Avco Manufacturing Corp.

National Labor Relations Board - Board Decisions

Dec 4, 1953

107 N.L.R.B. 295 (N.L.R.B. 1953)

AVCO MANUFACTURING CORPORATION 295
operating conditions , including interchange among offset press -
men and letterpressmen and lack of segregation of litho-
graphic employees, were relied upon by the Board in depart-
ing from its usual policy of permitting such separate units.
Neither of those factors is present in the instant case, nor
are there any other factors present which would warrant a
departure from that policy here.
Of the 2 employees in the lithographic department, one
Pearson, has more skill and experience than the other and is
paid $20 more per week than the other. Pearson handles all
the plate packing, stripping, and helps operate the press. No
one else in the shop knows as much about lithography as he
does, and he is substantially responsible for the proper
operation of the lithographic department in the performance
of his duties. Pearson has no authority to hire or discharge
employees, to discipline them, or effectively to recommend
such action. The Employer employs 3 typographers, 2 letter-
pressmen, and 2 bindery employees in its other departments.
One employee in each of these departments acts in the same
relation to the other employees in the same department as
does Pearson to the other lithographic employee. In the
Pioneer case," the parties stipulated that such employees in
the letterpress and lithographic classifications were not
supervisors within the meaning of the Act. We find that
Pearson is not a supervisor within the meaning of the Act, but
is merely in the position of a highly skilled employee advising
and instructing a less skilled employee working with him. 12
Accordingly, we find appropriate a unit of all lithographic
employees at the Employer's Tacoma, Washington, plant,
excluding all other employees , guards, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication.]
"Pioneer, Inc., supra
12 Hodgdon Brothers- Goudy & Stevens, 106 NLRB No. 211; Danner Press of Canton, Inc.,
91 NLRB 239.
AVCO MANUFACTURING CORPORATION, APPLIANCE AND
ELECTRONICS DIVISION' and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, CIO. Case No.
35-RC-938. December 4, 1953
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 John W. Hines,
'The Employer's name appears as corrected at the hearing.
107 NLRB No. 75.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.2
Upon the entire record in this case, the Board finds:
1. The Employer contends that the Board does not have
jurisdiction over the instant proceeding because it is not
engaged in commerce within the meaning of the 'Act. The
Employer failed to submit any data at the hearing regarding
its business activities.3 We hereby take official notice of a
prior case --CrosleyDivision, Avco Manufacturing Corporation,
35-RC-526 (not reported in printed volumes of Board De-
cisions)--in which the Employer in June 1951, stipulated to
the following facts regarding the Richmond plant, the only
one involved in this proceeding: Annual purchases are in
excess of $1,000,000, more than 50 percent of which is re-
ceived from points outside the State. Annual sales are in excess
of $1,000,000, more than half of which is shipped directly to
points outside the State.
In the absence of evidence of any material change in the
Employer's operations since 1951, we find that the Employer
is engaged in commerce and that the policies of the Act will
be effectuated by asserting jurisdiction in this case. 4
2 At the hearing, the Employer and the Intervenor, Local Union No. 1127, International
Brotherhood of Electrical Workers, AFL, made several motions to dismiss the petition
because of certain contentions set forth below. The hearing officer referred the motions to
the Board. The motions are hereby denied for the following reasons:
The Employer and Intervenor assert that the petition incorrectly designated the name of
the Employer. The petition was amended at the hearing to show the correct name, and the
Employer and Intervenor have not shown that they were prejudiced by the incorrect designa-
tion. Bordo Products Company, 83 NLRB 461.
The Employer contends that it did not have sufficient time to prepare for the formal hearing.
The record shows that it received notice on September 16, 1953, that a formal hearing would
be held on September 30, 1953 The hearing was actually held on October 2, 1953. The Em-
ployer contends that because the informal hearing originally scheduled for September 21,
1953, was postponed to September 28, the formal hearing should also have been postponed
for 1 week, instead of only for 2 days. The Board has no rule, however, that when an informal
hearing is delayed, the formal hearing in the same case must be put off for exactly the same
length of time.
The Employer also asserts that the hearing officer "prejudiced himself" by discussing the
postponement of the informal hearing with a representative of the Intervenor and notifying
the other parties through such representative of the granting of the postponement. We do not
see how this procedure affected the Employer's opportunity to present its case or otherwise
prejudiced the Employer.
The Employer and Intervenor contend that the Petitioner has not made a sufficient showing
of interest. We find no merit in this contention, as showing of interest is an administrative
matter, not litigable by the parties. Yellow Cab Company. 103 NLRB 395 Moreover, we are
satisfied that the Petitioner has made an adequate showing.
The Employer contends that the Petitioner failed to show that it was in compliance with
Section 9 (f), (g), and (h) of the Act. We find no merit in this contention, as it is well settled
that compliance is a question for administrative determination, not litigable by the parties.
Moreover, we are administratively satisfied that the Petitioner is in compliance. Sunbeam
Corp., 94 NLRB 844.
3 The Employer's representative withdrew from the hearing before the commerce question
was reached.
4 Federal Dairy, Inc , 91 NLRB 638, Stanislaus Implement and Hardware Co., 91 NLRB 618.
AVCO MANUFACTURING CORPORATION 297
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. The Employer and Intervenor allege that they have a
presently effective contract which is a bar to the petition,
filed on September 8, 1953. The contract was executed on
November 14, 1951 , to run for a period ending October 31,
1953, and automatically renewable from year -to-year , absent
60-day written notice of intent to modify or terminate it. The
Employer duly notified the Intervenor by letter, dated August
28, 1953, that it wished to terminate the contract as of its
expiration date on October 31, 1953. Accordingly , we find
that the contract is no bar to the petition . We find , therefore,
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. We find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
All production and maintenance employees at the Employer's
Richmond , Indiana, plant , including plant clerical employees,
but excluding office clerical and cafeteria employees, time-
keepers, time - study men, safety engineers , first aid personnel,
draftsmen , tool and die designers , technical engineers , general
foremen's confidential clerks, interstate truckdrivers , highly
skilled test men in the inspection department , technical
trainees , guards, professional employees , and all supervisors
as defined in the Act.5
[Text of Direction of Elections omitted from publication.]
Member Rodgers took no part in the consideration of the
above Decision and Direction of Election.
5 The unit conforms to the stipulation of the Petitioner and Intervenor and also conforms
substantially to the contract unit The Employer contends in its brief that the unit is not
appropriate , but does not state any reason for this contention , and at the hearing acknowledged
that it considered the contract unit appropriate.
6 The Petitioner requests that the employees who were on the payroll as of the date of filing
the petition, September 8, 1953 , or who may be on the payroll at any time subsequent to
September 8, 1953, be permitted to vote. However , we perceive no reason for departing from
our usual practice with regard to eligibility.
The Petitioner and Intervenor request that employees who admittedly have been perma-
nently laid off, but who still maintain seniority rights under the Intervenor 's recently termi-
nated contract with the Employer , be permitted to vote in the election Voting eligibility of
laid- off employees depends on whether they have a reasonable expectation of reemployment
in the near future. Therefore , the foregoing employees , having been permanently laid off,
may not vote, even though they retain seniority rights under the contract . General Motors
Corporation , 92 NLRB 1752. The Petitioner also requests that probationary employees be
permitted to vote Whether employees are classified as probationary under the tern-is of a
contract is irrelevant for our election procedure ; accordingly , if they meet the conditions of
eligibility in our Direction , they may vote in the election.