Badenhausen Corp.

National Labor Relations Board - Board Decisions

Aug 19, 1955

113 N.L.R.B. 867 (N.L.R.B. 1955)

BADENHAUSEN CORPORATION 8,67
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
- [Text of Direction of Election omitted from publication.]
Mx w aRs RonoERs and LEEDOM, dissenting in part :
We would require the Petitioner to submit a showing of interest,
prior to the date of the election, indicating that at least 30 percent of
the employees in the unit found appropriate have designated the
Petitioner, under its amended name, as their bargaining representa-
tive. In our opinion,, the showing of interest, obtained while the
Petitioner was affiliated with another International, is by no means
indicative of the employees' wishes with respect to a bargaining repre-
sentative as we have no warrant for supposing that the employees
would sign authorization cards on behalf of the Petitioner under its
new affiliation if they were apprised of that fact. If the purpose for
ascertaining a showing of interest is to obviate the holding of useless
elections, as it unquestionably is, it seems to be sounder policy to make
certain that the Petitioner under its present affiliation has a sufficient
showing rather than to incur the expense of an election which may
well prove to be futile.
Badenhausen Corporation and Congress of Industrial Organiza-
tions, Petitioner . Case No. 4-RC-678. August 19,1955
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Chester S. Montgomery,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce withi:n the meaning of
the Act.
2. The- labor organization involved claims to represent certain em-
ployees of the Employer. -
3. On November 17, 1954, the Employer and United Steelworkers
of America, CIO, herein referred to as the Steelworkers, which rep-
resents the Employer's production and maintenance employees, exe-
cuted a collective-bargaining agreement, effective until November
1956,_ containing the following clause : "The term employees, as used
in this agreement, shall not include supervisors, foremen, assistant -
foremen, inspectors, timekeepers, time-study inen, plant protective em-
,1 The Rmployer's - motion to - dismiss the petition on various grounds is denied for the-
reasons set forth below.
113 NLRB No. 96.
868 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
ployees, superintendents, foremen clerks, or any salaried employees,
nor shall these excluded classifications be included in this agreement
or in membership of the Union."
On January 31, 1955, the Steelworkers filed a petition for a unit of
salaried clerical and technical employees. In view of the above agree-
ment by the Steelworkers to exclude these employees and not seek to
enroll them as members, the Board, on March 31, 1955, dismissed the
petition 2 on the authority of the Briggs Indiana case.'
The instant petition was filed by the Congress of Industrial Organ-
izations on April 18, 1955, and seeks representation of the very same
employees. The record reveals that certain employees who took the
lead in organizing the clerical employees for the Steelworkers played
the same role on behalf of the Petitioner, and there is evidence of some
assistance by the Steelworkers in the organizing activity of the Pe-
titioner. Because of these circumstances, the Employer urges dis-
missal of the present petition on the ground that it is a device whereby
the Steelworkers is seeking, through its parent organization, to cir-
cumvent its obligations under the contract, the Board's March 31 de-
cision, and the Briggs Indiana policy.
Prior to the decision in Briggs Indiana, the Board had held in a
number of cases that a contractual provision such as the one herein
involved constituted an invalid restriction on the right of employees
freely to select bargaining representatives. This line of cases was
reversed in Briggs Indiana. In that case an international and two
of its locals signed a contract excluding certain employees and provid-
ing that the contracting unions would not accept them into member-
ship. The international then chartered a new local, subject to the
provisions of the international's constitution, for the purpose of or-
ganizing these employees. The Board dismissed a petition filed by
the new local seeking to represent these excluded employees, holding
that the formation of the new local was a device whereby the interna-
tional was seeking to avoid its contractual obligation.
As the Briggs Indiana decision constituted a limitation upon the
right of employees to select representatives of their own choosing, its
application has always been strictly limited by the Board' It is not
applicable, for example, unless the contract provides both that the
employees in question are excluded and that the contracting union will
not seek to represent them.' It is likewise not applicable where the
petitioning union is an autonomous organization, not subject to con-
2 Badenhausen Corporation , 4-RC-2598 ( not reported in printed volumes of Board
Decisions and Orders).
S Briggs Indiana Corporation , 63 NLRB 1270.
