Fritzsche Brothers, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1954

107 N.L.R.B. 889 (N.L.R.B. 1954)

FRITZSCHE BROTHERS, INC. 889
interest among the employees in the existing overall unit, and
the Intervenor has not indicated that it desires an election
herein. 10 Accordingly , we shall dismiss the petition.
[The Board dismissed the petition.]
Member Murdock took no part in the consideration of the
above Decision and Order.
10 As to units narrower than the one primarily sought , the Board , on June 26 , 1953, sustained
the Regional Director 's dismissal of the Petitioner 's two petitions , in Cases Nos . 5-RC-1281
, and 1282, for units comprising employees in a cable - splicer group and a lineman group.
FRITZSCHE BROTHERS, INC. and LOCAL 68, INTERNATION-
AL UNION OF OPERATING ENGINEERS, AFL, Petitioner.
Case No. 2-RC-5068. January 18, 1954.
SUPPLEMENTAL DECISION AND ORDER
Following a hearing conducted on September 19, 1952, the
Board, on November 7, 1952, issued its Decision and Direction
of Election herein , finding appropriate a unit of all operating
engineers and firemen employed in the boilerhouse at the Em-
ployer ' s Clifton , New Jersey , plant. 1 The Employer ' s motion to
vacate the decision was denied by the Board on December 3,
1952.
On December 5, 1952 , pursuant to the Board ' s Decision and
Direction of Election , an election was held under the direction
and supervision of the Regional Director for the Second Region
among the employees employed in the unit during the payroll
period ending October 31 , 1952. At the close of the election,
the parties were furnished a tally of ballots. The tally shows
that five employees voted , all subject to challenge.2
The Employer filed timely objections to the election. Pur-
suant to the Board ' s Rules and Regulations , the Regional Di-
rector investigated the challenges and objections and, on
January 27, 1953, issued his report on objections and chal-
lenges . In his report, the Regional Director recommended that
the challenged ballots of Rose, Matthews , and Opalka be opened,
that the challenges to Trachin and Sauerzopf be sustained, and
that the objections be overruled . The Employer filed timely ex-
ceptions to,the Regional Director ' s report.
'This decision was not reported in the printed volumes of Board Decisions . The unit was
specifically defined to include Rose , a regular , full-time boiler room employee , and Matthews,
who, at the time of the original hearing , served as the only regular relief operator . Trachin,
who mainly relieved Matthews when the latter substituted for Rose, was excluded because of
the sporadic nature of his boiler room work.
2 The Employer challenged Rose and Matthews. The Board agent challenged Trachin, Opalka,
and Sauerzopf.
107 NLRB No. 166.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 25, 1953 , the Board , having duly consideredthe
entire matter , decided that a hearing should be held to resolve
the issues raised by the challenges to the ballots of Matthews,
Opalka, and Sauerzopf . The Board ordered that the hearing
officer prepare and cause to be served upon the parties a re-
port containing resolutions of the credibility of witnesses,
findings of fact ( including a determination as to which of the
employees in question regularly and substantially performed
boilerhouse duties on the payroll eligibility and election dates),
and recommendations as to the disposition of the challenges.
On April 28 and June 2 , 1953, a hearing was held before John
J. FitzSimons , hearing officer . Both parties were represented
and participated in the hearing . On October 30, 1953, the hearing
officer issued and served upon the parties his report and recom -
mendations , in which he found that Matthews and Opalka , unlike
Sauerzopf , regularly and substantially performed work within
the unit on the critical dates and rcommended that the chal-
lenges to Matthews and Opalka be overruled and the challenge
to Sauerzopf be sustained . The Employer timely filed exceptions
to the hearing officer ' s report , and the Petitioner fileda reply
memorandum.
The Board has reviewed the rulings made by the hearing
officer at the hearing and finds that no prejudicial error was
committed; These rulings are hereby affirmed . The Board
has fully considered the hearing officer ' s report , the Em-
ployer's exceptions , and the Petitioner ' s memorandum. Upon
the entire record in this case , the Board finds:
During 1952 , the Employer had about 25 employees at its
chemical plant here involved , of whom 6 were functionally
assigned to the maintenance department . These maintenance
employees, after August 1952 , consisted of Trachin , who was
in charge of the department , Rose, Matthews, Opalka, Sauerzopf,
and Blumka.
The plant , during that year , operated on a single - shift basis,4
with the boilerroom functioning from 7 a. m. to 5 p. m., 5 days
per week . Rose, a licensed second - class operating engineer,
regularly worked in the boilerroom from 7 a. m. to 12:30 p. m.,
and 1 p . m. to 4 p. m. As State law required the presence of a
licensed operator in the boilerroom almost continuously, the
Employer had to have another licensed operator to relieve and
supplement Rose for 1 1 hours per day and during his 3-week
vacation and other absences . From at least March to October
1952, Matthews , who has a fireman -in-charge license, regularly
relieved and supplemented Rose. During that period , Trachin,
who was licensed in July 1952 , also occasionally worked in the
boilerroom when necessary to relieve Matthews or when
3The Employer also filed a motion for a 10-day stay if the Board orders the opening of any
ballots . In view of our determination herein , we find it unnecessary to pass upon this motion.
