The Magnavox Co.

National Labor Relations Board - Board Decisions

Mar 31, 1960

126 N.L.R.B. 1419 (N.L.R.B. 1960)

THE MAGNAVOX COMPANY 1419
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent, Washington Aluminum Company, Inc., Baltimore , Maryland,
is engaged in commerce within the meaning of the Act.
2. By discriminating in the hire and tenure of employment of Robert A. Heinlein,
Frank J . Adams, Frank Olshinsky , Warren A . Hovis, Augustine Affayroux, Sr.,
William George, Jr., and J . Alfred R . Caron , the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of the Act , and by such
discrimination is thereby interfering with , restraining , and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
The Magnavox Company and International Association of Ma-
chinists, AFL-CIO, Petitioner. Case No. 13-RC-6658. March
31, 1960
DECISION AND ORDER CLARIFYING CERTIFICATION
Pursuant to a stipulation for certification upon consent election,
and the election held pursuant thereto,' the Petitioner was certified
on August 4, 1959, as the collective-bargaining representative at the
Employer's Urbana, Illinois, plant, in a unit of production and main-
tenance employees, excluding office clerical employees, model shop
employees, guards, professional employees, and supervisors. There-
after, on October 22, 1959, Petitioner filed a motion requesting the
Board to clarify the unit by specifically including therein employees
classified as shipping and receiving employees, printers, and store-
keepers. The Employer by letter dated October 30, 1959, objected to
the inclusion of these employees in the unit on the grounds that they
devote "from 50 to 100% of their time in clerical functions and serv-
ices to office and engineering groups which are not a part of the pro-
duction and maintenance unit." On December 16, 1959, the Board
remanded the proceeding to the Regional Director for the purpose
of conducting a hearing on the issues raised in the Petitioner's
motion for clarification.
On January 8, 1960, in accordance with the above order, a hearing
was held before Frances P. Dom, hearing officer. The hearing officer's
rulings are free from prejudicial error and are hereby affirmed.
Pursuant to the provision of Section 3(b) of the Act, the Board has
delegated its powers herein to a three-member panel [Chairman
Leedom and Members Bean and Fanning].
I The results of the election were 90 votes for the Petitioner , 2 votes for the Intervenor,
20 votes for neither, and 8 ballots - challenged . There were approximately 128 eligible
voters in the unit.
1126 NLRB No. 167.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to its assertion that the employees involved are not
appropriately part of a production and maintenance unit, the
Employer contends, in substance, that,the Petitioner did not offer
timely objection to the exclusion of these employees from the unit;
that it has relinquished any right by bargain for these employees, who
are salaried, by its December '2, 1959, agreement with the Employer in
which it is recognized as the representative of all "hourly paid" pro-
duction and maintenance employees, with the exclusions specified in
the certification; and that inclusion of these employees in the unit
would change the nature of the unit and deprive these employees of
their right of self-determination. We find no merit in these
contentions.
As shown above, there is no specific reference to these employees
in the unit description agreed upon by the parties for the purposes
of the election, and the record fails to disclose either that the parties
reached an agreement as to the placement of these employees at the
time of their stipulation, or that there had been any discussion of their
placement or voting eligibility prior to the day of the election.
Instead, the record shows that the names of the approximately 12
employees involved herein were not included on the eligibility list,
which the Employer initially furnished the Petitioner and the Board;
that a dispute arose as to their eligibility on the day of the election;
and that some of them apparently cast challenged ballots at the elec-
tion. In these circumstances, we find that the Petitioner has raised
the question of the unit placement of these employees in timely fashion
and that clarification of the unit, if otherwise appropriate, is not pre-
cluded by the parties' preelection conduct .2 Nor does the contract of
December 2,1959, preclude clarification of the unit. This contract was
entered into at a time when, as the Employer knew, the Petitioner's
motion for clarification was pending before the Board, yet the con-
tract contains no express waiver by the Petitioner of its claim that the
employees involved are appropriately part of the existing unit; nor
are they specifically excluded from the unit description. In these
circumstances, we will not infer that, because the Petitioner agreed to
add the words "hourly paid" to the unit description as certified by the
Board, it thereby intended to waive the claim which it was simultane-
ously pressing before the Board.'
We further disagree with the Employer that granting the Peti-
tioner's motion would change the nature of the unit. The issue is
