Byron Jackson Co.

National Labor Relations Board - Board Decisions

Mar 28, 1946

66 N.L.R.B. 1312 (N.L.R.B. 1946)

In the Matter of BYRON JACKSON COMPANY and INTERNATIONAL
ASSOCIATION of MACHINISTS, LODGE No. 12
Case No. 16-R-1547.-Decided March 28, 1946
Vinson, Elkins , Weems & Frances , by Messrs. Wharton Weems and
Leroy Jeffers, of Houston , Tex. ; and Mr. C. H. Nazro, of Los Angeles,
Calif., for the Company.
Mr. Henry J . Murphy , of Fort Worth , Tex., and Mr. A. H. Houser,
of Houston, Tex., for the Union.
Mr. Jerome J. Dick, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Association of Machin-
ists, Lodge No. 12, herein called the Union, alleging that a ques-
tion affecting commerce had arisen concerning the representation of
employees of Byron Jackson Company, Houston, Texas, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Earl Saunders, Trial Ex-
aminer. The hearing was held at Houston, Texas, on February 5,
1946. The Company and the Union appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. At the hearing the Company moved to dismiss the proceed-
ing. This motion is denied for reasons hereinafter set forth in Section
111.1 The Trial Examiner's rulings made at the hearing are free from
1 At the hearing the Company objected to the introduction into evidence of an amended
petition which was then submitted by the Union , on the ground that it had not bad pre-
vious notice that this petition was to be filed . It appears that the amended petition is
identical with the original petition, except that a few job classifications are specifically
listed as desired exclusions from the unit sought by the Union . The Trial Examiner
stated that if the amended petition developed new issues, which the Company Was unpre-
pared to meet, the Company would be given additional time within which to do so. This
contingency apparently did not arise, for at no time during the hearing did the Com-
pany ask for a continuance. We fail to perceive how the Company was in any way
prejudiced , and we are of the opinion that the Trial Examiner properly overruled its
objection.
66 N. L . R. B., No. 156.
1312
BYRON JACKSON COMPANY 1313
prejudicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Byron Jackson Company is a Delaware corporation engaged in the
manufacture, sale, distribution, installation, and servicing of oil well
tools, centrifugal pumps, and turbine pumps. It owns and operates
plants in California, Pennsylvania, and in Houston, Texas. The
Houston plant, consisting of two buildings, is solely involved in this
proceeding. At this plant the Company manufactures, services, and
repairs oil well equipment and centrifugal pumping equipment. Dur-
ing 1945 approximately 125 tons of raw materials were used at the
plant, of which a considerable amount was shipped from points out-
side the State of Texas. During the same period approximately 125
tons of finished products, valued at about $400,000, were manufac-
tured at this plant, of which approximately 39 percent was shipped
to points outside the State of Texas.
The Company does not deny, and we find, that it is engaged in
commerce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge No. 12, is a labor
organization , admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
The Union filed its petition on November 5, 1945.2 On November
6,1945, a representative of the Union spoke with the Company's shop
superintendent, claiming that the Union represented a substantial
number of the Company's employees and requesting recognition as
their exclusive bargaining representative. On the same day the
Union wrote a letter to the superintendent confirming this conversa-
tion , and asking for an immediate reply to its demand for recognition.
By letter dated November 19, 1945, the Company's attorneys informed
the Union that the Company's president was absent and that as soon
as he returned , the Union would receive a reply. At the hearing, the
Company specifically stated that it would not recognize the Union as
the exclusive bargaining representative of its employees until the
Union has been certified by the Board in an appropriate unit.
2 As noted above , an amended petition was filed at the hearing.
686572-46--84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asserting that the Union filed its petition before it had any dis-
cussion with the Company, the Company urges that there is no ques-
tion concerning representation and that the proceeding should be dis-
missed. This contention we find to be without merit. In a proceeding
of this kind, it is sufficient that, as of the date of the hearing, the
Union's status as bargaining representative is disputed by the em-
ployer, and that recognition is dependent upon certification by the
Board.3
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of
employees in the unit hereinafter found appropriate.4
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
Both parties are agreed upon the composition of the appropriate
unit of production and maintenance employees of the Houston,
Texas, plant, except that, contrary to the position of the Union, the
Company seeks to include the receiving clerk, the watchmen, rand the
truck driver.
The Houston, Texas, plant consists of two separate buildings. In
one, the sales personnel and office clericals are located, and in the
other the factory proper is contained. All workers involved in this
proceeding are employees of the factory.
An office, located in the factory, houses the timekeeper and shop
clerk, both of whom spend all their time there in clerical work. All
parties agree to the exclusion of these employees. Although the
receiving clerk also has a desk in the factory office, he spends the great
majority of his time on the factory floor with the production em-
ployees. Like the production employees and unlike the timekeeper
and shop clerk, he is paid on an hourly basis. Moreover, the receiv-
ing clerk, in addition to receiving and reporting incoming and out-
s See Matter of The Jeffrey Manufacturing Company, 58 N. L. R. B. 1129.
4 The Field Examiner reported that the Union submitted 19 cards, 17 of which bore
names of employees listed on the Company 's pay roll of October 31, 1945 . A further
check which was made against the Company's pay roll of January 11, 1946 , shows that
11 cards bore names of employees listed on that pay roll . There are approximately 47
employees in the unit sought.
The Company contends that a check against a February pay roll should have been made
by the Trial Examiner , that the pay rolls used were too remote, and that in any event
the Union did not have a substantial showing of representation . However, the October
pay roll was current enough for the purposes of investigation . The Union 's percentage
showing of 36 percent, as of October 31, 1945 , was substantial . Although this percentage
had dwindled somewhat in January 1946, and may be still less now due to a rapid turn-
over in personnel , we find that the showing under such circumstances remains substan-
tial. See Matter of Kellett Aircraft Corporation, 53 N. L. R. B. 938.
BYRON JACKSON COMPANY 1315
going materials, assists in loading and unloading such supplies.
Accordingly, while we shall exclude the timekeeper and shop clerk
pursuant to the agreement of the parties, we shall include the re-
ceiving clerk.
The watchmen are not monitorial employees. They perform the
usual duties of watchmen, such as going through the plant at regular
intervals when it is not in operation. In addition, they occasionally
help to unload incoming supplies. We shall also include the watch-
men.
The truck driver spends 80 percent of his time driving the truck
to secure supplies for the factory. Pursuant to our usual policy of
not including truck drivers in a production and maintenance unit, in
cases of dispute among the parties, we shall exclude the truck driver.5
We find that all production and maintenance employees of the
Company's Houston, Texas, plant, including the receiving clerk and
the watchmen, but excluding the truck driver, the shop clerk, the
timekeeper, all office and professional employees, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
V. TILE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Byron Jackson
Company, Houston, Texas, 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
5 See, e.g, Matter of Triangle Hosiery Company, Inc., 65 N. L. R. B. 69
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Sixteenth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among em-
ployees 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 employees who did not work during said
pay-roll period because they were ill or on vacation or temporarily
laid off, and including employees in the armed forces of the United
States who present themselves in person at the polls, 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 elec-
tion, to determine whether or not they desire to be represented by
International Association of Machinists, Lodge No. 12, for the pur-
poses of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.