Beattie Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 27, 1948

77 N.L.R.B. 361 (N.L.R.B. 1948)

In the Matter of BEATTIE MANUFACTURING COMPANY,1 EMPLOYER and
TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER
Case No. 2-R-7982.-Decided April 27, 1948
Evans, Hand cC Evans, by Mr. John Hand, of Paterson, N. J., and
May M. Lyons, of West Orange, N. J., for the Company.
Mr. Bernard Daly, of Paterson, N. J., and Messrs. Vito Fritz and
Walter Plata, for the Textile Workers Union of America, CIO.
Mr. Alfred J. Streicker, of Paterson, N. J., Cllr. Mike Bincarowski,
of Little Falls, N. J., and Mr. Arne Anderson, of Wanaque, N. J., for
the Carpet Workers Protective Association.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Paterson,
New Jersey, on January 19, 1948, before Herbert C. Kane, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. The Employer's
motion to dismiss the petition is denied for the reasons hereinafter
stated.
Upon the entire record in the case, the National Labor Relations
Board 2 makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TIIE EMPLOYER
The Beattie Manufacturing Company, a New Jersey corporation,
has its office and principal place of business in Little Falls, New Jersey,
where it is engaged in the manufacture of woolen yarns, carpets, and
rugs.
i The name of the Employer appears in the caption as amended at the hearing.
'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-man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Houston and Reynolds]
77 N. L. R. B., No. 55
361
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the past year, the Employer purchased for use in its operations
at Little Falls, New Jersey, raw materials valued in excess of $1,000.-
000, of which approximately 75 percent was received from points out-
side the State of New Jersey. During the same period, the Employer
sold finished products valued in excess of $1,000,000, of which ap-
proximately 90 percent was shipped to points outside the State of New
Jersey.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
The Carpet Workers Protective Association, herein called the Inter-
venor, is an unaffiliated labor organization claiming to represent em-
ployees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
The Employer has refused to recognize the Petitioner as the exclu-
sive bargaining representative of employees of the Employer.
The e'mployer's motion to dismiss the petition on the ground that
it failed to allege compliance with Section 9 (f), (g), and (h) of the
Act, and on the ground that the Petitioner had failed to allege com-
pliance in subsequent pleading, is denied for the reasons stated in
Matter of Lion Oil Company.3
The Employer and the Intervenor assert their existing contractual
relationship as a bar to this proceeding. The Employer has for a
number of years recognized and contracted with the Intervenor,
which won a consent election on March 21, 1946. On September 10,
1946, the Employer and the Intervenor entered into a collective bar-
gaining contract to be effective from January 1, 1946, to December 31,
1947. This contract, covering production and maintenance employees
in the Little Falls, New Jersey, plant, provided for modification of its
wage and hour provisions to adjust any differentials which should
arise in the industry during its term. On July 31, 1947, the Inter-
venor gave formal notice to the Employer of a desire to enter into
negotiations for the purpose of wage adjustment. As a result of the
negotiations which followed, the Employer and the Intervenor on
August 21, 1947, executed an agreement extending the term of the
contract, with certain wage adjustments, until June 22, 1948. On
.76 N . L R. B. 565
BEATTIE MANUFACTURING COMPANY 363
August 12, 1947, the Petitioner requested recognition from the Em-
ployer and on August 15, 1947, it filed its petition herein.
Ordinarily, where a contract provides for modification during its
term, the negotiation or effectuation of such modification by the parties
does not operate to remove the contract as a bar to a rival claim, pro-
vided there is no extension of the term of the contract 4 However,
where, as in this case, the parties extend the expiration date of the
contract, they "open" the contract so as to permit a rival union to
raise a question concerning representation.5 Furthermore, it is clear
that the extension agreement cannot be a bar to this proceeding, as the
filing of the petition herein preceded the execution of such agreement.
We find 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.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement that all production and
maintenance employees, excluding office clerical employees, foremen,
assistant foremen, chemists, nurses, designers, and all supervisors,
constitute an appropriate unit." The parties are in dispute, however,
concerning the inclusion of certain shop clerical employees. The
Petitioner takes the position that shop clericals should all be excluded
on the ground that they perform managerial duties. The Employer
would include all shop clericals in the unit and denies that their
duties are in any way of a managerial nature. The Intervenor takes
no definite position as to their inclusion. A question concerning the
inclusion of certain watchmen and gatemen is also presented for de-
termination.
