The Zia Co.

National Labor Relations Board - Board Decisions

May 27, 1954

108 N.L.R.B. 1134 (N.L.R.B. 1954)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the following groups of employees employed
by the Employer at its Chattanooga , Tennessee , plant, con-
stitute separate units appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.'
(a) All office clerical - employees including dictaphone op-
erator , junior clerk -- service , order clerk--production , junior
clerk- -production , accountant , senior clerk --payroll, typist,
junior clerk --accounting , switchboard operator , senior clerk--
purchasing , and blueprint operator," but excluding all em-
ployees covered by the current agreement between the Em-
ployer and Local 919 , United Auto Workers of America, AFL,
private secretaries , the plant nurse , time-study engineers,
tool designers , draftsmen , the chief dispatcher , the accounting
machine operator , guards , and supervisors as defined in the
Act.
(b) All plant clerical timekeepers , dispatchers , and the tool-
room attendant , excluding supervisors as defined in the Act.
[Text of Direction of Elections omitted from publication .]
Member Rodgers took no part in the consideration of the
above Decision and Direction of Elections.
12 The Petitioner made an adequate showing of interest for its proposed unit. However, the
Board is not directing an election in this unit, but in two smaller units. The Petitioner's
proof of interest does not reveal whether in each of these units it has the 30 percent showing
which is administratively required as a precondition to holding an election . The Regional
Director is therefore instructed to recheck the Petitioner ' s proof of interest to ascertain
whether at the time of the hearing it had a 30 percent showing in each of the units. If the
Petitioner is unable to furnish such proof as to any unit , the Regional Director is directed
not to conduct an election in such unit , but to dismiss the petition as to such employees.
13 The parties were in agreement as to the inclusion of the above-named classifications.
THE ZIA COMPANY and INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN AND
HELPERS , LOCAL UNION NO . 492, AFL, Petitioner. Case
No. 33-RC-464 . May 27, 1954
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 Harold L.
Hudson , hearing officer . The hearing officer ' s rulings made at
the hearing 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 Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
108 NLRB No. 140.
THE ZIA COMPANY 1135
3. A question affecting commerce exists concerning repre-
sentation of employees of the Employer within the meaning of
Section 9 ( c) (1) and Section 2 (6) and ( 7) of the Act.'
4. Since 1946, the Petitioner has been recognized as the
bargaining representative of, inter alia , certain truckdrivers
and warehousemen employed by the Employer . In this pro-
ceeding, the Petitioner seeks an election and certification in
a unit which not only includes employees in the historical
bargaining unit , but also includes certain nonmanual ware-
house employees who work in and about the warehouses and
who have been excluded from the historical unit , together with
certain manual warehouse yard employees who work in the
yard in connection with truck loading and the movement of
warehouse materials and who have been represented in the
past by the Hod Carriers and Common Laborers Union.i These
employees , including the warehouse employees currently
represented by the Petitioner , are subject to the same working
conditions and perform related duties.
In opposing the Petitioner ' s request for a single unit of
truckdrivers , warehouse , and other miscellaneous employees,
the Employer suggests the appropriateness of two separate
units: one composed of the existing unit minus the 10 ware-
house employees ; and the other composed of the unrepresented
warehouse and warehouse yard employees plus the currently
represented 10 warehouse employees . In the alternative, the
Employer suggests the appropriateness of directing a Globe
election among the warehouse and warehouse yard employees
whom the Petitioner seeks to combine with its presently recog-
nized unit , to determine whether they desire to be added to
such unit.