* lVslford Auto Sales , Inc., 106 NLRB 1396, 1398; Crowell Collier Publishing Company,
102 NLRB 1236 ; Ford Motor Company, 66 NLRB 1317 ; Jones & Laugh.Rn Steel Corpora-
tion, 66 NLRB 386, 389.
5 Standard Oral Company, 107 NLRB 1524.
BADENHAUSEN CORPORATION 869
trol by the contracting union.6 The latter is true even where the con-
tracting union has assisted the petitioning union to organize the ex-
cluded employees. Thus, in Ford Motor Company, supra, where the
international union which signed the contract had assisted the peti-
tioning union, a sister international, the Board said:
... the fact that the U. A. W. is "encouraging, supporting and
participating in the drive" of the Office Workers to organize the
Company's employees does not in any way detract from the fact
that the latter organization is a separate and independent entity.
Finally, even assuming that the Office Workers may decide to
transfer jurisdiction over the employees involved herein to
the U. A. W., any certification which may issue as a result of this
proceeding will run to the Office Workers, and inasmuch as the
Company can insist upon bargaining with the certified repre-
sentative of the employees and no other, this allegation is irrele-
vant. Under these circumstances, we are of the opinion that .. .
the principle of the Briggs Indiana case is inapplicable.
Applying these criteria in the present case, it is evident that the
Petitioner, the parent of the Steelworkers, is clearly an "independent
entity" not subject to control by the Steelworkers, one of its con-
stituent internationals. Therefore, even though the Steelworkers as-
sisted-the Petitioner to some extent in organizing the employees in-
volved, the facts of this case do not warrant depriving these employees
of the opportunity to designate the Petitioner as their representative if
they so desire. The Employer's motion to dismiss on the ground that
the Petitioner is "fronting" for the Steelworkers is therefore denied.
Accordingly, we find that_a question affecting commerce exists con-
cerning 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. The petition described the proposed unit as "All of the office
employees including clerks, typists, stenographers and telephone op-
erators in addition to departmental clerks, typists and stenographers,
and all technical employees." 8 The Employer contended that the
proposed unit was inappropriate, and, moved to dismiss on that ground.
During the hearing, the parties expressly agreed or failed to object
to the inclusion in an office clerical unit, if one were established by
the Board, of office clerks, typists, stenographers, inspection clerks,9
janitors , and janitresses , and to the exclusion of the production and
maintenance employees represented by the Steelworkers; nurses,
• Ford Motor Company, supra.
166 NLRB 1317, at 1319
B The Petitioner did not specify which employees it referred to as technical employees
We find that none of the categories described in the record are technical employees.
0 The inspection clerks do filing and other clerical work in the office.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chauffeurs, telephone operators; 10 personnel department clerks and
interviewers; the secretaries to the industrial relations manager and to
the works manager and all other confidential employees; professional
employees;. guards; and the purchasing department supervisor, the
payroll supervisor, the chief accountant, the production supervisor,
and all other supervisors as defined in the Act.
The parties were in dispute as to the unit placement of the time-
keepers, inspectors, and plant clerical employees.
The 11 timekeepers check the work of the production employees;
record the time spent on each operation, and, through use of an estab-
lished code, designate the proper charge for such time; examine clock
cards for tardiness or absenteeism; and post daily time in permanent
records. While making their rounds in the shop, they also perform
such duties as delivering Government savings bonds, distributing pay-
checks, and issuing gasoline for company vehicles. The 7 inspectors
check materials, equipment, and products throughout the production
areas , using precision devices such as micrometers, various types of
calipers, levels, rules, and protractors. The record contains no evi-
dence as to the educational or training requirements for this work.
The inspectors carry a notebook in which they record conditions found
,in the course of inspection. The 8 shop clerks are situated in the
offices of the foremen on the production floor. They perform miscel-
laneous clerical duties required by the foremen to whom they are as-
signed. Their work takes them out to the production floor frequently
to obtain information, to receive requisitions, and for various other
purposes.
The employees in these three categories work in the plant, in the
adjacent yards, and in offices located in the 'production areas of the
plant, as distinguished from the separate general office area. Unlike
the office employees, they report to the plant superintendent or works
manager, work on a shift basis, punch a time clock, and use the same
plant entrance and facilities as do the production employees. The
Employer contends that these employees are plant clerical employees
who are properly includible only in a production and maintenance
unit. As noted above, these employees have been excluded by contract
from the production and maintenance unit.
