D.V. Displays Corp.

568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D.V. Displays Corp.; Gallo Displays, Inc.; Ohio Displays, Incor- porated ; 1 Rappaport Studios, Inc.; and Harvey G. Stief, Inc. and Cuyahoga, Lake, Geauga and Ashtabula Counties Car- penters District Council of the United Brotherhood of Car- penters and Joiners of America, AFL-CIO and Sign, Display and Pictorial Artists Local Union No. 639 of the Brotherhood of Painters, Decorators and Paperhangers of America, AFL- CIO, Joint Petitioners. Cases Nos. 8-RC-4179, 8-RC-4180, 8-RC-4182, 8-RC-4183, and 8-RC-4184. November 21, 1961 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, a consolidated hearing was held before Nora Friel, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 jointly cer- tain employees 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 (7) of the Act. 4. The Joint Petitioners originally filed petitions for separate units at each of the five companies here involved, but at the hearing indi- cated that they desire to represent a single multiemployer unit embrac- ing display building employees of all five companies. The Employer, .a group of five firms engaged in the design, manufacture, and sale of exhibits and displays, has bargained with one of the Petitioners on a multiemployer basis for several years. Their last contract, which cov- ered many of the classifications here involved, expired on March 1, 1961. 'The Employer agrees with the Petitioners, and we find, that a unit multiemployer in scope is appropriate. They also agree, and we find, that the letterers and signwriters, who are covered by a separate contract between the Employer and one of the Petitioners, and the truckdrivers, who are covered by a contract with a labor organization not a party to this proceeding, should be excluded from any unit found appropriate. The parties disagree, however, as to the unit placement of the following categories, all of whom the Petitioners would include but the Employer would exclude. Production department employees: All the firms except D.V. Dis- plays are engaged primarily in the manufacture of custom displays or 1 The names of Gallo Displays , Inc., and Ohio Displays , Incorporated , appear as amended at the hearing. 134 NLRB No. 55. D.V. DISPLAYS CORP. ; GALLO DISPLAYS, INC.; ETC . 569 exhibits, which are usually one-of-a-kind productions. In order to retain their custom employees when business is slack, these four firms mass-produce some displays, but this work amounts to only 5 to 10 percent of their total production. D.V. Displays, on the other hand, regularly maintains separate custom and production shops on different floors of the same building. The Petitioners would include the D.V. Displays production shop employees in a unit with the custom shop employees of all five firms. The Employer contends that these production shop employees should be excluded, or established in a separate unit, on the grounds that (1) they work in a different plant area, (2) they have been covered by a separate contract, and (3) they are not skilled craftsmen while the custom shop employees are. We find no merit in these contentions as (1) the fact that the two groups work on different floors of the same plant does not establish that they constitute separate units, and, in addition, there is some contact between the two shops, and the produc- tion shop foremen progressed to their positions from the custom shop; (2) the allegedly separate contract for the production employees is a supplement to the one covering the custom shop employees, and merely sets forth different wage rates for the production shop employees; and (3) while custom shop employees exercise greater skills and are higher paid than production shop workers, both groups perform the same basic wood, metal, and paint work on the same type of product and are under the same ultimate supervision, and the custom shop workers do not possess the skill or training which would warrant a finding that they constitute a craft unit. Accordingly, in view of their similar employment interests and coverage under the contractual relationship, we find that the production shop employees should be included in the unit with the custom shop employees 2 Designers : The Employer would exclude the designers as profes- sional, supervisory, managerial, and/or technical employees, while the Petitioners contend that the employment interests of the designers are identifiable with those of employees in the unit.' The designers deal di- rectly with customers, submit novel ideas, make initial rough sketches, and design and oversee the production of the exhibits and displays with a view to cost and workmanship. They select the materials to be used and frequently purchase the requisite materials. In addition, all the employees in this classification are art school graduates, which apparently is a requisite to employment, and their work requires con- sistent exercise of discretion. Upon the entire record we find that the 2 Cf. Herpolshesmer Company, 100 NLRB 1452, 1453-1454. 8 The Petitioners also contended that the designers should be included as they are in- cluded in the contract unit. While this category was included , the evidence shows that the contract terms were not applied by either party to the designers . Moreover, the unit covered by the'contract was not based upon a Board determination. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD designers' duties, responsibilities, and interests are so dissimilar to those of other employees as to warrant their exclusion from a unit of production employees.4 Foremen: The Petitioners would include, while the Employer would exclude as supervisors, Kertel, Triconi, Theumer, Rooks, and Graham, working foreman at D.V. Displays; Renner, foreman at Rappaport Studios; and Holz, foreman at Stief. The record indi- cates that all these individuals have the power to hire, discharge, or effectively recommend such action, and most have actually exercised such authority. We find, therefore, that they are supervisors within the meaning of the Act, and exclude them. Maintenance and photographic erployees: The Joint Petitioners seek to add most of the following employees, who have previously been excluded, to the historical bargaining unit; the Employer would exclude them : The maintenance and janitorial' employees work in the same areas as, have frequent contact with, and possess employment interests similar to, employees who are in the unit. D.V. Displays employs two" additional maintenance employees. One is a charwoman who does cleaning work at night at the shop. Although both parties agreed to exclude her, her duties are similar to those of other maintenance em- ployees. The other is a maintenance man who has full-time employ- ment elsewhere but works part-time for this company in renovating its building. While the Employer maintains that he will not be retained after the remodeling is completed, it appears that he has been working for at least a half year, is reasonably assured of indefinite continued employment, and performs functions similar to those of employees included in the unit. In addition, Rappaport and Stief employ two driver-maintenance men, Sharpe and Sibert, who drive trucks as well as perform maintenance duties. The Employer, at the hearing, agreed to include Sharpe, but claims that Sibert should be excluded on the ground that he has duties and interests different from those of employees in the unit. Sibert, however, performs main- tenance functions in the shop in addition to his driving duties. Two of the firms have photographers, one of whom is, assisted by a photographic helper and a photoset employee. Although all these photographic employees work in separate areas, and much of their work is not incorporated into exhibits or displays but is sold sepa- rately, they come into frequent contact with employees in the unit, and their principal duty is to supply photographs for exhibits and displays. I See J. P Stevens & Company/, Inc, 123 NLRB 758, 760; J P Stevens & Co., Inc., 93 NLRB 1513, 1515 D.V. DISPLAYS CORP.; GALLO DISPLAYS, INC.; ETC. 571 Under these circumstances, we find that all photographic employees 5' and maintenance employees,' including the charwoman,' the regular part-time maintenance man at D.V. Displays,' and the driver- maintenance men s have employment interests closely allied with em- ployees in the unit and may appropriately be added to the existing production and maintenance unit. As these employees constitute a fringe group who have never before been covered by the contracts between the Petitioners and the Em- ployer, the situation is one in which it has been Board practice, established in the Zia case,10 not to include them in the historical unit without first ascertaining whether or not they desire to be included. We have, however, reexamined the Zia rule and have decided to modify it to the extent that where, as here, there is a question of rep- resentation in the historical unit and the incumbent union seeks to add a previously unrepresented fringe group whom no other union is seek- ing to represent on a different basis, we shall direct only one election which will include all the employees in the unit found to be appropri- ate.ll We are persuaded that application of the Zia rule in such cir- cumstances achieves results inconsistent with the policies of the Act, and is in derogation of the responsibility of the Board to determine the appropriate unit. It is clear that, if the unit placement of this fringe group had been presented to the Board for determination at the time the historical unit was established, the Board would have included them.12 We have here, instead, an exclusion, which derives from historical accident rather than from any real difference in func- tions or status, and which creates a fringe defect in the historical unit. To grant a self-determination election to this group would, in practical effect, be to permit them to perpetuate that fringe defect by voting to maintain their unrepresented status. This contingency we believe should be obviated. Indeed, we agree with the view expressed in the prior Waterous case 13 that it is more consistent with our statutory responsibility for determining the appropriate unit, now that the unit placement of these employees has been raised as an issue before the Board for the first time, to correct that fringe defect.in the historical unit. We also believe, contrary to the view expressed in Zia, that the inclusion of these employees is the more democratic approach because 6 See Indiana Broadcasting Corporation, 121 NLRB 111, 113-114 6 See Thiokol Chemical Corporation, Redstone Division, 123 NLRB 888, 889 T Foley Manufacturing Company, 115 NLRB 1205, 1207. 