"M" System, Inc.

National Labor Relations Board - Board Decisions

May 14, 1956

115 N.L.R.B. 1316 (N.L.R.B. 1956)

1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"M" System, Inc., Mobile Home Div., Mid -States Corp . and Lodge
1243, International Association of Machinists, AFL-CIO, Peti-
tioner.' Case No. 16-RC-1773. May 14,1956
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 Lewis A. Ward, hear-
ing officer . The hearing officer 's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.2
Upon the entire record in this case, the Board finds :
1. The Employer is a Mississippi corporation operating in the
State of Texas where it is engaged in the manufacture and sale of
mobile homes, commonly referred to as house trailers. From January
to October 1955, the date of the hearing herein, the Employer made
out-of-State purchases of raw materials in excess of $500,000. Dur-
ing the same period, the Employer's sales totalled in excess of $500,000,
all of which were made within the State of Texas.
1 The AFL and CIO having merged subsequent to the hearing in, this proceeding, we
are amending the identification of the affiliation of the Petitioner accordingly.
2At the hearing , the Employer moved to dismiss the petition on the following grounds:
(1) The Petitioner has not complied with the filing requirements of the Act; (2) the
Petitioner 's showing of interest is insufficient ; ( 3) the Petitioner 's authorization cards
were fraudulently procured ; ( 4) the Petitioner 's demand for recognition was not made
prior to the filing of its petition ; and ( 5) the Petitioner is not authorized to receive into
membership employees of the Employer . These motions were referred to the Board by
the hearing officer. With respect to ( 1), the Board has held that the fact of compliance
by a labor organization required to comply may not be litigated in Board representation
proceedings , but has adopted the practice of permitting parties to such proceedings to
cause to be instituted an administrative investigation of those compliance matters which
the Board may properly decide in collateral proceedings . See Desaulniers and Company,
115 NLRB 1025 , footnote 3. However , the Board is administratively advised that the
Petitioner has at all times material to this proceeding been and now is in compliance
with the filing requirements of Section 9 (f), (g), and ( h) of the Act Member Rodgers
believes that the Employer has the right under the Act to litigate the fact of the Peti-
tioner's compliance in the representation proceeding itself . Accordingly , he would reopen
the record herein to allow the Employer to do so See his dissent in Desaulniers, supra.
See also N. L . R. B. v. Puerto Rico Products Corp. ( C. A 1), decided Apiil 26, 1956. Re-
garding ( 2), the Board has consistently ruled that showing of interest is a matter for
administrative determination and cannot be litigated in representation proceedings. See
The Sheffield Corporation , 108 NLRB 349 . Moreover, we are administratively satisfied
that the Petitioner has made an adequate showing of interest in this proceeding. As to
(3), although the Employer contended at the hearing that the Petitioner 's authorization
cards were procured by fraud, it submitted no evidence to substantiate this claim and in
fact conceded that it has no such evidence to offer in this connection . Under the cir-
cumstances , we find no merit in this motion to dismiss . With regard to (4), although
the Petitioner did not request recognition prior to filing its petition , the Employer refused
at the hearing to accord recognition to the Petitioner . In view of that refusal , the failure
to request iecognition before filing the petition provides no basis for dismissing the peti-
tion. See American Tobacco Company, Incorporated, 108 NLRB 1211 . Concerning (5),
the Board has uniformly held that the willingness of a petitioner to represent employees,
rather than the eligibility of employees to membership in the petitioner , is controlling
under the Act. Gusdorf & Son, 107 NLRB 998. Accordingly , the foregoing motions to
dismiss by the Employer are denied.
For the reasons stated infra, the Employer 's additional motion to dismiss the petition
on the ground that the requested unit is inappropriate is hereby denied.
