Miller Electric Co.

National Labor Relations Board - Board Decisions

Apr 2, 1953

103 N.L.R.B. 1492 (N.L.R.B. 1953)

1492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
968, has been designated and selected by a majority of all truckdrivers
at the Houston, Texas , ship -repair establishment and machine shop
of Port Houston Iron Works, Inc., including the utility man, but
excluding all other employees and supervisors as defined in Act, as
their representative for the purposes of collective bargaining and that,
pursuant to Section 9 (a) of the Act, as amended, the said labor or-
ganization is the exclusive representative of all such employees for
the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
MEMBERS HOUSTON and MuRDoCK took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
MILLER ELECTRIC COMPANY and OFFICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 294, AFL, PETITIONER . Case No. 11-RC-481.
April 2, 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 Robert J. Wall, hearing
officer.' The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed 2
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 Herzog and Members Styles and Peterson].
Upon the entire record in this case, the Board finds :
' At the hearing the petition and other formal papers were amended to show the correct
name of the Employer.
2 The hearing officer referred to the Board the Employer ' s motion to dismiss the petition
on the following grounds : ( 1) The Employer is not engaged in commerce within the
meaning of the Act; ( 2) there has been no showing that the requisite number of em-
ployees sought to be included in the unit have joined in the petition ; ( 3) there has been
no showing that the requisite non-Communist affidavits have been filed ; ( 4) the unit
sought is not appropriate because the employees are working on a construction project
which has reached its peak, and there will be a decrease in personnel ; and (5 ) the unit
sought is not appropriate because the employees sought to be included have no real
community of interest.
( 1) For the reasons stated infra, we find no merit in the Employer 's first contention.
(2) We have repeatedly held that a Petitioner 's showing of interest is an administrative
matter, not subject to direct or collateral attack . Charles A. Krause Milling Co., 97
NLRB 536. Moreover , we are satisfied that the Petitioner has made an adequate showing
in the unit found appropriate . ( 3) The Board has consistently held that whether a labor
organization has complied with the filing requirements of the Act is not litigable at a
representation hearing, as it is a determination entrusted to the Board in its administra-
tive capacity . Sunbeam Corporation, 93 NLRB 1205. Moreover , the Board has satisfied
itself , from its administrative investigations, that the Petitioner is in compliance with
the filing requirements of the Act . ( 4) For the reasons stated infra, we find no merit
to the Employer ' s other contentions Accordingly , the Employer 's motion to dismiss is
hereby denied.
103 NLRB No. 130.
MILLER ELECTRIC COMPANY 1493
1. For the reasons fully set out in our recent decision in Miller Elec-
tric Company, 101 NLRB 1014, in which we discussed this Employer's
business, we find, contrary to the Employer's contention, that it 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 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 of all of the Employer's office clerical
employees employed at the Savannah River project, including all
clerks, typists, and stenographers, but excluding electricians, technical
employees, guards, watchmen, and supervisors. The Employer con-
tends that the requested unit is inappropriate because the employees
sought to be included have no real community of interest, and because
14 of the employees are confidential employees within the meaning of
the Act. The Employer also contends that the nine section heads are
supervisors. There has been no history of collective bargaining for
these employees.
The employees in question do work typical of their job classifications.
Although many of these employees work in area offices, located at
different parts of the project,3 and under different immediate super-
vision, they all work under the overall supervision of the supervisor of
the clerical employees. The record shows that there is some inter-
change of clerical employees among the different departments. Three
of the clerks work in the employment, payroll, and termination depart-
ments, depending on the workload and the personnel requirements in
these departments. The office clerical employees do not interchange
with any other employees on the project.
The office clerical unit requested by the Petitioner is of a type the
Board has customarily found appropriate for collective bargaining.'
There is no showing in the record that the skills of these employees
are not similar throughout the various departments, or that they do
not have interests in common. We do not believe that the difference
in location of these employees militates against their inclusion in a
single bargaining unit.
Confidential employees: None of the 14 employees whom the Em-
ployer contends are confidential employees assists or acts in a confiden-
tial capacity to any person who exercises managerial functions in the
field of labor relations. The Board has frequently held that the fact
that employees have access to financial and business data, prepare the
t The project covers an area of over 22 miles.
A Republic Steel Corporation, Canton Plant, Central Alloy District, 91 NLRB 904;
General Electric Company , 101 NLRB 619.
257965-54-vol. 103--95
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll, work with costs records, have access to secret designs, patents,
or formulae, restricted information or personnel matters, does not
render them confidential employees.5 Furthermore, the Board has
often held that there is no incompatibility between the faithful per-
formance of duty and the enjoyment of benefits under the Act .6
Supervisors: Although the nine section heads do not have authority
to hire or discharge employees, the record shows that they have author-
ity effectively to recommend disciplinary action and changes in the
status of employees within their sections. We therefore find that
they are supervisors within the meaning of the Act.
We find that all of the Employer's office celerical employees employed
at the Savannah River project, including all clerks, typists, and
stenographers, but excluding all electricians, technical, professional,
and confidential employees, guards, watchmen, section heads, and all
other supervisors,' constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
5. The Employer contends that an election should not be directed
at this time because of the temporary nature of the activities in-
volved. A witness for the Employer testified that the peak stage
of its work on the Savannah River project has passed, and the number
of employees is now declining. From a total of 115 in September
1952, the number had been reduced to about 79 in February 1953, the
date of the hearing. The record shows that there will be a further
reduction in the number of employees during the coming year. There
is no indication in the record as to the completion date of the Em-
ployer's operations at this project, or how many employees will be
laid off within the next year.
As the cessation of operations will continue over an extended period
of time , and as a substantial and representative number will continue
to be employed for some time, we believe that the Act will best be
effectuated by the direction of an election at this time.8
[Text of Direction of Elections omitted from publication in this
volume.]
r Wilson & Co., Inc., 97 NLRB 1388 ; Bulldog Electric Products Company, 96 NLRB 642;
Arnold Hoffman t Co., Incorporated, 95 NLRB 907; East Texas Steel Castings Company,
Inc, 95 NLRB 1135 ; Pittsburgh Metallurgical Company, Inc , 95 NLRB 1 ; Foster Wheeler
Corporation , 94 NLRB 211 ; Cities Service Refining Corporation, 94 NLRB 1634; Con-
solidated Vultee Aircraft Corporation , Fort Worth Division, 92 NLRB 1290; Minnesota
and Ontario Paper Co., 92 NLRB 711 ; Phillips Oil Company , 91 NLRB 534.
6 Capital Transit Company , 98 NLRB 141.
The record shows , and we find , that the chief clerk and the assistant paymaster are
supervisors within the meaning of the Act.
sThe Girdler Corporation ( Dana Project ), 96, NLRB 894; The Brush Beryllium Com-
pany, 96 NLRB 1383.