Bushnell Steel Co.

National Labor Relations Board - Board Decisions

Mar 5, 1951

93 N.L.R.B. 669 (N.L.R.B. 1951)

BUSHNELL STEEL COMPANY 669
the Act, and is illegal even though it was executed following an elec-
tion conducted under Section 9 (e) (1) of the Act. Accordingly, the
contract cannot operate as a bar to this proceeding.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, we find that
the vulcanizers, buffers, section men, tire changers, and floor service
men employed at the Employer's Bakersfield, California, place of busi-
ness, excluding office employees, guards, 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 in this
volume.]
G Seattle Wholesale Florists Association, 92 NLRB 1186 ; Aeroil Products Company,
Inc, 86 NLRB 639; Broadway Iron and Pipe Corporation , 83 NLRB 942 ; American Export
Lines, Inc., 81 NLRB 1370; C. Hager & Sons Hinge Manufacturing Company, 80 NLRB
163. The fact that the employer is presently not enfoicing the provision is Immaterial.
Evans Milling Company, 85 NLRB 391; Hawley & Hoops, Inc ., 83 NLRB 371. This
conclusion makes it unnecessary to consider the Employer 's contention that the contract
has been open for negotiations since June 1, 1948.
BUSHNELL STEEL COMPANY and SHOPMEN'S LOCAL UNION No. 616 of
THE INTERNATIONAL ASSOCIATION OF BRIDGE , STRUCTURAL AND ORNA-
MENTAL IRON WORKERS, AFL, PETITIONER. Case No. 1O-RC-1085.
March 5,1951
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 James W. Mackle, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 1
' The hearing officer correctly overruled the Employei's motion to continue this pro-
ceediiig indefinitely, pending disposition by the General Counsel of the appeal taken from
the Regional Director 's dismissal of the unfair labor practice charge in Case No 10-CA-
1124. We have been advised administratively that the General Counsel has since sus-
tained the action of the Regional Director.
After the hearing, the Employer filed with the Board a motion for rehearing and a
motion to dismiss In its motion for rehearing , the Employer contends , first, that the
hearing officer erroneously allowed the intervention of the International Association of
Machinists , District Lodge No. 112 in this proceeding, because of alleged failures of
service on the Employer , of the motion and the Regional Director 's ruling thereon, as
required by Section 203 57 of the Rules and Regulations of the Board. However, the
Employer has not shown in what way , if any, it was prejudiced by any such failure Its
contention is, therefore , without merit . The Employer also contends , in its motion
for rehearing, that the hearing officer erroneously made piejudicial rulings excluding
evidence regarding the existence and identity of the Petitioner and the Intervenor and
93 NLRB No. 96.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three -member
panel [Chairman Herzog and Members Reynolds and Murdock].
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 Employers
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 Petitioner seeks a unit composed of all employees in the
Employer's fabrication shops and warehouses, including truck
drivers, but excluding all office clerical, technical, professional, and
administrative employees, guards, and supervisors as defined in the
Act. The Intervenor seeks a unit composed of all employees in the
fabrication shops and the truck drivers, but excluding warehouse em-
ployees together with the same exclusions sought by the Petitioner.
The Employer contends that the only appropriate unit is a unit com-
posed only of the mechanics and helpers employed in the fabrication
shops. The Intervenor has indicated its willingness to be placed on
the ballot for any unit the Board should find to be appropriate if it
includes the shop employees.
The Employer's operations are conducted on an industrial site
about a block and one-half square. On the site are an office building,
two fabrication shops, and two warehouses. The warehouses are
used to store materials for issuance to the shops and for sale to custom-
the eligibility of certain employees for membership in those organizations Contrary to
the Employer ' s contention , the Board finds that the Petitioner and the Intervenor are labor
organizations within the meaning of the Act, and that the identity of those two organiza-
tions has been sufficiently established . Anaconda Wire and Cable Company, 90 NLRB
No. 5. The Board has frequently held that the willingness of a union to represent the
employees involved , and not the eligibility of the employees to membership , is controlling
in representation proceedings under the Act Northern Redwood Lumber Company, 88
NLRB - 272. These contentions of the Employer are, therefore . likewise without merit
The Employer ' s motion to dismiss is based on the arguments • ( 1) That the unit sought
by the Petitioner is inappropriate for the purposes of collective bargaining ; and (2) that
neither the Petitioner nor the Intervenor are labor organizations within the meaning of
the Act we have found that the Petitioner and the Intervenoi are labor organizations,
within the meaning of the Act , and, for the reasons stated in paragraph numbered 4,
we find that the unit sought by the Petitioner is appropriate for the purposes of collective
bargaining . Accordingly , both the Employer ' s motion for rehearing and its motion to
dismiss are denied.
