Newark Stove Co.

National Labor Relations Board - Board DecisionsJun 28, 1963

143 N.L.R.B. 583 (N.L.R.B. 1963)

NEWARK STOVE CO. 583 be an overall unit composed of all employees engaged in food, beverage and equipment preparation, assembly, handling, receiving, storage, packing and maintenance employees, including food and equipment handlers and food and equipment helpers at its commissaries and air- port operations at O'Hare International Airport, and its Harper Drive and Schiller Park commissaries. As the record indicates that the Petitioner herein seeks an election among all the employees employed by the Employer at its operations in Chicago, Illinois, other than those included in the unit which the Board found appropriate in Case No. 13-RC-8021, we find that the unit sought herein is appropriate as a residual unit apart from whether it might be appropriate on other grounds. We shall, therefore, direct an election in such unit. Accordingly, we find that the following employees employed at the Employer's facilities located at Harper Drive and at O'Hare Inter- national Airport, Chicago, Illinois, and at the Employer's facilities located at Schiller Park, Illinois, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(c) oftheAct: All full-time and regular part-time food preparation employees, cooks, dishwashers, porters, coffee men, food setup men, ice men, garbage men, utility men, storeroom and liquorroom employees, and packers but excluding flight equipment handlers, flight equipment helpers, and loading setup men engaged in the transportation of food from the Employer's premises to airplanes and installing and remov- ing food from airplanes, and transporting food from airplanes to the Employer's premises, all other employees included in the unit in the Decision and Direction of Election in Case No. 13-RC-8021, tempo- rary employees, casual employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Newark Stove Co. and Office Employees International Union, AFL-CIO, Petitioner. Case No. 8-RC-787. June 28, 1963 DECISION AND ORDER CLARIFYING CERTIFICATION On June 19, 1950, the Board certified Office Employees Interna- tional Union, AFL-CIO, as the exclusive representative of the em- ployees of Newark Stove Co. in the following unit : 1 "All office and factory clerical employees including chief clerk, timekeepers, cost time clerks, production clerks, office janitors, senior clerks, stenographers, i This certification is not published in NLRB volumes. 143 NLRB No. 45. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD billing machine operators, clerk typists, junior accountant, junior clerk, messenger, mail clerk, switchboard operator, tabulating ma- chine operator and key punch operator, excluding other employees, guards, and supervisors as defined by the Act." Thereafter, on January 8, 1963, Office Employees International Union, AFL-CIO, and Office Employees International Union, Local No. 173, herein referred to as the Unions, filed a motion to clarify bargaining unit, requesting that (1) the certification be amended to reflect the correct name of the Employer as The Newark Ohio Co.; (2) the name of the certified union be changed to Office Employees International Union, Local No. 173; and (3) the unit description in the above certification be amended to include "all employees engaged in operating data processing or computer equipment, which include data processing systems and procedures analysts, programers, com- puter operators, and operators of collateral and related data process- ing equipment." In the alternative, the Unions requested that, if factual issues were raised by said motion, a hearing be directed by the Board. On February 4, 1963, The Newark Ohio Co., formerly Newark Stove Co., filed a petition of Employer in answer to motion to clarify bargaining unit, in which it agreed that the above certifica- tion be amended to reflect the Employer's current name, but contended that the motion in all other respects be denied. On February 26, the Board issued an order remanding the proceeding to the Regional Di- rector for the Eighth Region for the purpose of conducting a hearing on the issues raised by the parties. On March 21, a hearing was held before Norman R. Pruse, hearing officer. The hearing officer's rul- ings made at the hearing are free from prejudicial error and are here- by affirmed. The Board 2 has considered the Unions' motion, the Employer's an- swer, the parties' briefs, and the entire record in the case, and hereby makes the following findings : 1. As noted, in its answer to the motion herein, the Employer agreed that the certification be amended to reflect its current name and the Employer otherwise does not deny that, since the issuance of the above certification, it has changed its name from Newark Stove Co. to The Newark Ohio Co. However, at the hearing, the Employer refused to join a motion formally to amend its name on the ground that these