Dixie Wax Paper Co.

National Labor Relations Board - Board Decisions

Mar 6, 1957

117 N.L.R.B. 548 (N.L.R.B. 1957)

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether or not the employer's actual remarks were coercive in
character.
Accordingly, we find that the individual interviews conducted by
the Employer's president and vice president at the homes of employ-
ees interfered with the employees' freedom of choice in the selection
of a bargaining representative and we shall, therefore, set aside the
election and direct that a new election be held.'
[The Board set aside the election held on November 1, 1956.]
[Text of Second Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision, Order, and Second Direction of Election.
9 As we are setting aside the election for the reason set forth above, we, like the Regional
Director , find it unnecessary to make any findings in regard to the conflicting statements
of the employees and management officials referred to above as to what was said during
these interviews.
Dixie Wax Paper Company and United Paperworkers of America,
AFL-CIO, Petitioner . Case No. 32-RC-965. March 6, 1957
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 Vivan E. Burks,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer 1 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) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a production and maintenance
unit at the Employer's Memphis plant. The Employer urges that
the composition of the unit be determined by the Board's findings in
Case No. 32-RC-646, decided iii 1953,2 involving a. similar unit request
by the Petitioner, on the ground that no substantial changes in plant
operations have occurred since that time. Ill that case, the unit was
I The Employer, which is engaged in the wrapper and bag industries, has plants in Dallas,
Texas ; Memphis, Tennessee ; and Washington, New Jersey. The Memphis plant is alone
involved herein.
2 Not reported in printed volumes of Board Decisions and Orders.
117 NLRB No. 80.
DIXIE WAX PAPER COMPANY ,549
composed of ^"all production and maintenance employees, including
graphic arts employees, subforemen, production control employees,
plant clerical employees, and watchmen, but excluding office clerical
employees, professional employees, guards, and supervisors as defined
in the Act." In the instant proceeding, the Petitioner seeks on various
grounds to exclude, and the Employer to include, the artists, plate-
maker Cleon Miller, a chemist, a laboratory assistant, a quality control
assistant, all subforemen and other alleged supervisors, part-time
employees, a certain clerical employee (Mrs. Cochran) in the main
Office, and watchmen. The grounds urged as to some of these em-
ployees, i. e., the artists, the chemist, laboratory assistant, and Mrs.
,Cochran, are generally the same as those advanced in the prior case.
As there is no showing that the duties of these employees have changed
in any material respect since the earlier proceeding, we shall not
disturb our findings made therein that the artists, the chemist, and
the laboratory assistant have sufficient interests in common with pro-
duction and maintenance employees to warrant their inclusion,3 and
that Mrs. Cochran is excluded as an office clerical employee. The re-
mainder of the contested categories are considered seriatim:
Sub foremen and other alleged supervisors: In the 1953 decision,
the Board rejected the Petitioner's contention that Subforemen Arnett
and Zinn were supervisors, on the ground that their direction of other
employees was routine and that their authority was like that of other
subforemen whom the parties had agreed to include. Here, the Peti-
tioner contends that all subforemen,4 as well as Zinn, now an inspector
in the bag department, Douthat, in charge of parts in the maintenance
department, and Chapel, the head of the shipping department, have
authority to make effective recommendations and should therefore be
excluded as supervisors. As to Zinn and the subforemen, also called
working foremen, although they sometimes relay requests for wage
increases from employees to the plant superintendent or the fore-
man over their. particular production department, whatever opinions
they express as to the merits of such requests are given little or no
weight. The record establishes that it is only the foremen of the
various departments who have authority effectively to recommend em-
ployee status changes to the plant superintendent. Notwithstanding
the fact that subforemen may sometimes work the graveyard shift
when no admitted supervisor is present, at such times they act under
specific instructions, and at all times the direction which they give to
the employees under them is clearly routine in nature or merely that
a The Petitioner 's contention that the chemist should be excluded on the further ground
that he acted fora supervisor during the latter's vacation is without merit, as such
sporadic substitution is insufficient to constitute one a supervisor
4 The subforemen comprise Spellings , W. Rainey, and Roberts in the printing depart-
ment ; Arnett and F Rainey in the waxing and slitting department ; Burnett, Walton,
and Parker in the bag department ; and A. Lewis in the maintenance department.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which experienced workmen give their helpers. We conclude that
the subforemen and Zinn are not supervisors as defined in the Act and
shall include them in the unit.,
Douthat is solely responsible for maintaining -a supply of parts =for
the maifitehance shop and has no employee'sunider;him: He is there-
fore not a supervisor and, in view of the clerical nature of his work,
we shall include him as a plant clerical employee.