The record discloses that the approximately 16 warehouse
and warehouse yard employees whose inclusion in the existing
unit is sought herein work in and about the warehouses in
connection with truck loading , receiving , shipping, and storing
operations ; and that they are under the same general super-
vision as the warehouse employees who, together with truck-
drivers are presently represented by the Petitioner . Inview of
the bargaining history, the integration between the Employer's
warehousing and driving operations , and the fact that no union
is presently seeking to represent either group separately,' we
lAt the hearing, the Employer moved to dismiss the petition, urging its current contract
with the Petitioner as a bar. As the Petitioner is here asserting its majority status and
requesting Board certification , its current agreement with the Employer cannot bar a
present election Accordingly, the Employer's motion is hereby denied. Natona Mills, Inc.,
97 NLRB 11.
2 The Hod Carriers and Common Laborers Union, although served with notice, did not
intervene in the proceeding . 1 he Petitioner made a statement on the record that the Hod
Carriers Union acquiesced in the move to have these employees represented by the Peti-
tioner along with other warehouse employees.
3Because of this fact we find no merit in the Employer's primary contention that two
separate units be found appropriate
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that the truckdrivers and warehouse and warehouse yard
employees may appropriately be grouped together in a single
overall unit.4
The question remains however, as to whether such overall
unit should be established without separately ascertaining the
desires of those employees who have not been included in the
historical bargaining unit . In its relation to this question, the
instant case in many respects closely parallels that of the
Waterous Company 5 case, and presents for determination the
same issue raised in that case , namely , the appropriateness
of directing a Globe-type self-determination election for a
previously unrepresented group of employees . In its decision
in the Waterous Company case , the Board decided that where
a union seeks an election and certification in the basic appro-
priate unit , including therewith certain employees previously
unrepresented , no separate self-determination election should
be directed for the groups of employees not included in the
historical unit.
The Board is now of the opinion that the Waterous Company
doctrine should no longer be controlling , and that the rule
announced in those cases decided prior to, and subsequently
overruled by that case , is the better policy . This principle,
which had its beginning in Peterson & Lytle ,' is to the effect
that where a group of employees has been excluded from a
unit in which they may appropriately be included, they should
not be placed in the established bargaining unit without first
being extended the opportunity to vote as to whether or not they
desire to be represented by the current bargaining agent of the
established unit. Adherence to this principle will, in the opinion
of the Board, tend to insure that the wishes of small groups of
employees no longer will be thwarted by the numerical superior-
ity of employee -members of an existing historical unit from
which the former have been excluded --a situation formerly
brought about by the small groups being absorbed into that
bargaining unit without first being afforded the opportunity to
express their true desires.
Contrary to the view of our dissenting colleague, we see
nothing undemocratic in safeguarding to those employees who
in the past have chosen to refrain from engaging in collective
bargaining the privilege of continuing so to refrain if they so
choose . Nor does our policy of protecting the right of these
employees to refrain from collective bargaining run counter
to the basic purposes of the act , which is to afford employees
the "right . . . to bargain collectively through representatives
of their own choosing , . . . and ... to refrain from . . . such
activities." 7
4See Thomas Electronics , Inc., 107 NLRB 614.
5 92 NLRB 76.
660 NLRB 1070
7See Section 7 of the basic Act.
THE ZIA COMPANY 1137
It is true that in this case the employee group which abstained
from union activities in the past does not constitute an appro-
priate bargaining unit under the Board ' s established principle.
It is no less inappropriate , however, than many other voting
groups to which the Board for a long time has accorded the
privilege of self-expression merely because they, unlike the
group in the instant case , had engaged in, and wished to con-
tinue, collective bargaining , albeit on the basis of an inappro-
priate unit.8
We are unable to agree that if a fringe group sought to be
added to the overall bargaining unit desires to continue separate
representation it should be accorded that privilege , but that if
it does not wish to engage in union activities at all it is not
entitled to the same privilege.
Nor does the Act explicitly prescribe the voting groups in
which the Board is empowered to direct elections . Rather, as
our dissenting colleague stresses , it leaves to the Board's dis-
cretion the determination in each instance of the voting groups.
