National Welders Supply Co., Inc.

National Labor Relations Board - Board DecisionsJan 13, 1964

145 N.L.R.B. 948 (N.L.R.B. 1964)

948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE REMEDY Having found that Local 678 has engaged in and is engaging in certain unfair labor practices affecting commerce , I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies-of the Act. It has been found that Local 678, by attempting to cause and causing Aldrich to lay off and to discharge Smith because of his lack of membership in Local 678, restrained and coerced employees and caused the employer to discriminate, in violation of Section 8(b)(1)(A) and (2 ) of the Act. I shall therefore recommend that Local 678 cease and desist therefrom . I shall further recommend that 678 make Smith whole for loss of pay sustained by reason of the discriminatory action aforementioned , from December 10, 1962 , computation to be made in the customary manner.2 Upon the basis of the above findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Association of Bridge , Structural & Ornamental Iron Workers, Local Union No. 678, is a labor organization within the meaning of Section 2(5) of the Act. 2. By causing and attempting to cause Aldrich to discriminate in regard to hire and tenure of employment and terms and conditions of employment in violation of Section 8(a)(3) of the Act, Local 678 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 3. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Local 678 has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.] 2 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294. National Welders Supply Company, Inc.' and Drivers , Chauf- feurs, Warehousemen & Helpers Local Union No. 71 , affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , Petitioner.2 Case No. 11-RC-1789. January 13, 1964 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held in Charlotte, North Carolina, before Hearing Officer Charles Williamson. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Fanning and Jenkins]. I The Employer's name appears as amended at the hearing. 2 The Petitioner' s name appears as amended at the hearing. 145 NLRB No. 97. NATIONAL WELDERS SUPPLY COMPANY, INC . 949 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 organization involved claims 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) and Section 2 (6) and (7) of the Act.' 4. The Petitioner seeks a unit of all employees at the Employer's three locations in Charlotte, North Carolina, including over-the-road and sales drivers, production and maintenance employees, and shipping and dock employees, but excluding office clerical employees, guards, watchmen, supervisors, professional employees, salesmen, convicts, the brother and son of the Employer's president, and all employees em- ployed at the Employer's retail branches. The Employer contends that the appropriate unit should consist of all employees, including those at the retail branches, with the usual exclusions. There is no history of collective bargaining covering the employees here involved. The Employer is engaged in the production and distribution of oxygen, acetylene, and other welding supplies and equipment. It operates three plants in Charlotte, North Carolina, where the fore- going items are produced. The main production plant is located at Gesco Street, where it manufactures argon, oxygen, nitrogen, and some medical gases, and where approximately 40 employees are employed. Acetylene is manufactured at the Old Doud Road plant, and metal products involved in the welding process are fabricated at the Dryder Road plant. These latter two plants employ approximately 10 employees. In addition, the Employer maintains a number of warehouses or re- tail branches which distribute its products. One such branch is lo- cated in Charlotte. Others are to be found in Asheville, Salisbury, Fayetteville, and Raleigh, North Carolina, and in Columbia, Charles- ton, Florence, and Greenville, South Carolina. There are two addi- tional branch locations in Goldsboro and Wilmington, North Carolina, which to a certain extent are independent entitities. In all, the Em- ployer has approximately 120 employees at its various installations. The production plants are located approximately 4 to 5 miles from each other and are under the supervision of a production superintend- ent. Apart from the production and maintenance employees, three driver-salesmen are employed at the Gesco plant who make deliveries 3 The Employer asserts that the petition should be dismissed on the ground that no ques- tion concerning representation exists because the Petitioner failed to make a demand for recognition prior to the hearing. The Board has consistently held that the filing of a petition itself raises a question concerning representation. See Gary Steel Products Cor- poration, 127 NLRB 1170. The Employer's request that the petition be dismissed is therefore denied. 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Charlotte area, and six over-the-road drivers are utilized to deliver the products to the branch locations. The branch locations are separated from the production plants by distances ranging from 40 to 315 miles. So far as appears, each branch location is in charge of a branch manager who exercises considerable independent control over his branch. While there has been employee interchange between the various branches, it does not appear that there have been any perma- nent interchanges between the production plants and the branches. In National Welders Supply Company, Inc., 129 NLRB 514, decided October 31, 1960, a local of the International Union of Operating Engineers, AFI1-CIO, petitioned for a unit of production and main- tenance employees at the three production installations in Charlotte, excluding the driver-salesmen and over-the-road drivers, and the em- ployees located at the branch warehouses. The Board found the more comprehensive unit appropriate and directed an election therein. Re- cently, the Board has had occasion to restate the guidelines which control its unit determinations. In P. Ballantine cC Sons, 141 NLRB 1103, the Board reversed an earlier decision in which it found that a unit of employees at 12 branches of the employer scattered throughout several States was appropriate, rather than single-branch units. In doing so, the Board noted that : Section 9 (b) of the Act empowers the Board to decide in each case "the unit appropriate for the purposes of collective bargaining." Although the Board necessarily has wide discretion