Elliott Co.

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 1033 (N.L.R.B. 1953)

ELLIOTT COMPANY, CROCKER-WHEELER DIVISION 1033
assigned the loading work to its own employees , members of
P. C. $. U. The dispute was therefore one over an employer's
assignment of work to employees in one labor organization
rather than to employees in another labor organization.
It is well established that an employer is free to make such
assignments free of strike pressure by a labor organization,
"unless such employer is failing to conform to an order or
certification of the Board determining the bargaining repre-
sentative for employees performing such work."e As found
above, the I. L. W. U. is not the certified bargaining repre-
sentative for employees performing the work involved.
We find, accordingly, that the I. L. W. U. was not lawfully
entitled to require Upper Columbia and River ' Terminals to
assign loading work to members of the I. L. W. U. rather
than to members of the P. C. B. U.
We are not, however , by this action to be regarded as
"assigning " the loading work to the P. C. B. U. 9
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings of fact, and upon
the entire record in this case, the Board makes the following
determination of dispute pursuant to Section 10 (k) of the
amended Act:
1. International Longshoremen ' s & Warehousemen ' s Union,
Local 12, is not , and has not been, lawfully entitled to force or
require Upper Columbia River Towing Company, or River Ter-
minals Company to assign loading work to its members rather
than to members of another labor organization.
2. Within ten ( 10) days from the date of this Decision and
Determination of Dispute , the Respondent shall notify the
Regional Director for the Nineteenth Region, in writing, as to
what steps the Respondent has taken to comply with the terms
of this Decision and Determination of Dispute.
8 Local Union No . 553, Affiliated with the United Association of Journeymen and Apprentices
of the Plumbing and Pipefirting Industry of the United States and Canada . A. F. L. (Alton
Water Company ), 106 NLRB 819.
9Los Angeles Building and Construction Trades Council , AFL (Westinghouse Electric
Corporation ), 83 NLRB 477.
ELLIOTT COMPANY, CROCKER-WHEELER DIVISION, and
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL 68, AFL, Petitioner . Case No. 2-RC -5647. August
26, 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 J.
i The name of the Employer appears as corrected at the hearing
106 NLRB No. 155.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carmody, hearing officer . The hearing officer's rulings made
at the hearing are free from prejudicial 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 [Members Houston , Styles, and
Peterson].
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. The question concerning representation:
The Employer and Local 1453, International Brotherhood of
Electrical Workers, A . F. of L., herein called the Intervenor,
assert that no question concerning representation exists be-
cause their current contract , which they contend became
effective before the receipt of the Petitioner's demand for
recognition , constitutes a bar to the instant petition.
The Employer has bargained collectively with the Inter-
venor and its predecessor , Local 1159 - B, International Brother-
hood of Electrical Workers, A. F. of L., since 1944, following
the Board's certification of Local 1159-B as the collective-
bargaining representative of all production and maintenance
employees at the plant involved herein . 2 In January 1953,
following notice by the Intervenor of a desire to modify the
terms of the contract then in effect, the Employer and the
Intervenor began negotiations for a new contract . On February
27, 1953, the Employer submitted its final proposals to the
Intervenor ' s negotiating committee, which the latter orally
accepted , subject to ratification by the Intervenor's members.
On February 28, at a special meeting held for this purpose,
the members of the Intervenor unanimously voted to accept
the Employer ' s proposals . No contract was signed , however,
until after March 3, when the Petitioner demanded recognition
of the Employer . In fact , after March 3, the parties first
executed a "tentative agreement " and, about 10 days later,
executed their current contract.
The Employer and the Intervenor contend that, although the
current contract was not reduced to writing and executed until
sometime after March 3, 1953, the terms thereof became
effective on February 28, 1953, as soon as the Employer
received notice of the Intervenor ' s ratification of its proposals.
They further assert that , as there was a valid and binding
contract in effect on February 28, this contract constitutes a
bar to the petitionherein . We find no merit in these contentions.