Chapel is a working foreman over eight employees in the shipping
department. There is no intermediate supervision between him and
the plant superintendent. Although the plant superintendent testi-
fied that he comes into the shipping room a number of times each
day, he admitted that Chapel adjusts minor grievances, grants time
off, and makes recommendations as to wages which are given weight
and have in some cases been followed. We find, upon the record, that
Chapel has power to make effective recommendations as to wages:
As he'is therefore a supervisor, we shall exclude him.
Platemaker Cleon Miller: The Petitioner cc,ntended that Cleon
Miller is a supervisor by reason of his former position as plant super-
intendent of the Employer's Washington, New Jersey, plant. How-
ever, Miller apparently exercises no managerial functions at the
Memphis plant where he is now employed as a platemaker, and he has
no employees under him. In the circumstances, we see no basis for
denying him representation in the unit.
Quality control assistant: The quality control assistant, Curry,
performs a quality control function under the technical engineer and
a production control function under the plant superintendent. It
appears that the quality control function occupies most of his time.
As this function involves making tests in and out of the laboratory
much similar to those performed by the chemist,,and, laboratory
assistant' whom we are including, and:the ^recbrddoes not establish
that Curry is a technical employee such as the Board normally ex-
cludes from production and maintenance units, we shall include him
in the unit.
Part-time employees : One part-time employee, R. Lewis, is in the
Navy, stationed at a nearby base. On his days off, generally 2 days
a week, he works in the Employer's maintenance shop performing
tasks similar to those done by other maintenance employees. We
find that R. Lewis is a regular part-time employee and shall include
him in the unit.'
There are three other part-time employees who repair defective
bags returned by customers. One of them, Monger, is a college stu-
dent, and the other two, Inscoe and W. Stovall, are high school stu-
e Kent Plastics Corporation , 101 NLRB 519 ; Cinch Manufacturing Corporation, 98
NLRB 781 . See also, as to direction , Peninsular Metal Products Corporation, 116 '_`ZRB
452.
e Terri Lee, Inc., et at., 103 NLRB 995.
DIXIE WAX PAPER COMPANY 551
dents. The Employer began to employ them early last summer
because of a large accumulation of such defective bags. Apparently,
they may work whenever they have the time to do so. Since the
resumption of school, Inscoe and W. Stovall have worked about 8
hours nearly every week, and Monger has worked mainly during his
vacations and while home on holidays. In the circumstances, con-
sistent with our policy with respect to part-time employees, we shall
include Inscoe and W. Stovall as regular part-time employees and
shall exclude Monger because of the intermittency of his employment.
Watchmen: There is 1 regular watchman who works weekday
nights and 2 weekend watchmen. In addition to certain janitorial
duties which they perform, these watchmen prevent unauthorized
persons from entering the premises and make regular rounds of ADT
clocks during their tours of duty. In the 1953 decision, watchmen
were included because they devoted less than half their time to guard
duties and were therefore not guards under the Board's then-existing
definition. However, the Board has since modified its policy so as to
include in its definition of a guard any employee performing part-
time guard duties.' We shall, therefore, exclude the watchmen herein.
Accordingly, we find that the following employees employed at the
Employer's Memphis, Tennessee, plant, constitute a unit appropriate-
for the purposes of collective bargaining within the meaning of Section
9 (b) of the Act.
