Modine Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 16, 1969

180 N.L.R.B. 472 (N.L.R.B. 1969)

472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Modine Manufacturing Company and International
Union, United Automobile , Aerospace &
Agricultural Implement Workers (UAW),
Petitioner and Sheet Metal Workers International
Association , Local No. 2, Intervenor. Case
17-RC-5945
December 16, 1969
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before R. L. De Prospero, Hearing
Officer. Following the hearing, pursuant to Section
102.67 of the National Labor Relations Board Rules
and Regulations and Statements of Procedure,
Series 8, as amended, this case was transferred to
the National Labor Relations Board for decision.
Thereafter, briefs were filed by the Employer,
Petitioner, and Intervenor, all of which have been
duly considered.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with this case to a three-member
panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds no prejudicial
error. The rulings 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, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner and Intervenor are labor
organizations claiming to represent certain
employees of the Employer.
3. The Employer and Intervenor assert that their
recognition agreement and subsequently executed
contract constitute a bar to the petition here,
arguing that this case is controlled by the rule of
Keller Plastics Eastern, Inc.' The Petitioner, on the
contrary, argues that the rule of Keller is
inapplicable to the instant case because at the time
the Employer extended recognition to the
Intervenor, it was aware that the Intervenor was not
the only labor organization actively engaged in
organizing its employees.
The Employer's Trenton plant, which is the only
portion of its operations involved in this proceeding,
was completed near the end of 1968, but some
production employees were hired as early as July,
and the plant became partially operational in
September 1968. Both the Petitioner and the
Intervenor began their organizing campaigns in the
'157 NLRB 583
fall of 1968, and both labor organizations held
meetings with the employees. At the request of the
employees, the meetings were discontinued over the
Christmas holidays, but were resumed after the first
of the new year. The Intervenor conducted a
meeting on January 15, 1969, and the Petitioner
held one on the following day. During the course of
their campaigns both labor organizations had
obtained authorization cards from the employees.
On January 20, 1969, approximately 40
employees, unaccompanied by any representative
from any of the parties, conducted a meeting for the
purpose of discussing which of the two contesting
unions would represent them. By a vote of 26 to 10,
2 ballots having been declared void, the employees
voted to be represented by the Intervenor. Following
the meeting, 10 employees who had previously
signed authorizations for the Petitioner requested
that their cards be returned.
Information concerning the employees' meeting
and the result of the voting came to the attention of
the Employer on January 21, 1969, and on the same
day representatives of the Intervenor served notice
on the Employer of its alleged majority status and
demanded recognition and bargaining. The
Intervenor's representatives presented 40 cards,
which the Employer's plant manager compared
against a payroll list of 67 names.2 The plant
manager rejected two of the cards, but refused to
accede to the Intervenor's demand for immediate
recognition. However, on the afternoon of the same
day, and after consulting with officials at its Racine,
Wisconsin, office, the Employer notified the
Intervenor by telegram that it was recognized, and
the recognition was confirmed by letter on January
22, 1969. Subsequently, the Employer and the
Intervenor participated in 10 bargaining sessions,
and on March 30, 1969, reached and executed a
collective-bargaining agreement.
Information concerning the Employer's extension
of recognition to the Intervenor came to the
attention of the Petitioner during the course of a
meeting conducted on January 23, 1969, and the
Petitioner thereafter sent telegrams of protest to the
Employer, the Intervenor, and the Regional Office
of the Board. Between January 23 and January 27,
1969, the Petitioner obtained additional
authorization cards from employees, and on the
latter date filed the instant petition, supported by an
adequate showing of interest.
It is clear, and the Employer in fact admits, that
it was aware of the organizational activities of the
Petitioner and the Intervenor from the outset of
their campaigns. Moreover, as a result of an incident
involving Petitioner's agent John Colliflower, which
culminated in the filing and later withdrawal of an
unfair labor practice charge against the Employer,
the Employer was aware at the time it granted
'This number , which remained constant through the date the Petitioner
fled its petition , apparently included the shipping and receiving clerk and
such inspectors as were employed on January 21, 1969
180 NLRB No. 70
MODINE MFG . CO. 473
recognition to the Intervenor that the Petitioner's
organizing campaign was still in progress.
Accordingly, we find that the Employer's
recognition of the Intervenor on January 21, 1969,
and the subsequent execution of a
collective-bargaining agreement, may not be
considered as bars to the instant petition under the
Board's rule in Keller Plastics, supra. There is no
showing here that recognition was extended to the
Intervenor at a time when the Employer believed
that only that Union was actively engaged in
organizing the Employer's employees.' On the
contrary, the Employer was admittedly aware on the
date it agreed to conduct the cross-check of the
cards that the Petitioner here had a substantial
interest, but it nevertheless extended recognition to
the Intervenor .4 On these facts the rule of Keller
Plastics does not bar the petition, and we find that a
question affecting commerce exists concerning the
representation of certain employees of the Employer
within the meaning of Section 9(c)(l) and Section
2(6) and (7) of the Act.
