Florida Tile Industries, Inc.

FLORIDA TILE INDUSTRIES, INC. 897 Metal case,' the Board in its general reexamination of contract-bar policy, dealt specifically with the issue raised here, holding that "the filing date of the original petition is controlling . . . where a favor- able ruling is made on a petitioner's appeal from a Regional Director's dismissal of a petition." Thus, as the August 11, 11960, date is control- ling here, the petition is clearly timely for it was filed before execution of the 1960 agreement and more than 60 but less than 150 days before the renewal date of the 1959 agreement.' Accordingly, we find that a question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The motion to dismiss on grounds of contract bar is, therefore, denied. 4. We find, in accordance with a stipulation of the parties, that the following employees of the Employer in "unit B" constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act:' All transportation department employees, warehouse, procurement, and property disposal depart- ment employees, cafeteria employees, and heavy equipment repair shop employees, at the Employer's Idaho Falls, Idaho, plant, but ex- cluding office clerical employees, administrative and professional em- ployees, draftsmen, casual employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 6 Deluxe Metal Furntitwre Company, 121 NLRB 995, 1000 , footnote 12. 'Ibid* at 1000. The unit described herein is not only the recognized unit, but is substantially identical with that found appropriate in Phillips Petroleum Company, 107 NLRB 1207, 1211. Florida Tile Industries, Inc. and International Hod Carriers, Building & Common Laborers of America, Local Union 1240 and International Union of Operating Engineers, Local Union 925, AFL-CIO,' Joint-Petitioners. Case No. 12-RO 1085. Feb- ruary 28, 1961 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 Frank James Kruzich, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 'This name appears as amended at the hearing. 130 NLRB No. 103. 597254-01-vol. 130-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Jenkins and Kimball]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in the manufacture, distribution, and sale, on a wholesale level, of ceramic tile products in Lakeland, Florida. In the past year it sold goods and materials valued in excess of $50,000 to customers outside the State of Florida. We find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case 2 2. The Employer moved to dismiss the petition on the ground that the Joint-Petitioners, while each a labor organization by itself, do not together constitute a labor organization within the meaning of the Act. This contention is without merit. We have long held that two or more labor organizations may act jointly in representing employees in an appropriate unit. The Joint-Petitioners indicated at the hear- ing that, in the event of their certification, they intend to bargain jointly for the requested unit of employees. We find the Joint- Petitioners constitute a labor organization within the meaning of the Act.3 3. As other grounds for its motion to dismiss, the Employer con- tends that (1) the petition was not investigated prior to the hearing, and (2) there was no proper request for recognition and no refusal by the Employer to recognize the Joint-Petitioners as representative of its employees in an appropriate unit. As to (1), investigation of a petition is an administrative matter and not litigable by the parties.' In regard to (2), as the filing itself constitutes a sufficient demand, and as the Employer declined at the hearing to recognize the Joint- Petitioners, this contention is likewise without merit.-' The motion to dismiss is denied in its entirety. We find, therefore, a question concerning commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Joint-Petitioners seek a production and maintenance unit of employees of the Employer at its Lakeland, Florida, plant. Al- though all parties are in general agreement as to the appropriateness of a production and maintenance unit, they disagree as to the unit placement of the several categories set forth below. 2 See Stiemons Mailing Service, 122 NLRB 81. 8 The Bailey Department Stores Co., 120 NLRB 1239; Vanadium Corporation of America, 117 NLRB 1390. If successful in the election herein directed, the Joint- Petitioners will be certified jointly and the Employer may insist that they do in fact bargain jointly for all the employees in the unit. 'Lloyd A. Fry Roofing Company, 107 NLRB 1327. 5 George H. Braun, d/b/a Alamo -Braun Beef Company, et al., 128 NLRB 32; Goldblatt Bros., Inc., 118 NLRB 643; F. C. Russell Company, 116 NLRB 1015. FLORIDA TILE INDUSTRIES, INC . 899 Draftsmen: The parties have agreed to the exclusion of technical employees and on this basis the Joint-Petitioners, contrary to the Employer, would exclude the two draftsmen in the engineering de- partment. These draftsmen work under the supervision of an indus- trial engineer. They are engaged in typical draftsman's work, such as making prints of machinery, planning layouts, and performing other drafting or drawing jobs requiring specialized knowledge and training. We find that the draftsmen are technical employees, and shall exclude them from the Unit .6 Inventory control clerk: The Employer would include, while the Joint-Petitioners would exclude, the inventory control clerk. The inventory control clerk works out of an office in a partitioned area of the sales warehouse and, under the supervision of the warehouse super- visor, keeps the perpetual