Sampsel Time Control, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1948

80 N.L.R.B. 1250 (N.L.R.B. 1948)

In the Matter of SAMPSEL TIME CONTROL, INC., EMPLOYER and INDUS-
TRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERYCA,
C. I. 0., PETITIONER
Case No. 13-RC-007.-Decided December 13,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held on May 18, 1948,
and a supplemental hearing was held on October 8, 1948, before a
hearing officer of the National Labor Relations Board. The hearing
officer's rulings made at the hearings 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 Petitioner is a labor organization affiliated with the Con-
gress of Industrial Organizations, claiming to represent employees of
the Employer.
International Association of Machinists, herein called the Inter-
venor, is a labor organization claiming to represent employees of
the Employer. The Intervenor, which is at present the recognized
bargaining agent for the Employer's toolroom employees, did not
appear at that first hearing, of which it had no formal notice. After
the close of the hearing, however, it filed a motion to intervene and
presented cards indicating an adequate interest. The Intervenor par-
ticipated in the second hearing over the objection of the Employer,
which renewed its objection in a written motion to dismiss filed after
the second hearing. The argument of the Employer that the Inter-
venor, by failure to exercise due diligence, has forfeited any claim to
appear on the ballot is not persuasive, however, when weighed against
the right of the employees to select a bargaining agent. Under the
circumstances of this case, we find that the Intervenor has a right to
participate, and its motion to intervene is therefore granted.
Central Trades and Labor Council, AFL, herein called the Coun-
cil, is a labor organization claiming to represent employees of the
Employer.
80 N. L. R. B, No. 188.
1250
SAMPSEL TIME CONTROL, INC. 1251
3. The question concerning representation :
The Petitioner: The Employer contends that the Petitioner, which
is in compliance with the filing requirements of Section 9 (f), (g),
and (h) of the Act, is acting on behalf of the International Union of
Mine, Mill and Smelter Workers, C. I. 0., which is not in compliance,
and that the petition should therefore be dismissed.'
The only evidence adduced by the Employer in support of its con-
tention indicates that an organizer for the Petitioner and for its sub-
sidiary, the Progressive Metal Workers Council, C. I. 0., had formerly
been connected with the International Union of Mine, Mill and Smelter
Workers, C. I. O. This connection had, however, been severed about
a year before the original hearing herein.
The Employer also claimed that the membership application cards
distributed by the Petitioner were calculated to mislead the employees
as to the Petitioner's identity because the cards contained not the
name but only the initials of the Petitioner plus the initials of the Pro-
gressive Metal Workers Council. As the Petitioner's full name will
appear on the ballot, the employees will have a full opportunity to
indicate whether or not it is the Petitioner they wish to designate as
their bargaining representative. Accordingly, we find that the Peti-
tioner is seeking certification on its own behalf and that it is the real
party in interest.
The Council: Both the Petitioner and the Employer contend that
the Council, which is in compliance with the filing requirements of
Section 9 (f), (g), and (h) of the Act, is not a real party in interest,
but is acting on behalf of District 50 of the United Mine Workers,
which is not in compliance.
The evidence is in conflict as to when the Council was organized.
It is clear, however, that the Council is composed of about 17 labor
organizations, 1 of which is the Westclox Workers Union, which is
affiliated with District 50 of the United Mine Workers. Of the 30
delegates to the Council, the Westclox Workers Union sends 4, suffi-
cient to make a majority of the quorum of 7 provided for in the Coun-
cil's constitution and bylaws. One of these four delegates, Joe Mar-
chesi, is also a member of the Council's organizing committee. On
3 occasions prior to the most recent organizing campaign among the
I The Employer moved to dismiss the petition herein on the further grounds that : (a)
the Petitioner had failed to make an adequate showing of interest as its cards had not
been checked against the pay roll of the Employer ; and (b) the Petitioner, under its con-
stitution and bylaws , has no jurisdiction to represent the employees of the Employer. The
adequacy of the Petitioner's showing of interest , however, is a matter of administrative
determination not subject to collateral attack by the parties . Furthermore , the Employer
had refused to furnish a pay roll before the hearing began. As to the second ground, the
Petitioner is willing to represent the employees of the Employer and there is no showing
that it will not adequately represent them. Accordingly , we find no merit in these con-
tentions of the Employer.
817319-49-vol. 80-80
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's employees, Marchesi himself had attempted unsuccess-
fully to organize these employees for the United Mine Workers. The
United Mine Workers furnishes free office space and stenographic
services to the Council , which uses the address of this office as its mail-
ing address . A letter which Marchesi wrote to the Employer request-
ing recognition for the Council was written on United Mine Workers'
stationery . A number of membership applications submitted by the
Council did not name the Council or any other labor organization,
but merely expressed the desire to be represented by "a labor organi-
zation."
The Council has never served as a bargaining representative. In-
stead, when it has organized a plant, one of its constituent unions has
been designated as the bargaining representative , and has been
"assisted" in its bargaining by the Council . A witness for the Council
testified that the Council would bargain on behalf of the Employer's
employees if it was selected as their representative . The witness
stated further that, if one of the constituent unions of the Council
were designated to bargain for the Employer 's employees , the West-
clox Workers Union would not be the one selected .. The basis for
this statement is not clear as the witness admitted that the designation
of a constituent union to bargain for employees organized by the Coun-
cil was always made by the "home office " of the American Federation
of Labor.
On the basis of all the evidence, we find that there is so close a rela-
tionship between the Council and the non-complying United Mine
Workers that the Council is in all probability acting on behalf of the
Mine Workers and that consequently it would be inappropriate to
place the name of the Council on the ballot in the election hereinafter
directed. We shall, therefore , omit the Council 's name from the ballot.