' The Employer is engaged in the fabrication and warehousing of steel and steel products
and In the shaping of ornamental iron During the period from January 1, 1950, to
June 30 , 1950, the Employer made shipments of goods with a value in excess of $25,000
to customers located outside the State of Florida Contrary to the Employer 's contention,
we find that the Employer is engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act for the Board to assert its jurisdiction in
this proceeding Stanislaus Implement and Ilaidware, Company, Limited , 91 NLRB 618.
3 See footnote 1, supra
BUSHNELL STEEL COMPANY 671
ers purchasing unprocessed material. Although each of the fabri-
cation shops is under the supervision of a shop foreman and the ware-
houses are under the supervision of a third foreman, all three foremen
are responsible to a shop superintendent.
The Employer employs 21 mechanics, 6 helpers, and 10 laborers in
the fabrication shops. The classification of mechanic is a general
classification for employees possessing various skills, such as welders
and crane operators. The mechanics are engaged in the shops in lay-
ing out, punching, welding, and assembling fabricated steel. How-
ever, of the employees classified as mechanics, 2 working as crane
operators do work in both the fabricating shops and the warehouses.
Employed in the warehouses are 6 or 7 laborers and a shipping and
receiving clerk.4 The laborers in the warehouse, like the laborers in
the fabrication shops are primarily engaged in loading and unloading
steel and in cleaning up the premises.
The remaining employees for whom representation is sought in the
Petitioner's unit are three truck drivers,5 a janitor-guard, and a
messenger. The truck drivers make both local and long-distance
deliveries. They also work in both the fabricating shops and the
warehouses under the general supervision of the shop superintendent.
The janitor-guard is a laborer who spends about 95 percent of his time
in performing janitorial services in the offices and the remaining 5
percent of his time in guarding the Employer's property. The mes-
senger is a laborer who acts as a messenger boy and drives a pick-up
truck. Although there are few transfers among the laborers assigned
to the shops and the warehouses, it is admitted that, because of the
size of the enterprise, departmental limitations are not rigidly re-
spected in the assignment of work. The warehouse laborers deliver
steel to the fabricating shops, and, as noted above, the crane operators
and truck drivers work in both the shops and the warehouses. All
employees, with the exception of the janitor, work the same hours,
punch the same time clock, are hourly paid, and receive the same
benefits.
The Employer and Gateway Lodge No. 731, International Associaz
tion of Machinists, a local lodge of the Intervener, previously entered
into a contract dated July 29, 1948, which covered those employees
classified as, mechanics and helpers. . That contract expired on July
29, 1949. On May 5, 1950, the Employer and Gateway Lodge No. 731
entered into another agreement, renewing and extending the previous
contract to July 29, 1950. Neither contract was predicated upon a
prior Board certification. There has been no new agreement since
the expiration of the 1950 contract.
4 The shipping and receiving clerk has a desk in the warehouse foreman's office, but
spends most of his time in the warehouses, checking receipts and issuances of materials.
5 No labor organization is seeking to represent truck drivers separately.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, the Employer, in opposition to both unions, con-
tends that the unit should be limited to mechanics and helpers. In
effect, the Employer's position amounts to a contention that a craft
group should constitute the appropriate unit. Although the Inter-
venor is willing to have its name placed on the ballot for a craft unit
if found appropriate by the Board, it does not seek such a unit.
The Board has frequently held that the principle of self-determina-
tion for craft groups does not apply where there is no union seeking to
represent the craft separately.° Moreover, the unit urged by the
Employer would appear to be, at most, a group of production em-
ployees with different skills, and of the type which, under Board
decisions, lacks the requisite homogeneity and cohesion.7 Accord-
ingly, we reject the Employer's unit contention.
