David Max and Co.

National Labor Relations Board - Board Decisions

Sep 13, 1954

109 N.L.R.B. 1308 (N.L.R.B. 1954)

'1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chusetts, Works, excluding executives, office clerical employees, pro-
fessional employees, guards, 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.2
[Text of Direction of Election omitted from publication.]
MEMBERS MURDOCK and PETERSON took no part in the consideration
of the above Decision and Direction of Election.
a This unit is essentially the same as that covered by the contracts between the Employer
and Intervenor.
DAVID MAX AND COMPANY, PETITIONER and INDEPENDENT UNION OF
AUTOMATIC GLASS FABRICATION WORKERS and LOCAL UNION No. 963
OF BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF
AMERICA, AFL
DAVID MAX AND COMPANY and INDEPENDENT UNION OF AUTOMATIC
GLASS FABRICATION WORKERS, PETITIONER . Cases Nos. 5-RM-258
and 5-RC-1464. September 13, 1954
Decision and Direction of Election
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing on the consolidated cases was held before
Louis S. Wallerstein, hearing officer.' The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Local Union No. 963 contends that the RC petition should be dis-
missed because the Petitioner, herein called the Independent, was 'il-
legally assisted by the Employer, and is therefore not a bona fide labor
organization, and that the RM petition should be dismissed because
the Employer illegally assisted the Independent. We find these con-
tentions to be without merit. In substance, they allege that the Em-
ployer has violated Section 8 (a) (2) of the Act, and the Board will
not, in a representation proceeding, determine whether the Employer
has so violated the Act.' Moreover, the evidence relied upon by Local
Union No. 963 in the instant connection is intended to prove the same
basic factual allegation of the 8 (a) (2) charge brought by Local Union
No. 963 against the Employer in Case No. 5-CA-827, wherein the Re-
gional Director refused to issue a complaint and, on appeal, was sus-
tained in his action by the General Counsel. Under established Board
1 At the hearing Local Union No. 963 of Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL, herein called Local Union No. 963, intervened in the RC pro-
ceeding , without objection.
a The Coleman Company, Inc, 101 NLRB 120; Marine Optical Manufacturing Co., 92
NLRB 571.
109 NLRB No. 184.
DAVID MAX AND COMPANY 1309
policy, the Board will not, in order to dispose of allegations in repre-
sentation proceedings, indirectly review the General Counsel's admin-
istrative dismissal of unfair labor practice charges by examining the
content of charges which the General Counsel, for reasons satisfactory
to himself, has thought it proper to dismiss. 3
Upon the entire record in these cases, 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.4
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. Both the Employer and the Independent, in their respective peti-
tions, as amended, allege to be appropriate a unit consisting of all
employees in the Employer's automatic fabrication department. Lo-
cal Union No. 963 contends that only a unit comprised of all the em-
ployees engaged in handling, processing, and installing glass is ap-
propriate and that therefore the petitions should be dismissed.
The Employer is in the glass business. It is principally concerned
with the installation of glass, which it furnishes and cuts, in store
fronts, newly constructed buildings, and other structures, and the
fabrication of glass jalousie slats or louvers, which it sells to window
distributors and manufacturers. The Employer also prepares glass
table tops and mirrors to order. The latter operation and the cutting,
polishing, beveling, and other work necessary to prepare the glass for
outside installation is performed by employees designated as inside
glassworkers, of whom there are presently 4; 3 in the Employer's
glass shop and 1 in the adjacent bevel shop. The outside installation
work is performed by employees known as outside glaziers, presently
28 in number. The glass jalousie louvers are fabricated by the 17 to
20 employees who comprise the Employer's automatic fabrication de-
partment, which is the subject of the petitions herein.
Since 1933, the inside glassworkers, consisting of the employees in
the glass and bevel shops, who are interchangeable, and the outside
glaziers have been represented by Local Union No. 963 under separate
contracts. Each of these groups is separately supervised and performs
3 Everett Plywood & Door Corporation , 105 NLRB 17.
Nor do we find merit in Local Union No. 963 's contention that the Independent 's petition
should be dismissed because of inaccurate statements therein bearing on the date the
Independent assertedly requested , and was denied, recognition by the Employer For, even
assuming the inaccuracy of the statements relied upon by Local Union No. 963, it appears
plain that neither that Union nor the Employer was prejudiced thereby. See Krambo Food
Stores, Inc., 107 NLRB 1544; A. E. Nettleton Company, 64 NLRB 1249.
* Both the Independent and Local Union No. 963 exist in whole or in part for the pur-