proceedings were filed on behalf of Office Employees International Union, Local No. 173, which is not the union originally certified by the Board and which therefore has no standing in these proceedings. As the originally certified representative has joined in the motion and since, for the reasons discussed below, we have decided to grant 2 Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers herein to a three - member panel [Chairman McCulloch and Members Leedom and Brown]. NEWARK STOVE CO. 585 the motion to substitute Local No. 173 as the certified collective- bargaining agent of the employees in the above-described unit, we find no merit in this contention. Accordingly, we shall grant that portion of the motion which seeks to amend the certification by sub- stituting The Newark Ohio Co. as Employer in the above-mentioned certification. 2. The Unions also moved that the certification be amended to sub- stitute Office Employees International Union, Local No. 173, as the collective-bargaining representative of the employees in the above unit. The Employer contends that this portion of the motion should be denied as Local 173 is not the certified union and there is no indi- cation that Office Employees International Union, AFL-CIO, as- signed its certification to Local 173. In this connection, the record shows that, while the certification was issued to Office Employees International Union, AFL-CIO, on June 19, 1950, the first collective- bargaining agreement covering the employees described in the certi- fication was entered into between the Employer and Office Employees International Union, Local No. 173. The record further shows that thereafter, and continuously to the present time, the Employer has entered into successive bargaining agreements with Local 173,3 and during that period the Employer at no time refused to bargain with Local 173 as representative of its employees; nor is there any evidence in the record that these employees were opposed to representation by Local 173 instead of Office Employees International Union, AFL- CIO. In view of the foregoing, we shall grant the motion to amend the certification, dated June 19, 1950, by substituting Office Employees International Union, Local No. 173, as the certified union 4 3. The Employer is engaged in the manufacture of stoves. The certification herein basically covers a unit of office clerical employees. The sole unit issue between the parties relates to whether Franken- berry and Shonebarger, assistants to the payroll and data processing manager, should be included in the certified Unit .5 Contrary to the 3 The most recent contract between The Newark Ohio Co. and Office Employees Inter- national Union, Local No. 173, is effective from October 10, 1960, until August 1, 1963. Section 1 ( a) of that agreement recites: "The Company recognizes the Union as the ex- clusive bargaining agent for all employees assigned to 'office positions in accordance with the certification of the National Labor Relations Board dated June 19, 1950, 'Case No. 8-RC-787." See: University Metal Products Co. Inc., 102 NLRB 1567 ; Virginia - Carolina Chemi- cal Corporation, 132 NLRB 956. 5 As noted , the motion for clarification requested inclusion in the certified unit of all employees engaged in operating data processing or computer equipment , which include processing systems and procedure analysts , programers , computer operators , and operators of collateral and related data processing equipment . At the hearing , the Employer con- ceded that all employees doing the work described in the motion for clarification should be included in the certified unit, except Frankenberry and Shonebarger, the two assistants to the payroll and data processing department manager The parties also agreed, and we find, that Toomey , manager of the payroll and data processing depa .rtmen 't, is a super- visor and should he excluded from the unit and that employee Clary is a nonsupervisory clerical employee who is properly part of the certified unit. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Unions, the Employer contended that Frankenberry and Shonebarger were management employees who should be excluded from the unit. The record indicates that in April 1962 the Employer installed an IBM computer in its data processing department; that Frankenberry and Shonebarger, who previously had other jobs with the Employer, were then transferred to the data processing department; that they attended an IBM processing school for 6 weeks to study a basic com- puter program; that since that time, they have also received on-the- job training from Toomey, manager of the payroll and data process- ing department; that Frankenberry and Shonebarger act as Toomey's assistants in the data processing department, and function as "systems analysts"; that their duties relate to the gathering of information from various departments in the Employer's plant, analyzing