Shop clericals have generally the same hours, basis and mode of
pay, and working conditions, are under the supervision of the fore-
men in charge of the particular departments, are covered by the same
health insurance, and receive the same vacation and holiday benefits,
as the production and maintenance employees. Further, the shop
clericals are recruited from the ranks of production and maintenance
employees. Not only are all of these characteristics in sharp contrast
to those of the office clericals, but there has never been any interchange
between shop and office clericals.
The Petitioner's argument that these employees are performing
managerial duties such as would be performed by an assistant fore-
4 See Matter of Miller Meters, Inc., 71 N L. R B. 1331; Matter of Greenville Finishing
Co, Inc, 71 N L R B 436; Matter of S & I[% Fine Foods, Inc., 74 N. L R B. 1316.
6 Matter of U S. Vanadium Corporation , 68 N. L. R. B. 389; Matter of Olin Industries,
67 N L. R B. 1043
6 There are approximately 490 employees in the appropriate unit.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man is not supported by the record. There is no allegation that the
position of assistant foreman even exists in the Employer's plant.
Moreover, there is no evidence that any of the shop clericals are super-
visors within the meaning of Section 2 (2) of the Act. The Board
has customarily held that shop clericals should be included in the
same unit with production and maintenance employees.' We are of
the opinion that no reason exists for departing from the rule in the
present instance. Accordingly, we shall include them within the unit.
There are five or six watchmen and one gateman whose inclusion
was questioned for the purpose of determining whether or not they
fall within the classification of guards within the meaning of Section
9 (b) (3) of the Act. These employees perform duties customarily
performed by plant-protection employees. We find that they are
guards within the meaning of the Act and shall, accordingly, exclude
them from the unit.8
We find that all production and maintenance employees at the
Little Falls, New Jersey, plant of the Employer, including shop cleri-
cals,0 but excluding office clericals, foremen, assistant foremen, chem-
ists, nurses, designers, watchmen and gatemen, and all supervisors,
constitute a unit approprit to for the purposes of collective bargaining
within the meaning, of Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
The parties are in disagreement as to the eligibility to vote of certain
probationary employees. The Intervenor, in opposition to the Peti-
tioner, contends that they should be allowed to participate in any
election that may be directed in this proceeding. The Employer takes
no position with reference to their eligibility.
All new employees of the Employer are subject to a 90-day proba-
tionary period. During this period, the duties and working conditions
of these employees are substantially the same as those of permanent
employees. The Board has uniformly held that probationary em-
ployees have sufficient interest in common with regular employees of
the same classification to warrant their participation in an election
among such employees.10 Accordingly, we shall permit the proba-
tionary employees involved in this proceeding to vote in the election
hereinafter directed.
° See Matter of Goodman Manufactumang Company, 58 N L. R. B . 531, Matter of North-
west Engineeranq Company, 73 N L R B 40
8 See Matter o f C. V. Hill cC Company, Inc, 76 N . L R. B 158
° The supply room clerk is included within the classification of shop clericals
10 See Matter of R R Donnelly d Sons, 59 N L R . B 122 ; Matter of Geneva Forge, Inc ,
76 N L R B 497 ; Matter of 1Vytheville Knitting Mills, Inc., 70 N. L. R B. 1354;
Matter of Douglas Aircraft Company, Inc , 60 N. L. R B 876.
BEATTIE MANUFACTURING COMPANY
DIRECTION OF ELECTION-
365
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Beattie Manufacturing Com-
pany, Little Falls, New Jersey, an election by secret ballot shall be
conducted 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 Second Region, and subject to Sections
203.61 and 203.62, of National Labor Relations Board Rules and Reg-
ulations-Series 5, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including proba-
tionary employees and employees who did not work during said pay-
roll period because they were ill or on vacation or temporarily laid off,
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, and excluding employees on strike who are not entitled to
reinstatement, to determine whether they desire to be represented by
Textile Workers Union of America, CIO, or by Carpet Workers Pro-
tective- Association, for the purposes of collective bargaining, or by
neither.
"Any participant in the election directed herein may , upon its promp request to, and
approval thereof by, the Regional Diiector, have its name removed from the ballot