Beneke Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1954

109 N.L.R.B. 1191 (N.L.R.B. 1954)

BENEKE CORPORATION 1191
which would receive benefits and in whose behalf the International
was acting was not in compliance. However, in a later decision, Lane-
Wells Company, 79 NLRB 252, when it appeared that the local union
had achieved compliance, the Board 11 in directing an election pointed
out that its action in placing the International union alone on the
ballot, without joining the local, did not thereby afford the Inter-
national an opportunity to "front" for the local if the local later fell
out of compliance. The decision there adverted to "the simple fact
that the Board has the power to police its own certifications," and
through this medium can fully effectuate the policies of Section 9 (f),
(g), and (h) ; "If changing circumstances should give rise to a situ-
ation in which the Board for policy reasons would not issue a certifi-
cation in the first instance, it has the power, either on its own motion
or that of the Employer, to recall the certificate." (Emphasis
supplied.)
In moving to thwart the apparent purpose of the previously certi-
fied Internationals herein, and their locals, to escape from a test of
their continued majority status by permitting the locals' compliance
to lapse-I join wholeheartedly with my colleagues. However, the
method properly and effectively to accomplish this end, I submit, has
been set forth in the Lane-Wells case, supra. More than a reasonable
time has elapsed for the locals to have reinstated their compliance;
their failure to do so can only be construed as a deliberate effort to
defeat the Employer's petition. The Board would not in the first in-
stance issue certificates to the Internationals with these locals not in
compliance.
Accordingly, I would, on the Board's own motion, issue a notice to
show cause why the certification of the Internationals should not now
be recalled in view of the noncompliance status of the locals, instead
of directing an election.
n Members Reynolds and Gray dissenting.
BENEKE CORPORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL, PETITIONER. Case No. 15-RC-1119. September 8, 1954
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 Louis S. Eberhardt, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
At the hearing the Petitioner objected to the intervention of the
United Brotherhood of Carpenters and Joiners of America, AFL,
herein called the Intervenor, on the ground that it had not made a sub-
109 NLRB No. 167.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial showing of interest. After the hearing the Petitioner filed a'
motion to dismiss intervention, urging that the Board should require,
an intervenor to make a showing of at least 15 percent interest among-
the employees involved, and contending, further, that inasmuch as the
Intervenor is seeking a unit broader than that petitioned for, it stands
in the position of a petitioning labor organization and should make the
showing required of a petitioner. The motion to dismiss intervention
is denied. As to the Petitioner's first contention, the Board does not re-
quire that an intervening labor organization make a showing of interest-
of any particular percentage, and has long held that the requirement-
of a showing of interest is an administrative matter not litigable by
the parties.' As to the Petitioner's second contention, the employees
which the Intervenor would add to the unit requested by the Petitioner
do not alter substantially the unit petitioned for, and the Petitioner's
showing of interest is sufficient to indicate the practicality of conduct--
ing an election in the larger unit sought by the Intervenor.2 The
Board is satisfied that the Intervenor has made a sufficient showing of
interest to participate in this proceeding.
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 herein claim to represent 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 Petitioner seeks a unit of all production and maintenance-
employees, excluding all clerical employees, employees in the shipping,
receiving, and warehousing department, professional and technical em-
ployees, guards, and supervisors. The Intervenor and the Employer
would include the plant clericals and employees in the shipping, receiv-
ing, and warehousing department in the production and maintenance
unit. At the hearing the Employer took the position that the molding
department should be excluded from the production and maintenance'
unit, but subsequent to the hearing filed a revised statement of position,
contending the appropriate unit to be all production and maintenance-
employees excluding office clerical, professional, and technical employ-
ees, guards, and supervisors. As all parties are in substantial agree-
ment as to the unit, the only issues to be resolved at this time are
whether the plant clericals and shipping, receiving, and warehousing
department employees should be included in the unit, and whether the
working foremen and forelady are supervisors as defined in the Act.
1 See Hughes Gun Company, 97 NLRB 913.
2 Cf. T. C. King Pipe Company, 74 NLRB 468, 473; Boeing Airplane Company, 86
NLRB 368.