115 NLRB No. 209.
"M" SYSTEM, INC. 1317
The Employer contends that the Board should not assert jurisdic-
tion over its operations because none of its sales were made outside the
State of Texas. Although,like other companies, this Employer sells
its products, it carries on essentially a manufacturing operation. In
Jonesboro Grain Drying Cooperative,' the Board set forth the dollar-
volume criteria for the assumption of jurisdiction over enterprises
such as that involved herein. In that case, the Board announced that
it would assert jurisdiction over an enterprise, such as the Employer's,
if the enterprise received goods or materials from out of State valued at
$500,000 or more per year, without regard to whether the enterprise
made out-of-State sales. As the Employer in this case made out-of-
State purchases of materials in excess of $500,000, we find that the
Jonesboro jurisdictional standard has been met. Accordingly, the
Employer's contention that the Board should decline jurisdiction is
rejected.
2. The labor organization involved claims to represent certain
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) andSection2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner seeks a unit of all production and maintenance
employees at the Employer's plant in Texarkana, Texas, including
inspectors, leadmen, the saw filer, the power tool serviceman, and the
stockroom clerk, but excluding office clerical employees, professional
employees, the over-the-road truckdriver, the office maid, watchmen,
guards, and all supervisors as defined in the Act. The Employer con-
tends that the unit sought is inappropriate and for that reason the
petition should be dismissed.' Alternatively, the Employer requests
that, if the Board finds that the unit proposed by the Petitioner is
appropriate, the Board, should exclude the leadmen, the saw filer, the
power tool serviceman, the inspectors, and the stockroom clerk, in
addition to the exclusions sought by the Petitioner. There is no his-
tory of collective bargaining at this plant.
The Employer is engaged in the manufacture of house trailers. Its
Texarkana plant is comprised of warehouse, frame and axle assem-
bly, mill, main assembly, paint, and final finish departments. The
warehouse employees receive materials used in the construction of the
trailers and distribute them to the departments where needed. The
frame and axle assembly employees fabricate trailer frames by weld-
ing I-beams and install axles and'wheels. Mill department employees
cut and shape lumber to prescribed sizes for construction of trailer
coaches and, when required, convey the lumber to the main assembly
department. Employees in the main assembly department lay the
0 110 NLRB 481.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
floors in the trailer frames, erect the walls and ceilings , insulate the
units, and install the plumbing. The employees in the paint depart-
ment varnish the trailer interiors and paint the units. The final fin-
ish department installs fixtures, furniture, and appliances. The
trailers are then ready for sale or delivery.
The record discloses that practically all the employees in the fore-
going departments work from 7 a. m. to 4 p. m., they are ultimately
supervised by the plant superintendent, they are all hourly paid, they
use a common entrance to the plant, and they punch a common time
clock. Moreover, the record reveals instances of interchange and
transfers both within, and among, the various departments.
The Employer contends that the requested unit is inappropriate
because it includes separate departments the employees of which per,
form separate and distinct operations. It urges that separate depart-
mental units should be established. However, even assuming that
units smaller than a plantwide unit might be appropriate on some
basis, no other labor organization seeks to represent them on such a
basis. Accordingly, in view of the integrated nature of the Em-
ployer's operations, the instances of interchange and transfers within
and between the departments, and the facts that all employees gener-
ally work the same hours, are paid on the same basis, and are ulti-
mately supervised by the plant superintendent, we find that a plant-
wide unit of production and maintenance employees is appropriate.
We shall therefore direct an election in such a unit.
We turn now to a consideration of the unit placement of the lead-.
men, the saw filer, the power tool serviceman, the inspectors, and the
stockroom clerk.
A. Leadmen: The Employer would exclude the leadmen on the
ground that they are supervisors. The Petitioner would include
them. There are 10 leadmen in the main assembly plant who work
directly under the foremen of their respective sections. The record
discloses that these individuals assume the duties and responsibilities
of their foremen when the latter are absent, they have the authority
effectively to recommend the hire, discharge, and promotion of em-
ployees working under them, and they receive between 25 and 30
cents an hour more than the other employees in their department. In
view of the foregoing, we find that the leadmen are supervisors within
the meaning of the Act and we shall exclude them from the unit .4
B. Saw filer and power tool serviceman : The saw filer, who regu-
larly works approximately 75 percent of the workweek in the main
assembly plant, sharpens and replaces the Employer's conventional
saws. When employed, he works the same hours as the production and,
maintenance employees and, so far as appears , is subject to the same,
4 See W. F. & John Barnes Company, 96 NLRB 1136, 1139.
"M" SYSTEM, INC. 1319
conditions of employment. As part of his duties, the saw filer reports
to the foreman concerning instances where employees have consistently.
