Miller Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 17, 1954

110 N.L.R.B. 909 (N.L.R.B. 1954)

MILLER MANUFACTURING COMPANY 909
MILLER MANUFACTURING COMPANY and WAREHOUSE EMPLOYEES UNION
322, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA , A. F. OF L." and TRUCK
DRIVERS & HELPERS LOCAL UNION No. 592, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS , A. F. L.,2 PETITIONERS . C./ a8es Nos. 5-RC-1407
and 5-RC-1408. November 17, 1954
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Benjamin E. Cook, 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 proceeding, 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.'
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 appropriate unit :
In Case No. 5-RC-1407, Local 322 seeks a unit of all the Employer's
production and maintenance employees, excluding truckdrivers. In
Case No. 5-RC-1408, Local 592 seeks a separate unit of truckdrivers.
The Employer and Millmen contend that only a plantwide unit, in-
cluding the truckdrivers, is appropriate.
The Employer is engaged in the manufacture and sale of millwork
and wooden boxes, and in the sale of building supplies generally.
From 1941 to 1946, the Employer negotiated contracts with Local 592
as the representative of various classifications of truckdrivers, and
with Millmen as the representative of the rest of the production and
maintenance employees. Since 1946, however, Local 592 has declined
to negotiate for the truckdrivers, and at Local 592's request the drivers
have been excluded from the plantwide contracts negotiated between
1946 and 1953 by Millmen. Thus, the most recent such contract ex-
cludes "trailer, truck, and wood truck, drivers." However, the record
shows that any benefits accruing to other employees under Millmen's
contracts have since 1946 been extended to the truckdrivers.
1 Hereinafter called Local 322.
8 Hereinafter called Local 592.
8 Millmen's Local Union No. 1682, United Brotherhood of Carpenters and Joiners of
America, AFL , hereinafter called Millmen, intervened at the hearing on the basis of a
contract interest.
110 NLRB No. 150.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 592 seeks to represent the Employer's truckdrivers, -who fall-
into three categories : trailer truck, straight truck, and wood truck.
The straight truckdrivers are assigned to 1 of 3 production depart-
ments. They make deliveries of materials to customers as needed;
when there is no delivery work, they do production work in their re-
spective departments. About 20 to 45 percent of their time is spent
in driving, the rest in production work.
The wood truck driver, assigned to the box department, delivers
scrap wood to customers and hauls off refuse. However, most of his
time is spent in production work in the box department.
The trailer drivers, under the supervision of the superintendent of
the mill department, spend 65 percent of their time making deliveries
to cities within a radius of 300 miles. The rest of their time is spent
in loading or unloading their trucks and in production work. Al-
though the record shows that any benefits accruing to other employees
under Millmen's contracts have since 1946 been extended to the truck-
drivers, that is not sufficient basis, in our opinion, for finding that they
have been included in the contract unit. The Board has frequently
held that, in making its unit findings, it will not regard as controlling
a bargaining history consisting of oral agreements.' Moreover, here,
any oral understanding between the Employer and Millmen with re-
gard to the coverage of the truckdrivers by the written contracts is
contradicted by the contracts themselves, which in terms exclude such
drivers. We find, therefore, that the trailer truck, straight truck, and
wood truck drivers are not part of the existing contract unit. Under
these circumstances, we find these drivers constitute a residual, un-
organized group, which may, if the drivers so desire, constitute a sepa-
rate appropriate unit.5
There remains the question of the inclusion within the plantwide
unit of the various categories discussed below.
Local 322 would exclude the plant clerks. The Employer and Mill-
men took no position. They work under the shipping clerks in the
various production departments and are responsible for assembling
and tabulating material to be shipped; they check out shipments and
write up shipping tickets. As their work is done in the production
area and requires frequent contact with production employees, we
will include them in the plantwide unit.
The chief engineer in the powerhouse is in charge of the firemen
and oilers and repairmen in the powerhouse, as well as the watchmen.
Both he and his assistant have authority to hire and discharge these
employees. The Employer and Millmen would exclude them as super-
visors. Local 322 submitted the issue to the Board. We find that the
chief engineer and his assistant are supervisors and will exclude them.
4 E g, Wasatch Oil Refining Company, 76 NLRB 417, footnote 5
5 Houston Lighting & Power Company, 100 NLRB 76, 77
MILLER MANUFACTURING COMPANY 911
The watchmen patrol the plant at night for the purpose of protect-
ing plant property against intruders, as well as against fire. The
Employer and Millmen would exclude them. Local 322 took no posi-
tion. We find that they are guards within the meaning of the Act
and they will be excluded.
Of the 5 lumber inspectors, 2 have authority to hire and discharge
laborers who handle lumber under their direction. The other three
have authority to discharge such employees. The Employer and Mill-
men would exclude all the lumber inspectors as supervisors. Local
322 would include the 3 latter inspectors, but takes no position as to
the first 2 mentioned above. We find that they are all supervisors
and will exclude them.
Fred Blackburn is employed as a ripsawyer in the cutting depart-
ment, and substitutes for the foreman of the department in his absence.
He has authority at all times effectively to recommend to the foreman
the hiring and discharge of employees and the granting of merit in-
creases. Local 322 would include him. The Employer and Millmen
took no position. We find that he is a supervisor and will exclude him.
