Mission Appliance Corp.

National Labor Relations Board - Board Decisions

Apr 7, 1954

108 N.L.R.B. 176 (N.L.R.B. 1954)

17 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office with 2 other employees: the shipping clerk and the re-
ceiving clerk. However, the 4 do not have common supervision,
the clerk typist and the receiving clerk being on the plant pay-
roll, with supervision by the plant superintendent, and apparently
being considered part of a receiving department. On the other
hand the shipping clerk and the posting clerk are on the sales
department payroll, and are supervised by the sales manager.
The shipping clerk arranges for the shipping all articles and
he is on call at all hours of the day and night. Part of his duty
is to map routes for the outside truckdriver. The parties agree
that the shipping clerk should be excluded from the production
and maintenance unit. As to the truckdriver, it appears that
there is only 1 such employee to deliver products out of the
Fort Worth plant, but supervision over this classification comes
from the sales manager . On the whole the record indicates
that the outside truckdriver, the posting clerk, the clerk typist,
and the receiving clerk all have duties dealing with shipping
and receiving, and work in relatively close contact with each
other. All except the truckdriver appear to be plant clerical
employees. Therefore, despite the differences in supervision
which exist with respect to these 4employees,we shall include
them in the production and maintenance unit.
We find that all production and maintenance employees of the
Employer at its Fort Worth, Texas, plant, including maintenance
electricians, the clerk typist, the receiving clerk, the posting
clerk, and the truckdriver, but excluding the shipping clerk,
salesmen, office clerical employees, professional employees,
guards, watchmen, 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.
[The Board dismissed the petition in Case No. 16-RC-1425.]
[Text of Direction of Election omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision, Order, and Direction of Election.
MISSION APPLIANCE CORPORAT ION and SHEET METAL
WORKERS INTERNATIONAL ASSOCIATION, LOCAL 371,
AFL and INTERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF
AMERICA, LOCAL 196, AFL, Joint Petitioner s .1-Case No.
21-RC-3461. April 7, 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 Karl W. Filter,
hearing officer.
,Herein called the Sheet Metal Workers and the Teamsters respectively.
108 NLRB No. 37.
MISSION APPLIANCE CORPORATION 177
Over the objection of the Employer, the hearing officer
permitted amendment of the petition at the hearing to add the
Teamsters as a joint petitioner. The Employer thereupon re-
quested adjournment of the hearing so that it might have time
to consider what effect the addition of another petitioner would
have on its collective bargaining and plant operations. The
hearing officer refused to adjourn the hearing, but suggested
that the Employer make an offer of proof on these points in its
brief. Without abandoning its position that the denial of an
adjournment was prejudicial, the Employer's brief offers to
prove that the wages and fringe benefits paid its truckdrivers
and warehousemen have been based primarily on intraplant
considerations, that the historical relations: existing between
these classifications and factory classifications would be
seriously disrupted by the proposed bargaining arrangement of
the joint Petitioners, and that the Teamsters seeps to repre-
sent so great a percentage of the total number of employees
that a substantial question is involved which can only be settled
by reopening the hearing. The Board affirms the hearing
officer's denial of an adjournment. Since inclusion of the Team-
sters as a joint petitioner did not affect the composition of
the unit which was originally petitioned for, the Employer was
not deprived of an opportunity to introduce all the evidence
available to it on that question.2
The Employer also contends that the hearing officer is not
qualified under section 11 of the Administrative Procedure
Act to permit such an amendment of the petition at the hearing,
and that his ruling constitutes a "recommendation" to the
Board, prohibited by Section 9 (c) (1) of the National Labor
Relations Act. Proceedings for the certification of employee
representatives are specifically excepted from the detailed
procedural requirements of sections 5, 7, and 8 of the Admin-
istrative Procedure Act, and need not, therefore, be conducted
by hearing examiners qualified under section 11 of that Act.'
Further, Section 102.57 of the Board's Rules and Regulations
(Series 6, as amended) provides, in part: "The hearing officer
shall rule . . . upon all motions filed at the hearing . . . except
that he shall refer to the Board for appropriate action all
motions to dismiss petitions, at such time as the Board con-
siders the entire record." Granting a motion to add a party as
joint petitioner is a procedural ruling and not a recommendation
as to whether a question of representation affecting commerce
exists, which is the kind of recommendation proscribed by
Section 9 (c) (1). The Employer's motion to dismiss upon the
grounds set forth supra is hereby denied.
2General Electric Corporation (River Works), 107 NLRB 70, (footnote 3).
9Section 5 (6) of Administrative Procedure Act, (Public Law 404, 79th Cong., Chapter 324;
5 USC Sect. 1001 et seq.). The Borden Company, 101 NLRB 203.
339676 0 - 55 - 13
17 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other rulings of the hearing officer made at the hearing are