BENEKE CORPORATION 1193
The foremen and fore lady: The Employer is engaged in the manu-
facture of toilet seats. Its manufacturing operations are carried on
in a number of departments located in several buildings. Supervising
the entire operation is a plant superintendent. Under him are ap-
proximately 12 foremen and 1 forelady. In some of the departments,
the foremen engage in production work most of the time and in others
they only do so when they fill in for absent employees. It is their re-
sponsibility to direct the efforts of the employees, and they attend
foremen's meetings with the plant superintendent and vice president.
They possess no authority to hire or discharge employees, but their
recommendations concerning such action would be seriously consid-
ered by the superintendent, their immediate supervisor. Although
everyone at the plant receives a discretionary annual bonus and is
paid at an hoarly rate, the foremen and forelady are paid at a rate
from 25 to 40 cents an hour higher than the others. There are approx-
imately 185 employees and the foremen and the forelady are the only
persons who have any degree of authority except the plant superin-
tendent. In the shipping, receiving, and warehousing department is
a clerical employee who is in charge of the department and has the
same responsibilities and authority as the foremen. In view of the
above circumstances, we find that the foremen and forelady, and the
clerical in charge of the shipping department, are supervisors within
the meaning of the Act. We shall therefore exclude them from the
unit.
Shipping, receiving, and warehousing employees: The Employer's
shipping, receiving, and warehousing operations are located in a sep-
arate building. Many raw materials are stored in this building as
well as the finished product. The only plant clericals employed by
the Employer work in the shipping, receiving, and warehousing de-
partment. Tl•ere are three employees supervised by the clerical in
charge of the department. One employee checks in and out the mate-
rials against lists and bills of lading received from the office. The
other two employees do the physical handling of the materials. There
is, of necessity, a close relationship between the shipping, receiving,
and warehousing department and the purchasing and sales depart-
ment, presumably amounting to some intermediate direction by the
purchasing and sales department of the clerical in charge of the ship-
ping, receiving, and warehousing department. However, we believe
that the employees in the shipping, receiving, and warehousing de-
partment have interests in common with production and maintenance
employees and are properly a part of the production and maintenance
unit.
We find that all production and maintenance employees at the Em-
ployer's plant located at Columbus, Mississippi, including the plant
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clericals, the shipping, receiving, and warehousing department em-
ployees, but excluding office clerical employees, professional and
technical employees, guards, foremen, the forelady, and supervisors
as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and RODGERS took no part in the consideration
of the above Decision and Direction of Election.
LEWIS & BOWMAN, INC. and INTERNATIONAL HOD CARRIERS ' BUILDING &
COMMON LABORERS' UNION OF AMERICA , LABORERS ' DISTRICT COUNCIL
OF WESTERN PENNSYLVANIA , LOCAL UNION No. 836, A. F . L., et al.
Cases Nos . 6-RC-13.98, 6-RC-1399, 6-IBC-1400, and 6-RC-1401.
September 8,1954
Amended Decision and Direction of Elections
On August 12, 1954, the Board issued its Decision and Direction of
Elections in this consolidated proceeding. On August 23, 1954, the
Employer; on August 27, 1954, the Hod Carriers; and on September
2, 1954, the Operating Engineers, on several respective grounds stated,
filed separate motions for reconsideration of the Board's Decision and
Direction of Elections.
The Board, having duly considered the motions, the nature of the
work involved, and the entire record in the case, decided to grant the
motions of the Hod Carriers and the Operating Engineers with respect
to the units respectively sought and to deny the motion of the Em-
ployer to postpone the elections until the 1955 operating season.
The Board thus amends its original decision by striking out unit (c)
as described therein and by substituting therefor the following sepa-
rate units (c) and (d), with the customary exclusions as set forth in
the original unit findings, which the Board now finds appropriate for
the purposes of collective bargaining within the meaning of Section 9
(b) of the Act :
Unit (c) : Asphalt raker, batcherman, blaster, blaster's helper, black-
smith, brakeman, brick and block paver, burner, caisson men, caulk-
ers-brick, cement gun runners, concrete blowers, concrete busters,
concrete pitmen, cement finishers-pavement, cement finishers-other
than pavement, curb setters and cutters, diver, drill runner helpers,
form setters, form strippers and movers, handymen, hammermen,
building laborers, unskilled laborers, pipelayers, plant setup and
109 NLRB No. 178.