Tennessee Corp.

National Labor Relations Board - Board Decisions

Sep 6, 1951

96 N.L.R.B. 7 (N.L.R.B. 1951)

U. S. PHOSPHORIC PRODUCTS DIVISION 7
of an objection, the question of Lyons' eligibility to vote, where that
employee failed to exercise her right to vote subject to challenge.
Such objection is thus in the nature of a postelection challenge, a
type of challenge which the Board has uniformly rejected .s Ac-
cordingly, we find no merit in this objection.
As we have overruled the Employer's objections and as the Peti-
tioner has secured a majority of the valid votes cast in the election,
we shall certify the Petitioner as the representative of the employees
in the unit heretofore found appropriate in the Board's Decision and
Direction of Election.
Certification of. Representatives
IT Is HEREBY CERTIFIED that Local 416, United Automobile, Aircraft
and Agricultural Implement Workers of America, CIO, has been
designated and selected by a majority of the employees of the Em-
ployer in the unit heretofore found by the Board to be appropriate,
as their representative for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, the said organization is
the exclusive representative of all the employees in such unit for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment.
8 See, e. g., Halliburton Portland Cement Company , 92 NLRB 1552.
U. S. PHOSPHORIC PRODUCTS DIVISION , TENNESSEE CORPORATION and
INTERNATIONAL CHEMICAL WORKERS UNION, A. F. OF L., PETITIONER.
Case No. 10-RC-1182. September 6,1951
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 Morgan C. Stanford,I t5
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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Murdock, and Styles].
Upon the entire record in this case, the Board finds :
' At the hearing, and in its brief, the Intervenor, U. S. Phosphoric Products Corporation
Employees Association, moved to dismiss the petition on grounds relating generally to the
existence of a question concerning representation. For reasons stated in paragraph num-
bered 3, infra, the motion is denied.
96 NLRB No. 5.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
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 Employer.
3. On'July 11, 1949, after a consent election, the Intervenor was
certified as the statutory bargaining representative of the employees
involved herein. These employees were covered at the time by a con-
tract between the Employer and the Intervenor which had been en-
tered into on February 14, 1949, effective until February 11, 1951, and
automatically renewable for annual periods thereafter, absent 30 days'
notice before the end of the contract term to terminate or modify the
agreement. The Petitioner requested recognition on December 4 and
December 7 and filed its petition on December 11, 1950.
The Intervenor and the Employer contend, in effect, that the 1949
contract is a bar to a present determination of representatives. The
Intervenor further contends that its certification constitutes a bar 2
We do not agree.
It is clear that, as the Petitioner's claim was asserted and its peti-
tion filed before the automatic renewal date of the 1949 agreement,
the existing contract is not a bar' And the certification is also not a
bar where, as here, more than a year had elapsed before the petition
was filed 4
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. The parties agree generally that all employees of the Employer
at its Gibsonton, Florida, plant, with the usual exclusions, constitute
2 The Intervenor also contends that the petition should be dismissed on the grounds
that : (1) The Petitioner made no showing that it represents a majority of the employees ;
(2) the record does not prove nor does the Petitioner have a 30 percent showing as alleged
in the petition ; ( 3) an unfair labor practice charge filed by the Petitioner against the
Employer is pending ; ( 4) the filing of the petition herein constitutes an unfair labor
practice against the Intervenor and the Employer . We find these contentions to be without
merit for the following reasons: As to (1), a labor organization need not allege representa-
tion of a majority of the employees sought to raise a question concerning representation, nor
establish its majority status in advance of the election . Bank of America, N. R. & S. A.,
71 NLRB 342; Landis Machine Compaivj, Inc., 71 NLRB 282. As to (2), the adequacy
of a petitioner 's showing is an administrative matter and is not litigable . Moreover, we
are administratively satisfied that the Petitioner has an adequate showing of interest.
Swift & Company, 94 NLRB 917: As to (3), the Petitioner, the charging party in Case No.
10-CA-1153, has filed a waiver of any right to urge any matters in that case as a basis of
objection in this proceeding . And, as to ( 4), the Board has repeatedly held that it will
not hear charges of unfair labor practices in a representation proceeding . See, e. g.,
Marine Optical Manufacturing Co., 92 NLRB 571.
8 Bond Brothers , Incorporated, 86 NLRB 514.
Contrary to the Employer's contention , the pendency of unfair labor practice charges
filed by the Petitioner against the Employer at the time of the representation claim and
petition does not alter the effectiveness of such claim and petition in raising a question con-
cerning representation . Cf. United States Smelting , Refining and Mining Company, 93
NLRB 1280. Also, contrary to the Intervenor 's contention , the alleged failure of the
