Fleming & Sons, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 27, 1957118 N.L.R.B. 1451 (N.L.R.B. 1957) Copy Citation FLEMING & SONS, INC. 1451 rejected the functional test as a basis for determining who are a union's officers.4 Accordingly, we find that the Union at all material times has been in compliance with Section 9 (h) of the Act.' MEMBERS RODOERS and JENKINS took no part in the consideration of the above Administrative Determination of Compliance Status. Ain view of our findings herein that Wingate is not an officer of the Union , we find it unnecessary , as the Petitioner . requests , to determine whether Wingate has in fact filed the requisite affidavits under Section 9 (h) of the Act. X The Petitioner 's request for permission to file a memorandum of law in support of its petition is denied because, in our opinion , the record in this proceeding adequately presents the issues and the position of the Petitioner. Fleming & Sons, Inc. and International Brotherhood of Pulp, Sulphite and Paper Mill Workers , Petitioner. Case No. 16-RC-2144. September 27, 1957 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 Leonard L. Pickering, hear- ing 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 [Chairman Leedom and Members Murdock and Rodgers]. 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 em- ployees of the Employer.' 3. The Petitioner seeks a representation election in a unit composed of employees at the Employer's newly acquired corrugated box opera- tion at Dallas, Texas. The Employer and. the Intervenor contend that this proceeding is barred by their current collective-bargaining agreement. The Employer is engaged in the manufacture of various kinds of paper products in Dallas, Texas. In 1951, the Intervenor was certified (Case No. 16-RC-711) as the representative of the Employer's "main- tenance, production -and shipping" employees, and entered into a con- tract with the Employer. covering these employees. This contract has continued in effect as amended, the most recent amendment having been executed in January 1957. i The Intervenor , United Paper-makers and Paperworkers , APL-CIO, was permitted to intervene on the basis of its contract interest. 118 NLRB No. 201. 1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 1 of the Employer's warehouse buildings, located about 2 miles from its main plant, the Employer formerly stored materials used at the main plant and, from time to time, carried on different operations which were closely integrated with those of the main plant and were under the direction of supervisors at the main plant. Employees who were transferred from the main plant to these operations at the ware- house were considered by the Employer and the Intervenor to be cov- ered by their collective-bargaining agreement. In about June 1957, however, these operations were moved out of the warehouse, new corrugating equipment was obtained and installed, and the Employer, who had not theretofore carried on any corrugating operations, began the production of corrugated cardboard in this build- ing. A new company division comprised of the corrugating operation was established. The new equipment differed from other equipment used by the Employer, who advertised for people experienced in the corrugating operation. It appears that, with the exception of a main- tenance man and a shipping clerk who were transferred from other operations, a completely new staff of employees were hired for this operation, and, according to the personnel director's testimony, he hired "some skilled that came out of different areas of this section of the country." The same truckdrivers formerly serviced both the main plant and the warehouse, but there are now two truckdrivers who work only out of this corrugated box plant. All the employees at this plant are under separate plant supervision. Of the 25 categories of em- ployees at this plant, about 20 did not exist in the Employer's other operations, and were not listed in the job classifications covered by the contract. On the basis of the entire record, we find that the corrugated box operation is a completely new operation and not a mere accretion. We therefore find that, as the current collective-bargaining contract be- tween the Employer and the Intervenor had been executed before the Employer began this new operation, and as the terms of the contract do not cover this operation, there is no contract bar. The motion to dismiss on this ground is hereby denied.' Accordingly, we find that a question affecting commerce exists con- cerning the representation of the corrugated box plant employees of the 2 Rockingham Poultry Cooperative , Inc., 113 NLRB 376. The cases cited in the In- tervenor 's brief are distinguishable . In Solar Manufacturing Company, 110 NLRB 1188, the Board found (1) that the employees sought were "typical and necessary categories found in manufacturing plants of the kind here involved ," and (2 ) "they were expressly included in the the coverage of the contract , by written agreement , before the [ petitioner] made any claim to represent them." In American Cast Products , Inc., 110 NLRB 705, the Board found that it was "clear from the language of the contract" that the parties intended to add the patternmakers in question to the unit, and all the provisions of the