Although the Employer and Millmen indicated no objection to the
inclusion of certain working foremen, discussed below, Local 322 re-
quested that the Board rule on their supervisory status.
David Musser has authority effectively to recommend merit in-
creases and discharges for the six employees in his crew.
Calvin Miles directs the work of 15 employees and has authority to
assign work to them and to grant time off for sickness.
Willie Lane directs 6 to 8 employees and has authority effectively
to recommend promotions.
Robert Wharton directs 15 employees and has authority to dis-
charge them.
Al Wyatt directs 8 or 10 employees to whom he assigns work.
R. R. Johnson and Jim Stephens were described as working fore-
men. However, the record contains no specific evidence as to their
duties.
Upon the entire record, we find that, of the foregoing working fore-
men, Musser, Miles, Lane, and Wharton are supervisors, and we will
exclude them. As to Wyatt, Johnson, and Stephens, the evidence in
the record is insufficient to permit a determination of their super-
visory status. Accordingly, they will be allowed to vote subject to
challenge.
We will direct separate elections in the following voting groups :
(a) All production and maintenance employees, including plant
clerks, but excluding the trailer truck, straight truck, and wood truck
drivers, office clerical employees, salesmen, draftsmen, watchmen, the
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chief engineer and assistant chief engineer in the powerhouse, the
lumber inspectors, the working foremen,' and all other supervisors.
(b) All trailer truck, straight truck, and wood truck drivers.
If a majority of the ballots cast by the employees in group (b) are
for Local 592, such employees will be taken to have indicated their de-
sire to constitute a separate unit, and the Regional Director is in-
structed in that event, to issue a certification of representatives to
Local 592 for such unit, which the Board, under such circumstances,
finds to be appropriate for the purposes of collective bargaining. If a
majority in group (b) thus vote for separate representation, and a
majority in group ( a) also elect to be represented by a union, the
Regional Director is instructed, in that event, to issue a certification of
representatives to such union for a separate unit comprising the em-
ployees in group (a), which the Board, under such circumstances,
finds to be appropriate for purposes of collective bargaining.
If a majority of the ballots in group (b) are not cast for Local 592,
the votes of that group will be pooled with those in voting group (a),'
and the Regional Director is instructed, in that event, to issue a certifi-
cation of representatives to the labor organization selected by a major-
ity of the employees in the pooled group, which the Board, under such
circumstances, finds to be a unit appropriate for purposes of collective
bargaining.
[Text of Direction of Elections omitted from publication.]
MEMBERS MURDOCK and BEESON , dissenting in part :
We agree with the majority in this case, except insofar as they find
that all three classifications of truckdrivers are a residual group and so
entitled to a self-determination election.
In finding the drivers to be a residual group, the majority has re-
jected uncontradicted evidence in the record that, while nominally ex-
cluded from the contract, the contracting union in fact bargained for
the drivers and the provisions of the contract were deemed by the par-
ties thereto to apply to the drivers. While it is true that such under-
standing by the parties conflicted with the terms of the contract, the
Board has often stated that it will not exalt technical rules of law above
more realistic considerations. The realities of this case are that the
drivers were in fact regarded by the parties as part of the contract unit.
Accordingly, we would treat the petition in Case No. 5-RC-1408 as
6 As indicated above, three of the working foremen will be permitted to vote under
challenge.
4 If the votes are pooled , they are to be counted in the following manner :
The votes for Local 592 shall be counted among the valid votes cast but neither for nor
against either of the other unions; all other votes are to be accorded their face value,
whether for any union or for no union.
ACME STEEL COMPANY 913
one seeking severance of the Employer's truckdrivers from the exist-
ing contract unit. Viewing the petition in this light, we find that as
the trailer drivers are primarily engaged in driving, as distinguished
from production work, their interests are sufficiently divergent from
those of the production and maintenance employees to warrant their
severance. However, severance of the straight truck and wood truck
drivers is precluded in our opinion by the fact that they devote the
major part of their time to production work and the record does not
otherwise establish that their interests are substantially different from
those of the production workers.
Accordingly, we would place Local 592 on the ballot in a voting group
limited to the trailer truck drivers, denying that Local's petition for
the other categories of drivers.
ACME STEEL COMPANY, TOOL & MACHINERY DIVISION and DISTRICT
No. 8, INTERNATIONAL ASSOCIATION OF MACHINISTS , AFL, PETI-
TIONER . Case No. 13-RC-4015. November 17, 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 Robert G. Mayberry, 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.'
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. In 1941, and again in 1949, the Petitioner was certified as
collective-bargaining representative for the employees then located at
the Employer's Chicago, Illinois, plant. On August 16, 1954, the
Chicago operation was moved to the Employer's Riverdale, Illinois,
plant. The Petitioner contends that the employees in this operation,
1 The Petitioner moved to deny the intervention of United Steelworkers of America,
CIO, the Intervenor herein, on the ground that the Intervenor has made no showing of
interest in the employees involved herein. In view of the Intervenor's contention that
its contract with the Employer covers these employees we find that the Intervenor sloes
have an interest in these employees. Accordingly, we deny the motion.
110 NLRB No. 148.
338207-55-vol. 110-59