All production and maintenance employees, including graphic arts
employees,' plant clerical employees, production and quality control
employees,9 regular part-time employees,10 and subforemen, but ex-
cluding office clerical employees," professional employees, watchmen'12
foremen," and all other supervisors as defined in the Act.l"
5. The Employer contends that an election should not be held at the-
present time on the ground that changes in its operations are impend-
ing. The Employer testified that it planned to separate its wrapper
operations from its bag operations and may move one of these opera-
tions to a new plant location. However, no detailed plan has yet been
adopted, and it is unknown what effect, if any, such change in opera-
tions would have upon the present unit composition. In view of-the
7 Walterboro Manu facturing Corporation , 106 NLRB 1383; American Lawn Mower Co.,.
108 NLRB 1589, 1593
8 Including , among others , the artists and platemaker Cleon Miller
4 Comprising the chemist , laboratory assistant , and quality control assistant.
10 Including R. Lewis, Inscoe, and W. Stovall, but excluding Monger.
" Included in this category is Mrs Cochran. -
'2 Comprising both regular and part- time watchmen.
18 Encompassing , in addition to the production department foremen, the working fore-
men, Cantrell and Chapel , over maintenance and shipping , respectively.
'* The Petitioner sought also to exclude technical employees , a category which the Board
excludes from production and maintenance units at a party's request . However, as there-
appear to be no technical employees at the Memphis plant, we do not include such a desig-
nation among the exclusions
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conjectural nature of these plans, we find that the Employer's present
Memphis operations are sufficiently stable to warrant our directing an
immediate election.15
[Text of Direction of Election omitted from publication.]
" The Cornelius Company, 93 NLRB 308 , 370, footnote 7; Parsons Corporation, 95
NLRB 1336,1338 ; Central Metal Products , Inc., 115 NLRB 1155, 1150.
Harvey Radio Laboratories , Inc. and Cambridge Thermionic
Corporation 1 and International Union of Electrical , Radio and
Machine Workers, AFL-CIO, Petitioner. Case No. 1-RC-4761.
March 6,1957
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 William I. Shooer,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed 2
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 Leedom and Members Murdock and
Rodgers].
Upon the entire record in this case, the Board finds :
1. The Employers are engaged in commerce within the meaning of
the Act.3
2. The labor organization involved claims to represent certain em-
ployees of the Employer 4
3 Hereinafter called Harvey and Cambridge, respectively.
2 The hearing officer referred to the Board the Employers ' motion to dismiss the petition
because it fails to indicate that the Petitioner has complied with the filing requirements
of Section 9 of the Act The Board has determined administratively that the Petitioner
is in compliance In their brief filed with the Board, the Employers contend that, under
the decision of the court in N. L. R B. v. Puerto Rico Food Products Corp. ( 232 P. 2d
515 (C. A 1)), the Board was required to adduce at the instant hearing proof of com-
pliance. However , the ruling in that case was based on a construction of N. L. R. B. v.
Coca -Cola Bottling Co of Louisville, Inc., 350 U. S 204, which conflicts with that adopted
by the Board . See Desaulniers d Co., 115 NLRB 1025; Kohler Co., 117 NLRB 321.
Pending resolution of this conflict by the Supreme Court, and with due deference to the
Court of Appeals for the First Circuit, we adhere to our view of the Coca-Cola decision as
requiring only that the Board permit litigation of questions of statutory construction,
and not of factual issues , arising under Section 9 ( f), (g), and ( h) of the Act. The
motion to dismiss for lack of evidence of compliance is therefore denied.
'Harvey and Cambridge took no position on jurisdiction . Both are Massachusetts
corporations . The record shows that Cambridge annually ships out of State more than
x50,000 worth of goods and that Harvey annually renders to Cambridge services valued
at more than $100,000. Accordingly , whether we view them as separate employers or
as constituting together a single employer ( see below ), we find that it will effectuate
the policies of the Act to assert jurisdiction herein over both Companies . Jonesboro Grain
Drying Cooperative, 110 NLRB 481 , Whippany Motor Co., Inc., 115 NLRB 52.
4 The Employers refused to stipulate that the Petitioner is a labor organization. We
find, from evidence in the record , that Petitioner exists for the purpose of dealing with
employers concerning working conditions , and that it is a labor organization within the
meaning of the Act.
117 NLRB No. 81.