Guntert and Zimmerman Construction Division, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1949

81 N.L.R.B. 874 (N.L.R.B. 1949)

In the Matter of GUNTERT AND ZIMMERMAN CONSTRUCTION DIVISION,
INC., AND GIINTERT AND ZIMMERMAN SALES DIVISION , INC.,1 EMPLOY-
ERS and OPERATING ENGINEERS, LOCAL No. 3 OF THE INTERNATIONAL
UNION OF OPERATING ENGINEERS, PETITIONER
Case No. 20-RC-190.-Decided February 01, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a blearing
officer of the National Labor Relations Board. 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in this case, the Board finds:
1. The Employers are engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent em-
ployees of the Employers.
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.2
4. The appropriate unit:
The Petitioner seeks a unit composed of three hoisting engineers
and equipment operators (herein called crane operators ) at the Em-
ployers' plant. The Employers oppose such unit on the grounds that :
(1) these employees are not a craft group ; (2) they are included in
the unit of production and maintenance employees currently repre-
*Reynolds , Murdock, and Gray
I The Employers ' names appear in the caption as amended at the hearing
2 TIie Employers moved to dismiss the petition herein on the ground that the Petitioner
failed to prove at the hearing that , prior to the hearing, the Petitioner notified the Em-
ployers of a claim that a question concerning representation had arisen and that the
Employers failed to recognize the Petitioner . However, in view of the fact that a question
concerning representation was shown to exist at the hearing , we shall, consistent with our
policy announced in Matter of Advance Pattern Company , 80 N. L. R B 29 , deny the
motion.
81 N. L. R. B, No. 134.
874
GUNTERT AND ZIMMERMAN CONSTRUCTION DIVISION, INC. 875
sented in the Employers' plant by the International Association of
Machinists, District #41, Lodge #264, herein referred to as I. A. M.;
and (3) the duties of the crane operators are integrated with those of
other employees at the plant.
We have held on several occasions that crane operators are not
sufficiently skilled to form a craft group .3 In the absence of special
circumstances, we generally refuse to find that they constitute a sepa-
rate unit appropriate for the purposes of collective bargaining. In
this case, however, the bulk of the Employers' production and main-
tenance employees have been covered since March 1946, by contracts
between the Employers and the I. A. M., but the crane operators have
not been included in the contractual unit; 4 moreover, the I. A. M.
apparently is unwilling to represent them. The crane operators,
therefore, will be without representation unless they are found to con-
stitute an appropriate bargaining unit. Since a review of the, record
indicates that the crane operators herein concerned retain separate
identity, we find that, under the circumstances presented here, the
crane operators may constitute a separate appropriate bargaining
unit.
The Employers further contend that Edgar A. Stephenson, one of
the three crane operators, is a supervisor within the meaning of the
Act and should be excluded from the unit. He is paid the same hourly
wage as Richard James Wirth, another crane operator, and spends a
substantial portion of his time operating the cranes in the plant.
Although Stephenson directs the work of the other two crane operators,
the evidence indicates that such direction is of a routine nature and
that his status is that type of lead man or straw boss such as we have
held are not supervisors within the meaning of the Act.' We find
that Stephenson is not a supervisor and we shall include him in the
appropriate unit.
We find that all hoisting engineers and equipment operators em-
ployed at the Employers' plant in Stockton, California,s excluding
all other employees and supervisors as defined in the Act, constitute
3 Matter of Southern Paperboard Corporation, 80 N L R. B, No 226; Matter of Johnson
City Foundry d Machine Works, Inc ., 75 N. L R B 475; Matter o f Bethlehem-Hingham
Shipyard , Inc., 54 N . L R B 631, 634
' The Employers argued that the language of the contracts between themselves and the
I. A. M is broad enough to include the crane operators . However, the contracts included
a schedule listing the specific categories of employees covered thereby and crane operators
are not listed. Furthermore, the business agent for the I A. M testified that the I A. M.
does not represent the crane operators and has not negotiated with the Employers for them.
Under the circumstances, we are not persuaded by the Employees' argument and find that
the crane operators have not been covered by the contracts between the Employers and
the I A M
5 See Matter of The Ohio Power Company, 80 N L R B , No 205
6 Edgar A Stephenson is also included in the Unit
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employers, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among
the employees in the unit found appropriate in paragraph numbered 4,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, 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 election, and also excluding
employees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collective
bargaining, by Operating Engineers, Local No. 3 of the International
Union of Operating Engineers.