As the contract alleged to be in effect as of February 28 was
not reduced to writing and signed until after the date of the
Petitioner ' s request for recognition , and as the claim for
N
2 Joshua Hendy Iron Works , 49 NLRB 864 . This plant was formerly owned by Joshua Hendy
Iron works , but was sold to the Employer in 1949.
ELLIOTT COMPANY, CROCKER-WHEELER DIVISION 1035
recognition antedated the execution of the contract between the
Employer and the Intervenor and was followed within less than
10 days by the petition, we find that this contract does not
constitute a bar. 3
Accordingly, we find that a question affecting commerce
exists concerning the representation of certain employees of
the Employer within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to sever from the production and
maintenance unit represented by the Intervenor a unit of four
powerhouse engineers employed at the Employer's Ampere,
New Jersey, plant. The Employer and the Intervenor contend
that, in view of the history of bargaining on a plantwide basis
based on a Board certification, only the existing production
and maintenance unit is appropriate.
The engineers sought by the Petitioner all work in the
powerhouse, a separate structure apart from the other build-
ings of the plant, under supervision separate from that of the
plant employees.4 These employees operate, and, whenneces-
sary, make minor repairs on, the high-pressure boilers,
steam air-compressors, and pumps located in the powerhouse.
They alone are responsible for the production of steam for
plant operations. The engineers are all licensed by the State
of New Jersey, as required by State law, and no other em-
ployees perform their type of work. Although other employees
occasionally perform certain duties in the powerhouse, 5 there
is no interchange between plant employees and engineers.
As stated above, the Intervenor and its predecessor have
been representing all production and maintenance employees,
including the engineers sought herein, since 1944.6 However,
because of the difference in duties and functions of the engineers
from those of the other plant employees, the engineers,
pursuant to all contracts executed since 1944, have alone been
subject to special treatment with respect to such matters as
shift differential payments and working schedules.
On the basis of all these facts and the entire record herein,
we find that the powerhouse engineers constitute a distinct,
homogeneous, and functionally coherent group such as the
Board has consistently held may, if they so desire, constitute
a separate bargaining unit despite their past inclusion in a
3Weidemann Machine Company, 100 NLRB 824; Michigan Bakeries, Inc., 100 NLRB 658.
4Although plumbers are also located in the powerhouse and, like the engineers, work
under the supervision of the chief engineer , the record reveals that the plumbing shop is
located in a separate section of the powerhouse and that there is little contact and no inter-
change between the plumbers and the engineers. Moreover, the plumbers perform none of
the duties and possess none of the skills of the engineers.
5 Once or twice a year, plant laborers are assigned to the powerhouse for about a week to
clean the boilers and, during this time, they work under the supervision of the chief engi-
neer. In addition, if there is a breakdown of powerhouse equipment, which may occur about
once a year, maintenance repairmen are assigned to the powerhouse to repair the equip-
ment.
6 For several years before 1944, all production and maintenance employees, including the
engineers, were represented by independent Workers Union of New Jersey
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broader bargaining unit .? Accordingly , we shall direct an
election in the following voting group : All licensed engineers
employed in the powerhouse at the Employer's Ampere, New
Jersey, plant , excluding all other employees and all super-
visors as defined in the Act.
However, we shall make no final unit determination at this
time, but shall first ascertain the desires of these employees
as expressed in the election hereinafter directed . If a majority
vote for the Petitioner , they will be taken to have indicated
their desire to constitute a separate appropriate unit , and the
Regional Director conducting the election directed herein is
instructed to issue a certification of representatives to the
Petitioner for the unit described above, which the Board,
under such circumstances , finds to be appropriate for the
purposes of collective bargaining . In the event a majority
vote for the Intervenor , they will be taken to have indicated
their desire to remain a part of the existing bargaining unit
and the Regional Director will issue a certification of results
of election to such effect.