free from prejudicial error and are hereby affirmed.4
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce withing the meaning
of the Act.
2. The Petitioners and the Intervenor, District Lodge No.
94, International Association of Machinists, AFL, referred to
herein as the IAM , are labor organizations claiming to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning the re-
presentation of the employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The joint Petitioners and the IAM agree that a unit con-
sisting generally of production and maintenance employees is
appropriate. They would include plant clerical, and exclude
office clerical, employees. Without taking a definite position,
they appear to be in favor of excluding technical employees,
although they have stated their willingness to accept a unit
including any fringe groups which the Board finds should be
included in the production and maintenance unit. The Employer
contends that an appropriate unit should include all hourly
paid, nonsupervisory employees, including clerical employees,
both office and plant, and technical employees.
The Employer is engaged in the manufacture and distri-
bution of water and space heaters, employing approximately
300 persons in its plant at Hawthorne, California. To support
its contention that all clerical and technical employees should
be included in the unit, the Employer relies on bargaining his-
tory since 1940 covering all nonsupervisory employees as
part of a single unit,, the alleged close relationship, both
physical and functional, between office clerical and production
employees, the alleged frequency of transfers between the
clerical and factory groups, and other personnel practices
which are applied equally to all employees.
Our examination of the record reveals that there does not
exist such a similarity of interests and functions between the
4 The Employer's brief renewed a motion made at the hearing that the petition be dis-
missed because the Petitioner's showing of interest was "highly questionable." The Board
has consistently held that two or more labor organizations may appropriately bargain as
joint representatives, and that the adequacy of a showing of interest, on behalf of single or
joint petitioners is not litigable. Sonoco Products Company, 107 NLRB 82 (footnote 1).
In any event, we have administratively determined that the authorization cards submitted by
the joint Petitioners are adequate and meet the Board's requirements.
5 We note, however, that in 1950, in Case No. 21-RC- 1126, a consent election was held in
a unit from which office, clerical, and sales employees, and draftsmen were excluded by
stipulation of the Employer and certain labor organizations which are not parties hereto.
Subsequently, the Employer and Association of Gas Appliance Workers, which had won the
election, entered into an agreement covering all noiisupervisory employees, despite a
certification for the unit which the parties had stipulated as appropriate. The Association,
which was the bargaining representative until March 24, 1954, did not intervene in the
present proceeding.
MARTINOLICH SHIPBUILDING CO. 179
office clerical and factory groups as to warrant departure
from our usual rule of excluding office clerical employees from
a production and maintenance unit. Nor will we "accord con-
clusive weight to a [bargaining ] history which is repugnant to
established Board policy respecting the composition and
scope of bargaining units ."' Accordingly, we shall exclude
office clerical employees from the unit, but include plant
clerical employees. 7
We shall follow our normal policy of excluding technical
employees from a production and maintenance unit, where one
of the parties objects to their inclusion.'
We find that all production and maintenance employees at
the Employer' s Hawthorne , California, plant, including fabri-
cation, assembly ,.tooling, stores , warehouse , service shipping
and receiving employees , truckdrivers, and plant clerical em-
ployees, but excluding office clerical , technical , and profes-
sional employees , guards, watchmen , 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.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Election.
'General Electric Company (River Works ), supr, page 4.
7 The Employer's classification system divides the employees into two groups- -production
and maintenance and office and technical . The job descriptions indicate that some of the
office and technical classifications , for example , material control man, production planning
clerk , and dispatcher , production planning , are actually plant clerical , rather than office
clerical , jobs. Such classifications are included in the unit . In listing the above examples we
do not mean to exclude other job classifications which also fall within the plant clerical
category as that term is used by the Board. Whiting Corporation 107 NLRB 493.
8 Swift & Company, 98 NLRB 746, at 747.
MARTINOLICH SHIPBUILDING CO. land LOCAL UNION 230,
UNITED ASSOCIATION OF JOURNEYMEN AND APPREN-
TICES OF THE PLUMBING AND PIPEFITTING INDUSTRY
OF THE UNITED STATES AND CANADA, AFL, Petitioner.
Case No. 21 -RC-3436. April 8, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Norman H.
' This case was originally consolidated with Cases Nos. 21-RC-3434 and21-RC-3435
(Harbor Boat & Yacht Co.), and Case No. 21-RC- 3437 (National Steel & Shipbuilding Corp.).
During the course of the hearing the Petitioner moved to withdraw the petitions in these
cases. The hearing officer referred the motion to the Regional Director who approved the
withdrawals without prejudice.
108 NLRB No. 45.