There remains for consideration the question whether the unit
should be limited to ' fabrication shop employees, as urged by the
Intervenor, or whether, as urged by the Petitioner, warehouse em-
ployees should be included in the unit. Although the Board has held
appropriate shop units excluding warehouse employees where no union
sought to represent such employees," we believe, in view of the similar
hours, working conditions and benefits, the common supervision, the
absence of strict departmental limitations on the assignment of work,
the integrated character of the Employer's operations, the lack of
distinguishing skills among certain of the employees in each group,
and the fact that the Petitioner seeks to represent the employees on
an over-all basis, that, the Employer's warehouse employees should
be included in the same unit with its fabrication shop employees.9
We find that all employees of the Employer's fabrication shops and
warehouses, at Jacksonville, Florida, including the shipping and re-
ceiving clerk,10 truck drivers,'1 the messenger boy and the janitor-
guard '12 but excluding all office clerical, technical, professional, and
administrative employees, guards,13 foremen'14 and other supervisors
9 Boeing Airplane Company, 86 NLRB 368; Francis Keil & Sons, Inc., 62 NLRB 1.
Cf Bendix Aviation Corporation, Kansas City Division , 88 NLRB 1281 ; Mutual Rough
Hat Company, 86 NLRB 440
8 York Corporation , 87 NLRB 613.
9 Capitol Records , Inc, 89 NLRB 1545; Noma Electric Corporation of Mat yland, K-D
Lamp Division , 71 NLRB 704, cf Arnold Iloffinan & Co , Incorporated, 91 NLRB 1371.
"Electrical Reactance Corporation , 92 NLRB 1256; Phillips Chemical Company,
83 NLRB 612.
11 Tell City Furniture Company, Inc , 88 NLRB 284.
-12 The messenger boy and the janitor -guard are included in the unit as they perform
essentially maintenance work which allies them more closely with production and main-
tenance employees , than with office employees . California Spray-Chemical Corp , 86
NLRB 453
13 Because the janitor-guard spends only a small part of his time in guaiding the
Employer 's property, he is not a guard within the meaning of the Act. Shelburne Shirt
Co., Inc, 86 NLRB 1308
14 Neither the Petitioner nor the Intervenor denied the Employer ' s contention that the
foremen were supervisors within the meaning of the Act.
POINTER WILLAMETTE COMPANY, INC. 673"
as defined in the Act, constitute an appropriate unit for the purposes
of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication in this,
volume.]
POINTER WILLAMETTE COMPANY, INC., and INTERNATIONAL BROTHER,
HOOD OF BOILERMAKERS, IRON SHIP BUILDERS AND HELPERS OF
AMERICA, LOCALS 104 AND 541, AFL, PETITIONER . Case,No.19-RC-.
497. March 5, 1951
Decision and Direction of Election
Upon a petition 1 duly filed under Section 9 (c) of the National'
Labor Relations Act, a hearing was held before Hubert J. Merrick,,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed?
Pursuant to the provisions of 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 Herzog and Members.
Reynolds and Murdock].
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
employees of the Employer.
3. The Machinists contends that a contract executed on December
6, 1949, to expire on April 1, 1951, is a bar to this proceeding. A prior
contract in effect between the Machinists and the Employer was nego-
tiated on April 1, 1948, and was to run from year to year thereafter-
unless reopened by written notice. This contract was not reopened
before April 1, 1949, and thereafter was automatically renewed for
another year. Subsequently, in December 1949, the parties began
negotiations for a new agreement. Thereafter, on December 6, 1949,
'The original petition in this case was filed January 30, 1950 , and disposition thereof-
was withheld pending disposal of the charges in Case No. 19-CA-309. Since that time.
Case No 19-CA-309 has been settled and is now closed.
2 At the hearing District Lodge No 69 , International Association of Machinists, here-
inafter called the Machinists , and Local 302, International Union of Operating Engineers,
AFL, hereinafter called the Operating Engineers , were permitted to intervene on the basis
of their alleged contractual interests in this proceeding Hon ever , the Operating Engineers
did not seek to participate in any election the Board may direct . The hearing officer
referred to the Board for ruling the Machinists ' motion to dismiss the petition on the
grounds that a contract between it and the Employer is a bar to this proceeding For the
reasons hereinafter stated, such motion is denied.
93 NLRB No. 93.
943732-51-44