Ware Laboratories, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1952

98 N.L.R.B. 1141 (N.L.R.B. 1952)

WARE LABORATORIES, INC. 1141
WARE LABORATORIES , INC., PETITIONER and INTERNATIONAL AssocIA-
TION OF MACHINISTS , LOCAL LODGE No . 613. Case No. 1ORM--89.
April 9,1952
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 M. Pate, 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 [Chairman Herzog and Members Houston 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 organization involved claims to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer contends that the employees of the optic depart-
ment constitute a separate appropriate unit. The Union contends
that the unit claimed by the Employer is inappropriate and that
therefore the Employer's petition should be dismissed.' As basis for
its contention, the Union maintains, contrary to the Employer, that
the optic department, although not in existence at the time of the
execution of the contract for the production and maintenance em-
ployees, is covered by the terms thereof and a part of the existing pro-
duction and maintenance unit. As an alternative position, the Union
urges that if an election is ordered, the unit should include all the
production and maintenance employees of the entire plant including
the employees in the optic department.
Bargaining History and Operations of the Employer
On June 22, 1950, following the certification 2 of the Union as
bargaining representative, the Employer and the Union executed a
collective bargaining contract covering all production and main-
1 The Union in its motion to dismiss relies on the recent decision in the Wolf Bakery
case (97 NLRB 122). In that case, the Board dismissed the employer's petition for
the reason that neither the union claiming representation nor any other labor union
claimed to represent all the employees in the unit alleged as appropriate in the employer's
petition. In the present case, however, the Union is claiming to represent the very em-
ployees comprising the unit alleged as appropriate in the Employer's petition. We therefore
find that the TVolf case is not applicable , and we deny the motion to dismiss.
2 Case No. 10-RC-787, not reported in printed volumes of Board Decisions.
98 NLRB No. 152.
998666-vol. 98-53-73
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance employees at the Employer's Miami, Florida, plant. At the
.time of the execution of the contract, the Employer was engaged
solely in the manufacture of aluminum window casings and metal
lockers. However, in March 1951, the Employer, having obtained
contracts from the Army and Navy for the manufacture of precision
optics, added this line to its operations. In order to. carry on the
new operation, for which an addition to the existing plant was
expressly built, the Employer created a department known as the
optic department. New employees from outside the plant were hired
for this operation, which now employs some 37 out of a total of 225
employees for the entire plant.
As noted above, the parties are in dispute as to whether the optic
department employees are a presently unrepresented group or whether
.they are covered by the terms of the recent agreement which expired
in December 1951. The optic department was not established until
March 1951, some 9 months after the contract was executed. There is
no evidence that the Union specifically claimed to represent these
employees until sometime in October 1951, when the question arose as
to whether the optic department employees were entitled to the same
rest period as the other employees. Although this question was proc-
essed as a grievance and the Employer gave it some consideration, the
request for the rest period was refused on the ground that the machines
in the optic department could not be permitted to remain idle without
resulting injury. The evidence shows that thereafter the Employer
maintained that the optic employees were not covered by the contract.
On the basis of the entire record, particularly in view of the fact
that the optic department was not established until after the execution
of the contract, that this department manufactures an entirely differ-
ent product requiring the skills of employees in different classifica-
tions, that the Union did not specifically claim to represent the optic
employees until more than 7 months after it was established, and that
the application of plant wages and working conditions to the optic
department employees did not result from any negotiations with the
Union, we find that the optic department employees were not covered
by the contract which expired in December 19511
The Scope of the Appropriate Unit
The Employer's contention that the optic department constitutes a
separate unit finds support in certain evidence to the effect that this
department is in the nature of a separate plant performing an inde-
8 See Sani -Aqua Shower Curtains, Inc., 88 NLRB 1289; Sprague Electric Company, 98
NLRB 533; cf Plastotd Corporation, 97 NLRB No. 225; Albert H. We3nbrenner Com-
pany, 90 NLRB No 160; and Westsnghouse Electric Corporation, Cleveland Lighting
Dibision , 79 NLRB 744
l -A
WARE LABORATORIES, INC. 1143
pendent function under a separate superintendent.. The optic depart-
ment is separated from the rest of the plant by-a partition and is for
security reasons restricted to the employees of that department. The
department is separately soundproofed and air-conditioned due to the
nature of the glass which is handled there. The machines used are
substantially different from those used in the window and locker
departments and the product manufactured by the optic department
is substantially different from those made in the rest of the plant. The
department has its own superintendent and four foremen who exer-
cise supervisory power. The foregoing indicates that the optic depart-
ment might, like a separate plant, constitute an appropriate unit.4
On the other hand, many factors indicate the appropriateness of an-
over-all production and maintenance unit. Thus all employees, in-
cluding those in the optic department, have virtually the same interests;
and the same general working conditions. All employees are hourly
paid, work the same number of hours, punch the same clock, and wear
the same identifying buttons. The optic employees, like the other pro-
duction workers, enjoy the same employee benefits, such as reporting
time allowance, paid holidays, Christmas bonuses, and company in-
surance. All employees of the plant have constant contact with one
another through group riding to and from the plant and through par-
ticipation in social clubs.
On the basis of the entire record, and because of the community of
interest and similarity of working conditions and in view of the
Union's desire to represent the employees of the optic department as
part of the larger unit, we find that the optic department employees,
may, if they so desire, be added to the existing plant-wide unit cur-
rently represented by the Union. We shall, therefore, make no deter-
mination with respect to the employees of the optic department at this
time, but shall first ascertain the desire of these employees as expressed
in the election to be directed herein. If a majority of the employees
in the optic division vote for the Union, they will be taken to have
indicated their desire to be added to the existing unit.5
[Text of Direction of Election omitted from publication in this
volume.]
4 Sprague Electric Company, supra; William R. Whittaker Co., 93 NLRB 520. See also
McCarthy Manufacturing Company, 61 NLRB 443, 445; 59 NLRB 1244
5 R P Scherer Corporation, Hypspray Division, 95 NLRB 1426.