in the exercise of this authority, the statute does provide certain explicit guide- lines. First and foremost is the requirement that each appro- priate unit determination should "assure to employees the fullest freedom in exercising the rights guaranteed by this Act," i.e., the rights to self-organization and to collective bargaining. In order to effectuate this fundamental policy declaration of the Congress, the Board mustbe wary lest its unit determinations unnecessarily impede the exercise by employees of these rights. To effectuate the clear mandate of Section 9, the Board .. . has recently reemphasized its long-standing policy not to compel labor organizations to seek representation in the most comprehen- sive grouping unless an appropriate unit compatible with that requested does not exist. In the instant case, as in the Ballantine case, the record evidence indicates that an appropriate unit compatible with that sought by the Petitioner does exist. Thus, the three production plants in Charlotte are under the separate supervision of a production super- intendent; they employ classifications of production and maintenance employees which do not exist in the branch locations; they are geo- graphically close to each other and far removed from the branch NATIONAL WELDERS SUPPLY COMPANY, INC. 951 installations; there is no evidence of permanent interchange between the production plants and those branches; there is no history of collec- tive bargaining concerning any of the employees here involved; and no labor union seeks to represent the production and maintenance em- ployees in a broader unit. On the basis of all the foregoing, we con- clude that the unit requested by the Petitioner is appropriate for the purposes of collective bargaining. There remains for consideration the unit placement of the following : A. Supervisors: The parties are in disagreement over the place- ment of Don Huffman, H. C. Green, Fred Green, Baxter Hoffman, Fred Hope, Keith Ledbetter, and Frank Kiziah. The Petitioner -would exclude them as supervisors, while the Employer would include them. Huffman is the assistant manager at the Gesco Street plant and H. C. Green is the assistant manager at the Old Doud Road plant. Both men are in charge of these plants when their respective plant managers are absent, and both possess the power to discipline em- ployees and adjust grievances. Fred Green is classified as a dis- patcher whose duty it is to assign and coordinate deliveries to the branch locations and to direct loading and unloading activities, in the course of which he possesses the authority to discipline employees who work under him. In view of the foregoing, we find that Don Huffman, H. C. Green, and Fred Green are supervisors within the meaning of the Act, and we shall exclude them from the unit. Baxter Hoffman and Fred Hope are classified as cylindermen. Their duties consist of insuring that the Employer's cylinders which contain the gaseous products are moved from customer to customer. Keith Ledbetter is classified as a storekeeper who works in the shipping and receiving department where he places orders for the Employer and does manual work. Frank Kiziah spends his time at both the Gesco and the Old Doud Road plant where he performs shipping and receiv- ing duties, maintains some records, and accounts for the whereabouts of the Employer's cylinders. As the record falls to disclose that these individuals possess any of the statutory indicia of supervisory author- ity, we shall include them in the unit' B. Convicts: The State of North Carolina has instituted a work program for convicts whereby certain prisoners are placed in jobs in private industry. There are at present two employees in this category who work at the Employer's Charlotte production plants. These in- dividuals are transported to the plants in the morning via prison truck and are returned to the prison at the end of their workday. They are paid a wage equal to that of a starting employee but, be- 4 In its brief , the Petitioner requests that the Board reserve ruling on any eligibility issue which it might resolve against the Petitioner pending the outcome of the election. The request is denied. 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of the recent innovation of this program, no plan for advanced wage classifications has been formulated. During working hours, these individuals are not allowed to work on Government contract jobs and may not work overtime. Their continued employment is dependent upon whether their prison supervisors consider that their progress is satisfactory. In the circumstances of this case, we find that there is an insufficient community of interest between the con- victs and the other employees to warrant their inclusion in the unit. We shall therefore exclude them. C. Relatives: The Petitioner would exclude the brother and the son of the president of the Employer. The Employer would include them. The president's brother is employed as a salesman. As the parties stipulated to exclude salesmen from the unit, we shall exclude the brother. The president's son is a trainee who is serving a proba- tionary period in which it will be determined whether he possesses the qualifications for a managerial position with the Employer. We shall therefore exclude him.' Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All employees at the Employer's three production locations in Char-, lotte, North Carolina, including the over-the-road and sales drivers, production and maintenance employees, shipping and dock employees, Baxter Hoffman, Fred Hope, Keith Ledbetter, and Frank Kiziah, but excluding office clerical employees, guards, watchman, professional employees, salesmen, convicts, the brother and son of the Employer's president, Don Huffman, H. C. Green, Fred Green, and all other supervisors as defined in the Act, and all employees employed at the Employer's retail branches. [Text of Direction of Election omitted from publication.] 6 See The Baltimore Transit Company and The Baltimore Coach Company, 92 NLRB 1260, 1261. International Union of Operating Engineers, Local 825, AFL- CIO, and Peter Weber, its Business Manager and Building Contractors Association of New Jersey International Union of Operating Engineers , Local 825, AFL- CIO, and Peter Weber, its Business Manager and Building Contractors Association of New Jersey. Cases Nos. 22-CC- 179(1-s) and fi-CB-538(1-2). January 14, 1964 DECISION AND ORDER On June 14, 1963, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the 145 NLRB No. 96.