Doak Aircraft Co., Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1954

110 N.L.R.B. 792 (N.L.R.B. 1954)

792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract as extended is not a bar to a petition filed within a reasonable time
before the expiration date .5
4. The parties stipulate and we find that the following employees
of the Employer 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 Tren-
ton, New Jersey, plant, excluding all office clerical employees, guards,
watchmen, professional employees, and all supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication.]
5 The Pure Oil Company, 98 NLRB 139, footnote 4; Lewis Engineering & Manufac-
turing Company, supra.
DOAK AIRCRAFT CO., INCy PETITIONER and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, DISTRICT LODGE No. 720, AFL
DOAK AIRCRAFT CO., INC. and BERENICE WOODS, PETITIONER and IN-
TERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No.
720, AFL. Cases Nos. 21-RM-285 and 21-RD-211. November
4,1954
Decision and Direction of Election
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Max Steinfeld, 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 Petitioner in Case No. 21-RD-211, employee of the Em-
ployer, asserts that the Union is no longer the representative, as
1 The Union moved to adjourn the hearing on the ground that there was pending before
the Board unfair labor practice charges filed by the Union The Board 's records show
that at the time of the hearing the Regional Director had dismissed the charges, and
that the General Counsel thereafter sustained the Regional Director's dismissals. We
therefore affirm the hearing officer' s denial of the Union's motion for adjournment. See
Meridian Plasttics, Inc., 108 NLRB 203; Mc Quay Incorporated, 107 NLRB 787 The
Union also moved to consolidate the representation and complaint cases, and to adjourn
the hearing until the General Counsel acted on the Union's motion to consolidate these
cases. It is established Board practice to exclude all evidence relating to unfair labor
practices from representation hearings . Dichello, Incorporated, 107 NLRB 1642; New
York Shipping A ssociation and Its Members, 107 NLRB 364. Moreover, as noted above,
the unfair labor practice charges against the Employer have been dismissed . Accordingly,
we affirm the hearing officer's denial of the Union's motion to consolidate the cases and to,
adjourn the hearing . Cf Northwestern Photo Engraving Company, 106 NLRB 1067;
Everett Plywood & Door Corporation, 105 NLRB 17.
110 NLRB No. 124.
DOAK AIRCRAFT CO., INC. 793
defined in Section 9 (a) of the Act, of the employees designated in
the petition. The Union is the currently recognized representative
of the Employer's employees in a unit which includes the employees
designated in the petition.
3. The hearing officer referred to the Board the Union's motions to
dismiss the petition on the grounds that (a) unfair labor practice
charges filed against the Employer bar an election; (b) the Union
disclaims that it is now the majority representative of the employees
within the bargaining unit; and (c) the Union's contract with the
Employer constitutes a bar to these proceedings. For the reasons
stated below, we find no merit in the Union's contentions. Accord-
ingly, its motions to dismiss are hereby denied.
(a) As the charges filed by the Union against the Employer have
been dismissed, there is no reason for delaying the election on this
ground.
(b) At the hearing, the Union asserted that it no longer claimed
to represent a majority of the Employer's employees. On January 13,
1954, the Union called a strike which was still continuing at the time
of the hearing on February 11. The Union contends that the strike is
in protest against the Employer's unfair labor practices, and also to
seek the support of the employees in the plant, in order to again estab-
lish itself as majority representative of the employees.2 In view of
the fact that the Union filed 8 (a) (5) charges against the Employer,
and in view of the additional fact that the Union was actively picket-
ing the Employer's plant at the time of the hearing, we are not per-
suaded that the Union has so clearly and unequivocally disclaimed
interest in representing the Employer's employees as to negate the
existence of a present question concerning representation.3 Moreover,
we believe that the Union's assertion of its contract with the Employer
as a bar to the instant petition is inconsistent with its disclaimer.4
We therefore believe that the policies of the Act will best be served by
directing an election in this case.
