Jay Kay Metal Specialties Corp.

JAY KAY METAL SPECIALTIES CORPORATION 31 priate for purposes of collective bargaining within Section 9(b) of the Act: All net repairmen excluding all other employees, office cler- ical employees, professional employees, guards, and all supervisors as defined in the Act. As we find that no question concerning commerce exists in Cases Nos. 20-RC-4060, 20-RC-4062, and 20-RC-4063, within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act, we shall dismiss the petitions in those cases. We shall also dismiss the peti- tion in Case No. 20-RC-4061 insofar as it seeks to represent fishermen. [The Board dismissed the petitions in Cases Nos. 20-RC-4060, 20-RC-4062, and 20-RC-4063 and dismissed Case No. 20-RC-4061 insofar as the petition requests representation for fishermen.] Jay Kay Metal Specialties Corporation and Seafarers Inter- national Union of North America, Atlantic and Gulf District, Marine Allied Workers Division, AFL-CIO and Local 16, Metal and Miscellaneous, District 65, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioners. Cases Nos. 2-RC-10362 and 2-RC-10367. September 12, 1960 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held before William G. Haemmel, 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 Rodgers 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 Petitioner in Case No. 2-RC-10362, referred to herein as SIU; the Petitioner in Case No. 2-RC-10367, referred to herein as District 65; and the Intervenor, Amalgamated Local Union 355, In- dependent, referred to herein as Local 355, which intervened on the basis of a contractual interest, are labor organizations which claim to represent certain employees of the Employer. 3. The Employer and Local 355 contend that their existing agree- ment is a bar to both petitions. The Employer has recognized and bargained with Local 355 as the exclusive representative for a unit of production, maintenance, and shipping employees since 1954, and 129 NLRB No. 7. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has bargained with Local 355 as the certified representative of a unit of office clerical employees since 1956. Their current agreement, which covers both units, was executed on June 4, 1958, for a term effective from February 1, 1958, through January 31, 1961. The petitions of SIU and District 65 were filed on November 6 and 9, 1959, re- spectively. As each petition was filed more than 60 and less than 150 days before the end of the second year from the effective date of the contract, we find that they were timely filed, and that the contract is not a bar.' In view of our disposition herein, we find it unnecessary to pass on the other grounds urged by the Petitioners for finding the contract not to be a bar. Accordingly, we find that a question affect- ing commerce exists concerning the representation of employees of the Employer within the meaning of Sections 9 (c) (1) and 2 (6) and (7) of the Act. 4. The Employer is engaged in the manufacture and assembly of various types of electrical appliances and fabricated metal products. It is one of nine active subsidiaries of Roto Broil Corporation of America and is operated as the principal manufacturing arm of the corporate family. The other active corporations are engaged in de- livery and sale of the products manufactured by the Employer or in property management and ownership. The principal place of busi- ness of the corporate family is in two buildings located at 3300 and 3408 Northern Blvd., Long Island City, New York. Other minor production facilities and a retail store are also located in the New York metropolitan area. The Employer is signatory to the existing contract with Local 355 on behalf of the subsidiary and affiliated cor- porations and divisions of the parent company. As noted above, the Employer recognized Local 355 in 1954 as the exclusive representative for a unit comprising, in effect, all produc- tion and maintenance employees of the corporate family, and in 1956, following a Board consent election, it recognized Local 355 as the certified representative of the office clerical employees. The Employer, or its affiliates, have also bargained with the International Brother- hood of Electrical Workers and the Operating Engineers for em- ployees who are not involved herein. District 65, the Petitioner in Case No. 2-RC-10367, has bargained with one or two of the affiliates for a unit which was at one time much larger but which now consists of eight employees, five of whom are truckdrivers. The other three are a receiving clerk, the office manager, and a salesman at the Em- ployer's affiliated retail outlet. 1 Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990 ; Benja- min Franklin Paint & Varnish Co., etc., 124 NLRB 54. We find without merit the con- tention of the contracting parties that the Board should not apply its policy of holding that a contract for more than 2 years is one of unreasonable duration where such a contract was entered into prior to the announcement of our new contract-bar rules in September 1958. See Boyd Leedom v. International Brotherhood of Electrical Workers, Local Union No. 108 (General Cable Corp. ), 278 F. 2d 237 (C.A.D.C ). JAY KAY METAL SPECIALTIES CORPORATION 33 The SIU unit: In its petition, SIU sought a unit of all produc- tion and maintenance, shipping, and other manual employees of the Employer covered by the agreement with Local 355, excluding office clericals and employees represented by labor organizations other than Local 355. At the hearing and in its brief, SIU stated that it would be willing to represent the office clerical employees separately, or as part of the production and maintenance unit, if the Board found that such a combined unit was alone appropriate. SIU does not seek to represent either the employees whom District 65 now bargains for or the employees whom District 65 seeks in its own petition filed herein, unless the Board should find such unit inappropriate. The Employer and Local 355 contend that their present contractual unit which includes the office clerical employees is appropriate, and that the proposed unit of District 65 is inappropriate. The Employer, furthermore, would also have the Board find that the employees in District 65's existing unit should now be included in the overall pro- duction and maintenance unit. SIU presented no witnesses in support of its unit request, relying on the presumptive appropriateness of a production and maintenance unit and the fact that the bargaining history between the Employer and Local 355 supported its position. The Employer moved to dis- miss the SIU's petition on the ground that there was then no basis for the Board's finding that such a unit was appropriate. Thereafter, in the remainder of the hearing, testimony of the Employer's own witnesses amply supported the