As noted above the Board ' s earlier practice of directing sepa-
rate elections in fringe groups of the type presented in this
case was firmly established in a long series of cases following
the principle set out in 1945 in Peterson and Lytle . Although
Congress was aware of this established practice of the Board
it gave no indication in making the 1947 amendments of dis-
agreement with the basic correctness of that policy . Indeed, it
was not until 1950, 3 years after the Taft-Hartley amendments,
that the Board abandoned the earlier practice . We think that the
longer established rule is the better one and we hereby rein-
stitute it.9
In accordance with the policy now adopted by the Board, and
notwithstanding the fact that the employees sought to be added
do not necessarily constitute a separate appropriate unit,10 we
believe that they should be given an opportunity by a self-
determination election to express their desires with respect to
being included in the existing bargaining unit currently repre-
sented by the Petitioner . In view thereof , including the fact
that the Petitioner has made a sufficient showing of interest
'See Western Electric Co., Inc., 98 NLRB 1018, where the Board found appropriate and
directed an election in a companywide professional technical employee unit. At one of the
Company's many plants a small group of professional employees had for some time been
represented in a single plant salaried employees unit embracing a much larger number of
nonprofessional office workers. Because those few professional employees desired to con-
tinue their separate representation apart from the bulk of the Company's professional
workers, the Board held a separate election among them to afford them an opportunity to
stay out of the companywide unit which the Board held appropriate in the case. Significantly,
however, that fringe group could under no circumstances have been called an appropriate
unit, first because they were only a segment of the professional employees of the Company,
and second because they were only a portion of the salaried employee unit of which they had
been a part. (See 98 NLRB at page 1039.)
9Insofar as the Waterous Company case and cases relying thereon are inconsistent with
this policy, they are hereby overruled.
Ii See Great Lakes Pipe Lute, 92 NLRB 583 at 584.
339676 0 - 55 - 73
1 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among the employees sought to be added to its presently recog-
nized unit, we shall direct an election in the following voting
group:
All employees u employed by the Employer at its Los Alamos,
New Mexico, operations, who are primarily employed inware-
houses and contiguous yards for the purpose of receiving,
shipping, storing, issuing, moving , and delivering supplies and
materials , but excluding partsmen in the transportation divi-
sion , office clerical employees, warehouse employees presently
represented by the Petitioner, guards, and supervisors as
defined in the Act.
If a majority of the employees in the above voting group cast
their ballots for the Petitioner, they will be taken to have
indicated their desire to constitute a part of the existing unit
currently represented by the Petitioner, and the Petitioner
may bargain for such employees as part of that unit. If a
majority of them vote against the Petitioner, they will be taken
to have indicated their desire to remain outside the existing
unit, and the Regional Director will issue a certification of
results of election to that effect.
[Text of Direction of Election omitted from publication.]
Member Murdock dissenting:
I cannot agree with the majority's decision to overrule the
Waterous doctrine and reinstate the Peterson & Lytle prin-
ciple of separately balloting fringe employees in those cases
where, as here , the only union seeking to represent the
fringe group on any basis is, at the same time, requesting an
election and certification in the basic appropriate unit in
which the fringe employees properly belong. The majority
says, "this principle will . . . tend to insure that the wishes
of small groups of employees no longer will be thwarted . . ."
In other words fringe groups may avoid collective bargaining
by majority vote. I find nothing in the Act that warrants the
adoption of such a principle. Under Section 9 the Board is
authorized to hold elections to ascertain the will of the major-
ity in a unit found appropriate by the Board. My colleagues
find that the group of employees involved in this case may not
constitute an appropriate unit but nevertheless they order an
election among these employees to insure against thwarting
their will. The fallacy of this approach is that it overempha-
sizes the rights under the Act of the group (which is inappro-
priate as a unit) as distinguished from the rights of the indi-
vidual employees in the group who as individuals admittedly
belong in the unit currently represented by the Petitioner. By
UAt the hearing, the International Union of Operating Engineers , Local No. 953, AFL,
Intervenor herein , opposed the inclusion of a "low bed" truckdriver in the existing unit.
Inasmuch as the question of this employee 's inclusion related only to the existing unit, and
as we are not directing an election in that unit , we do not pass upon the issue raised by the
Intervenor.
