Herndon Rock Products

National Labor Relations Board - Board Decisions

Jun 9, 1952

99 N.L.R.B. 570 (N.L.R.B. 1952)

.570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STEWART AND Nuss, INC., AND CLAIIDE E. Nuss AND CHARLES STEWART,
D/B/A HERNDON ROCK PRODUCTS and INTERNATIONAL ASSOCIATION OF
MACHINISTS , DISTRICT LODGE No. 87, AFL, PETITIONER . Case No.
20-RC-151Y., June 9,1952
Supplemental Decision and Certification of Representatives
On March 7, 1952; pursuant to a Board Decision and Direction of
Election dated January 18, 1952,1 and election was held under the
direction and supervision of the Regional Director for the Twentieth
Region among certain employees of the Employer. Thereafter, a tally
of ballots was furnished the parties; the tally showed that of the ap-
proximately 21 eligible voters, 19 cast valid ballots, 16 for the
Petitioner, 2 for the Intervenor, International Union of Operating
Engineers, Local No. 3, AFL, and 1 for no union. In addition,
28 employees cast ballots which were challenged by the Board's agent.
On March 13, 1952, the Intervenor filed objections to conduct affecting
the results of the election.
On April 11, 1952, after investigating the challenges and objections,
the Regional Director issued his report on challenged ballots and
objections, in which he recommended that the objections be overruled
and that 21 of the challenges be upheld? On April 18, 1952, the
Intervenor filed exceptions to the Regional Director's report and
recommendations.
The bargaining unit in this case (set forth verbatim below) is
limited to the Employer's heavy duty mechanics, machinists, combina-
tion welders, and their helpers and apprentices, wherever located.
The names of the 21 employees in question did not appear on the
eligibility list used at the election. The Regional Director's investi-
gation revealed that they spend most of their time operating machinery
'and equipment, and only occasionally make minor repairs on the
machinery or assist the mechanics when the latter perform major
repairs. From these facts the Regional Director concluded that they
are machine operators rather than mechanics, and therefore not
included in the voting group.
The Intervenor does not claim that these 21 employees--called
operators-are misclassified, nor does it dispute the fact that only an
incidental part of their time is spent on machine repair work. Indeed,
the facts as reported by the Regional Director are fully in accord with
the testimony received at the hearing on the representation petition,
where the Petitioner disputed the Intervenor's attempt to join con-
struction-site repair mechanics in the same unit with machine oper-
1 97 NLRB 1250.
2 Because elimination of these 21 challenged ballots would finally determine the results
of the election, the Regional Director did not consider the remaining 7 challenges.
99 NLRB No. 90.
STEWART AND NUSS, INC. 571
ators. 'In these circumstances, we find, like the Regional Director,
that the disputed employees are not mechanics or machinists, and
therefore were ineligible to vote in the election. Accordingly, we
adopt the Regional Director's recommendation and we hereby sustain
the challenges to the ballots of Eugene Vance, ;Odie B. Shelton, Al
Steits, George Thomason, Ola Coulson, Carl Simmons, Floyd Peter-
son, Carl Nix, Leo Ely, William Redman, Pat Sant Agata, Matthew
Etcheverry, Lester Clay, Arthur Harrah, Wayne Gibson, Lloyd
Dunkin, James Thompson, Arthur Rickey, Virgil Azlin, Othal Hardy,
and Fred Lindsey. As the objections rest only on the same assertion
that these employees should have been permitted to vote, we hereby
also overrule the objections.
At heart, the Intervenor's argument in support of both of its objec-
tions to the election and of the asserted eligibility of the 21 challenged
employees, is a reiteration of its principal contention urged at the
original hearing. It attacks the scope of this machine repairmen's
unit as being too broad because it includes mechanics who may be sta-
tioned at construction sites, away from the Employer's permanent re-
pair shop at Fresno, California. The Board has fully considered this
contention in its Decision and Direction of Election, and no new mat-
ters are raised here to justify either a change in the unit finding or
any further discussion of the matter. The Intervenor's statement in
its exceptions, that if the Employer should in the future expand its
operations to include construction sites hundreds of miles away from
Fresno, or even outside the continental United States, the unit as now
described, might create unforeseen difficulties, is premature. The
Board will consider the effect of material changes in the Employer's
operations when and if such matters are presented to it in proper
proceedings.
With the 21 challenged ballots thus considered eliminated, from the
count, the tally of ballots shows that the Petitioner has been chosen
as bargaining representative by a*majority of the employees in the
unit. As we have overruled the Intervenor's objections, and as the
remaining challenges cannot affect the results of the election, we shall
certify the Petitioner as representative 'of the employees described in
our Decision and Direction of Election.
Certification of Representatives
It is hereby certified that the International Association of Machin-
ists, District Lodge No. 87, AFL, has been designated and selected as
their representative for the purpose of collective bargaining by a ma-
jority of the employees of Stewart and Nuss, Inc., and Claude E.
Nuss and Charles Stewart, d/b/a Herndon Rock Products, Fresno,
California, in the following unit : All heavy duty mechanics, machin-
ists, combination welders, and their helpers and apprentices, and all
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utility painters and parts room clerks employed at the Employer's
Fresno shop, or at gravel pits or construction sites operated by the
Employer, excluding all other employees, watchmen, guards, office
and clerical employees, and supervisors as defined in the Act, and
pursuant to Section 9 (a) of the Act, said organization is the exclu-
sive representative of all such employees for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
MEMBERS STYLES and PETERSON took no part in the consideration of
the above Supplemental Decision and Certification of Representa-
tives.
MOORESVILLE MILLS and TEXTILE WORKERS UNION OF AMERICA, CIO.
Case No. 34f-CA-202. June 10, 1952
Decision and Order
On August 27, 1951, Trial Examiner Allen MacCullen 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 In-
termediate Report attached hereto. Thereafter, the General Counsel,
the Respondent, and the Union filed exceptions to the Intermediate
Report ; the General Counsel also filed 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. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the following additions and modifications.
1. As set forth in the Intermediate Report, on March 22, 1950,
shortly after the Union filed a petition for an election with the Board,
the Respondent announced certain benefits to "improve" the work-
ing conditions of its employees. These were : 2 hours minimum re-
porting pay, a 5-cent differential in pay for the third shift, and five
holidays, with time and one-half for work performed on such holi-
days..The Trial Examiner found, and we agree, that by granting the
first two benefits the Respondent violated Section 8 (a) (1) of the
Act. Because it was not affirmatively shown that the employees had
not previously enjoyed these holiday benefits, he found nothing im-
proper in the holiday announcement . We do not agree with this
latter conclusion.
99 NLRB No. 96.