8 Decatur Transfer & Storage, Inc , 105 NLRB 633, 636 6 Beatrice Foods Co , 112 NLRB 459 10 The Zia Company, 108 NLRB 1134 ll Contrary to the implication of the dissent, this is the only factual situation we are passing upon "Cases cited in footnotes 5 through 9, supra The ll'ateroas Company, 92 NLRB 76 This case was overruled by the Zia case, supra 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it gives all employees in the appropriate unit an equal voice in choos- ing a bargaining representative for that unit 14 Accordingly, we find that the following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All employees engaged in the manufacturing, fabricating, finishing, erecting, and dismantling of displays and exhibits, including all main- tenance employees, and photographic employees; but excluding all office clerical employees, letterers, signwriters, truckdrivers, design- ers, professional employees, watchmen, guards, and all supervisors as defined in the Act. [Text of Direction of Elections omitted from publication.] MEMBERS RODGERS and LEEDOM, dissenting in part We cannot join in the majority's decision to overrule the Zia prin- ciple, a principle which would, while recognizing the desires of the Petitioner for a more comprehensive unit, grant to those previously unrepresented employees a separate self-determination election to ascertain their desires as to inclusion in the Petitioner's established unit. We are satisfied that this principle, inaugurated in 1945 in the Petersen d Lytle case," is still valid today. We regard as a step back- ward our colleagues' return to the Waterous 16 principle, which the Board invoked in 1950 only to abandon it for the original rule in the Zia case in 1954.14 A principle which has withstood the test for 16 years should not now be discarded. Effective collective bargaining requires a degree of stability in the rules governing it. The Zia rule is, in our view, born of the conviction that the separate balloting of the fringe group, to determine whether or not they wish to be represented as, part of the historical unit, more effectively pro- tects the interests of employees in the historical unit as well as those in the fringe group. It enables the employees in the existing group to express their desires for continued representation by the union in a manner unadulterated by the votes of those outside the unit, and similarly permits those employees outside the unit to make known their views as to whether they desire to continue to be unrepresented, or wish representation. Furthermore, the Zia rule gives full impact to the bargaining history, which has always been considered a stability factor in the achievement of industrial peace. Nor do we perceive the force of our colleagues' argument in characterizing the exclusion 14 Where the Zia case, supra, and the cases relying thereon would have required a differ- ent result under the facts of this case, they are hereby overruled. Is 60 NLRB 1070. 16 The Woterous Company, 92 NLRB 76. 37 Member Rodgers reaffirms the views of the majority of the Board in the Zia case, In which he joined, and Member Leedom adopts those views. A. F. PUBLICOVER AND COMPANY 573 of the unrepresented employees as a fringe defect in the existing unit. It is rather late, we think, to take issue with the well-established Board principle that, in any given situation, several units may be deemed appropriate, albeit one might be more appropriate than another." Moreover, we see no valid basis for allowing the fortuity of the Petitioner's request for the more comprehensive unit to have control- ling weight. Our colleagues would, we assume, have little difficulty with directing a self-determination election among these employees, if the Petitioner had sought only to add these employees to their exist- ing unit. Accordingly, we would direct a separate election among the pre- viously unrepresented employees. 1$ We do not agree that the Zia rule is in derogation of the Board's responsibility to determine the appropriate unit . From its earliest days the Board has made use of the self-determination election , see, e .g., Globe Machine and Stamping Company, 3 NLRB 294; Armour & Company, 40 NLRB 1333, and the courts have approved the validity of its use ; see N.L.R.B. v. Underwood Machinery Company, 179 F. 2d 118 (C.A. 1) ; N.L.R.B. v. Weyerhaeuser Company, 276 F. 2d 865 ( C.A. 7), accord , Pittsburgh Plate Glass Company v. N.L.R .B., 313 U .S. 146, 156, as an aid in determining appropriate units. A. F. Publicover and Company i and Independent Union of Plant Protection Employees, Petitioner. Case No. 1-RC-6391. No- vember 21, 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 John Madden, hearing offi- cer. Thereafter, on July 21, 1961, the Board having remanded the proceeding for additional evidence, the reopened hearing was held on August 9, 14, 16, and 28, 1961, before Alvin M. Glazerman, 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 McCulloch and Members Leedom 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 Petitioner seeks to represent the guard employees of the Employer, which is engaged in furnishing companies with guard and protective services. The Employer contends that the Petitioner admits to membership employees other than guards, and is therefore 'The name of the Employer appears as corrected at the hearing. 134 NLRB No. 64.