THE ZIA COMPANY 1139
expanding that unit to include these employees and directing
an election in such overall unit, which the majority concedes
is appropriate, the rights of each individual employee in the
appropriate unit are identical and equally protected and, each
may cast his vote as he sees fit. But by compelling the indi-
vidual employees to vote in an inappropriate group or unit, as
do my colleagues, the majority of the employees in that inappro-
priate group is given the power to deny the individuals or
minority the right to belong to an appropriate unit and bargain
collectively. IS
Section 9 (b) provides,
The Board shall decide in each case whether , in order to
assure to employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer
unit , craft unit , plant unit, or subdivision thereof . . . .
The fullest freedom of employees to engage in or not to engage
in collective bargaining under the Act is achieved by means of
elections in predetermined or ascertained appropriate units,
not by elections in inappropriate fringe groups. Congress,
realizing that imposing the will of the majority on all employees
in an appropriate unit is traditional and consistent with the
democratic process, specifically directed the Board to deter-
mine the appropriate unit for the election. To impose the will
of the majority on all employees in an inappropriate unit, as
do my colleagues by their decision in this case, is not, I sub-
mit, democratic. It has no basis in law or logic and is pre-
judicial to the individuals in the fringe group. Thus, for example,
under the practice adopted by the majority, 13 employees in an
inappropriate group of 25 fringe employees may, by voting
against representation , deprive the other 12 employees of their
right to bargain collectively in an appropriate unit.
In the Waterous case , the Board reconsidered its past prac-
tice of applying the Peterson & Lytle principle in cases such
as this and concluded that there was "no cogent rdason of
statutory policy for continuing that practice." Instead, it
adopted the policy, which it has followed until now, of expanding
the basic appropriate unit to include the fringe employees
sought to be added by the incumbent union and directing an
election in such overall unit which it found to be appropriate.
As stated by the Board in the Waterous decision this practice
"seems the most realistic and efficient means of insuring that
all employees within the same circle of common interests will
12 Insofar as pertinent to this case the decision in the Western Electric case cited by the
majority is inapposite for the reason that the group of employees there involved had been
separately represented for a substantial period of time and their bargaining agent desired
to continue to so represent them; moreover, as they were professional employees and had
a history of bargaining apart from the Employer's other professional employees, they met
the Board's tests for a separate appropriate unit. Such is not the case here.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
share equally in the benefits of collective bargaining and in the
opportunity to select representatives."
Accordingly , as I am convinced that the Waterous doctrine
is the best means of carrying out the mandate of Congress "to
assure to employees the fullest freedom in exercising the
rights guaranteed by this Act" in cases such as this, I would,
in this case , direct an election in the overall appropriate unit,
including the fringe employees.
Member Beeson took no part in the consideration of the above
Decision and Direction of Election.
F. L. BABB,. d/b/a BABB MOTORS' andLODGE NO. 1157,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL,
AND LOCAL NO. 236, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, Petitioners . Case No.
9-RC-2094. May 27, 1954
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 Harold M.
Kennedy, hearing officer . The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer has a nonexclusive franchise from the
Dodge division of the Chrysler Corporation for the sale of
Dodge and Plymouth automobiles , parts, and accessories.
Based on its most recent 9 months ' business , the Employer
annually purchases from points outside the State of Kentucky,
automobiles , trucks, parts , and accessories valued atapproxi-
mately $166,000, and annually sells within the State of Kentucky,
merchandise valued at approximately $ 389,000. In view of
the foregoing , we find contrary to the Employer ' s contention,
that the Employer is engaged in commerce within the meaning
of the Act,' and that it will effectuate the policies of the Act
to assert jurisdiction herein.3
2. The labor organizations involved jointly claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the rep-
resentation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act.
IThe name of the Employer appears as corrected at the hearing.
2 N. L. R. B. v. Howell Chevrolet Co., 346 U. S. 482.
3The Bordon Company, 91 NLRB 628. For the reasons stated in his dissent in Klinka's
Garage, 106 NLRB 969, Chairman Farmer would not assert jurisdiction over the Employer.
Members Rodgers and Beeson join in this decision but are not to be deemed thereby as agree-
ing with the Board's present jurisdictional standards as a permanent policy.
108 NLRB No, 154.