pose of bargaining with employers with respect to wages, hours, and other conditions of
employment.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
different tasks under different working conditions. However, the
work of each group is of a skilled nature, requiring a 3-year appren-
ticeship. There is no interchange between the inside glassworkers
and the outside glaziers, except when, because of inclement weather,
the outside glaziers are assigned to such work in the glass shop as un-
packing glass and squaring salvaged glass.
The automatic fabrication department was established early in 1953,
following the installation by the Employer of Weber automatic ma-
chines. The 17 to 20 employees in this department, virtually all of
whom appear to be new employees hired from outside the plant, are,
as indicated above, engaged exclusively in fabricating glass jalousie
louvers, an operation different from and independent of the operations
carried on by the other employees. Of the employees in this depart-
ment, all of whom are presently unrepresented,s only the two master
mechanics perform work which requires special skill. The other em-
ployees in the department are engaged in such work as operating the
Weber machines, simple glasscutting, packing and unpacking boxes,
and operating a forklift truck. These employees and the inside glass-
workers work on the same floor but are segregated from each other.
The automatic fabrication department has its own supervisor, who has
the authority to hire employees for work therein, but its employees
share the same ultimate supervisor as the other employees under dis-
cussion. All the employees are hourly paid and work virtually the
same number of hours, and all the inside glassworkers and automatic
fabrication department employees regularly punch the same time
clock. When the employees in the glass shop have insufficient work
of their own to do, they are detailed to cutting glass for use on the
Weber machines. There has been no interchange of any kind between
the outside glaziers' group and the automatic fabrication department.
Upon the entire record, particularly the evidence to the effect that
the automatic fabrication department is in the nature of a separate
plant performing an independent function under separate immediate
supervision, we find that the employees of that department may con-
stitute a separate unit. On the other hand, because we are of the
opinion that the employees in the automatic fabrication department
and the inside glassworkers' group have a sufficient community of
interest to be joined in a single unit, and in view of Local Union
No. 963's desire to represent the automatic fabrication department
as part of a larger unit, we find that the employees in that depart-
ment may, if they so desire, be added to the existing unit of inside
glassworkers currently represented by Local Union No. 963. Ac-
e Although on February 20, 1954 , the Employer and a committee of employees entered
into a bargaining contract covering the employees in the automatic fabrication department,
it is not contended , and the record does not show , that the automatic fabrication depart-
ment is presently represented by any bargaining agent.
ARMOUR LEATHER COMPANY 1311
cordingly, we shall make no final determination with respect to the
employees in the automatic fabrication department at this time, but
shall first ascertain the desire of these employees as expressed in the
election directed herein. We shall direct an election among the fol-
lowing employees : All employees in the automatic fabrication de-
partment at the Employer's Washington, D. C., establishment
excluding all other employees and supervisors as defined in the Act.6
We shall place the names of both labor organizations involved
herein on the ballot. If a majority of the employees in the above
voting group vote for the Independent, they will be deemed to have
indicated their desire to constitute a separate appropriate unit which
the Board, under such circumstances, finds to be appropriate for pur-
poses of collective bargaining. In the event a majority vote for
Local Union No. 963, they will be taken to have indicated their desire
to be constituted a part of the existing inside glassworkers' unit pres-
ently represented by Local Union No. 963.
The Regional Director conducting the election directed herein is
instructed to issue a certification of representatives or of results of
election in accord with the foregoing.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK took no part in the consideration of the above
Decision and Direction of Election.
9 See Ware Laboratories , Inc., 98 NLRB 1141, and R . P. Scherer Corporation , 95 NLRB
1426 . Packard Motor Car Co., 94 NLRB 1550, and American Bakeries Co., 107 NLRB 1529,
upon which Local Union No. 963 relies to support its position , are plainly distinguishable
on the facts.
ARMOUR LEATHER COMPANY , A DIVISION OF ARMOUR AND COMPANY and
CONGRESS OF INDUSTRIAL ORGANIZATIONS , PETITIONER . Case No.
4-RC-92381 . September 13,1954
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 Herbert B. Mintz, 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 certain em-
ployees of the Employer.
109 NLRB No. 192.