Permaneer Corp.

National Labor Relations Board - Board Decisions

Apr 11, 1969

175 N.L.R.B. 348 (N.L.R.B. 1969)

348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Permaneer California Corporation , a Division of
Permaneer Corporation ' and International
Longshoremen 's and Warehousemen 's Union
Petitioner . Case 21-RC-10972
April 11, 1969
1
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOUCH AND MEMBERS
FANNING AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before I. W. Ein, Hearing Officer
of the National Labor Relations Board. Following
the hearing and pursuant to Section 102.67 of the
National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8,
as amended, and by direction of the Regional
Director for Region 21, this case was transferred to
the National Labor Relations Board for decision.
The Petitioner, the Employer, and the Intervenor'
have filed briefs, which have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations 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 that they are
free from prejudicial error. They are hereby
affirmed.
Upon the entire record in this case, the Board
finds that:
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.
2. The labor organizations involved claim to
represent certain employees of the Employer.
3. The Petitioner seeks to represent a unit of all
production and maintenance employees employed by
the Employer at its National City, California, plant,
but excluding all office clerical employees,
professional employees, guards and supervisors as
defined in the Act. The aforementioned unit is
currently represented by the Intervenor.
The Employer is a division of Permaneer
Corporation, a Delaware corporation. In the latter
part of 1967 and early 1968, Permaneer acquired 6
acres of land at National City and had constructed
thereon a plant. In late June 1968, the Employer
commenced hiring and, in early July, began
laminating printed vinyl to plywood and to particle
board.
The names of the Employer and the Petitioner appear as amended at
the hearing
'Carpenters Union Local 2020, Affiliated with the San Diego District
Council of Carpenters and the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, intervened on the basis of its current
contract
On or about June 28, 1968, the Intervenor
presented the Employer with a demand for
recognition. After a few days of negotiations, the
parties signed a collective-bargaining agreement on
July 12, 1968. At this time, the parties knew that
the National City operation was in its incipient
stage and that the Employer was hiring more men
and contemplating expanding the operation so as to
include the manufacture of doors.
On August 20, 1968, the Petitioner requested
recognition as the representative of the unit in
question and, receiving no reply, filed a petition for
certification on August 21.
The Employer and the Intervenor claim that their
contract of July 12 is a bar to an election; the
Petitioner contends that the contract fails as a bar
because the Employer had not hired a substantial
and representative complement of employees at the
time of its execution. See General Extrusion
Company, Inc., 121 NLRB 1165. We find merit in
the Petitioner's contention.
In General Extrusion Company, Inc., supra, we
set forth certain conditions which had to exist if a
contract is to bar an election in an expanding unit
situation . We stated, inter alia, that:
...a contract will bar an election if only at least'30
per cent of the complement employed at the time
of the hearing had been employed at the time the
contract was executed.'
On the basis of the record before us and all of the
evidence, we conclude that the July 12 contract
cannot serve to bar an election because the
aforementioned condition has not been met.
On July 12, there were 32 individuals working for
the Employer. However, contrary to the contentions
of the Employer and the Intervenor, we find that the
unit was comprised of only 29 employees. William
Chandler, was excluded from the unit by agreement
of the parties. On July 12, Gary Aschenbrenner was
working foreman of the laminating line and James
Timoney was maintenance foreman. Because each
had the power to assign men to various jobs within
his section and could effectively recommend
transfers out of his department, Aschenbrenner and
Timoney were possessed of the requisite independent
judgment and authority to be "supervisors" within
the meaning of Section 2(11) of the Act. As such,
they cannot be included in the bargaining unit.
On November 5, the last day of the hearing, there
were 105 production and maintenance employees,"
but we find that the unit consisted of 98 members.'
'121 NLRB at 1167
'This figure includes an employee who was hired and began work on
;Monday, November 4, which date is between November I and 5, the two
hearing days Even though his inclusion does not affect the result herein,
he is part of "the complement employed at the time of the hearing" and
must be included in that figure
'The parties stipulated that there were "as many as 99 (employees) on
November 1st," but stated that this stipulation was to "stand in the light
of further contentions which each of us will further state " The payroll list
indicates a larger complement , but the parties did not identify those
employees who were to be excluded to reach the stipulated figure Because
PERMANEER CALIFORNIA CORP.
Gary Aschenbrenner and David Nenow are to be
excluded from the unit because the record indicates
that each had assumed a managerial position. In
addition, Douglas Allen, William Chandler, Robert
Goetz, Alvin Moutrie, and James Timoney were
working foremen possessed of the same powers as
held by Aschenbrenner and Timoney on July 12,
supra, and they also must be excluded from the unit
as supervisors.
Because 29 is less than 30 percent of 98, the
General Extrusion criterion, supra, has not been
satisfied." The contract, executed at a time when the
Employer had hired only an insubstantial and
unrepresentative number of unit members, is not a
bar to the election sought by the Petitioner. We
therefore find that a question concerning
representation exists.
4. On the basis of the foregoing, we find that the
following employees of the Employer constitute a
unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
349
All production and maintenance employees
employed by the Employer at its National City,
California, plant, but excluding all office clerical
employees, managerial personnel, professional
employees, guards and supervisors as defined in
the Act.
[Direction of Election' omitted from publication.]
of its vague and tentative nature, and its irreconcilable conflict with the
aforementioned list, we cannot interpret this stipulation as binding us to
accept 99 as the base figure for our calculations
The policy behind the General Extrusion rule is to prevent a contract
from barring a free choice of representative by the new members of a
greatly expanded unit In our view , this policy is best effectuated by
interpreting the phrase "at least 30 per cent" literally , i e , 30 percent or
better Since the rule was intended to establish a threshold or minimum,
we believe such a strict construction is warranted
'The 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 21 within 7 days after 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 Excelsior Underwear
Inc. 156 NLRB 1236