Oscar Ewing, Inc.

National Labor Relations Board - Board Decisions

Sep 16, 1959

124 N.L.R.B. 941 (N.L.R.B. 1959)

OSCAR EWING, IN C. 941
THE MERITS OF THE DISPUTE
As indicated above, there is evidence that the dispute involved the
Employer's assignment of the operation of the mechanical hoist to its
own employees, who were members of Local 2, rather than to mem-
bers of Local 513. It is well-established than an employer is free to
make work assignments without being subject to pressures by a labor
organization seeking the work for its members, unless the employer is
thereby failing to conform to an order or certification of the Board
determining the bargaining representative for employees performing
such work, or unless an employer is bound by an agreement to assign
the work in dispute to the claiming union. Local 513 has no order,
certification, or contract claim to the work. Accordingly, we find
that it is not entitled, by means proscribed by Section 8(b) (4) (D),
to force or require the Employer to assign the disputed work to mem-
bers of Local 513 rather than to the Employer's own employees. How-
ever, we are not by this action to be regarded as assigning the work
in question to Local 2.
DETERMINATION OF DISPUTE
On the basis of the foregoing findings of fact, and the entire record
in this case, the Board makes the following determination of dispute
pursuant to Section 10 (k) of the Act :
1. International Union of Operating Engineers, Local 513, AFL-
CIO, and its agents, are not, and have not, been entitled, by means
proscribed by Section 8 (b) (4) (D) of the Act, to force or require
John P. Reuter, d/b/a Missouri Roofing Company, to assign the work
of operating the mechanical hoist to its members rather than to the
Employer's own employees, who are members of Composition Roofers,
Damp and Waterproof Workers, AFL-CIO, Local 2.
2. Within 10 days from the date of this Decision and Determina-
tion of Dispute, Local 513 shall notify the Regional Director for
the Fourteenth Region, in writing, whether or not it will refrain from
forcing or requiring John P. Reuter, d/b/a Missouri Roofing Com-
pany, by means proscribed by Section 8(b) (4) (D) of the Act, to
assign the disputed work to its members rather than to the Employer's
own employees, who are members of Local 2.
Oscar Ewing , Inc. and Milk, Ice Cream Drivers, and Dairy Em-
ployees, Local 783, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Petitioner.
Case No. 9-RC-3670. September 16, 1959
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 Harry David Camp, hearing
124 NLRB No. 118.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officer. 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer 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 production and maintenance
employees at the Employer's Louisville, Kentucky, plant, including
wholesale and retail route salesmen, special delivery and truckdrivers,
janitors, regular part-time employees, purchasing agent, and working
foremen, but excluding laboratory employees, fieldmen, summer em-
ployees, office clerical employees, professional employees, watchmen,
guards, and supervisors as defined in the Act. The Employer agrees
to this unit except in regard to the categories discussed below.
The field man travels to the farms of the Employer's suppliers to
advise them on matters of production and sanitation 3 days a week,
and works at the plant the rest of the week. A high school education
is necessary to qualify for the job. The laboratory technician makes
routine tests for butterfat content in the milk. A milk tester's license,
but no special training, is needed for this job. We find that neither of
these individuals is a tecluiical or professional employee, and include
them.'
The purchasing agent has no authority to pledge the Employer's
credit without prior approval, and his job consists mostly of routine
reordering of supplies. We find he is not a managerial employee and,
in agreement with the parties, include him.2
The six summer employees are students or teachers who will return
to school at the end of their summer work. Each has worked for the
Employer during previous summers. They are hired to replace regu-
lar employees during the vacation season and they will be laid oT
on or about September 1, 1959, with the understanding that they will
be rehired next summer if they so desire. As the record does not show
that these employees have any reasonable expectancy of permanent.
employment, we exclude them as temporary or casual employees.'
i Albert Lea Cooperative Creamery Association, 119 NLRB 817 , 822-823; Oscar Ewing,.
Inc., Case No. 9-RC-3186, September 26, 1958 (unpublished).
2 See Oscar Ewing, Inc., supra.
3 Brown-Forman Distillers Corporation, 118 NLRB 454 ; Belcher Towing Company,.
122 NLRB 1019.
MUTUAL SHOE COMPANY 943
T. W. Osborne is in charge of plant maintenance. He spends 75
percent of his time in actual maintenance work, and the remainder
inspecting the plant and equipment and assigning work to two main-
tenance men. He makes out the work schedules of the maintenance
men, and in connection therewith determines when they are to work
overtime. He has no authority to hire or discharge employees, but
makes recommendations regarding discharge which would be given
some weight.
Edward Stiltz is in charge of the Employer's garage and has the
responsibility to see that the Employer's fleet of 50 trucks are gassed,
lubricated, and kept in good running order. He spends 90 percent of
his time working as a mechanic. He assigns the work and arranges the
work schedule of the other mechanic and three service employees in
the garage, and has the authority to grant them time off and assign
overtime work. He also has the power to pledge the Employer's credit
for purchases of repair parts up to a value of $100. We find that both
Osborne and Stiltz responsibly direct the work of other employees
and exclude them as supervisors 4
We therefore find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
All production and maintenance employees at the Employer's Louis- .
ville, Kentucky, plant, including wholesale and retail route salesmen,
special delivery and truckdrivers, janitors, route foremen, regular
part-time employees, the purchasing agent, the laboratory employee,
the fieldman and working foremen, but excluding summer employees,
office clerical employees, professional employees, watchmen, guards,
T. W. Osborne, Edward Stiltz, and other supervisors as defined in the
Act.
[Text of Direction of Election omitted from publication.]
4 Ertel Manufacturing Corp., 118 NLRB 1338.
Mutual Shoe Company and United Shoe Workers of America,
AFL-CIO, Petitioner. Case No. 1-IBC-5683. September 16, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (b) of the National Labor
Relations Act, a hearing was held before Joseph C. Barry, hearing
officer. 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 At, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning].
124 NLRB No. 127.