this information to determine how it can be utilized for computer pro- graming, devising a program whereby the results desired will be ob- tained, and determining how the work will be performed within the computer; that Frankenberry and Shonebarger are also responsible for coding IBM cards, transferring information from the cards to the IBM machine, operating the computer, and testing and cross check- ing results to make certain the information ultimately supplied by the computer is correct and complete; that Frankenberry spends about 50 percent of his time, and Shonebarger 25 percent of his time assem- bling programs, gathering test materials and in self-education, and the remainder of the time operating computer equipment in the tabu- lating room; that both Frankenberry and Shonebarger are carried on the Employer's executive payroll and are covered by vacation, holiday, and hospitalization benefits different from those covering em- ployees in the unit; that although Frankenberry and Shonebarger attend management meetings, they do not themselves formulate, deter- mine, or effectuate management policies, which is primarily Toomey's function, and they do not formulate policies reflecting labor costs or wage rates. In view of these facts, and the record as a whole, we find that Frankenberry and Shonebarger are not managerial em- ployees, such as the Board would exclude from a unit of office clerical employees. Accordingly, we shall grant the motion for clarification by including Frankenberry and Shonebarger, assistants to the payroll and processing department manager, in the certified unit.' O See, Loew 's, Inc, 127 NLRB 976, and Remington Rand Division of Sperry Rand Corporation, 132 NLRB 1093. The Employer , relying on such cases as Cherokee Textile Mills, Inc, 117 NLRB 350, Diana Shop of Spokane , Inc., et at. , 118 NLRB 743, also contends that Frankenberry and Shonebarger should be excluded from the certified unit on the ground that they are in training for management positions and therefore have in- terests allied with management . However, here , unlike the cases relied on by the Em- ployer, there is no evidence in the record that Frankenberry and Shonebarger are being trained for management positions . The Employer also contends that Frankenberry and MONTGOMERY WARD & CO., INCORPORATED 587 [The Board amended the certification of representatives issued to Office Employees International Union, AFL-CIO, dated June 19, 1950, by: (1) substituting therein "Office Employees International Union, Local No. 173" for "Office Employees International Union, AFL-CIO"; (2) substituting therein "The Newark Ohio Co." for "Newark Stove Co."; and (3) including in the certified unit all em- ployees engaged in operating data processing or computer equipment, which include data processing systems and procedures analysts, pro- gramers, computer operators, and operators of collateral and related data processing equipment, and including assistants to the payroll and data processing department manager.] Shonebarger exercise supervisory authority and should be excluded from the unit on this basis. We find no merit in this contention . Although Toomey testified that Frankenberry and Shonebarger had authority to discuss grievances , the record does not reveal that they or anyone else was told of such authority , or that they have discussed and/or adjusted employee grievances . The only other evidence relating to the supervisory authority of Frankenberry and Shonebarger is that on one occasion , when Supervisor Wilson was away from the office part of the day, Frankenberry was instructed to "take over" during his absence. However , there is nothing in the record to indicate that he or Shonebarger in fact exercised any supervision of employees on that occasion ; moreover , mere sporadic exercise of supervisory authority would not in any event confer supervisory status. Montgomery Ward & Co., Incorporated and George M. Clements, Employee , Petitioner and Retail Clerks Union, Local 1167, affiliated with the Retail Clerks International Association, AFL-CIO. Case No. 21-RD-632. June 28, 1963 DECISION ON REVIEW On December 6, 1962, the Regional Director for the Twenty-first Region issued a Decision and Direction of Election in the above- entitled proceeding. Thereafter, in accordance with Section 102.67 (b) of the Board's Rules and Regulations, Series 8, as amended, the Union filed a timely request for review and oral argument. The Employer filed opposition. By telegraphic order dated January 4, 1963, the Board granted the request for review as raising a policy question warranting Board con- sideration and denied the request for oral argument. Thereafter, the Employer filed a brief in support of its statement in opposition to review. The Board has considered the entire record in this proceeding, in- cluding the statements of position of the parties, and makes the fol- lowing findings : 143 NLRB No. 52.