collective-bargain- ing contract with the Intervenor, effective from July 20, 1957, to July 20, 1960, dealing with wages, hours, and working conditions of the employees at the Employer's Fort Scott, Kansas, and Lamar, Missouri, plants. In contemplation of the closing of the Lamar plant, the parties included within the scope of this contract any plants which might thereafter be established by the Employer within the terri- torial jurisdictional limits of the Intervenor, which includes Noel., Missouri. On November 20, 1958, the Employer closed the Lamar plant. Thereafter, on June 6, 1959, the Noel, Missouri, plant, the location sought here by the Petitioner, was opened, and about 30 of the 75 to 80 employees who had formerly worked at the Lamar plant were employed at the Noel plant. The Noel plant now employs between 150 and 170 employees. The petition herein was filed on June 29, 1959. Since then the Employer closed the Fort Scott plant, and has offered the Fort Scott employees an opportunity to apply for em- ployment at Noel. As of the time of the hearing, none of the em- ployees from the Fort Scott plant had applied for employment at the Noel plant; however, the time for filing such applications had not then expired. The Employer and Intervenor contend that the Noel plant is no more than a relocation of the Lamar and Fort Scott plants, that the 1957 contract includes the employees at the Noel plant; and that the 1957 contract is therefore a bar to the present proceeding. The Peti- tioner contends that the contract is not a bar because it is one of 'International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, Local 823 , herein called Intervenor, intervened on the basis of a contractual interest. The Employer questioned the sufficiency of the Petitioner's showing of interest. The sufficiency of a Petitioner 's showing of interest is an administrative matter not subject to litigation ,. We are administratively satisfied that the Petitioner 's showing of interest is adequate. 0. D. Jennings J Company, 68 NLRB 516. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unreasonable duration, and because the Noel plant is an entirely new operation. In the General Extrusion case,' the Board held that a contract ex- ecuted before any employees had been hired was not a bar. The Board further held, in that case, that although a mere relocation of opera- tions accompanied by a transfer of a considerable proportion of the employees to another plant, without changes in the character of the jobs and the functions of the employees, does not remove the contract as a bar, the contract would be removed as a bar if, between its execu- tion and the filing of the petition, there had been a resumption of operations at a new location, after an indefinite period of closing, with new employees; the execution of an amendment or a new agree- ment, embracing the changed operation, after the change but before the filing of the petition, would, however, subject to the premature extension rules, reinstate the contract as a bar. Applying these rules to the facts in the instant case, it is clear that if, as the Petitioner contends, the Noel plant is a new operation, the contract is not a bar because it was executed before any employees were hired at that plant. On the other hand, if the Noel plant is a relocation of the Lamar plant,' as the Employer and Intervenor contend, we nevertheless find that the contract is not a bar because the Noel plant was opened only after the Lamar plant had been closed for more than 6 months; be- cause the 30 former Lamar employees who were employed at Noel do not constitute a considerable proportion of the employees, whether they be compared to the number formerly employed at Lamar or the number presently employed at Noel; and because there is evidence that an amendment or new agreement embracing the Noel plant was executed between the time that plant was opened and the filing of the petition.' As the contract is therefore not a bar, the fact the petition was filed during the 60-day period preceding the end of the second year of the contract term,5 does not require that it be dismissed.' 4. The parties are in substantial agreement as to the composition of the unit,' except that the Petitioner contends and the Employer and Intervenor deny that the department heads are supervisors.8 2 General Extrusion Company, Inc., at at., 121 NLRB 1165, 1167-1168. 8 As the dates of the execution of the contract and the filing of the petition are con- trolling under the applicable rules, the possible future transfer of Fort Scott employees to Noel is immaterial to the contract-bar issue. 4 Member Fanning concurs in the finding that the contract is not a bar but does not agree with all the reasons expressed in the opinion for reaching this result. H See Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990, 993 ; Benjamin Pranklin Paint & Varnish Co., a Division of United Wallpaper, Inc., 124 NLRB 54. 6 National Brassiere Products Corp ., 122 NLRB 965. 7 In view of the closing of the Fort Scott plant, it is unnecessary to consider the con- tention that the Fort Scott and Noel plants together constitute the appropriate unit. 8 Although the Employer would include truckdrivers in the unit, we shall make no find- ing concerning their unit placement , as the Employer does not presently employ truck- drivers and there is no evidence that it plans to employ them. CONE BROTHERS CONTRACTING COMPANY 843 The majority of the time the department heads work on the line, and are engaged in the same type of work as the other employees. They have no authority to hire, discharge, or discipline other em- ployees, nor to recommend such action. They are, however, responsi- ble for keeping production up to the level established by the plant manager, and when necessary, assisting the employees to bring their work tip to the required level. Although the superintendent schedules how many employees are required for a particular job, the depart- ment head selects the individual employees who will work in his department on the job. In view of the foregoing, and as, apart from these individuals, there are only 3 supervisors for 170 employees, a disproportionate number of supervisors to rank-and-file employees, we find that the depart- ment heads responsibly direct other employees in a manner requiring the exercise of independent judgment, and that they are therefore supervisors as defined in the Act. Accordingly, we shall exclude them from the unit.' The following employees of the Employer constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act; All production and maintenance employees at the Employer's Noel, Missouri, plant, excluding all office clerical employees, guards, watchmen, department heads, and all other super- visors as defined in the Act. 5. The Employer asserts that its operations are in the process of a substantial expansion, and that there is not a substantial and repre- sentative group of employees presently employed; it argues, there- fore, that a present election would be premature. At the time of the hearing the Noel plant was operating with between 150 and 170 em- ployees, and the Employer's plans call for 225 employees at some undetermined time in the future. We find that the employees em- ployed at the time of the hearing constitute a substantial and repre- sentative segment of the complement to be employed in the future.10 Accordingly, we find that an election at this time would not be premature. [Text of Direction of Election omitted from publication.] 1Wonderknit Corporation, 123 NLRB 53. 10 Brown and Root Caribe, Inc., 119 NLRB 815, 816. Cone Brothers Contracting Company and Gerald W. Exum. Case No. 12-CA-832. December 18, 1959 DECISION AND ORDER On July 23, 1959, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that 125 NLRB No. 97.