4. The Petitioner seeks a unit of all production
and maintenance employees including the chief
inspector, the inspectors, and the shipping and
receiving clerk. The chief inspector, the inspectors,
and the shipping and receiving clerk were not
included in the unit covered by the contract between
the Employer and Intervenor. The Employer and
Intervenor argue that their bargaining history and
other factors demonstrate that the shipping and
receiving clerk and the inspectors enjoy a
community of interest separate and distinct from the
production and maintenance employees, or,
alternatively, that they have supervisory status.
There is a single shipping and receiving clerk who
performs the usual functions with respect to record
keeping on incoming materials and outgoing
products. The shipping and receiving clerk spends 65
to 70 percent of his time in clerical functions, and
he performs these functions in an office adjacent to
the production area. In conjunction with his duties,
the shipping clerk works closely with truckdrivers
and other employees in the unit who assist in
loading trucks. He is, unlike the production and
maintenance employees, salaried, but his salary, if
computed on an hourly basis, is approximately the
same as some of the employees in the bargaining
unit. In addition, like the employees in the
Intervenor's bargaining unit , the shipping clerk is
compensated for overtime, works the same hours as
the other employees, and punches a timeclock.
However, the shipping clerk enjoys some fringe
benefits identical to those enjoyed by foremen and
'Pineville Kraft Corporation , 173 NLRB No. 128, and Superior
Furniture Manufacturing Co., Inc., 167 NLRB No. 40.
'Notwithstanding its willingness to extend recognition to the Intervenor
without ascertaining the facts, the Employer asserts that the Petitioner's
interests was less than substantial Inasmuch as the Petitioner filed a
petition , supported by an adequate showing of interest , within 5 days
following recognition of the Intervenor , we find the Employer 's assertion
without merit
other salaried personnel and he also has access to
the management lunch facilities and restrooms.
It is clear that the shipping clerk is a plant
clerical rather than an office clerical employee. The
bargaining history aside, which is hardly extensive
enough to be persuasive, the record warrants the
conclusion that the clerks community of interests is
closely allied with other employees in the production
areas, and we therefore include the shipping and
receiving clerk in the production and maintenance
units
There are five inspectors in contest, but the record
is not clear whether this number includes the chief
inspector, nor is the record clear as to what duties
and authority are exercised by the chief inspector
that are not exercised by the others. Of the five
inspectors, four spend 80 percent or more of their
work time in the production area inspecting parts
and finished products. A fifth inspector, who is
engaged in layout inspection, spends the majority of
his work time in a glassed-in area adjacent to the
production facilities. Like the shipping clerk, the
inspectors are salaried, and, as computed on an
hourly basis, their compensation falls in the
mid-range of that paid the production employees.
The inspectors are paid for overtime, punch a
timeclock, work the same hours as the production
employees, and, like the shipping clerk, have some
fringe benefits under the schedule accorded to
managerial and office employees, rather than those
provided for the production employees. In addition,
although the inspectors are immediately supervised
by the chief inspector, they are ultimately
responsible to the Employer's central office in
Racine, Wisconsin. The inspectors have no direct
supervisory authority with respect to employees in
the unit but rather, like most inspectors in
manufacturing plants, they do possess authority to
reject defective parts or products and they may stop
a production line if necessary to correct faulty
production. The Employer contends that the
inspectors have authority to make recommendations
concerning employees who fail to heed the
inspectors' instructions. The record is clear,
however, that the inspectors have made no such
recommendations and have never exercised their
ostensible authority.
We find that the inspectors exercise no real
supervisory authority over the employees. Since the
inspectors enjoy a close community of interest with
the production employees, we shall include them in
the production and maintenance unIt.6 However, as
the record is insufficient to determine the status of
the chief inspector, we shall direct that he vote
subject to challenge.
Accordingly, we find that the following employees
of the Employer constitute a unit appropriate for
'Weyerhauser Company. 132 NLRB 84, and Genesco. Inc, 129 NLRB
1334
'Bachmann Uxbridge Worsted Corporation. 109 NLRB 868, and
Farrel-Cheek Steel Company. 88 NLRB 303
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees,
including the shipping and receiving clerk and the
inspectors, employed by the Employer at its
Trenton, Missouri plant, excluding all office
clerical employees, guards, professional employees
and supervisors as defined in the Act.
[Direction of Election? omitted from publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N.L.R B. v. Wyman-Gordon Company,
394 U S 759. Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 17 within 7
days of the date of this Decision and Direction of Election The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed