Art Metal Construction Co.

National Labor Relations Board - Board Decisions

Oct 21, 1947

75 N.L.R.B. 80 (N.L.R.B. 1947)

In the Matter of ART METAL CONSTRUCTION COMPANY, EMPLOYER and
INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER
Case No. 3-R-158.5.Doided Oct ober ,21.19/.7
Cllr. Clive L. Wright , of Jamestown , N. Y., for the Employer.
Mr. D. J . Omer, of Buffalo, N. Y., and Mr. John G. Jackson, of
Celoron, N. Y., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at James-
town, New York, on August 21, 1947, before Clyde F. Waers, hearing
officer. The hearing off'icer's rulin gs made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE EMPLOYER'
Art Metal Construction Company, a Massachusetts corporation, op-
erates three plants in Jamestown, New York, where it is engaged in
the manufacture of hollow metal, and office, bank, library, and visible
post-index equipment. During the 12-month period preceding the
hearing, the Employer purchased for use at its Jamestown plants
raw materials valued in excess of $2,000,000, of which more than 50
percent represented shipments to these plants from sources outside
the State of New York. During the same period, the Employer sold
from these plants in excess of $6,000,000 worth of finished products, of
which more than 50 percent represented shipments to points outside
the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
I The name of the Employer appears in the caption as amended at the hearing.
75 N L. R. B., No. 11.
80
ART METAL CONSTRUCTION COMPANY 81
IT. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.'
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer until the
-Petitioner has been certified by the Board in an appropriate unit.
We find that a question affecting commerce has arisen 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.
IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit composed of all factory clerical em-
ployees and all factory timekeepers employed at the Employer's James-
town, New York, plants. In the alternative, it would either represent
the employees in each of the above categories as a separate unit, or
it would merge these employees into a single unit with the production
and maintenance employees at the Employer's Jamestown plants,
whom it currently represents. The Employer contends that, in view
of the dissimilarity in work and interest between the employees in
the requested unit or units, and the production and maintenance em-
ployees, the former should appropriately be represented by the Office
Employees Union, which already represents the office clericals. In
any event, it opposes the establishment of any unit which would afford
representation of timekeepers by the Petitioner, on the ground that
representation of timekeepers by the salve union which represents pro-
duction employees might subject the timekeepers to improper influence
and create the possibility of collusion. While the parties agree on
the exclusion of the general superintendent's secretary from any unit
found appropriate by the Board, they disagree on the inclusion of
certain employees, discussed below.
The Employer's objections to the Petitioner's representation of time-
keepers
With respect to the Employer's contention that the employees in
the requested unit or units cannot appropriately be represented by
the Petitioner because of the basic differences between their duties
2 Office Employees International Union, Local 101, A. F L, hereinafter called the Office
Employees, and International Federation of Technical Enginecis, Architects & Draftsmen,
A. F L, were both served with a Notice of Hearing, however, neither union appeared or
participated in the heaung.
82 DECISIONS OF NATIONAL LABOR REI ATIONS BOARD
and interests and those of the employees the Petitioner already repre-
sents, we have frequently held that the authority of the bargaining
agent in such circumstances rests upon the employees' own choice.
Accordingly, inasmuch as some of the employees involved herein have
designated the Petitioner as their representative for the purposes of
collective bargaining, we find that it is competent to represent these
employees.3
Nor are we convinced that representation of the Employer's time-
keepers by the same union which represents its production and main-
tenance employees would lead to collusion, for we perceive no conflict
between self-organization for the purposes of collective bargaining and
the faithful performance of duty. Moreover, the remedy for ineffi-
ciency, neglect of duty, collusion, or other improper conduct on the
part of timekeepers or other employees, lies in the power of the Em-
ployer to discipline or discharge 4 Although, under the Act, as
amended, the Board may not certify a labor organization as the repre-
sentative of employees in a bargaining unit of guards if that organiza-
tion also admits to membership, or is affiliated directly or indirectly
with an organization which admits to membership, employees other
than guards, there is no similar provision with respect to timekeepers.5
Had Congress intended to apply the same principle to timekeepers, it
would have said so. We are, therefore, of the opinion that the same
labor organization may, if chosen by the timekeeper, represent them
as well as other employees of the Employer.
The composition of the unit
The factory clerical employees, whom the Petitioner seeks to repre-
sent herein, are classified as secretaries, stenographers, record clerks,
shipping clerks, pay-roll clerks, stock order clerks, and clerk typists.