not, as the Employer presupposes, whether certain categories of em-
ployees should be added to an existing unit which excludes them;
for, as found above, they have not been specifically excluded either
2Livonia Plant of Automatic Transmission Division, Ford Motor Company, 116 NLRB
1995, footnote 2; cf. Norris-Thermador Corporation, 119 NLRB 1301.
a Cf. The Cessna Aircraft Company, 123 NLRB 855.
THE MAGNAVOX COMPANY 1421
from the certified unit or the contract unit. The issue, rather, is
whether they are the type of employee which, absent a contrary
agreement, is normally included in, or excluded from, a production
and maintenance unit.
Finally, we do not agree that clarification of the unit at this time
will deprive these employees of any rights under the Act. For even if
their unit placement had been determined before the election and all
had been included in the unit, it is clear from the tally of ballots as
set forth in footnote 1, supra, that their approximately 12 votes
could not have affected the results of the election. It is, therefore, im-
material that the question of their unit placement is decided after
rather than before the election.
As we have found the Employer's objections to the proceeding to be
without merit we shall consider the unit placement of the categories
in dispute.
The Employer contends that the multilith operator 4 and the
shipping and receiving department employees, consisting of receiving
clerks, posting clerk, stock and shipping clerk, stock clerk, mail clerk,
and stores clerk are primarily office clerical employees and are there-
fore excluded from the unit. The Petitioner contends that all are to
be included as plant clericals.
The evidence adduced at the hearing shows that the multilith opera-
tor works under the supervision of the supervisor of technical pub-
lications, in an area apart from both the production and the shipping
and receiving departments, reproducing on a multilith machine of-
fice forms and engineering data. Upon the entire record, we find
that the multilith operator performs work closely allied with that of
office clerical employees, and that he is therefore excluded from the
unit.5
All the shipping and receiving department employees work apart
from the clerical employees in the main office, under the supervision
of the shipping and receiving department supervisor. The shipping,
receiving, and stock clerks, pack, crate, load and receive production
materials, and pass these materials on to the storekeeper. The store-
keeper, in turn, gives these materials to the production department
upon requisition for them. The posting clerk itemizes all goods
entering the plant through the receiving department, and the mail
clerk distributes mail throughout the entire plant. Although these
employees work in an area physically separated from the produc-
tion department, their work brings them into close daily contact with
the production employees, and they have no community of interest
4, It is clear from the record that the multilith operator is the same classification as
the "printers" referred to in the Petitioner's motion.
5 Wm. R. Whittaker Co., Ltd., 117 NLRB 339, p. 342.
142 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the clerical employees in the main office. From the foregoing it
is clear that the shipping and receiving employees are the type of
plant clerical employee who, according to well-established Board
policy, are properly included in a production and maintenance unit
in the absence of a contrary agreement,' and they are therefore in-
cluded in the certified unit herein.'
[The Board clarified the certification by specifically including the
classifications of receiving clerk, posting clerk, stock and shipping
clerk, stock clerk, mail clerk, and stores clerk, and specifically ex-
cluding the classification of multilith operator.]
Harvey Lumber d Supply Co ., 118 NLRB 737, p. 740.
7 This is not to be construed as a recertification.
Kennecott Refining Corporation and Local 99-99A-99C , Inter-
national Union of Operating'Engineers , AFL-CIO, Petitioner
Kennecott Refining Corporation and District 8, United Steel-
workers of America, AFL-CIO, Petitioner
Kennecott Refining Corporation and Local 28, International
Brotherhood of Electrical Workers, AFL-CIO, Petitioner.
Cases Nos. 5-RC-951, 5-RC-968, and 5-RC-$994. March 31,
1960.
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon petitions i duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before M. Louise
Felton, 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 Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean 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 organizations involved claim to represent certain em-
ployees of the Employer within the meaning of the Act 2
i The Petitioners herein are called the Operating Engineers , the Steelworkers, and
IBEW, respectively..
' At the bearing, Construction, Building Materials , Drivers , Warehousemen & Helpers,
Local 331, International Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helper.
of America, herein called ' Teamsters , and International Union of Mine Mill & Smelter
Workers, herein called Mine Mill, intervened in all three cases on the basis of, a.
c8l'd-showing.
126 NLRB No. 169.