Whiteacre Greer Fireproofing Co.

National Labor Relations Board - Board Decisions

Sep 10, 1952

100 N.L.R.B. 1107 (N.L.R.B. 1952)

WHITEACRE GREER FIREPROOFING COMPANY
IV. THE REMEDY
1107
Since it has been found that the Respondent has engaged in and is engaging
in certain unfair labor practices affecting commerce, I shall recommend that it
cease and desist therefrom and take certain affirmative action in order to effectu-
ate the policies of the Act.
It has been found that the Respondent, by interrogation concerning concerted
activities , interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act. I shall therefore recommend that the Respondent
cease and desist therefrom.
For the reasons stated in the subsection entitled "The alleged violation of
Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar
as it alleges the discriminatory discharge of and refusal to reinstate Louisa Cline.
Upon the basis of the above findings of fact and upon the entire record in the
case. I make the following :
CONCLUSIONS OF LAW
1. By interrogating its employees concerning concerted activities, thereby
interfering with, restraining, and coercing them in the exercise of rights guaran-
teed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
2. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of the Act by discharging and refusing to reinstate Louisa Cline.
[Recommendations omitted from publication in this volume.]
WHITEACRE GREER FIREPROOFING COMPANY 1 and INTERNATIONAL
UNION OF OPERATING ENGINEERS , AFL, PETITIONER . Case No.
8-RC-1716. September 10, 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 Carroll L. Martin,
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 [Members Houston, Murdock, and Styles].
'The Employer's name appeals as amended at the hearing. Because its name was
incorrectly designated as "Whitacre & Greer" in the petition, the Employer moved to dis-
miss the petition The Employer was given sufficient notice in advance of the hearing
that it was the employer of the employees involved in this proceeding to adequately pre-
pare itself for the hearing As the Employer was therefore not prejudiced by the mis-
nomer in the petition, we shall deny its motion.
2 The motions of the Employer and the Intervenor, Local 755, United Brick & Clay
Workers of America, AFL, to dismiss the petition on the grounds of contract bar and
inappropriateness of the requested unit are denied for the reasons stated, infra.
100 NLRB No. 174.
227260-53-vol. 100-71
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Employer.
3. The Employer contends that its contract with the Intervenor
signed June 30, 1952, is a bar to, this proceeding although the petition
herein was filed on June 26, 1952.3 This contention is based upon
the following circumstances. On June 4, 1952, while the parties were
negotiating the foregoing contract, the Petitioner sent a letter to "Fire-
proofing Company, Attention : Mr. Whiteacre & Mr. Greer" request-
ing the addressee to bargain with the Petitioner for its power plant
employees. This letter was received by the Employer on about June
11. On June 12 the Employer's president was notified by a telephone
call to his home from the Petitioner that the latter represented the
Employer's "boiler-firemen." Thereafter, on June 26, the Petitioner
filed the afore-mentioned petition designating the Employer therein
as "Whiteacre & Greer." On June 27 the Regional Director mailed
a notice of the filing of the petition to the Employer, but because the
notice was misdirected it was not received by the Employer until
July 1, after the contract with the Intervenor was already signed.
The Employer argues that because of the Petitioner's inaccuracies
in the foregoing claims, the erroneous designation of the Employer
in the petition, the misdirection of the notice from the Regional
Director, and the Petitioner's 14 days' delay in filing its petition after
the July 12 claim, it was induced by the Petitioner to believe that
no "impediment" existed to the conclusion of its contract with the
Intervenor. In effect, the Employer asserts that the Petitioner "slept
on its rights" and that the signing of the contract before the receipt
of notice of the filing of the petition should estop the Petitioner from
proceeding with this case. We find no merit in this contention. The
alleged infirmities in the Petitioner' s claims of representation to the
Employer are in the context of this case immaterial to the question
before us. What is here controlling is the fact that a valid petition
was filed and docketed with the Board before the contract asserted
as a bar was signed. Under this circumstance the contract fails to
operate as a bar, despite the fact that the notice of filing was received
by the Employer after the contract was signed 4 Accordingly, we
deny the motions of the Employer and the Intervenor to dismiss the
petition on the ground of contract bar.5
3 The Intervenor took a similar position at the hearing , but did not argue in support
of this contention in its brief.
4 Cf Hickey Cab Company , 88 NLRB 327.
5 In view of this ruling , it is unnecessary for us to pass on the Petitioner 's contention
that the contract should not operate as a bar because it is for "members only."
WHITEACRE GREER FIREPROOFING COMPANY 1109
4. The Petitioner requests a unit of employees, designated in the
record as boiler firemen, who operate the boilers at the Employer's
Magnolia, Ohio, brick manufacturing plant. The Employer and
Intervenor contend that these employees do not comprise an appro-
priate unit because (1) they are an indistinguishable part of the plant-
wide production and maintenance unit which, assertedly, has been the
bargaining unit for the Employer's employees since about 1938, (2)
the integration of the Employer's manufacturing processes precludes
severance, particularly in the face of the asserted bargaining history,
and (3) the pattern of bargaining in the industry is on the basis of
plant-wide units.
The Employer produces clay bricks used for building construction
by a process entailing the digging of the raw clay by the Employer
from pits on its premises, and the conversion of the raw material into
the finished product by successive interrelated steps. Steam generated
by the boilers operated by the boiler firemen is essential to this process,
first in the lubrication of dies which are blended with the clay and
then in the evaporation of water from the bricks .r Steam from the
boilers is also used to heat the plant in cold weather. Three 100 h. p.
portable boilers' are located in a partially enclosed room in a corner
of the main plant building. Although other employees occasionally
enter or pass through this room to use the washroom, to go to the
superintendent's office, or to reach the electric motors and control