(c) The Union urges that a contract with the Employer executed
on November 12, 1952, is a bar to these proceedings. The contract
provides that it shall remain in effect for a period of 1 year from
November 12,1952, and from year to year thereafter until either party
serves a 60-day written notice on the other specifying a desire to
modify or terminate the agreement. The contract is to remain in
full force and effect for 60 days after such notice is given. On
2 The placards carried by the pickets contained the legend " on strike- on one side,
and "this company is unfair" on the other side.
3 Cf. Frances Plating Co., 109 NLRB 2; Petrie's, an Operating Division of Red Robin
Stores, Inc., 108 NLRB 188 ; V & D Machine Embroidery Co , 107 NLRB 1567 ; McAllister
Transfer, Inc, 105 NLRB 751; Terminal Storage Company, 104 NLRB 407; Kimel Shoe
Company, 97 NLRB 127, 128-129; The Johnson Bros. Furniture Co., 97 NLRB 246,
246-247.
4 Cf American Lawn Mower Co., 108 NLRB 1589.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 11, 1953, the Union notified the Employer, in writing, of
its desire to terminate the existing agreement and to enter into nego-
tiations for a new contract. After an exchange of letters in reference
to the Union's request of September 11, the Employer, on November
30, 1953, notified the Union that it could not make any further deduc-
tions for membership dues from the employees' earnings under the
contract, as the contract had been terminated on November 11, 1953.
The Employer's petition in Case No. 21-RM-285 was filed on January
22, 1954, and the Petitioner's petition in Case No. 21-RD-211 was filed
on January 25, 1954.
The Union contends that as the Employer declined to accept the
Union's notice to terminate the contract, and did not itself give any
termination notice, the contract was automatically renewed. We find
this contention to be without merit. The contract contains no pro-
visions that require acceptance of a notice of termination. It is there-
fore immaterial whether or not the Employer accepted the Union's
termination notice. As the Union's termination notice was given in
accordance with the terms of the contract, and was timely with respect
to the Mill-B date of the contract, we find that such notice effectively
terminated the contract, and the contract therefore cannot be con-
sidered as a bar to these proceedings.5 Moreover, contrary to the
Union's contention, we find that the Employer did accept the Union's
notice to terminate the contract.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The parties stipulated that a unit of all production and mainte-
nance employees, including shipping, receiving, and production con-
trol employees, inspectors, timekeepers, and leadmen, but excluding
office clerical and professional employees, watchmen, guards, construc-
tion carpenters, secret project department employees, and all super-
visors, is appropriate for the purposes of collective bargaining.
In a prior decision involving this Employer, the Board found that
the leadmen were supervisors s Since the time of the hearing in the
former case, the Employer has made a number of changes in its su-
pervisory structure. The record in the instant case shows that the
Employer's operations are headed by a general manager, under whom
is a factory manager who is responsible for several departments, in-
cluding the production department.7 There is a superintendent and
5 Cf. Diamond Printing Company, 109 NLRB 112; Moore Drop Forging Company, 108
NLRB 32; 20th Century Press, 107 NLRB 292; Winter Stamping Company, 107 NLRB
14; Continental Can Company, Inc., Bether Division, 107 NLRB 8; Augat Bros., Inc.,
97 NLRB 993, 994
e Doak Aircraft Co., Inc., 107 NLRB 924.
7 The factory manager also is responsible for the inspection , production control, pur-
chasing, and personnel departments.
DOAK AIRCRAFT CO., INC. 795
an assistant superintendent under the factory, manager who are di-
rectly responsible for production. Below the level of assistant super-
intendent are three foremen. One of the foremen has 2 leadmen who
report to him, and another has 4 leadmen who report to him. The
third foreman has immediate supervision over the receiving and ship-
ping employees.