abused saws and such reports may lead to disciplinary action being
taken by the foreman. However, the saw filer does not work with any,
other employees. The power tool serviceman services the power-driven
electrical screw drivers and saws. He is apparently a full-time em-
ployee who is directly responsible to the plant superintendent. Like
the saw filer, the power tool serviceman reports instances of the abuse
of tools to the foreman which reports may also lead to disciplinary
action being taken. Also like the saw filer, the power tool serviceman
does not work with any other employees.
The Employer urges that the saw filer and power tool serviceman
should be excluded from the unit on the ground that they are man-
agerial employees. On the basis of the foregoing, we are not persuaded
that the duties and interests of these employees are so closely allied with
management so as to warrant their exclusion from the production and
maintenance unit herein found appropriate. We shall therefore in-
clude them.
C. Inspectors: There are two inspectors who are responsible to and
receive instructions from-the final finish department foreman as to the
units to be inspected on the assembly line and prior to sale. Part of the
duties of one of the inspectors consists in conveying the Employer's
mail to the downtown area. The Employer contends that these two
employees should be excluded from the unit because "of the respon-
sibility of their job and the nature thereof." As the record fails to
establish in what manner, if any, the conditions of employment of the
inspectors differ from those of the other employees in the final finish
department, who are included in the unit, as the inspectors are under
the same supervision as the final finish department employees, and as
the record fails to establish that these employees are either supervisory
or managerial employees, we shall include them in the unit.'
D. Stockroom clerk: The stockroom clerk is employed in the ware-
house building where he checks materials which come in and leave the
plant, routes the shipments, maintains invoices, and issues receipts.
He is supervised by the same foreman who supervises the other em-
ployees in the warehouse. The Employer contends that the stockroom-
clerk should be excluded from the unit, apparently because he is a
supervisor. However, the Employer concedes on the record that this
employee has no supervisory authority. Under the circumstances, we
find that the stockroom clerk is not a supervisor within the meaning of
the Act and we shall include him.6
Accordingly, we find that all production and maintenance employees
at the Employer's plant in Texarkana, Texas, including inspectors,
5 See Metal Products Corgoratifon, 107 NLRB 94, 96.
6 See McGough Bakeries Corporattion, 90 NLRB 2004.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the saw filer, the power tool serviceman, and the stockroom clerk, but
excluding leadmen, office clerical employees, professional employees,
the over-the-road truckdriver, the office maid, watchmen, guards, and
all 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.]
D'Arcy Company, Inc. and Chauffeurs , Teamsters & Helpers
Local Union 633, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , AFL-CIO.'
Case No. 1-CA-1981. May 15,1956
DECISION AND ORDER
On December 28, 1955, Trial Examiner James A. Corcoran issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, in violation of Section 8 (a). (1) and (3) of the Act,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. Thereafter the Respondent filed exceptions
to the Intermediate Report and a supporting brief; the General Coun-
sel filed a brief in support of the Intermediate Report and a motion
to strike the Respondent's exceptions?
The Board has reviewed the rulings ofthe Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,' and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, D'Arcy Com-
1 The AFL and CIO having merged, we show the affiliation of the Union accordingly.
9 The motion was based on an asserted lack of specificity in the Respondent 's excep-
tions. While it is true that the exceptions were very broad, they were accompanied by a
brief which made the Respondent 's position clear . Accordingly, the General Counsel's
motion is denied.
8 The finding of the Trial Examiner that it is "the effect , not motivation" which deter-
mines whether an unfair labor practice has been committed must, of course, be limited to
violations of Section 8 (a) (1). Motive is an essential element in a violation of Section'
8 (a) (3). It is clear from the Intermediate Report that the Trial Examiner has cor-
rectly applied this rule of law in finding violations of Section R (a) (3).
115 NLRB No. 215.