board at the rear of the room, only the boiler firemen regularly
work here.8
The boiler firemen are required by the Employer to possess State
licenses which are obtainable upon passing an examination. These
licenses are posted in the boiler room. The duties of the boiler firemen
consist of fueling the boilers with coal, removing ashes, maintaining
pressure at the desired levels, and periodically cleaning the boilers.
These functions are performed in the boiler room. In addition they
regulate and maintain weight control valves which control steam pres-
sure to the driers. These valves are located outside the boiler room.
The boilers are operated continuously on a three-shift basis each day
of the week. Thus, the Employer's three boiler firemen work 56 hours
weekly with no day off scheduled for them in advance. They may
obtain days off on request, and in that event a licensed boiler fireman
O The plant 's machinery is driven by electricity purchased from an outside power
company.
'The uncontradicted testimony of one , of the boiler firemen with 19 years' experience
In this occupation is that these are high pressure boilers. '
8 A track for drier cars runs along the entire side of the plant building and through the
boiler room. Two employees who work on these cars occasionally walk through the boiler
room in performing their duties.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose main duties consist of production work substitutes for them.9
In these respects the boiler firemen are distinguished from the Employ-
er's other employees, except kiln firemen, who work a single shift 6
days each week. The boiler firemen, moreover, are hourly paid,
whereas a substantial proportion of the Employer's production em-
ployees receive piece rate incentive payments under a plan enabling
them to quit work before the end of the regular 8-hour day. Also,
unlike the other employees, the boiler firemen have no lunch periods
and eat on the job. Nominally, they are under the inside plant fore-
man who also supervises several groups of production employees. It
appears, however, that he seldom gives them orders or directions,
particularly as the boiler firemen work mostly during shifts which do
not coincide with his work hours. At these times they are supervised
by the assistant superintendent or the superintendent. Permission for
time off is requested by them of the superintendent, and their absences
from duty are reported to his office.
We find from all the facts in this case that the Employer's boiler
room employees comprise a homogeneous identifiable boiler room
group to whom the Board customarily accords separate representa-
tion 10 despite a history of bargaining in which they may have been
part of a more inclusive unit 11 In directing an election for these
employees we are satisfied that the indispensability of the steam pro-
duced by the boiler firemen does not destroy their distinctiveness and
functional cohesiveness, and does not warrant a conclusion that the
Employer's operations are so integrated as to preclude separate repre-
sentation for them.12 Accordingly, we find that all boiler room em-
° This employee also assists in cleaning the boilers During the 2 months preceding
the hearing he worked in the boiler room 14 days. One other employee, who regularly
drives a tractor in the plant yard, also assists in cleaning the boilers from time to time.
On these occasions he sometimes fires the boiler under the guidance of the boiler fireman
on duty. He appears, however, to spend only a small percentage of his time at boiler
room duties, as he is frequently not available for cleaning work when it is performed.
None of the parties expressed a desire as to the inclusion of these employees in the
appropriate unit.
isNational Licorice Company, 85 NLRB 140, Alderwood Products Corporation, 81 NLRB
136; Wooster Rubber Company, 77 NLRB 1044.
ii Although the Employer and Intervenor contend that the bargaining history since 1938
or 1939 has been on the basis of a plant-wide production and maintenance unit, the record
indicates that bargaining has been on a "members only" basis. Thus, the last contract
preceding the filing of, the petition, dated June 28, 1951, provided that the agreement
was between the Employer and "such of its employees who are members of the [Inter-
venor]," and further provided that "it is clearly understood that this agreement is exclu-
sively between the said Company and the aforementioned Employees." This circumstance
serves to negate the Employer's assertion that bargaining in the industry is on the basis
only of plant-wide units. Apart from this consideration, however, the record fails to
support the Employer's position as to the bargaining pattern in the industry.
Charles A. Krause Milling Co , 97 NLRB 536 We further reject the contention that
the Employer's production processes are as integrated as those of "wet milling" plants,
and that, as in the case of those plants, we should find only a plant-wide unit of the
Employer's employees appropriate. None of the continuous flow processes typical of wet
milling operations is pre-eat in the Employer's plant. Cf Corn Products Refnmg Com-
pany, 87 NLRB 187.
SIMMONS COMPANY 1111
ployees at the Employer's Magnolia, Ohio, plant, including the boiler
firemen and all other employees who perform boiler room opera-
tions,13 but excluding 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.
5. As the substitute boiler fireman (Montgomery) regularly per-
forms boiler room operations for substantial periods, we shall accord
him voting eligibility in the election directed herein 14 We find that
the employee (Barnhouse) who occasionally assists in cleaning boilers
spends only an insubstantial part of his time at boiler room duties and
is, therefore, not eligible to vote.
[Text of Direction of Election omitted from publication in this
volume.]
1' We shall include employees Montgomery and Barnhouse in the appropriate unit for
such time as they spend in boiler room operations.
14 Ocala Star Banner, 95 NLRB 569.
SIMMONS COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL, PETITIONER. Cases Noe.13-RC-2713,13 RC 2714.
13-RC X716, and 13-RC-4716. September 10,196$
Decision, Order, and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
I. M. Lieberman, 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 8 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-mem-
ber panel [Chairman Herzog and Members Styles and Peterson].
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 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 sever three groups. of employees from
the existing production and maintenance unit at the Employer's plant
1 The Petitioner at the consolidated hearing moved to withdraw its petition in Case No.
13-RC-2713 relating to the fire protection employees . The motion is hereby granted.
100 NLRB No. 160.