Emery Industries, Inc.

EMERY INDUSTRIES, INC. (DICE ROAD) 51 managerial employees, guards, watchmen, and supervisors as defined in the Acts constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. [Text of Direction of Election omitted from publication.] 8 The warehousing operations are under the direct supervision of Marvin Jones, ware- house superintendent. The record shows that when Jones is absent, or not available, he leaves specific instructions as to work assignments which are carried out by Truck Fore- man Anderson and Assistant Warehouse Supervisor Dale. It appears that neither Dale nor Anderson has the authority to transfer, discipline, or discharge employees, and in carrying out their duties, follow instructions set_ down by Jones. The record further shows that when Jones is absent one of the Employer's officers takes charge and Dale and Anderson are expected to discuss any problems which arise with the officials in question. The Employer contends that Dale and Anderson are in effect leadmen who merely follow routine directions in carrying out orders and should be included in the unit. As the record does not show that either Anderson or Dale hire, discharge, responsibly direct employees, or have any of the other attributes of supervisory authority, we shall include them in the unit. Emery Industries, Inc. (Dice Road ) and United Emery Indus- tries Employees Committee (Dice Road), Petitioner. Case No. 21-RC-8373. July 28, 1964 DECISION AND ORDER AMENDING CERTIFICATION OF REPRESENTATIVE On June 25, 1963, pursuant to a Stipulation for Certification Upon Consent Election, a representation election was held among the Em- ployer's production and maintenance employees at its Santa Fe Springs, California, plant. As a result of this election, the Regional Director, on July 3, 1963, certified United Emery Industries Em- ployees Committee (Dice Road), the Petitioner herein,' as exclusive bargaining representative of the aforementioned employees. On May 13, 1964, the Petitioner filed the instant motion to amend the certification to designate "Emery Unit of Local 509, UAW," as certi- fied representative of the Employer's employees. On June 1, 1964, the Employer filed a memorandum in opposition. ' 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]. - In its motion, the Petitioner alleged that on or about April 8, it mailed a notice to all of its members stating that : a special member- ship meeting would be held to decide whether the Petitioner should affiliate with Local 509, UAW; pursuant to said notice, a special meet- ing of its members was held on April 18, 1964, attended by 19 of the 3 No other labor organization appeared on the ballot. 148 NLRB No. 8. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 25 members -of the Union; a resolution providing for affiliation with the UAW was presented to the members; in accordance with the Petitioner's constitution and bylaws, a vote by secret ballot was taken on the resolution; the resolution was passed by a vote of 17 votes for, and 2 against; after this resolution was passed, all assets and prop- erty of the Petitioner were transferred to the Emery Unit of Local 509, UAW ; on the same date, International Union, United Auto- mobile, Aerospace, and Agricultural Implement Workers of America, Local 509, AFL-CIO, accepted said affiliation; 2 on April 20, Peti- tioner wrote the Employer and demanded recognition under its new name; and the Employer refused to recognize the Petitioner under its new name and with its new affiliation 3 In its memorandum in opposition to motion for amendment of certification, the Employer, while not controverting the facts set forth in the Petitioner's motion, asserted that the Petitioner is requesting not merely a change of name of the certified union, but is, in fact, designating a new affiliation with another-union, and that the motion therefore raises a question concerning representation which can be resolved only by the filing of a representation petition. We find no merit in the Employer's objections to the Petitioner's motion. The allegations contained in the motion, which are not denied by the Employer,' establish in our view that the Emery Unit of Local 509, UAW, is but a continuation of the certified representative herein. Thus, the certified representative was an unaffiliated union which, as stated in the affiliation resolution, sought to obtain the benefits which it was believed would derive from affiliation with an international union ; the certified union took formal steps to make certain that a majority of its membership approved of such action, and, in order to insure that there would be no loss of identity of the certified local, it obtained assurances from Local 509, UAW, that the Emery Unit would become an "autonomous and separate" unit within Local 509. Finally, the certified representative, in seeking recognition of its new affiliation, made it perfectly clear that, despite its new affiliation, the "officers and functional leaders" of the local would remain the same, Y In a letter to the United Emery Industries Employees Committee dated April 7, 1904, Clarence E Wright, financial secretary and service representative of Local 509, UAW, stated that "it is understood that the United Emery Industries Employees Committee will become an autonomous and separate unit of Local 509, UAW, with all the rights and privileges accorded by the Constitution of the International Union." 3In its letter of April 20, the Petitioner advised the Employer , in part, that "From this date on, the name of the union has been changed to Emery (Industries ) Unit of Local 509, UAW-API-CIO. All officers and functional leaders remain the same , and we anticipate no change in our day-to-day relationship with the company . The continuity of organization in the Local Union has been completely preserved , and we intend to honor fully all con- tractual commitments with the company . Please note for your records the change, in the name of the contracting union." The Employer did not contest the truth of these statements. . In the absence of any substantial factual issues, we find no merit in the Employer's position that a hearing is required. OREGON LABOR-MANAGEMENT RELATIONS BOARD 53 there would be no change in the day-to-day relationships with the Employer, and the newly affiliated local would honor all contractual commitments with the Employer. In these circumstances, as we be- lieve that the requested substitution would insure to employees the continuity of their present organization and representation, we shall grant the Petitioner's motion and substitute Emery Unit of Local 509, UAW, for United Emery Industries Employees Committee (Dice Road) as certified representative of the employees in the unit 5 Such amendment of the certification is not, however, to be considered as a new certification or recertification. [The Board amended the Certification of Representative issued to United Emery Industries Employees Committee (Dice Road) in Case No. 21-RC-8373 by substituting "Emery Unit of Local 509, UAW" for "United Emery Industries Employees Committee (Dice Road,) ".] 8 See Climax Molybdenum Company, 146 NLRB 508; Minnesota Mining and Manufac- turing Company, 144 NLRB 419. Oregon Labor-Management Relations Board and Barbur Boule- vard Flying A Truck Stop and Automotive Garage & Service Station Employees Local No. 255 and Robert Ferguson, Em- ployee of Barbur Boulevard Flying A Truck Stop . Case No. AO-75. July 29, 1964 ADVISORY OPINION This is a petition filed by the Oregon Labor-Management Relations Board, herein called the State Board, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board's Rules and Regulations, Series 8, as amended. In pertinent part, the petition alleges as follows: 1. There is presently pending before the State Board a decertifica- tion petition (Case No. 1-64) involving Barbur Boulevard Flying A Truck Stop, herein called the Employer, and Automotive Garage & Service Station Employees Local No. 255, herein called the Union. The petition had been filed by Robert Ferguson, an employee of the Employer. At the hearing before the State Board, the Employer and Union stipulated as to the nature of the Employer's business and its commerce data. 2. The Employer is a truck stop and service station engaged at Portland, Oregon, in selling gasoline, diesel fuel oil, and automotive accessories, and in rendering services such as lubrication of vehicles. All sales of diesel fuel oil and gasoline are made at one rate except that purchasers of more than 25 gallons of gasoline pay the "truck 148 NLRB No. 11.