The primary duty of the assistant superintendent is to be on the
floor within the working area, and to work with the foremen, lead-
men, and other persons where necessary, to keep up the constant flow
of the work. He also has some administrative duties. The foremen
have full authority over the leadmen. They have authority to hire
and discharge, make recommendations as to changes in the employees'
status, process merit reviews, transfer personnel, direct the assign-
ment of work, and to discipline employees.
The six leadmen are hourly paid employees who have no authority
over the employees other than to assist them in the processing of work,
and to help them in setups on machinery. They spend most of their
time doing production work. They have no authority to hire, dis-
charge, or discipline employees, or effectively to recommend such ac-
tion. They do not recommend wage increases and are not consulted in
the marking of merit review cards.8 They have no authority to make
or recommend changes in the status of employees working under them,
to transfer employees, or to make other than routine work assignments.
It is clear from this record that the direction exercised by the lead-
men over the employees under them is routine in nature, and does not
require the exercise of independent judgment. We therefore find that
the leadmen are not supervisors within the meaning of the Act.
We find that all production and maintenance employees, at the
Employer's Torrance, California, plant, including shipping, receiving,
and,production, control employees, inspectors, timekeepers, and lead-
men, but excluding office clerical and professional employees, watch-
men, guards, construction carpenters, secret project department em-
ployees, and all supervisors, 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.]
CHAIRMAN FARMER , concurring :
I concur in this decision. In January 1954, a majority of the
Board dismissed an election petition at this plant on the -ground
that the leadman who filed the petition was a supervisor. I dissented
8 One leadman testified that the foreman consulted with him in making ratings , but used
his own independent judgment in rating the employees and did not necessarily take the
leadmen's recommendations . He further testified that he now does not have as much
responsibility as he formerly had.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because I was convinced on the record then, as now, that the leadmen
were nonsupervisory employees and that the Local Union's attack
upon the right of a leadman to petition for an election was motivated
solely by a desire to prevent a representation election. The current
proceeding, in my opinion, proves the correctness of my position.
Now, the parties all stipulate that these leadmen should be included
in the unit as nonsupervisory employees, and the Board adopts that
stipulation.
Without explanation, the majority decision says that there have
been changes in the Employer's supervisory structure. The only
change shown in the record is that three additional supervisory jobs
have been created. The direct testimony of the leadmen, themselves,
shows without qualification that their work has remained the same,
that their responsibilities are now no different from their responsibili-
ties in the past. Yet, in the first case, the majority held that these
leadmen were supervisors and in this case the majority agrees that
they are not.
In all candor, I am compelled to say that the only difference which
I can see is that the prior case involved a decertification petition and
this case does not. In the prior case, a finding that leadmen were
supervisors was fatal to the entire petition because of the Board
rule, with which I agree, that supervisory employees cannot file a
decertification petition. In this case, involving both RC and RM pe-
titions, an election would be ordered regardless of the status of the
leadmen. Accordingly, since a claim of supervisory capacity could
not in any event defeat the holding of an election, which it may be
added, the local has consistently opposed, the Local now stipulates
that the leadmen are not supervisors. This, I may observe, is con-
sistent with its position throughout its history in this plant, except
for the one occasion when the employees sought to exercise their
statutory right to obtain a decertification election.
I do not, of course, accuse the majority in the prior case of im-
proper motives in dismissing the decertification petition. I am cer-
tain that their action -was taken in complete good faith. I do say,
however, that this case demonstrates that they were wrong. I also
say that the entire record shows that the effort to forestall an elec-
tion on the prior petition, albeit successful, was a serious abuse of the
processes of this Board. -
The record shows that, during a long period of time, there have
been continuing labor disturbances at this plant because of the un-
resolved representation dispute. The dismissal of the decertification
petition has delayed the settlement of that dispute for many-months.
I understand that this dispute antedated the dismissal of the decer-
tification petition, but my point is that a resolution of the representa-
tion dispute on the basis of that petition would have settled the
DOAK AIRCRAFT CO., INC. 797
question. While I would have done so sooner, I am in complete
agreement with directing an election at this time.