The only. argument presented by the Petitioner for the inclusion
of these employees in the office clerical unit is that all the categories
in question are now unrepresented. As the record herein makes clear,
however, the timekeepers, inspectors, and shop clerks are plant clerical
employees. The Board customarily includes such employees, where
disputed, in production and maintenance units, and declines to estab-
lish single units comprising both office and plant clerical employees
10 The parties designated Elva Henry as the telephone operator.
BADENHAUSEN CORPORATION 871
where the issue is raised by the parties." We shall therefore exclude
the plant clerical categories- from the requested office clerical unit.12
Nevertheless, as the Petitioner has expressed a desire to represent these
employees, as they have been excluded from the production and main-
tenance unit, and as they are not at present represented by .any labor
organization and would otherwise be unrepresented, we find, in accord
with established Board policy, that they are a residual group and
may constitute a separate appropriate unit." We shall, therefore,
under all the circumstances, establish a separate unit for the plant
clerical employees. We shall direct separate elections in the residual
plant clerical unit and in the office clerical unit to determine in each
case whether the employees therein wish to be represented by the
Petitioner.14 The Employer's motion to dismiss the petition'herein
on unit grounds is accordingly denied.
There remains for consideration the question of the unit placement
of the following individuals, all of whom the Petitioner would in-
clude while the Employer urges their exclusion :
Michael Peterpaul is an accounting clerk who handles financial
reports and records which the Employer considers confidential. The
Employer contends that he should therefore be excluded as a confiden-
tial employee. As he does not, however, assist in a confidential ca-
pacity any company official who exercises managerial functions with
respect to general labor policy, we find that Peterpaul is not a con-
fidential employee as defined by the Board." We shall therefore
include him in the office clerical unit.
Mrs. Peterpaul instructs and assigns work to 2 office clerical em-
ployees, prepares the merit ratings of these girls, can effectively
recommend their discharge, and earns approximately 30 percent more
than they do. She reports to the office manager who supervises about
38 employees. Approximately 60 percent of her time is spent in train-_
ing and directing the girls, and the remainder of her time in work
which includes handling the switchboard and filing confidential mate-
rial, some of which relates to labor relations matters. We find that
11 Koehring Southern Company, 108 NLRB 1131, 1133 , and cases cited therein.
la Koehrcng Southern Company, supra , Minnesota and Ontario Paper Co ., 92 NLRB 711,
715 ; Minneapolis-Moline Company, 85 NLRB 597, 598.
13 The Yale and Towne Manufacturing Company, 112 NLRB 1268 ; Minnesota and
Ontario Paper Co., supra ; Minneap 'ol2s-Moline Company, supra . Member Murdock de-
sires to state that, as expressed in his dissent in Yale and Towne, the labor organization
representing the production and maintenance unit there had expressed no unwillingness
to include the plant clericals in its unit , and, in fact , at the time the petition was filed
those employees were covered by the contract for the production and maintenance em-
ployees. In the present case the union representing the production and maintenance
employees is precluded from including these plant clericals in its unit by operation of the
Briggs Indiana doctrine, and they are thus a truly residual group.
14 The Yale and Towne Manufacturing Company, supra ; Minnesota and Ontario Paper
Co, supra; Minneapolis -Moline Company, supra.
75 The Yale and Towne Manufacturing Company, supra.
379288-56-vol. 113-56
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. Peterpaul is a supervisor within the meaning of the Act, and we
shall therefore exclude her.
The expediter supervisor (John Carr) is directly responsible for
the direction of 2 clerks and, in the absence of the manager of traffic
and production control, for whom he substitutes, has 4 clerks working
under him. He assigns work and makes merit, rating recommenda-
tions, spending about 50 percent of his time on such duties. His
earnings are about 25 to 30 percent higher than those of the clerks.
He attends management policy meetings, and his recommendations as
to additional personnel requirements or discharges carry the same
weight as those of a production department foreman. We find that
the expediter supervisor is a supervisor within the meaning of the
Act, and we shall therefore exclude him.
