The Colson Corp.

National Labor Relations Board - Board Decisions

Sep 6, 1946

70 N.L.R.B. 1235 (N.L.R.B. 1946)

In the Matter of THE COLSON CORPORATION, EMPLOYER and OFFICE
EMPLOYEES INTERNATIONAL UNION (AFL), IN BEHALF OF ITS LOCAL
No. 177, PETITIONER 1
Case No. 8-R-2220.Decided September 6, 1946
Messrs. Reese Dill, and John S. Bellamy, of Cleveland, Ohio, for the
Employer.
Mr. R. M. Daugherty, of Toledo, Ohio, Mr. Carl Hubbell, of Cleve-
land, Ohio, and Messrs. Edgar C. Terrell and George F. Firth, of
Elyria, Ohio, for the Petitioner.
Mr. John A. Nevros, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
Upon a petition duly filed, hearing in this case was held at Elyria,
Ohio, on June 18, 1946, before John A. Hull, Jr., Trial Examiner.
The Trial Examiner's rulings made at the 'hearing are free from
prejudicial error and are hereby affirmed. At the hearing and in its
brief subsequent thereto, the Employer moved to dismiss the petition
on various grounds. The Trial Examiner reserved for the Board
ruling on the motion made at the hearing. For reasons stated herein-
after, the motions are hereby denied.
Upon the entire record in the case, the National Labor-Relations
Board makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF THE EMPLOYER
The Colson Corporation, an Ohio corporation, operates a plant at
Elyria, Ohio, where it manufactures children's vehicles and hospital
'Although the petition was filed in the name of Office Employees International Union
(AFL), it is clear from the testimony at the hearing as further clarified in the Interna-
tional ' s brief that the real party in interest is Local No 177, which has been chattered
by the Intel national to i epresent , among others, the employees sought herein for collective
bargaining purposes Under these circumstances it is of no consequence , although the Em-
ployer contends to the contrary , that the Local itself neither petitioned nor intervened in
this proceeding It is sufficient that the Local meets the test of a labor organization out-
lined in Section 2 (5) of the Act, and that its parent has spread upon the record its interest
in this proceeding We shall , accordingly , amend the name of Petitioner herein, as above,
in order to reflect the true state of facts We shall also place the Local on the ballot in
the election directed hereinafter.
70 N L R. B., No 109
1235
712344-47-vol 70-79
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment. Its annual' income of business is in excess of $1,000,000.
The Employer receives a substantial portion of its raw materials from
sources outside the State of Ohio, and ships a substantial portion of its
finished products to points outside the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American,
Federation of Labor, claiming to represent employees of the Employe,. .2
III. THE QUESTION CONCERNING REPRESENTATION
The .Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of the office and clerical employees of the
Employer. -
We find that a question affecting connnerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.3
IT. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all office and clerical employees of
the Employer, excluding time study employees, confidential secretaries,
and all supervisory employees. The Employer contends that such a
unit is inappropriate.
The Employer's opposition to the uiiit appears to be grounded on
(1) the fact that such unit would include technical employees with
the clerical workers, and (2) the further fact that it would include a
number of employees whom the Employer considers confidential per-
sonnel. With respect to the first ground, it is the Board's general
policy to recognize differences in interests, background and functions
between clerical employees and technical employees, and to place the
employees comprising such groups in separate units where any of the
parties objects to their inclusion in a single unit. Accordingly, in keep-
ing with that -policy we shall place the Employer's non-supervisory
2 We find no merit in the Employer' s contention , asserted as one of its grounds for dis-
nussal of the petition, that the Petitioner is not a labor organization within the meaning
of Section 2 (5) of the Act It is clear from our discussion in footnote 1 that both the
International and its local meet the test of a labor organization outlined in Section 2 (5)
of the Act
I In its brief filed subsequent to the hearing, the Employer moved to dismiss the petition
on the grounds that Petitioner does not have a substantial interest in the unit sought, and
that "there is absolutely no evidence at the hearing that the Petitioner claims, or ever has
claimed to represent these employees ." For the reasons stated in Matter of O. D. Jennings
d Company, 68 N L. It B 516, and in Matter of Midland National Bank of Minneapolis,
68 N L R B 580 , footnote 4, we find no merit in the first ground to the motion. As to
the second ground, the Boaid has held that the filing of a petition in itself , places the Em-
ployer on notice of the petitioner ' s claim to majority representation . See Matter of Chi-
cago Bridge and Iron Co , 68 N. L. R. B 470, and cases cited in footnote 2, therein.
THE COLSOlV CORPORATION 1237
technical personnel consisting of assistant engineers and the drafts.
man in the Engineering Department of the Factory -Division in a
technical unit separate from office and clerical employees'
As to the Employer 's second ground ,- the record discloses that'the
Petitioner would include , whereas the Employer would exclude as con-
fidential personnel , the accounts receivable bookkeeper , machine oper-
ators in the tabulating department , pay-roll clerks; special order costs
clerks , messengers , telephone operators , relief telephone operators, the
secretary and the relief secretary 1 o the assistant treasurer , secretaries
to the assistant sales manager and the sales supervisors , the assistant
to the supervisor in the general sales office , timekeepers , statisticians,
the stenographer in the employment office, the private secretary to
the vice president-sales, and secretaries to the purchasing agent and
the manager of the general sales office . We shall consider seriatim
these disputed categories.