contract were applied to them except the one requiring dues payments under a union- security clause. FLEMING & SONS, INC. 1453 Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer and the Intervenor maintain that only a company- wide unit is appropriate, and that the corrugated box plant should be included in such a unit. The Petitioner contends that a unit limited to the employees at the corrugated box plant is appropriate. All employees are hired at the office of the main plant, and most employee records are maintained there. The work performed at the corrugated box plant, however, differs from that done at the Em- ployer's other operations, the Employer has engaged an almost entirely new complement of employees at this plant, and this plant is separately supervised. Furthermore, the Board normally permits employees at a new operation to decide whether or not they wish to be separately represented.3 Accordingly, under all the circumstances of this case, we are of the opinion that, for the purposes of collective bargaining, the employees at the corrugated box plant may constitute a separate appropriate unit or may appropriately be included in the broader unit currently repre- sented by the Intervenor.4 We shall, therefore, make no determination with respect to the employees at the corrugated box plant at this time, but shall first ascertain the desires of these employees as expressed in the election directed herein. We shall direct an election among the following employees : 5 All production and maintenance employees at the Employer's Dallas, Texas, corrugated box plant, including truckdrivers, but excluding of- fice clerical employees, professional employees, guards and watchmen, all other employees, and all supervisors as defined in the Act. If the majority of the employees in the above-described voting group cast their ballots for the Petitioner, they will be taken to have indicated their desire to constitute a separate appropriate unit and the Regional Director is instructed to issue a certification of representatives to the Petitioner for such unit, which the Board, under the circumstances, finds to be appropriate'for purposes of collective bargaining. If the majority of the employees in the voting group cast their ballots for the Intervenor, they will be taken to have indicated their desire to be included in the existing unit currently represented by the Intervenor, and the Regional Director will issue a certification of results of elec- tion to that effect. If the majority of the employees in the voting group cast their ballots for neither labor organization, they will be 3 Rockingham Poultry Cooperative, Inc., supra; Armstrong Cork Company (Lancaster Floor Plant ), 106 NLRB 1147, 1149. 4 Southwestern Greyhound Lines, Inc., 112 NLRB 1014; Scrivner Stevens Company, 104 NLRB 506 , 507; Armstrong Cork Company (Lancaster Floor Plant ), supra. 5 No issue was raised with regard to the composition of the unit sought by the Peti- tioner . The parties agreed that the plant manager and the superintendent were super- visors within the meaning of the Act. 1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken to have indicated their desire to be unrepresented by any labor organization appearing on the ballot, and the Regional Director will' issue a certification of results of election to that effect. [Text of Direction of Election omitted from publication.] R. L. Polk and Company and Office Employees International Union , AFL-CIO, Petitioner . Case No. 9-RC-3149. September 27,1957 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 Harry D. Campodonico, 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 [Chairman Leedom and Members Murdock and Rodgers]. 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 em- ployees of the Employer.' 3. A question affecting commerce exists concerning the representa- tion of 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 a unit confined to employees at the Em- ployer's plant at 400 Pike Street, Cincinnati, Ohio. The Intervenor contends that the unit sought is too limited in scope and that the only appropriate unit must also include the employees of the Williams Directory Company, located in the same city.' The Employer is engaged in the business of direct mail advertising, sales and market analysis, compilation of mailing lists, and publish- ing of city directories, maintaining branches in various cities. Its op- erations are divided into five divisions : bankers' directory, motor list, motor statistical, direct mail advertising, and the directory divisions. At the Pike Street plant the Employer maintains a motor list division 1 The Intervenor, Cincinnati Printing Specialties and Paper Products Union No. 624, International Printing Pressmen and Assistants ' Union of North America, AFL-CIO, which, we find on the record is a labor organization within the meaning of the Act, was per- mitted to intervene at the hearing upon a showing of interest. 2 The Intervenor does not seek to represent the larger unit, but contends that the peti tion should be dismissed on the ground that it is based upon extent of organization alone. However, it wishes to participate in the election if the Board should find appropriate the_ unit sought by the Petitioner. 118 NLRB No. 196. Copy with citationCopy as parenthetical citation