MEMBERS MURnoczi and PETERSON, concurring :
While we also concur in this decision, the separate remarks of the
Chairman, in our opinion, cloud the issue and contain a number of er-
roneous and unfortunate implications. As the decision in this case
states, the Board had previously found the Employer's leadmen to be
supervisors. An opposite conclusion is reached herein, not because the
former decision was in error or that we, as individual members were
"wrong" as the Chairman states, but because, as the decision here
clearly finds, "the Employer has made a number of changes in its
supervisory structure" which deprive those leadmen of supervisory
authority. As the Board stated, in that earlier decision, a major
factor in the determination that the leadmen then possessed supervisory
authority was the fact that "other than the leadmen, there is no in-
termediate supervision between the 100 factory employees in a number
of separate departments and the assistant superintendent although
other departments are under acknowledged supervisors." I Sint
that decision, the Employer has created such intermediate supervision
and the record contains other testimony, cited in the majority opinion
herein, that the leadmen do not have as much responsibility as before.
The Board's decision in the current proceeding, accordingly, hardly
illustrates the "correctness" of the Chairman's dissenting view in the
previous case.
The Chairman further states that the only reason we, as the majority
which dismissed the prior petition, now join in the direction of an
election is that "this case arises also on an employer petition" as well
as a decertification petition. This is simply not so. Even absent the
RM petition we would of course direct the election on an RD petition
filed by a nonsupervisory employee. Nor do we find any real support
for the assertion that the Local Union in the prior case abused the
Board's processes in any way by taking a position, which if adopted
by the Board, would prevent a representation election. Even if that
desire can properly be attributed to the Union, it is irrelevant. To
our knowledge, a party to proceedings before this Board is entitled to
raise, and have seriously considered and decided on its merits, any
issue which it feels has legal merit whether or not their motives are
acceptable to all parties concerned. Any other procedure which
granted consideration to a legal argument only if the Board approved
the proponent's motives would be a flagrant denial of due process.
But the Chairman's comments as to the Union's consistent position
as to the status of the leadmen is directly disproved by uncontradicted
9 Doak Aircraft Co., ]nc , 107 NLRB 924
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence that a number of these leadmen were previously excluded
from the unit as supervisors by agreement of the parties.
Finally, we view as particularly unfortunate the implication that
the Board's previous decision was responsible for the continuance of
labor disturbances at this plant. As a matter of fact, those disturb-
ances antedated the Board's previous decision. Their continuation in
the interim between that decision and the present is hardly attributable
to the Board in view of the fact that at any time during this period,
nonsupervisory employees of the Employer or the Employer itself
could have filed a petition for a representation election. The fact
that this Board prevented one individual from doing so at a time when
he was a supervisor, and therefore not entitled under the Act to file
a petition, is hardly pertinent.
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Election.
kTHE AMERICAN SHIPBUILDING COMPANY and INTERNATIONAL ASSOCIA-
TION OF MACHINISTS, AFL, PETITIONER . Case No. 8-RC-260.
November 5,195.E
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 W. R. Griesbach,
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 National Labor Relations Act.
2. The following labor organizations claim to represent certain
employees of the Employer : Petitioner , International Association of
Machinists , AFL; Intervenors-International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths , Forgers and Helpers, AFL;
Pattern Makers' League of North America, AFL; United Brother-
hood of Carpenters & Joiners of America, AFL; International
Brotherhood of Electrical Workers, AFL; Brotherhood of Painters,
Decorators & Paperhangers of America, AFL; International
Brotherhood of Firemen & Oilers, AFL ; International Union of
Operating Engineers , AFL; Sheet Metal Workers International As-
sociation , AFL; and United Association of Journeymen & Appren-
tices of the Plumbing and Pipe Fitting Industry of the United States
and Canada, AFL.
110 NLRB No. 114.