4An extended shift was previously used during December 1950 and January 1951
FRITZSCHE BROTHERS, INC. 891
Matthews was otherwise unavailable to replace Rose.5 During
the balance of their working time, both Rose and Trachin per-
formed general maintenance duties.
In June 1952 , the plant manager was told that the plant would
take on additional commitments in August , September, or
October , and he was further informed , in July, that the plant
would have to go into an extended shift ( i.e., an additional 4 or 5
hours ) in August . Although an extended shift was not actually of -
fected until January 15 , 1953, the Employer began training
Opalka and Sauerzopf , 2 of the other maintenance workers, in
boilerroom duties in order to provide for the contingency of a
double shift when another steady boiler operator and relief
man would be needed , or an extended shift which would require
an additional relief man . This training began in late September
or early October.
Opalka, who was not licensed , had been hired on August 4,
1952 , and had 13 years previous boiler operating experience.
After starting work for the Employer , he was given some train-
ing by Matthews in the Employer ' s boilerroom operations and
received his fireman -in-charge license on October 8, 1952.
Sauerzopf had been employed by the Employer since 1945.
Trachin asked him in August or September 1952 if he wanted to
obtain a boiler operator ' s license , and he was thereafter in-
structed in boilerroom duties. He received his fireman ' s license
on October 3, but this form of license did not permit his oper-
ating boilers without the supervision of at least a fireman-in-
charge. Until he received his fireman -in-charge license in April
1953, his work in the boilerroom was generally performed along
with Opalka.
From October 13 to December 31, 1952, after they received
their licenses , Opalka and Sauerzopf were scheduled by the
Employer to alternate with Matthews , on about a week or 2 -week
basis , in relieving Rose. The testimony is somewhat in conflict
as to whether this schedule was closely followed . However, it
is clear that by December 5, the election date, Opalka and
Sauerzopf , or Opalka alone, had spent at least 2 or 3 weeks
during October and another day in November serving the short
period each day as boilerroom relief workers.
Although performing the boilerroom relief duties described
above , Matthews, Opalka , and Sauerzopf nevertheless remained
at all times primarily general maintenance employees. Mat-
thews engaged in carpentry , painting , sewing, pipefitting, and
the like. Opalka specialized in pipefitting , metal work, some
carpentry work, and painting . And Sauerzopf did mostly pipe-
fitting. If one of these employees was involved on a maintenance
job when he was scheduled for boilerroom work , another
would handle the boilerroom relief. It would appear that by
October 31 , 1952 , the payroll eligibility date, and December 5,
1952 , the election date, none of the employees in question was
5Another maintenance employee, Dohlmar , was licensed, but he was transferred from the
plant in May 1952.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regularly devoting an average of even 15 percent of his time to
boilerroom functions.
In The Ocala Star Banner , 97 NLRB 384, and subsequent de-
cisions , the Board held that an employee who performs work
both within and outside the unit is included and eligible to vote,
if his work within the unit is regular and for "substantial"
periods of time. In the present case , Matthews , Opalka, and
Sauerzopf were essentially general maintenance employees.
Even assuming they regularly performed boilerroom relief
work, the amount of their time spent in such duties, on the
payroll eligibility and election dates, was too insubstantial
in our opinion to render them eligible to vote in a boiler-
room unit.' We shall therefore sustain the challenges to the
ballots of Matthews , Opalka, and Sauerzopf.
As to the remaining challenged employees , Trachin and
Rose , it is clear that Trachin , who sporadically devoted little
time to boilerroom work , is ineligible , and we shall sustain
the challenge to his ballot . Because Rose is the . sole remaining
eligible employee and the unit is therefore in effect a one-man
unit , we shall sustain the challenge to his ballot and shall dis-
miss the instant petition.?
[The Board dismissed the petition.]
Member Peterson took no part in the consideration of the
above Supplemental Decision and Order.
6See Sullivan Mining Company, 101 NLRB 1366, 1372.
? National Container Corporation of Wisconsin , 99 NLRB 1492; cf. Producers Rice Mill, Inc.
and Producers Dryer, Inc., 106 NLRB 119.
HUMBLE PIPELINE COMPANY, SOUTHERN DIVISION and
EMPLOYEES FEDERATION OF THE HUMBLE PIPELINE
COMPANY, SOUTHERN DIVISION, Petitioner. Case No. 39-
RC-669. January 19, 1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clifford W.
Potter, hearing officer. The hearing officer's rulings made at
the hearing are free from prejudicial error and are hereby
affirmed.
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 organization involved claims to represent cer-
tain employees of the Employer.
3. The alleged question concerning representation:
107 NLRB No. 173.