Mission Appliance Corp.

National Labor Relations Board - Board Decisions

Jan 23, 1961

129 N.L.R.B. 1417 (N.L.R.B. 1961)

MISSION APPLIANCE CORPORATION 1417
and unloading of the Employer's trucks and determine the order and
manner in which the work is to be performed. They have the author-
ity to assign employees to different jobs, grant overtime to employees,
and allow employees time off for any reason they believe to be valid.
They are responsible for the training of new employees, usually re-
quiring a period of a month. On an hourly basis, Cason receives 20
percent and Lynn 10 percent more than the other employees. We find
that Cason and Lynn responsibly direct employees, and therefore are
supervisors within the meaning of the Act.'
Travis Allen: The Petitioner would include Allen as a plant cler
ical, while the Employer would exclude him as an office clerical. Allen,,
who is classified as a billing clerk, works in a separate office in the
warehouse with the manager, assistant manager, and three employees
who the parties agree are office clericals. Allen and the three office
employees perform duties which are very similar in nature, involving
the maintenance of sales and purchases records for the warehouse.
They spend 95 percent of their time in the office, and the remainder on
the warehouse floor checking certain discrepancies with Cason and
Lynn. The record indicates that they have little or no contact with
the warehouse employees. We find employee Allen to be an office
clerical, and we exclude him from the unit.'
We find the following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
All warehousemen, truckdrivers, and helpers at the Employer's
Lakeland, Florida, warehouse, including Dave Castles, and Ted
Dykas,s but excluding Travis Allen and all office clericals, guards,
Leroy Cason, Claude Lynn, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
4 Fredrickson Motor Express Corporation, 121 NLRB 32, 34.
r Atomic Power Equipment Department, 118 NLRB 456, 460.
9 The parties agree to include Dykas. Castles performs essentially the same work as
Dykas in the cash and carry operation of the warehouse. Both employees are properly
included. J. Segari & Co., 114 NLRB 1159.
Mission Appliance Corporation and James A. Sweeney, Peti
tioner and Sheet Metal Workers International Association,.
Local Union 170, AFL-CIO. Case No. 21-RD-501. January 23,:
1961
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 Virginia M. McElroy, hear-
129 NLRB No. 173.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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
National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer. Petitioner, an employee of the Employer,
asserts that the Union no longer is the bargaining representative, as
defined in Section 9(a) of the Act, of the employees petitioned for.
Stove Mounters International Union of North America, AFL-CIO,
intervened on the basis of a showing of interest in the unit sought to
be decertified by Petitioner.
3. The Employer appears to assert its contract with the Union as
a bar to this petition. This contract, effective October 27, 1958, ex-
tends to October 1, 1960. The petition herein was filed on June 20,
1960, clearly within the appropriate period. See Deluxe Metal Furni-
ture Company, 121 NLRB 995, 999-1000. We find that the contract is
no bar to this petition, and that a question affecting commerce exists
concerning the representation of employees of the Employer within
the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act.
4. Petitioner seeks decertification of part of a production and
maintenance group, including inspectors, electricians, prototype model
builders, servicemen, tool and diemakers, and tooling helpers, exclud-
ing office clerical employees, garage mechanics, janitors, salvage sorter,
stock clerks, forklift drivers, truckdrivers, material control employees,
shipping and receiving employees, professional employees, guards, and
supervisors. In 1956 (Case No. 21-RD-280) the Union and Team-
sters Local 196 were jointly certified as the bargaining representative
for the overall production and maintenance unit. Thereafter, in
1958 (Case No. 21-RC-5078), pursuant to a consent agreement entered
into by the Employer, the Union, and Local 123 of Intervenor Stove
Mounters, the Union was certified as the exclusive-bargaining repre-
sentative of the unit here sought.2 This election apparently resulted
from a consolidation of production facilities of Employer's sister cor-
poration, whose production employees Stove Mounters had repre-
sented, with those of the Employer. Teamsters Local 196 did not
3 The Union's motion at the hearing to delay the proceedings herein for settlement of
issues pursuant to the no -raiding provisions of the AFL-C10 constitution was denied by
the hearing officer because Petitioner is an individual and not bound by such provisions
Assuming that Petitioner is fronting for a party to that agreement, the Board has held
that pending proceedings under the pact do not prevent the processing of a Board petition.
Awning Research Institute, 116 NLRB 505, 506
2 This unit was described in the consent agreement as "All production and maintenance
employees . Excluded : Office clerical employees , chief auto mechanics , janitors , receiving
checkers , salvage sorters , stock clerks , truckdrivers , truckers-power , department clerks-
receiving , and material control men , and also excluding guards , supervisors and pro-
fessional employees as defined in the Act." The record here indicates that this is in effect,