inventory on a cardex filing system, assists in the monthly physical inventory, and keeps shipping reports and records of all tile used, broken, or junked. Her duties bring her into direct contact with the other warehouse employees and plant em- ployees. We find that the inventory control clerk is essentially a plant clerical employee with a close similarity of work interests with em- ployees in the unit. We shall include her in the unit' Truckdrivers: The Employer has three over-the-road truckdrivers whom, contrary to the Joint-Petitioners, it would include in the unit. In addition to their over-the-road driving duties, these drivers also aid in loading and unloading their trucks and do some local driving. In these circumstances, as their unit placement is in dispute and as the interests of the over-the-road truckdrivers are sufficiently related to those of the other employees, we shall include them in the unit .8 Alleged supervisors: Although agreed as to the inclusion of the Employer's other leadmen, the parties disagree as to the status of the following leadmen and leadladies : the leadmen in the sales ware- house, the two leadladies in the press department, and the leadlady in the kiln and setter repair department. These individuals are more experienced and are paid at a slightly higher hourly rate than the other employees in their departments. They have no authority to hire or discharge employees or to reprimand or discipline them; they are not shown to possess or exercise any supervisory authority. We find that they are not supervisors as defined in the Act, and shall in- clude them in the unit .9 Plant clerks: The Employer would include, while the Joint- Petitioners would exclude as office clerical employees, two plant clerks. These clerks work under the supervision of the manufactur- ing department supervisor in offices in the plant building with direct 9 Challenge-Cooke Bros., Incorporated, 129 NLRB 1235. 7 Mead-Atlanta Paper Company, 123 NLRB 306 , at 308. Mead-Atlanta Paper Company, supra, at 309, and cases cited in footnote 9 therein. o United States Gypsum Company, 118 NLRB 20, at 29. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD access to the production area, whereas the office clerical employees work in a downtown office building. They spend 80 percent of the time in their office and the balance of their time in the plant where, they check material, check pallets for cars, check barrels for glaze and proper tags, and check inventory cards on barrels. They main- tain inventories on all material in the plant, except stockroom sup- plies, and maintain the orders and schedules of incoming material. Considering the contact between these clerks and production em- ployees and their similar work interests, we find these employees are essentially plant clerical employees whom we shall include in the unit. We find that the following employees of the Employer constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees employed at the Employer's plant at Lakeland, Florida,, including employees set forth in Appendix A, but excluding all office clerical employees, accounting personnel, salesmen, sales solicitors, technical employees,10 professional employees," all other employees,, guards, and all supervisors 12 as defined in the Act. [Text of Direction of Election omitted from publication.] "Thus excluded are the employees in the quality control department and the research and development department who the parties agree all are technical employees. 31 The parties agreed and we find that the employee in the geology department is a professional employee. 12 The parties agreed that William Gandy, David Wenger, Rudy Thornberry, Gerald Johnson , A. G. Adams, Donald Entrekin , Bill Ross, H. E. Shoup , Gary Howard, David Miles, Marvin Jackson, and Mrs. Cress are supervisors. As Fred Leznette has the authority to hire and fire, we also exclude him as a supervisor. APPENDIX A Maintenance and Machine Shop : Carpenter Maintenance helper Janitor Tool- and die-maker Maintenance Men A Electronics men Maintenance Men B Outside maintenance man Sales Warehouse : Heister drivers Inventory control clerk Heister driver helpers Leadman Sample board maker Transportation Department : Truckdrivers Material Receiving and Body Preparation Department: Batchmen Laborers Helpers Mixermen Heister drivers UNITED STATES GYPSUM COMPANY Glaze Department : Head mill loader Straight Line Department : Millroom assistant 901 Pressmen Inspectors Spray machine operators Straight line helpers Assistant spray machine Off bearers operators Laborers Press Department : Leadladies Pressmen-in-training Fettlers Trim offbearers and material Handpressmen handlers Pressmen Spray Department : Spray machine operator Spray department helpers Spray machine assistant Off bearers Hand spray operator Unloaders Feeders Kiln and Setter Repair Department : Leadmen Assistant kiln firemen Leadlady Kiln maintenance helpers Setter repair Setter repairs Firemen Grading and Sorting Department : Boxmakers Stock handler Packers Sorters Sorting department handlers Plant Clerks Receiving Clerk Stockroom Employee United States Gypsum Company and International Association of Machinists, AFL-CIO, Petitioner. Case No. 26-RC-1407. February 28, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election 1 issued by the Board on June 15, 1960, an election by secret ballot was conducted on July 8, 1960, under the direction and supervision of the Regional Director for the Twenty-sixth Region among the employees in the 1 Not published in NLRB volumes. 130 NLRB No. 99.