A,ceowa ts Receivable Bookkeeper ; Machine Operators in the Tabu-
lating Department; Pay-Roll Clerks ; Special Order Costs Clerks;
and Messengers : The Employer would exclude these persons because
they either work with , or have access to, figures and records of a highly
confidential nature . However, it is clear from the'record that none
of these ciuployees assists or acts it a confidential capacity to persons
AN ho exe; use managerial functions in the field of labor relations. We
shall therefore include them in the unit.6
Telephone Operators ; and Relief Telephone Operators: The em-
ployees perform the usual duties of telephone operators . There is.
nothing in the record to warrant the Board 's deviating from its usual
practice of including telephone operators in an office and clerical unit.
We have frequently held that the possibility that they may overhear
conversations of a confidential nature pertaining to labor relations is
not adequate basis for their exclusion . Accordingly , we shall include
th em.6
Secretary and Relief Secretary to the Assistant Treasurer ; Secre-
taries to the Assistant Sales Manager and the Sales Supervisors; and
the Assistant to the Supervisor in the General Sales Office: It is clear
that each of these employees performs secretarial or other tasks for
individuals who do not exercise managerial functions in the field of
labor relations . Accordingly, we shall include them.
Timekeepers : The six employees in this classification form part of
the department headed by the Assistant Secretary-Costs. Although
i See Matter of A S Campbell Co , Inc, 69 N L R B 1255 . and Matter of IVag,ier
Electric Corporation, 67 N. L. R. B 1104, and cases cited therein.
5 See Matter of Electric Controlle, ,C Manafaetarnng Company, 69 N L R. B 3242 ,
Matter of Revere Copper and Brass , Incorporated , 69 N. L. R B. 989 ; Matter of Ford
Motor Company ( Chicago Branch ), 66 N. L. R. B. 1317; and Matter of Aluminum Company
of America, 61 N. L. R. B. 1066.
6 See Matter of Gould & Eberhardt Company, 66 N L. R. B 158 ; and Matter of Sinclair
Rubber, Inc., 62 N. L. R. B. 1183, 1187.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they work in the plant, they are not subject to the supervision of any
plant foreman, but are instead answerable to the cost supervisor.
Most of them are paid on an hourly basis and in this respect they dif-
fer from the great majority of the office employees. However, their
duties appear to be strictly clerical in nature, and their terms and con-
ditions of employment, including hours of work, are the same as those
of the office clericals. And, while the timekeepers may possess or have
access to information relating to the earnings of other employees
and the nature of the work -done by them, there is absent any evidence
that they possess information pertaining directly to labor relations.
Accordingly, we shall include them in the office and clerical unit.?
,Statisticians: There are two statisticians or statistical clerks who
prepare reports, as required by the Employer's executives, from plant
records of profits, sales and related information. The senior stat-
istician has had training in industrial and cost accounting and has
taken specialized university courses in preparation for this statistical
work. This statistician has, in turn, trained the other statistical
clerk to handle a portion of the work. They are under the Vice Presi-
dent in charge of sales. Although the information relating to eco-
nomic and business conditions available to these employees for the
making of studies and - preparation of reports may be confidential
from a business standpoint, it does not appear to relate directly to
labor relations matters. Nor do the functions and specialized training
of these statisticians render them technical employees. * Accordingly,
in view of the foregoing and the fact that their interests seem to be
closely identified with those of the other office and clerical employees,
we shall include them in the office and clerical unit.$
The Stenographer in the Employment Office: The personnel in the
employment office consists of the employment manager, the assistant
employment manager, and a stenographer. It appears that both the
employment manager and his assistant exercise managerial functions
in the field of labor relations. Although not classified as a private
or confidential secretary, the stenographer in the employment office,
by virtue of her unique position in this office, must perforce assist and
act in a confidential capacity to the manager and his assistant. Ac-
cordingly, we shall exclude her.'
Private Secretary to the Vice-President-Sales; and Secretaries to
the Manager of the General Sales Office and the Pumchasing Agent:
7 See Matter of General Motors Corporation, 58 N L B B 895. 897, and Matter of
Chrysler Corporation , 58 N L. R. B 239, 244.
8 See Matter of Aluminum Company of Ameuiea, 61^N L R B 1066, 1072, and Matter
of Paramount Pictures , Inc, 45 N. L. R. B. 116, 121.