The materials supervisor (Harold James), like the expediter super-
visor, directs the work of 2 clerks regularly and of 2 others in the
absence of the manager and production supervisor, at which time he
is in charge of the department. He spends about 50 percent of his
time in such duties. He also makes merit rating recommendations
and attends management policy meetings. We find that the materials
supervisor is a supervisor within the meaning of the Act, and we shall
therefore exclude him.
The traffic supervisor (Harold Kling) supervises at least five in-
dividuals, and is comparable in responsibility to a general foreman in
the production department, who ranks above the foremen. He pre-
pares merit ratings, makes effective recommendations as to hire and
discharge, and attends management policy meetings. He determines
the need for overtime work and selects the men to be assigned to such
work. He earns 25 to 30 percent more than his subordinates. We find
that the traffic supervisor is a supervisor within the meaning of the Act,
and we shall therefore exclude him.is
The chief timekeeper assigns the 11 timekeepers by shift and loca-
tion to the various production departments. He prepares merit rat-
i ngs for the timekeepers, and makes effective recommendations as to the
need for additional personnel and as to discharge. He attends the shop
management meetings. We find that the chief timekeeper is a super-
visor within the meaning of the Act, and we shall therefore exclude
him.
19 Apparently the Employer had substantially reorganized Its office administration a
few weeks before the hearing, and the expediter supervisor , the materials supervisor, and
the traffic supervisor have performed the duties described above for only a short time.
The Petitioner did not effectively refute the Employer 's testimony about the classifica-
tions or assignments of these men , but contended that they should not be excluded because
they had held these positions so short a time and the changes were experimental. As the
individuals in question exercise supervisory authority, however, the fact that they have
done so only a short time does not warrant their inclusion in the unit. Furthermore,
the Employer plans in the near future to expand its operations, at which time these three
individuals are scheduled to supervise larger complements of employees than was the
case at the time of the hearing.
BADENHAUSEN CORPORATION 873
In accordance with the foregoing, we find that the following groups
of employees employed by the Employer at its Cornwells Heights,
Pennsylvania, plant, constitute separate units appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act :
(A) All office clerical employees, including office clerks, typists,
stenographers, inspection clerks, janitors, and janitresses, but exclud-
ing all employees covered by the current agreement between the Em-
ployer and United Steelworkers of America, CIO; nurses; chauffeurs;
telephone operators; personnel department clerks and interviewers;
timekeepers, inspectors, and shop clerks ; the secretaries to the in-
dustrial relations manager and to the works manager and all other
confidential employees; professional employees; guards; and the pur-
chasing department supervisor, the payroll supervisor, the chief ac-
countant, the production supervisor, Mrs. Peterpaul, the expediter
supervisor, the materials supervisor, the, traffic supervisor, the chief
timekeeper, and all other supervisors as defined in the Act.
(B) All plant clerical timekeepers, inspectors, and shop clerks, ex-
cluding the chief timekeeper and all other supervisors as defined in
the Act.
[Text of Direction of Elections omitted from publication.]
MEMBERS RODGERS and LEEDOaz, dissenting :
We do not agree, with the majority that the Briggs Indiana rule 19
is inapplicable to the facts of this case. Indeed, if the rule is to have
any meaning and validity, it requires the dismissal of the present peti-
tion.
The Steelworkers executed an agreement in November 1954, effective
until November 1956, covering a unit of the Employer's production
and maintenance employees, and agreeing that the employees herein
involved were excluded from that unit and, further, that they would
be excluded from membership in the Steelworkers.
On January 31, 1955, the Steelworkers filed a petition for a unit of
the employees it had, only about 2 months earlier, agreed were in-
eligible. to membership in its organization. When the Board, on
March 31, dismissed this petition on the basis of Briggs Indiana, it
stated : 18
By agreeing to exclude salaried employees from membership in
its organization, the Petitioner agreed, in effect, not to represent
these employees. Such an undertaking is binding upon a union
and the Board will not permit its circumvention by entertaining
37 Briggs Indiana Corporation, 63 NLRB 1270.
IsBadenhausen Corporation, 4-RC-2598 (not reported in printed volumes of Board
Decisions and Orders). -
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a petition seeking an election among the very employees whom
the union agreed not to represent. _ Accordingly, as the Petitioner's
undertaking will not expire until 1956, we find that it is a bar
to this petition.