validity of the SIU-unit contentions. We deny the Employer's motion to dismiss. Representation matters are nonadversary and investigative proceedings, and questions as to burden of proof are necessarily subordinated to the Board's para- mount interest in establishing a full and complete record.' We are satisfied both from the bargaining history and from the record made in this case that a production and maintenance unit is appropriate here. Depending on its level of sales, the Employer employs from 550 to 700 manual employees, primarily at its Long Island City plant. There are about 50 office clericals who work in the regular and executive offices which are located in the plant buildings. There is no inter- change between the two groups, they are separately supervised, and are paid on different bases. The Employer and Local 355 urge the Board to include the office clericals in a unit of manual employees on the ground that the past bargaining has been on that basis. We do not agree. The consent election held in 1956 was to determine whether the office clericals wished to be represented by Local 355, not as part of the existing production and maintenance unit, but as a separate 2 See United States Smelting, Refining and Mining Company, 116 NLRB 661, 662. 586439-61-vol. 129-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group. The practice of negotiating an agreement on behalf of the office clerical employees as part of an agreement for the broader unit does not have the effect of modifying our certification that the office clericals constitute a separate appropriate Unit.3 Accordingly, we shall establish separate units for the office clerical and for the production and maintenance employees. We also reject the Employer's contention that the employees whom District 65 now represents should be included in the production and maintenance unit. Neither SIU nor Local 355 seeks to represent them, either separately or as part of a larger unit, and although the hetero- geneous nature of the unit is apparent, we believe that the bargaining history since 1945 indicates that these employees may now have certain interests in common which differentiate them from the other employees. The District 65 unit : District 65 seeks to represent, not as part of its existing unit but separately, those employees whom it defines as platform and warehousemen. It comprises the men who load and unload trucks at the docks adjacent to the shipping platforms at the No. 3300 and No. 3408 plant buildings, a shipping clerk and a re- ceiving clerk, two freight elevator men, a mechanic and his two helpers, and one truckdriver who makes local deliveries . The Em- ployer has no facilities specifically assigned or set aside for ware- housing. Products are assembled in both of the plant buildings in Long Island City and are packed in the production areas. They may be moved in the production process between the two buildings or between the other plants in the metropolitan area. The moving is clone either by automotive truck or by forklift trucks. When products are ready for final shipment they are moved to the dock areas by the combined efforts of production employees and platform men. The platform men move throughout the plant and material handlers in production areas are frequently engaged in working on the platform. Both buildings have passenger and freight elevators, and although specific individuals are assigned to each type of elevator, there is some interchanging of jobs. Porters and maintenance men may also operate both types of elevators . The three mechanics maintain all types of motorized vehicles, including over-the-road and local delivery trucks, forklift trucks , and passenger cars. District 65 presently represents the interplant drivers but not the over-the-road drivers. The one driver whom it is seeking herein makes local deliveries , but another driver assigned to the refuse truck is not sought, although both are now in the Local 355 unit. The employees sought by District 65 do not constitute a distinctive departmental or administrative division of the Employer 's organiza- tion, nor are they all under the same supervision . Their work is closely 3 Dura Steel Products Company, 109 NLRB 179, 182. THE MOSLER SAFE COMPANY 35 related to the work of other production and maintenance employees, and they have no skills in common which would give them any func- tional cohesiveness. It is clear that District 65 has put together an arbitrary grouping of employees who have no skills, duties, or interests serving to differentiate them from the employees in the contract unit. In the absence of any basis for separate representation of these em- ployees, as shall dismiss the petition of District 65.4 We find that the following groups of employees at the Employer's operations in the New York City metropolitan area excluding from each unit employees who are represented by labor organizations other than Amalgamated Local Union 355, Independent, professional em- ployees, guards, and supervisors, constitute separate units appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : (a) All office clerical employees.5 (b) All production and maintenance employees, including shipping and receiving employees. [The Board dismissed the petition filed in Case No. 2-RC-10367.] [Text of Direction of Elections omitted from publication.] 4 Guppies Company Manufacturers, 127 NLRB 1457. , Although SIl7 has submitted a sufficient showing of interest in the overall unit, no information was submitted as to its interest with respect to the office clerical unit found appropriate herein. The election among these employees directed below is therefore con- ditioned on the Regional Director ascertaining, before such election is held , that SIII has a sufficient showing of interest among these employees . John H. Harland Company, 127 NLRB 588. The Mosler Safe Company and United Steelworkers of America, AFL-CIO, Petitioner and Safe Workers Organization, Chap- ter #2. Case No. 9-RC-4037. September 12, 1960 ORDER DENYING MOTIONS On July 18, 1960, the Regional Director for the Ninth Region (Cincinnati, Ohio) issued, and on July 19, 1960, served upon the parties his report on election, objections to election and recommenda- tions to the Board in the above-entitled proceeding. In his report, the Regional Director recommended to the Board that the Petitioner's objections be overruled and that the Intervenor be certified. On July 28, 1960, the Petitioner filed a request for an extension of time to file exceptions to the Regional Director's report to August 8, 1960. The extension was granted and on August 8 the Petitioner filed its exceptions and a supporting memorandum. Thereafter, on August 10 the Employer filed a motion to strike and dismiss the Petitioner's exceptions and a brief in support of its mo- 129 NLRB No. 8.