E. F. Drew & Co., Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1961

133 N.L.R.B. 155 (N.L.R.B. 1961)

E. F. DREW & CO ., INC. 155,
ployees, guards, watchmen, professional employees, the labor foreman,;
the bulldozer operator foreman, and all other supervisors as defined
in the Act s
5. On April 12, 1961, the date of the hearing, the Employer had 61-
employees in the above unit. Of these 61, 8 were carpenters, 7 were
power equipment operators, 1 was a welder, 1 was an oiler, 1 was a
mechanic helper, 2 were heavy duty mechanics, 2 were wagon drillers,
5 were power tool operators, 1 was an air tool-operator, 1 was a form
setter, 1 was a powderman, and 31 were laborers. The Intervenors
contend that an election should not be held at this time, because a
representative complement of employees is not now employed, but
should be deferred until October 1, 1961. The Employer anticipates
that at that time it will have increased its work force to between 176
and 190 employees and will maintain this employment level, for a
period of 6 months. Thereafter, the number of employees will de-
crease to approximately, 100 and continue at that level,,until the dam is
completed. The Employer also anticipates that as the work. on the
dam progresses it will add workers in job categories, such as cement
finishers, steelworkers, road grader operators, crusher operators, and
cement mixer operators, which had no employees in them at; the time,
of the hearing. We find, however, that when the election herein di-_
rected takes place, employment will be at or near its peak and the
Employer's work force will constitute a substantial and representative
complement of employees. Accordingly, we shall direct an immediate
election and eligibility will be determined by the usual payroll.' -
As we have found that a unit of all employees is alone appropriate;
we shall grant the request to place the name of the Joint Intervenor on
the ballot.' -
[Text of Direction of Election omitted from publication.]
6 The parties agree that the project manager , project superintendent ; and master me-,
chanic are supervisors and that the engineers are professional andaliould be excluded
as such.
4 See Hussmann Refrigerator Company, 125 NLRB 621, 623. -
8If successful, the Joint Intervenor will be certified jointly. The Employer may then
insist that it bargain jointly for the employees it represents
E. F. Drew & Co., Inc.' and United Packinghouse , Food & A llied
Workers, AFL-CIO, Petitioner . Case No. 22-RC-1179. Sep-
tember 14, 1961 -
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 Jonas Aarons, hearing officer.
1 The Emp]oyer's name appears as amended at the hearing.
133 NLRB No. 19.
156 DECISIONS OF 'NATIONAL LABOR 'RELATIONS BOARD
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
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-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
Upon the entire record 1n the case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer., -
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer' within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act.
4. The appropriate unit :
Following a consent' election held in October 1959, the Petitioner
was certified as bargaining representative for all production and main-
tenance employees at the Employer's Boonton, New Jersey, operation,
excluding office clerical employees, plant clerical employees, labora-
tory employees, professional employees, guards, watchmen, and super-
visors as defined in the Act. A contract covering this unit which was
signed by the parties effective October 16, 1959, expired October 16,
1960. The petition herein was filed on April 7,1961.
The Petitioner requests a unit which, it contends, is in conformity
with the previously existing contract unit. In disagreement with the
Petitioner, the Employer would exclude the "temporary" employees,
but would include certain of the biweekly paid employees, the plant
clericals, pilot plant operating employees, margarine property testers,
and fatty acid chloride operating employees.
The plant clerical employees: As these employees were not part of
the unit previously represented by the Petitioner, they would not be
included, in any event, without being given an opportunity to vote as
to whether or not they desire to become part of the unit? In view of
the fact, however, that the Petitioner does not claim to represent these
presently unrepresented employees whom the Employer alone would
include, we do not direct a self-determination election among the plant
clericals? We shall therefore exclude them.