the unit here sought.
MISSION APPLIANCE CORPORATION 1419
participate in the consent election, but thereafter, jointly with the
Union, entered into the aforesaid contract with Employer, effective
October 27, 1958, covering the overall production and maintenance
unit.
The Employer objects to the petition because it carves out a unit
excluding the classifications of employees actually represented under
the contract by the Teamsters, hence is not coextensive with the scope
of the contract. The Union agrees that the contract unit is the appro-
priate unit for decertification and seeks a dismissal of the petition.
It also contends that by the decertification Petitioner is actually front-
ing for the intervening Stove Mounters, and that this petition should
be dismissed because it is in effect a petition for certification by that
organization. Assuming the truth of the fronting allegation, it is
well established that such fact is not an impediment to the filing of a
decertification petition. See The Hertner Electric Company, 115
NLRB 820. The Teamsters, which did not intervene in this proceed-
ing although notified, submitted a posthearing letter to the Board
contending that bargaining has actually been on a two-unit basis.
For the purposes of this decertification election we find that the
unit sought herein is the appropriate unit. It is the unit last certified
by the Board. In the circumstances here present we find no merit in
the Employer's contention that the broader unit contracted for by
the parties after that certification should be controlling.3 To hold
that the contract unit is controlling is to deny the employees an op-
portunity to vote out a union (the Teamsters) for which they had
not voted in the previous election and which has been imposed on
them as a bargaining representative. Accordingly, we deny the mo-
tion to dismiss, and shall direct an election.
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All production and maintenance em-
ployees of the Employer at its Hawthorne, California, plant, includ-
ing inspectors, electricians, prototype model builders, servicemen,
tool- and die-makers, and tooling helpers, excluding office clerical em-
ployees, garage mechanics, janitors, salvage sorter, stock clerks, fork-
lift drivers, truckdrivers, material control employees, shipping and
receiving employees, professional employees, guards, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBERS FANNING and KIMBALL, concurring :
We agree with our colleagues that it is appropriate to direct an
election here in the unit sought, but come to that conclusion not be-
8 Compare The Langenau Manufacturing Company, 115 NLRB 971 , where no certifica-
tion was involved.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause that unit is the one most recently certified but because, as we
view it, the parties have, in fact, continued to bargain on a two-unit
basis following their consent to an election in one of the two. The
contract entered into with the two unions after the 1958 consent elec-
tion provides for a chief steward "for each signatory unit," and lists
the various employee classifications by union jurisdiction. The record
contains no evidence as to how the actual bargaining has been carried
on, whether by joint-bargaining sessions or in what manner. In the
circumstances we would find that the contract entered into in 1958
after the consent election actually sets up separate units rather than
an overall production and maintenance unit jointly represented by
the two unions to the contract. Thus the unit here sought for de-
certification, which is one of the separate units under the contract as
well as the last unit certified, is the appropriate unit for an election 4
4 Compare The Langenau Manufacturing Company , 115 NLRB 971, 973, where the
Board ordered decertification in the overall unit based upon its finding that the employees
had actually been jointly represented by the two unions there involved and the bargain-
ing contract clearly covered a single unit.
Board of Publication of the Methodist Church d/b/a The Meth-
odist Publishing House and Office and Professional Employees
International Union , Local No. 3, AFL-CIO and Warehouse
Union, Local No. 860 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America. Case No.
20-CA-1811. January 25, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, and the Respondent and the
Charging Party filed briefs.'
'Respondent 's request for oral argument is denied as, in our opinion, the record , excep-
tions , and briefs adequately present the position of the parties.
In its brief , Respondent moved to reopen the record to allow Respondent ( 1) "to in-
quire into the possibility that the union testimony was fabricated in view of the time
elapsed between the discharges and the filing of the charges , and in view of the uncer-
tainty as to the result of the impending election ," and (2 ) to inquire into the arrest of
William Butler, a discriminatee herein, for "an alleged violation" of the California Penal
Code. At the hearing , the Trial Examiner excluded evidence concerning these matters.
The Respondent contends that the exclusion of such evidence constituted bias on the part
of the Trial Examiner . As to ( 1), the fact that the charges might have been filed to
stave off possible defeat in the impending election , as the Respondent asserts, is not
relevant to the question of whether an unfair labor practice has actually been committed
129 NLRB No. 176.