Modern Hard Chrome Service Co.

National Labor Relations Board - Board Decisions

Oct 16, 1959

124 N.L.R.B. 1235 (N.L.R.B. 1959)

MODERN HARD CHROME SERVICE COMPANY 1235
that the store managers in stores which employ luggers and/or sales-
men are supervisors, and shall exclude them from the unit .4 We shall
include the store managers in the stores in which there are no other
employees.
The record indicates that the loggers regularly perform tasks re-
lated to the sale of the Employer's merchandise as well as actual sell-
ing to customers on a part-time basis. We find that they are regular
part-time employees and include them a
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within Section 9(b)
of the Act, including store managers in stores with no other em-
ployees, but excluding all other store managers, office clerical em-
ployees, the supervising managers,6 and all other supervisors as defined
in the Act :
All employees at stores operated by Jack B. Tizer in the Delaware
Valley area under the corporate names of Royal Tile Company of
Central South Philadelphia; Royal Tile Company of North Phila-
delphia; Royal Tile Company of Suburban Philadelphia; Royal Tile
Company of Southern New Jersey, Royal Tile Company of Central
New Jersey, which includes the following New Jersey stores : Collings-
wood, Atlantic City, Vineland, Brooklawn, Trenton, and Pennsauken;
the following Pennsylvania stores: Willow Grove; Levittown;
Girard Avenue, Philadelphia; Cottman Street, Philadelphia; North
Fifth Street, Philadelphia; 13th Street and Snyder Avenue, Phila-
delphia; Kensington Avenue, Philadelphia; and Germantown Ave-
nue, Philadelphia.
[Text of Direction of Election omitted from publication.]
4 See Fanny Farmer Candij Shops, Inc , 112 NLRB 299, 301.
5 Dependable Parts, Inc, 112 NLRB 581, 584.
9 The parties agree, and we so find, that the four area supervisors, who are also man-
agers of the stores with more than one employee, are properly excluded from the unit.
Modern Hard Chrome Service Company and Louis G. Baresciano,
Petitioner and Metal Polishers Union Local 90, Metal Polishers,
Buffers, Platers & Helpers International Union, AFL-CIO.
Case No. 4-RD-216. October 16, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Joseph A.
Weston, a hearing 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.
124 NLRB No. 173.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization named below claims to represent certain
employees of the Employer.
3. Petitioner asserts that the Union, which is being currently recog-
nized by the Employer as the bargaining representative of the em-
ployees in the appropriate unit, is no longer a representative as de-
fined in Section 9 (a) of the Act.
The Union has moved to dismiss the petition upon the ground that
the Petitioner is a supervisor within the meaning of the Act and
therefore is not qualified to file the present petition.
The first question is whether, in the light of the Union Manufac-
turing case,' the alleged supervisory status of the Petitioner may be
considered an issue in this proceeding. Section 9(c) (1) (A) of the
Act provides that a petition for certification or decertification may be
filed by an "employee or group of employees or any individual or
labor organization acting in their behalf . . ." By statutory defini-
tion the term "employee" excludes supervisors.2 Nor can the term
"any individual . . . acting in their [employees'] behalf ..." be
construed to include supervisors. One purpose of the Act was to
draw a clear line of demarcation between supervisory representatives
of management and employees because of the possibility of conflicts in
allegiance if supervisors were permitted to participate in union activi-
ties with employees. To permit supervisors to act as employee repre-
sentatives would therefore defeat the purposes of the Act.3 More-
over, Section 9(c) (1) itself carefully distinguishes between employer
and employee petitions. When Congress intended that an employer
should have the right to file a representation petition it said so in spe-
cific terms. Thus Section 9 (c) (1) (B) which deals exclusively with
an employer's right to file a representation petition mentions only one
circumstance justifying the filing of an employer petition : the pre-
sentation of "a claim to be recognized as the representative defined in
section 9 (a)." We conclude therefore that under the statute a peti-
tion for decertification filed by a supervisor is invalid and must be
dismissed.'
We do not construe Union Manufacturing as requiring a different
result. In that case, the Union sought to examine the individual peti-
tioner who had filed the decertification petition "for the purpose of
seeing if there is a basis for moving to dismiss the Petition on the
1 Union Manufacturing Company, 123 NLRB 1633.
a Section 2(3) of the Act states : "The term `employee' . . . shall not include . . . any
individual employed as a supervisor. . . .
3 Clyde J. Morris, 77 NLRB 1375.
, Clyde J. Merris, supra; Loris Motor Sales, Inc., 104 NLRB 1106; Doak Aircraft Co.,
inc., 107 (NLRB 924; Bethlehem Steel Company, 111 NLRB 185; Humko, A Division of
w...<,..... r. n..^---.. D«.,a.,,,+n "orporation, 123 NLRB 310.
MODERN HARD CHROME SERVICE COMPANY 1237
ground of collusion with the Employer." The Board sustained the
ruling of the hearing officer refusing to permit such questioning. In
doing so, it declared that henceforward it would be Board policy "to
exclude from decertification cases any evidence of employer participa-
tion in the institution of the proceeding, whether the alleged evidence
pertains to showing of interest or to employer responsibility for the
filing of the petition." In adopting this rule, the Board was influenced
by the "relative advantages and disadvantages" of allowing issues
of "employer instigation of, or assistance in, the filing of the decerti-
fication petition to be litigated in the representation proceeding."
However, as we have pointed out above a supervisor cannot under the
statute file a decertification petition; employee status is an indispens-
able jurisdictional prerequisite to the validity of such a petition.
Moreover, the factors which generally weigh against permitting liti-
gation of unfair labor practice matters in representation proceedings
are not present when the issue is the supervisory status of the peti-
tioner in a decertification proceeding. This is the kind of issue which
is repeatedly presented in representation proceedings. The Peti-
tioner's alleged status as a supervisor must in any event be decided in
this proceeding because, if the Petitioner is not a supervisor, he is
included in the unit and is entitled to vote in the election. Deferring
consideration of the Petitioner's status to an unfair labor practice
proceeding would therefore serve no useful purpose. It could result
only in costly delay of the representation proceeding. Accordingly,
we construe Union Manufacturing as not applying when the issue
is whether the petitioner in a decertification proceeding is a supervisor.
As to the Petitioner's status, the evidence shows that he is one of
approximately 10 journeymen platers engaged in hard chrome plating
of industrial tools, dies, machine parts, and other metal products.
He both assists and is assisted by other journeymen, apprentices, and
helpers. He has no power to hire, discharge, or effectively recommend
such action. We find that the Petitioner is not a supervisor and
therefore deny the Union's motion to dismiss the petition.
Accordingly, we find that a question affecting commerce exists con-
cerning 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. 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 production, maintenance, receiving, shipping, and delivery em-
ployees of the Employer at its plant in Camden, New Jersey, excluding
office clerical employees, guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Direction of Election.