Many of these employees work in the production and maintenance
portion of the Employer's plant; they are carried on the factory pay
roll, are under the same supervision as the production employees, and
are not included in the contract presently covering the office clerical
employees. We are of the opinion that the facts noted above indicate
that many of the interests of the factory clerical employees parallel
those of the production and maintenance employees. We find nothing
3 flatter of International Detrola Coipoi atoon. 73 N L R B 1358 , Matter of ai innell
Company of the Pacific, 71 N L R 11 1370, and cases cited theism
Matter of Noitliwest Lngineernng company, 73 N L R B 40 Matter of The New
Britain Machine company, 69 N L R B. 1076, and cases cited therein; Matter of Sullisan
Dt jdock and Repair Corporation. 56 N L R B 5S2
5 Guau ds ate described in the Acts as any individual employed to enforce against
employees and other persons rules to protect property of the employer or to protect the safety
of persons on the employers premises " It is clear that timekeepers, whose duties are
descubed mole fully below and are primarily clerical in nature, are not included in this
definition.
ART METAL CONSTRUCTION COMPANY 83
to distinguish the situation herein from that in the many cases wherein
the Board has found that plant clericals who work under the same
supervision as and in close proximity to production and maintenance
employees should be included in the production and maintenance
unit .6
The timekeepers, whom the Petitioner also seeks to represent herein,
work in the factory, and are carried on the factory pay roll. They
stand by the time clocks, and, after the production workers ring in on
their assigned jobs, compute the hours worked by each employee
against a job rate previously determined by the time-study force, a
group with which we are not here concerned. The information thus
obtained as to the amount of pay for each individual is then forwarded
to the pays roll section. Recently, in the Northwest Engineering ease,'
the Board reconsidered the status of timekeepers with duties similar to
those involved in this proceeding and concluded, as we now do on the
basis of this record, that timekeepers are, in fact, plant clericals and
that their working conditions closely associate them in interest with
the production and maintenance staff."
However, inasmuch as neither the factory clericals nor the time-
keepers have been included in the production and maintenance unit
currently represented by the Petitioner, we shall direct that a separate
election be held to determine their desires in the matter." Accordingly,
we shall make no unit finding pending the outcome of the election. If
these employees select the Petitioner as their bargaining representa-
tive, they will be taken to have indicated their desire to be included
in the existing unit of production and maintenance employees, and
the Petitioner may bargain for them as part of such unit.1o
The parties agree on the exclusion from the unit of the general su-
perintendent's secretary,11 but disagree with respect to the following
individuals:
Rena Burrall: The Employer urges the exclusion from the unit of
this individual, on the ground that she is a confidential employee. It
appears that she is a secretary to the superintendent of plant #2. In
that position she types all necessary reports concerning the labor rela-
tions of the Employer. Therefore, under well-established precedents
of the Board, we are of the opinion that she is a confidential employee,
and we shall, accordingly, exchide her from the voting group .12
Ilnldah Peterson: The Employer contends that the status of this
individual is analogous to that of Rena Burial], and therefore that she
,,Dlatte) of The P A Geer Company, 74 N L It Ii 103 , Matter of Wichita Falls
Foundry S Machine Co , 60 N L R B 455, and cases cited therein
Atattei of Nor thwest Engineering Companij, footnote 4, supra
9 See, also, Dfalter of International Deti ola Corpo) ation , footnote 3, supra.
n flatter of The P A Geier Company, tool note 6, supra
wMattei of Revere Copper and Brass Incorporated (New Bedford Division), 74
N 1. It B 88
"Ella Cronin
i2l11attei, of General Refractories Company, 71 N L R B 1245, and cases cited therein;
Matter of Southeastern Telephone Company, 70 N L It B. 4
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should also be excluded from the unit. Peterson is a secretary to the
superintendent of plant #4, and performs practically the same func-
tions as does Burrall in plant #2, viz, typing of production orders,
pay-roll work, maintenance of "confidential" stock records, and com-
pilation of attendance sheets. However, unlike Burrall, she does not
handle any work pertaining to the labor relations of the Employer;
this work is done personally by her plant superintendent. We have
often held that working on or having access to matters which are
confidential to the Employer's business, but which are not directly
related to labor relations, does not confer confidential status on an
employee.13 Therefore, inasmuch as Peterson is not engaged in any
work relating to labor relations, we find that she is not a confidential
employee, and we shall therefore include her in the voting group.