Joyce Lockard, a payroll clerk employed by the Employer, had been
one of the representatives of the clerical group when it was organized
by the Steelworkers. She and Samuel Howell, who is employed by
the Employer as an expediter, represented this group of employees at
the hearing in the earlier proceeding. After the issuance of the
Board's March 31 decision, they were informed by James Lewis,
president of the Steelworkers Local in the Employer's plant, that the
Board had held that this group could not designate the Steelworkers
as their collective-bargaining representative, and they in turn in-
formed the employees involved. Lockard was also one of the repre-
sentatives who attended a meeting at the Board's Regional Office,
at which they were informed of the Board's action on-the Steelworkers'
petition.
According to Lockard's uncontradicted testimony,' a meeting of the
clerical group was thereafter held about the middle of April 1955.
James. Lewis and Joseph Keller, president and secretary, respectively,
of the Steelworkers Local, were present. James Lewis addressed the
meeting and stated that the group had to select an organization other
than the Steelworkers. Although he did not advise them to designate
the CIO, he introduced a CIO staff representative named Gilbert
Lewis. The latter told the assembled employees that the CIO repre-
sents other office employee units. He obtained signatures to CIO
cards at this meeting.
Lockardd, who was elected acting president, testified that she had
never met Gilbert Lewis or any other CIO representative prior to this
meeting, that the group had not yet paid any dues or initiation -fees
to the CIO, that the meeting was held, at a hall where the Steelworkers
held its meetings, and that she did not know who arranged for the use
of the hall, who, if anyone, paid for its use, or where the CIO office was.
The present petition was filed by Gilbert Lewis on April 18, 1955,
and seeks the same employees as those designated in the petition dis-
missed by the Board on March 31. Lockard and Howell appeared as
representatives of the group at the hearing in the instant case.
The Employer contended, at the hearing and in its brief, that the
-designation of the Petitioner was merely a subterfuge, and that the
Steelworkers should not be permitted to accomplish in the name of its
parent organization what the Board had decreed it could not do in its
own name.
We agree with the Employer's contentions. As the Board pointed
out in the Briggs Indiana decision, if a union signs a collective-
bargaining agreement with an employer debarring certain employees
JERRY CRAVENS, INC.' 875
from inclusion in the unit and from membership in the union, those
-employees are thereafter limited in their choice of an effective bargain-
ing 'representative. If they elect to join the contracting union, or one
found to be acting in its stead, they should be taken to have sur-
rendered their right to seek, through Board processes,, to obtain
collective-bargaining representation for the duration of the contract.
In view of the assistance of the Steelworkers in organizing the
employees herein involved for the Petitioner, the speed with which
the group transferred from the Steelworkers to the Petitioner, after
the Board's dismissal 'of the Steelworkers' petition, the relationship
between the Steelworkers and the Petitioner, the continuity of leader-
ship following the replacement of the Steelworkers by the Petitioner,
and all the other circumstances of this case, we would find that the
Steelworkers is seeking, with the aid of the Petitioner, to circumvent
the Board decision and to "accomplish indirectly what it has agreed
not to do directly." 19 Accordingly, we would find that the Steel-
workers' contract, which is effective until November 1956, and which
was found to constitute a bar in'Case No. 4-RC-2598, likewise con-
stitutes a bar to the present proceeding, and we would therefore grant
the Employer's motion to dismiss the petition.19
10 Briggs Indiana Corporation, 63 NLRB 1270, 1272.
9D See dissent of Member Rodgers in Hwron Portland Cement Co., 112 NLRB 1465.
Jerry Cravens , Inc. and Local 850, International Association of
Machinists, AFL, and Local Union No. 886, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, Petitioner .' Case No. 16-RC-1702. August 19,
1955
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 Lewis A. Ward, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The, Employer, a retail automobile dealer in Oklahoma City,
Oklahoma, moved the dismissal of the petition on the ground that its
new-car purchases are indirect out-of-State purchases and do not meet
the Board's jurisdictional minimum of $2,000,000. The record shows
that the Employer annually purchases through the Oklahoma City
office of the Ford Motor Company approximately $1,900,000 worth of
1 The names of the parties appear as used in the hearing.
113 NLRB No. 94.