Board to process the petition until June 12, 1951 , does not render the petition untimely.
Cf The Baltimore Life Insurance Company, 73 NLRB 848.
4 Cf Weber Showcase and Fixture Company, 85 NLRB 1202.
U. S. PHOSPHORIC PRODUCTS DIVISION 9
an appropriate unit. However, there are questions raised with regard
to the unit placement of the following categories :
Yardmaster, head mechanic, shift foreman, head welder, head pipe-
ftter, head painter, head labor foreman, head warehouse clerk, head
electrician, head boilermaker and sheet metal worker, head carpenter,
(lead operator, head lead burner, head brickmason: The record shows
that each of these individuals responsibly directs the work of a sub-
stantial number of employees and has power effectively to recommend
their hire or discharge. We find that they are supervisors and shall
exclude them.
Labor foreman: This category is presently involved in unfair labor
practice charges .-9 As previously noted, the Petitioner has filed the
usual waiver, stating that it will not base objections to the conduct of
the election on any activities of the Employer alleged in the charges as
violations of the Act. Therefore, in accordance with our usual prac-
tice, we shall permit the individuals in this category to vote subject to
challenge and- segregate their ballots. Their ballots will not be
counted unless determinative of the election. In the event that they
are determinative, the final disposition of this case will await the out-
come of the unfair labor practice proceeding. By allowing these indi-
viduals to vote, we are not to be taken as having passed upon the issue
of their supervisory status or any of the issues in the unfair labor
practice proceedings e
Gatemen: These employees prevent unauthorized persons from en-
tering the plant and the unauthorized removal of all materials, tools,
and equipment from the Employer's premises. They may require the
surrender of tools or equipment for which proper removal authoriza-
tion is not presented and may detain employees who attempt to take
such material fr6in the plant. We find that the gatemen are guards
within the meaning of Secion 9 (b) (3) of the Act and shall exclude
them.7
Watchmen: There are three employees in the construction depart-
ment classified as watchmen. They perform miscellaneous tasks for
the Employer, such as driving employees to their homes, which are
unrelated to the protection of the Employer's property or to the en-
forcement of its rules. We shall, therefore, include them in the unit.
We find.that all employees of the Employer at its Gibsonton, Flo-
rida, plant, including the head laboratory samplers and watchmen,
but excluding office clerical employees, the personnel clerk,9 gatemen,
5 Case No . 10-CA-1153.
6 Cf. Jackson Daily News, 86 NLRB 729.
7 C. V. Hill d Company, Inc., 76 NLRB 158..
8 The head laboratory sampler does not appear to be vested with supervisory authority.
We shall, therefore , in accordance with the agreement of the parties , include him in the
unit.
e The record indicates that the personnel clerk is a confidential employee, and, accord-
ingly, this category is excluded from the unit.
10 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
guards, professional employees, the yardmaster, head mechanic, shift
foreman, head welder, head pipefitter, head painter, head labor fore-
man, head warehouse clerk, head electrician, head boilermaker and
sheet metal worker, head carpenter, head operator, head lead burner,
head brickmason, and all other supervisors, constitute a unit appro-
priate 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.]
JOSEPH J. MICIIALIK, D/B/A SERVICE METAL INDUSTRIES and INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IM-
PLEMENT WORKERS OF AMERICA (UAW-CIO). Case No. 7-CA-
446. September 6, 1951
Decision and Order
On May 15, 1951, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.2 The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in this
case,3 and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member
panel [Members Houston, Reynolds , and Styles].
2 The Respondent moved to dismiss the complaint on the ground , inter alia, that the
UAW-CIO and its Local 408 had not complied with Section 9 (f) and ( g) of the Act in
that they had not furnished an annual financial report to their members . The fact of
compliance by a labor organization which is required to comply , is a matter for adminis-
trative determination and is not litigable by the parties. Moreover, the Board is admin-
istratively satisfied that UAW-CIO and its Local 408 were in compliance at least as of
the time of the issuance of the complaint and all material times thereafter . See Sunbeam
Corporation , 94 NLRB 825 ; Cf. Highland Park Manufacturing Co., 71 Sup. Ct. 489.
Under the circumstances , we affirm the Trial Examiner 's denial of the motion to dismiss
the complaint on this ground.
3 The Respondent ' s request for oral argument is hereby denied, because the record,
exceptions, and brief , in our opinion , adequately present the issues and positions of the
parties.
4 In finding that the Respondent independently violated Section 8 ( a) (1) of the Act,
we do not rely on the statement of Ruth Young , found by the Examiner in Sectidn III
E of the Intermediate Report , that rather than vote for the Union it would be more
advantageous in the settlement of their grievances to form a committee of 4 or 5 employees
that could meet with management.
96 NLRB No. 6.