The Marley Co.

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the meaning of Section 9 (b) of the Act : All mill clerical employees at the Employer's Niles, Ohio, plant, excluding production and main- tenance employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. [The Board ordered the Decision and Direction of Election in Case No. 8-RC-4036 relating to the establishment of a voting group of mill clerical employees vacated.] [Text of Direction of Election omitted from publication.] MEMBER BROWN took no part in the consideration of the above Deci- sion and Direction of Election. The Marley Company and District 50, United Mine Workers of America, Petitioner. Case No. 9-RC-4363. May 29, 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 Arthur P. West, 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 [Members Leedom, Fanning, and Brown]. 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 employees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of. employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act for the following reasons: The Employer and the Intervenor move to dismiss the petition, as amended at the hearing, on the ground that it alleges a unit sub- stantially different from that originally claimed and is therefore un- timely because made within the 60-day insulated period.' The petition herein was. filed on December. 29, 1960. The Em- ployer's and the Intervenor's most recent agreement was entered into on March 1, 1959, and terminated on February 28, 1961. At the hear- ing on January 18, 1961, the Petitioner amended its petition by ex- 1 See Deluxe Metal Furniture Company, 121 NLRB 995. 131 NLRB No. 103: THE MARLEY COMPANY 867 cluding from its unit description the categories of laborers and janitors. The Petitioner took such action, in part, upon assurances from the Employer and the Intervenor that there was no laborer classification and that as contracting parties they had always excluded janitors from the unit as a matter of practice. Because of such assur- ances given, and because the amendment did not substantially enlarge the character or size of the unit, we find, contrary to the contention of the Employer and the Intervenor, that the filing date of the original petition is controlling and that the petition is therefore timely.2 Ac- cordingly, we deny the motion to dismiss the petition. 4. The Petitioner seeks to represent a production and maintenance unit. The parties agree upon the composition of the unit, except that the Employer would exclude dispatchers as supervisors. The Pe- titioner and the Intervenor are opposed to such exclusion. The Employer, a Delaware corporation, whose principal office and place of business is in Kansas City, Missouri, is engaged in the busi- ness of manufacturing and constructing cooling towers and dricoolers throughout the United States. Only the Employer's Louisville, Ken- tucky, plant is involved in this proceeding. This plant, under one roof with an adjoining yard, is comprised of eight distinct depart- ments, namely: the press shop; the welding shop; the job shop; assem- bly; inspection; shipping and receiving; the pipe shop; and the main- tenance department. Each of these departments, with the exception of the last two, has a separate salaried supervisor. The dispatchers' main function and responsibility is to see that ma- terial flows smoothly along the production lines. They receive work tickets detailing the process to be performed on an item, and see that the product moves from machine to machine. In connection with this function, they maintain work tickets and shop records. They are hourly paid, receive much the same wage as other production workers, and work under a separate "supervisor of dispatchers." Although referred to in the record as assistants to the supervisors, dispatchers, unlike the departmental supervisors, have no authority to hire or fire or grant time off, nor are they called upon to substitute for depart- mental supervisors in the latters' absence. While the dispatchers are "sometimes consulted" concerning the tenure and advancement of em- ployees, the immediate supervisor of the employee in question always makes his own independent investigation, and there is no evidence that-the dispatchers are directed, as part of the duties of their employ- ment, to make recommendations. In view of the above facts, the Petitioner and the Intervenor contend that the dispatchers are clearly not supervisors, particularly in view of the fact that they have always been specifically included in the unit under past contracts between the Employer and the Intervenor. 2 Sutherland Paper Company, 122 NLRB 1284. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer maintains, however, that the dispatchers have at least one type of supervisory authority because it alleges that they assign work and transfer employees. Although the Employer's plant manager asserted that the work of the dispatchers required the use of "judgment" and that they had authority to shut down an operation and put a man on another operation, his further testimony made clear that the extent of the dispatchers' authority was merely, on occasion, to transfer certain work from one machine to another. Apart from his occasional use of "judgment" in this ordinarily routine distribu- tion of work orders, there is nothing in the record to support the, Employer's contention that dispatchers have the authority to assign work or to transfer employees from one job to another. In view of the foregoing, and of the uniform practice of including dispatchers within the coverage of the parties' contracts, we find that, the dispatchers neither possess nor exercise any supervisory authority- and that they are not supervisors within the meaning of the, Act. Accordingly, we shall include them in the unit herein found appropriate. We find that the following employees constitute a unit appropriate' 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 Louis- ville, Kentucky, plant, including dispatchers, inspectors, plant clerical employees, shipping clerks, receiving clerks, and stock clerks, but. excluding office clerical employees, janitors,3 engineering department employees, the time-study engineer, technical employees, professional employees, and all supervisors as defined in the Act 4 5. The parties disagree as to the eligibility for voting purposes of laid-off employees. The Employer maintains that the laid-off em- ployees have no_ reasonable expectancy of employment within the foreseeable future and that they are therefore ineligible to vote in any election the Board may direct. The Petitioner takes the position that since the agreement between the Intervenor and the Employer assures laid-off employees the right of recall until they have been laid off 1 year, all such employees have a reasonable expectancy of reemployment and should be found eligible. The Intervenor takes a similar position,, but would postpone until the date of election the determination as to whether any of these employees had been laid off for 1 year or more. The record shows that a number of employees were laid off recently and others within the past year. The Employer testified that he has- no plans for the recall of the laid-off employees and, indeed, that he anticipates that there will be further layoffs. "All parties agree upon the exclusion of the two janitors The Intervenor's request that the unit description agree with that in the expired con- tract which it had with the Employer is denied , since the unit description herein is con- sistent with Board terminology and comports with the functions and interests of the employees involved. See Concrete Joists & Products Co., Ino., 120 NLRB 1542. LAUB BAKING COMPANY 869 Contrary to the Petitioner's and Intervenor's contentions, the reten- tion by a laid-off employee of seniority for purposes of recall is not determinative of his eligibility to vote in a Board-directed election. Rather the test is whether there exists a reasonable expectancy of -employment in the near future.-' As the uncontroverted testimony in the record establishes the absence of such reasonable expectancy, we find that the laid-off workers are not eligible to vote in the election herein directed. [Text of Direction of Election omitted from publication.] 6 Sylvania Electric Products, Inc., 119 NLRB 824, 831-832. Laub Baking Company and American Bakery and Confectionery Workers' International Union , AFL-CIO. Case No. 8-CA-1982.' May 31, 1961 DECISION AND ORDER On June 24, 1960, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent filed ex- ceptions to the Intermediate 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 [Members Rodgers, Leedom, and Fanning]. 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 the case, and adopts the findings and conclusions of the Trial Examiner, only to the extent consistent with our decision herein. The Trial Examiner found that the Respondent committed certain unf air labor practices during a representation conflict at its bakery between the Petitioner in Case No. 8-RC-3491, American Bakery and Confectionery Workers' International Union, AFL-CIO, re- 1 This case was consolidated for purposes of hearing with Laub Baking Company, Case No. 8-RC-3491, because similar issues of election interference were involved. After issuance of the Intermediate Report, all parties concerned filed motions with the Board to set aside the election held on August 24, 1959, and to direct a second election . There- after, on November 29, 1960, the Board granted the motions and severed Case No. 8-RC-3491 from the instant case . In view of this disposition , we do not pass upon the Trial Examiner 's findings and recommendations as to the alleged interference with the election held on August 24, 1959. 131 NLRB No. 106.