4. The appropriate unit :
The Petitioner seeks a unit of all the production and maintenance
employees at the Employer's plant in Spring Valley, Illinois, ex-
cluding the nurse, the chief storekeeper , the chief inspector and his
two assistants , office clerical employees, assistant foremen, timekeepers,
employees of the engineering department, toolroom employees covered
by the Employer's agreement with the Intervenor , and supervisors.
The Employer contends that the following employees should be ex-
eluded from the unit sought by the Petitioner :
Shipping and Receiving Clerks: These employees ship and receive
materials, wrap and package when necessary, and keep records re-
lating to the type and quantity of materials shipped or received. They
work in the plant, although not in the production area proper. The
Petitioner takes no position as to these employees, but the Employer
SAMPSEL TIME CONTROL, INC. 1253
contends that they should be excluded because their duties and interests
are substantially the same as those of office clericals. These employees
are hourly paid, as are the production and maintenance workers. As
they work in the plant, not in the office, and as their clerical duties
are apparently limited to those which shipping and receiving clerks
usually perform, we shall in accordance with our practice, include
these factory clericals in the production and maintenance unit.2
Repair Clerks: These employees receive instruments returned by
customers for repair or replacement. They record the nature of the
complaint, and maintain contact with the customers, to whom they
report the disposition of the instruments returned. They do none
of the manual labor on these instruments. The Petitioner takes no
position as to these employees, but the Employer contends that they
should be excluded because their duties and interests are substantially
the same as those of office clerical employees. In view of the dis-
similarity of work done by the repair clerks and that done by the pro-
duction employees, we shall exclude the repair clerks from the unit.
Storeroom Employees: These employees accept and store incoming
materials, maintain stock areas, keep inventories, and issue materials
to the production workers upon requisition. The Petitioner seeks
their inclusion in the unit, but the Employer contends that these em-
ployees should be excluded on the ground that their work is similar
to that of plant-protection employees. Their work and interests, how-
ever, are closely allied with those of the production employees, and
they do not appear to be guards within the meaning of the amended
Act. These employees will, accordingly, be included in the unit.
Janitor-Watchmen: These hourly paid employees wash windows,
clean walls, sweep, shovel snow, fire boilers, raise and lower the flag,
and perform all types of maintenance duties in addition to making
hourly tours of the plant as part of their security duties. According
to the testimony at the hearing, they divide their time equally be-
tween maintenance work and plant security functions. The Peti-
tioner seeks their inclusion in the unit. The Employer would ex-
clude them because of their plant-protection duties. As they do
not spend more than 50 percent of their working time as watchmen,
they will be regarded as maintenance employees, and will be in-
cluded in the unit.3
Inspectors: These employees are hourly paid, except for the chief
and two assistant inspectors, who are excluded by mutual consent of
the parties as supervisors. The Petitioner would include the sub-
2 Matter of Bryant Heater Company, 77 N. L. R. B. 744.
8Matter of Steelweld Equipment Company, Inc, 76 N. L. R. B. 831. Member Gray,
however, would exclude these employees as watchmen on the ground that they do not spend
a major portion of their time in the performance of their maintenance duties.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
ordinate inspectors in the unit. The Employer contends that they
should be excluded because of their control over the quality of the
precision instruments manufactured in the plant. The fact that
these employees are responsible for the quality of the items manu-
factured does not warrant their exclusion from the unit 4 The In-
spectors will therefore be included in the unit.
Testers: These employees test all the instruments made and adjust
minor deficiencies where necessary. If an instrument is wholly un-
satisfactory, they refer it to the production foreman, who takes what-
ever action he deems appropriate. These employees are hourly paid.
The Petitioner would include them, but the Employer would ex-
clude them for the same reasons it advanced for excluding inspec-
tors. Like the inspectors, these employees will be included in the
unit.
Leadmen: Leadmen assign and direct work under the supervision
of the general foremen. They spend 60 to 80 percent of their time
in manual labor, and are hourly paid at a rate slightly higher than
the regular production workers. They have no authority to hire or
discharge, or effectively to recommend either. Disciplinary problems
are referred to the general foreman. The Petitioner would include
leadmen, but the Employer would exclude them as representatives
of management. We find that these leadmen are not supervisors
within the meaning of the amended Act, and we shall, therefore,
include them in the unit.'
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 :
All the production and maintenance employees at the Em-
ployer's plant in Spring Valley, Illinois, including shipping
and receiving clerks, storeroom employees, janitor-watchmen, in-
spectors, testers, and leadmen, but excluding repair clerks, the
nurse, the chief inspector and his two assistants, office clerical
employees, assistant foremen, timekeepers, employees of the en-
gineering department, toolroom employees covered by the Em-
ployer's agreement with the International Association of Ma-
chinists, and supervisors as defined by the Act.
DIRECTION OF ELECTION s
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
4 Matter of Bryant Heater Company, 77 N. L. R B. 744
5 Matter of H J Heinz Company, 77 N L R. B. 1103.
6 Any participant in the election directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director , have its name removed from the ballot.
SAMPSEL TIME CONTROL, INC. 1255
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and su-
pervision of the Regional Director for the Thirteenth Region, and
subject to Sections 203.61 and 203.62 of National Labor Relations
Board Rules and Regulations-Series 5, as amended, among the em-
ployees in the unit found appropriate in paragraph numbered 4,
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election , and also ex-
cluding employees on strike who are not entitled to reinstatement,
to determine whether they desire to be represented, for purposes of
collective bargaining, by Industrial Union of Marine and Shipbuild-
ing Workers of America, C. I. 0., or by International Association of
Machinists , or by neither.