The "temporary" employees: The record shows that the Employer
hired 26 employees during the month of April 1961. The Petitioner
contends that these employees should be included and accorded the
right to vote, since they are permanent employees and part of the pro-
duction and maintenance group. However, testimony on behalf of
the Employer shows that these 26 employees were hired for a particu-
2 The Zia Company, 108 NLRB 1134
1 See Du-Wel Decorative Company, etc , 125 NLRB 31, 32, and 33
E. F. DREW & CO., INC. 157
lar job, were told that they were merely temporary employees for an
approximate duration of 10 to 12 weeks, and were given special record
cards stamped "temporary." They were hired through the U.S. Em-
ployment Service, which was told the jobs were to be temporary in
nature. At the time of the hearing, it was estimated the job for which
they were hired would end on July 1, 1961. At it appears that these
employees were hired for one job only, and have no substantial ex-
pectancy of continued employment, we find that they are temporary
employees and shall exclude them from the unit 4
The Petitioner contends that the fatty acid chloride operating em-
ployees, the margarine property testers, and the pilot plant operating
employees should be excluded on the ground that they are technical
employees. The record reveals that the fatty acid chloride depart-
ment is not now in operation, and will not be put in operation until
late summer or early fall. One of the two employees who had worked
in the department has been assigned to the New Jersey laboratory,
the employees in which the parties stipulated are part of the produc-
tion and maintenance group. The other employee remained to clean
up the department and help get it ready for reopening in the future.
When it does reopen, it will be a part of the New Jersey laboratory
operation. These employees are hourly paid, have no specialized
training, and do routine work under close supervision. There is one
margarine property tester. He checks the weights of margarine car-
tons, and the melting point of margarine oil. The operations are
routine and repetitive in nature and require no special training. He
is hourly paid and works under close supervision. There are two pilot
plant chemical operators in dispute. Their work consists in heating
and agitating fatty acid and alcohol together in kettles and. stills to
form an ester (compound), which is then, put into,drums. The work
is routine and repetitive in nature, and requires no special training.
They are hourly paid and work under close supervision. On the entire
record, we find that the foregoing employees are not technical em-
ployees under the Board's precedents.' They were therefore within
the inclusion of the production and maintenance contract unit. We
shall include them in the unit. ^ :
The biweekly paid employees:- The Petitioner contends that all bi-
weekly paid employees should be excluded from the unit on the ground
that they receive superior benefits to the production and maintenance
employees. The record shows that the fatty acid chloride operating
employees, the pilot plant operating employees, and one material han-
dler in each of the following departments-edible, power chemicals,
4 See Seali.te, Inc, 125 NLRB 619 In view of their exclusion from the unit, these
temporary employees shall also be excluded from voting However, this does not preclude
the possibility that some of the temporary employees may, prior to the eligibility date,
fill vacancies in permanent positions and thereby become eligible to vote.
5 See Litton Industries of Maryland , Incorporated, 125 NLRB 722.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dairy, textile, and factory office-are paid on a biweekly basis. The
office clericals, and two of the six plant clericals, who are excluded,
are also paid on a biweekly basis. Petitioner does not object to the
inclusion of the classifications of material handlers or chemical op-
erators in general, but only to inclusion of the employees in these
classifications who are biweekly paid. The biweekly paid employees
receive 2 weeks vacation during the first 5 years, as opposed to 1 week
for production and maintenance employees; they have more sick leave
benefits, and some are paid slightly higher wages. We find that their
interests and duties are the same as those of the production and main-
tenance employees, and we shall therefore include them in the unit.
The alleged supervisors: The Petitioner alleges that Edmond Tut-
tle, Robert Strubeck, Elsa Lehman, and Louis DeFiore, should be
excluded as supervisors. The Employer contends they are merely
leadmen and should be included. The Employer's testimony, which
is unrebutted, indicates that they do not have the power to hire, fire,
transfer, discipline, reward or promote, or to effectively recommend
any such action. As it does not appear that these individuals possess
any of the indicia of supervisory authority, we shall include them in
the unit.
Accordingly, we find that. the following employees at the Employer's
Boonton, New Jersey, operation, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section
9(b) of the Act:
All production and maintenance employees, including pilot plant
operating employees, margarine property testers, fatty acid chloride
operating employees, and employees in these classifications who are
biweekly paid, but excluding plant clerical employees, temporary em-
ployees, office clerical employees, laboratory employees,' salesmen,
guards, watchmen, professional employees, and supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
6 The classification "laboratory employees," whom the parties agreed to exclude, does
not encompass : the employees in the New Jersey laboratory division.
Pratt & Whitney Aircraft Division of United Aircraft Corpora-
tion , Florida Research and Development Center and Raymond
S. Schutta . Case No. 12-CA-1420. September 15, 1961
DECISION AND ORDER
On December 15, 1960, Trial Examiner John C. Fischer issued his
Intermediate Report, finding that the Respondent had not violated
Section 8(a) (4) and (1) of the Act as alleged in the complaint and
133 NLRB No. 10.