Margaret Boyd: The Employer urges the exclusion from the unit
of this individual, on the ground that she is a supervisor. Boyd is
listed on the pay roll as "timekeeper supervisor." The record reveals
that she has authority to transfer the timekeepers from one assignment
to another, as she deems necessary, chat she may effectively recommend
promotions, demotions, or rates of pay for individual timekeepers,
and that she also gives efficiency ratings to each subordinate. We are
therefore of the opinion that Boyd is a supervisor within the meaning
of the Act, and we shall, therefore, exclude her from the voting group.
Margaret Arnold and Grace Swanson: These employees are the
"head timekeepers" at plants #2 and #4, respectively. Arnold works
with two other timekeepers; Swanson works with one. Each has
access to the rates of pay of the employees in her plant. The Employer,
therefore, contends that Arnold and Swanson perform work of a con-
fidential and supervisory nature and should be excluded from the
unit. Knowledge of pay-roll information is insufficient of itself, to
bring an employee within the Board's definition of a confidential
employee '114 and the record fails to convince us that either of these
individuals exercises supervisory functions. We shall, therefore,
include these employees in the voting group.
Janet Anderson and Virginia Hyde: These individuals are time-
keepers who, along with Margaret Boyd, work in the shear or cutting
department in plant #1. The Employer contends that, inasmuch
as these employees actually set the rates for certain jobs, they should
be excluded from any unit found appropriate. However, evidence
adduced at the hearing reveals that these rates are determined strictly
in conformity with formulae which have already been determined by
the time-study group. Thus, it appears that, while these employees
1J Matte' of Cities Se) vice Refining Corporation, 70 N L R B 1051, Matter of Autet-
own Stove Company, Itaroey Division, 70 N I, It 13 1059
"Matter of The Firestone Tire and Ruhbe, Company, 73 N L R B 691 ; Matter of
1'lanl nton Packing Company, 69 N L. R. B 920
ART METAL CONSTRUCTION COMPANY 85
do set rates, the setting involves only mathematical computations with-
out the use of independent judgment. In addition to these rate-setting
functions, these employees perform the other normal functions of a
timekeeper. On the above facts, we perceive no cogent reason for
the exclusion of these elnployees,•and we shall therefore include them
In the voting group.
Mary LaJohn: This employee is listed on the pay roll as a "first aid
nurse.'' She is a practical nurse, is not a graduate of any institution,
and holds no certificate of nursing. Nevertheless, we are of the opin-
ion that the specialized character of LaJohn's duties and her neces-
sarily diverse interests militate against her inclusion in the voting
group. Accordingly, we shall exclude her.
We shall therefore direct an election among all factory clerical em-
ployees" and all factory timekeepers 11 at the Employer's Jamestown,
New York, plants, excluding the first aid nurse," the confidential sec-
retary to the superintendent of plant #2,is and all guards, professional
employees, and supervisors," as defined in the Act.
Upon the results of this election will depend, in part, our determina-
tion of the appropriate unit.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Art Metal Construction Com-
pany, Jamestown, New York, an election by secret ballot shall be con-
ducted as early as possible, but not later than thirty (30) days from
the date of this Direction, under the direction and supervision of the
Regional Director for the Third Region, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regulations-
Series 5, among the employees in the unit found appropriate in Sec-
tion IV. above, who were employed during the pay-roll period imme-
chately preceding the date of this Direction, including employees who
did not work during said pay-roll period because they were ill or on
vacation or temporarily laid of,20 but excluding those employees who
have since quit or been discharged for cause and have not been rehired
or reinstated prior to the date of the election, to determine whether
or not they desire to be represented by International Association of
Machinists, for the purposes of collective bargaining.
13 Included in this category is Hnldah Peterson
'4 Included in this category are Margaret Arnold, Grace Swanson, Janet Anderson, and
Ciiginia Hyde
Marv LaJohn.
"Rena Burnill
i" 1-1,xcluded, as supervisors, are Ella Cronin and Margaret Boyd.
2" We omit here the provision which was cnstomaiily inserted in our diiections of
elections during the recent war, permitting employees in the aimed foices of the United
States to vote if they presented themselves in person at the polls In view of the demobili-
zation of the armed forces and the termination of selective service, we are of the opinion
that the provision need no longer be included.
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