° See Matter of Ford Motor Company (Chicago Branch), 66 N L R B 1317, and Mat-
ter of A.'& Campbell Co, Inc , 69 N. L. R B 1285
THE COLSON CORPORATION 1239
The secretaries to the Vice-President-Sales and the Manager of the
General Sales Office act in a confidential capacity to persons who exer-
cise a managerial function in the field of labor relations. The Secre-
tary to the Purchasing Agent spends the majority of her time working
for the Purchasing Agent, who does not exercise managerial functions
in the field of labor relations. However, she devotes a substantial
portion of her time serving in the capacity of private secretary to the
Vice President-Factory Manager, who has no private secretary of
his own, and who counsels the Assistant Secretary-Costs in the han-
dling of the Employer's labor relations. Accordingly, inasmuch as
this secretary spends a substantial part of her time as private sec-
retary to the Vice President-Factory Manager, we find that she,
as well as the private secretary to the Vice President-Sales and the
secretary-to the Manager of the General Sales Office are confidential
employees within the meaning of the Ford definition, and we shall
exclude them.10
In addition to the foregoing exclusions, we shall, in conformity
with the apparent agreement of the parties, exclude from either of the
units established herein the assistant secretary-costs, the general pur-
chasing agent, the assistant purchasing agent and the two production
assistants to the production planning department manager, who are
supervisory personnel within our customary definition of the term;
the nurses and the time study personnel, whose duties and Interests
differ substantially from those of either the clerical or the technical
employees; 11 and the secretaries to the president-general manager,
the vice president-treasurer, and the assistant secretary-costs, who are
confidential employees in that they assist and act-in a confidential
capacity to persons who exercise managerial functions in the field
of labor relations.
Accordingly, we find that all technical employees at the Elyria,
Ohio, plant of the Employer, including assistant engineers and the
draftsman in the Engineering Department, but excluding all super-
visory employees 12 with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
"See Matter of Plankunton Poclmnq Company, 69 N L R B 920, and Matter of
Ford Motor Company ( Chicago Branch ), supra
11 See Matter of The E lectric Controller & Mann factoring Company, 69 N. L it. B. 1242,
and cases cited in footnote 10 therein Matter of Revere Copper and Brass . Incorporated,
69't L R B 989. 1/otter of IVagoer Eicrtrio Coi poration, supra
12 This includes the chief engineer and the experimental engineer, who are supervisors
within our customary definition of the terns
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We further find that all office and clerical employees at the Elyria,
Ohio, plant of the Employer,13 including accounts receivable book-
keepers, machine operators in the tabulating department, pay-roll
clerks, special o'r'der costs clerks, lnessengers, telephone operators and
relief telephone operators, the secretary and the relief secretary to the
assistant treasurer, secretaries to the assistant sales manager and the
sales supervisors, the assistant to the supervisor in the General Sales
Office, timekeepers, and statisticians, but excluding technical employ-
ees, nurses, time study personnel, secretaries to the president-general
manager, the vice president-treasurer, and the assistant secretary-
costs, the stenographer in the employment office, the private secrt tary
to the vice president-sales, the secretaries to the purchasing agent and
the manager of the General Sales Office, the assistant secretary-costs,
the general purchasing agent, the assistant purchasing agent, the pro-
duction assistants to the Production Planning Department manager,
and all other supervisory employees 14 with the authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act 15
DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with The Colson Corporation,
Elyria, Ohio, elections by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Di-
rector for the Eighth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Sections
10 and 11, of National Labor Relations Board Rules and Regu-
lations-Series 3, as amended, among the employees in the units found
13 This includes the trainee clerk, Don Phelps, who works in the General Sales Office. Al-
though he is receiving training for a clerical position as a "G. I. trainee ," under the "G. I
Bill of Rights ," he is considered a permanent employee by the Employer . His inclusion is,
therefore , in accord with our usual practice of including trainees in units of employees per-
forming work of a similar nature. See Matter of the Electric Controller & Manufacturing
Company, supra ; and Matter of Douglas Aircraft Company, Inc., 60 N. L. R B. 876.
14 This includes the following perscnnel N 0o are supervisors within our customary defini-
tion of the term • the assistant employment manager , the assistant superintendent of the
factory division , the assistant treasurer , the chief clerk of the General Accounting Depart-
ment, the assistant sales manager and his two sales supervisors , and the managers of the
Customers ' Service Department , the General Sales Office , the Service Department , the Esti-
mating Department , the Tabulating Department , and the Cost Department.
15 In view of the foregoing and for reasons which we have already stated in other cases,
we find meritless the sundry other contentions in the Employer 's motion to dismiss directed
to the appropiiateness of the unit sought, and the employee status of the workers involved
See Matter of Ford Motor Company (Chicago Branch ), 66 N. L . R. B 1317 ; Matter of
Brown & Sharpe Mfg Co., 68 N. L. R B 483; Matter of Wilson & Rogers , Inc., 69 N L.
R B. 848 : Matter of Revere Copper and Brass , Incorporated , 69 N L. R B 989; and
Matter of The Electric Controller & Manufacturing Company , 6P N L R B 1242
THE COLSON CORPORATION _ 1241
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing employees who did not work during said pay-roll period because
they were ill or on vacation or temporarily laid off, and including em-
ployees in the armed forces of the United States who present them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause and have not been rehired or
reinstated prior to the date of the election, to determine in each unit
whether or not they desire to be represented by Office Employees In-
ternational Union, Local No. 177 (AFL), for the purposes of col-
lective bargaining:
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of
the above Decision and Direction of Elections.