5. The determination of representatives:
The record reveals that , at the time of the hearing, the
Employer was considering converting its powerhouse equip-
ment from high-pressure boilers and steam air - compressors
to low -pressure boilers and electric air-compressors . Appar-
ently, such a change would eliminate the need for licensed
engineers in the powerhouse . Although plans for conversion
were under consideration , no decision had been made at the
time of the hearing . Because of the contemplated change,
however, the Intervenor has requested that , if the Board directs
an election , no election be held until the Regional Director
is satisfied that plans for the proposed conversion have been
abandoned or are uncertain . As the contemplated conversion
of the powerhouse equipment is merely speculative, we
shall follow our usual procedure and direct an immediate
election herein. 8
[ Text of Direction of Election omitted from publication]
Member Peterson , dissenting:
My colleagues are directing a self-determination election
in this case for the engineers and in so doing they advert to
the fact that the engineers , pursuant to all contracts since
1944, have alone been subject to special treatment with respect
to such matters as shift differentials and working schedules.
In my dissenting opinion in the Hamilton case,9 I indicated
that one of the criteria which I believed should be considered
in determining whether severance should be permitted was
whether the group concerned had been accorded special treat-
7 The Celotex Corporation, 105 NLRB 815; Anheuser-Busch, Inc., 103 NLRB 1020.
8See Certain- Teed Products Corporation, 102 NLRB 996.
9 W C. Hamilton & Sons, 104 NLRB 627.
HENRY VOGT MACHINE CO. 1037
ment by the production and maintenance union. However, the
special treatment granted to the engineers in the instant case
has been merely incidental to their particular functions and
duties and has been such as is normally taken cognizance of
by the bargaining representative of a more inclusive production
and maintenance unit. The type of special treatment to which
I referred in the Hamilton case as one of the bases for the
establishment of a separate craft unit in the face of a broader
bargaining history is that which has tended to preserve
the separate identity of the craft group involved with respect
to its representation for collective-bargaining purposes.'°
In view of the fact that there has been a substantial bargain-
ing history of inclusion of the engineers in the production and
maintenance unit; that these employees have not been granted
the special type ' of treatment to which I adverted in my
Hamilton dissent; and, that other factors mentioned in that
dissent which would warrant their severance from the estab-
lished unit are not present, I would dismiss the petition herein.
to In this regard, see for example the United States Potash Company (N,S.L.) case, 63 NLRB
1379 where, despite the fact that they were represented in a production and maintenance unit
by another union, electricians were permitted to maintain membership in the Electrical
Workers Union; employees transferred to electrical work from other departments were
allowed to transfer their membership to the Electrical Workers; the Electrical Workers
were accorded representation as a group on bargaining committees selected by the production
and maintenance union; and, the contract between the employer and the production and
maintenance union designated the Electrical Workers as entitled to require maintenance
of membership on the same terms as the designated bargaining agent.
HENRY VOGT MACHINE CO. and INTERNATIONAL DIE
SINKERS' CONFERENCE and its LOUISVILLE DIE SINKERS'
LODGE #430, Petitioner. Case No. 9-RC-1926. August 26,
1953
SUPPLEMENTAL DECISION AND DIRECTION OF ELECTION
On June 29, 1953, the Board issued its Decision and Order in
this proceeding dismissing the petition for the reasons that
the unit requested was inappropriate within the meaning of
the Board's decision in Westinghouse Electric Corporation,
101 NLRB 441, and that the Petitioner had evidenced no
interest in a strictly craft unit of die sinkers. Thereafter the
Petitioner duly filed and served upon the parties its motion
for reconsideration of the Board's said Decision and Order
which the Board construes as a request by the Petitioner to
represent a unit restricted to die sinkers.
The Board finds that a question affecting commerce
exists concerning the representation of certain employees of
the Employer within the meaning of Section 9 (c) and Section
2 (6) and (7) of the Act.
106 NLRB No. 154.