Tri-State Culvert & Manufacturing Co.Download PDFNational Labor Relations Board - Board DecisionsOct 31, 195196 N.L.R.B. 1208 (N.L.R.B. 1951) Copy Citation 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions and Recommendations Upon the foregoing findings and the computations made in accordance there- with , the undersigned makes the following determination , as directed by the Order of the Board entered on February 27, 1951, and recommends its adoption by the Board : That back pay in the sum of $578.81 is due to Benjamin Lancaster from the Respondent , Adams Motors , Inc., under the Board 's Order in Case No. 1-CA-273 and the Decree of the United States Court of Appeals for the First Circuit en- forcing said Order on September 28, 1950. TRI-STATE CULVERT & MANUFACTURING COMPANY' and SII0PMEN's LOCAL UNION #616 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, A. F. OF L., PETI- TIONER. Case No. 10-RC-1./29. October 31,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held on July 17, 1951, before Jerold B. Sindler, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed 2 i As the Employer appeared specially to challenge the Board 's jurisdiction , the Em- ployer refused to indicate whether its name as given in the Petitioner ' s petition is correct However , numerous references thereto at the hearing and the Employer's exhibits indicate that the petition contains the Employer ' s correct name. 2 At the hearing and in its brief the Employer moved to dismiss the petition or reopen the hearing , in substance , for the reasons , among others : ( 1) That the petition contains no allegation as to compliance with Section 9 (f), (g), and ( h) of the amended Act; (2) that such compliance is a matter litigable at the hearing ; ( 3) that if non -Communist affidavits were filed , they were improperly sworn ; ( 4) that the hearing officer improperly revoked subpenas addressed to the Board and the Petitioner , and by his rulings adverse to the Employer otherwise impeded the Employer 's efforts to secure information con- cerning the compliance status of the Petitioner ; ( 5) that a subpena addressed to the Secretary of Labor was not honored. The fact of compliance by a labor organization which is required to comply, is a matter for administrative determination and is not litigable by the parties . Moreover, the Board is administratively satisfied that the petitioning Local. its International, and the A. F. of L are in compliance See Sunbeam Corporation , 94 NLRB 844 ;• Sicift if Co., 94 NLRB 917 ; cf. Highland Park Mfg . Co , 71 S Ct. 489 . The Board will not go behind the affidavits filed under the provisions of Section 9 (h), as neither the statute itself nor its legislative history authorizes the Board to investigate the authenticity or truth of the affidavits which have been filed Stationers Corporation, 96 NLRB 196. In revoking the subpenas for compliance data and in refusing to do likewise with respect to the subpena requiring the Employer ' s representative to testify on issues material to this proceeding , the hearing officer was properly exercising his authority . Bill Heath, Inc., 89 NLRB 67. As the subpena directed to the Secretary of Labor called for com- rhance evidence which is inadmissible in this proceeding , no prejudice resulted from the fact that it was not honored The other rulings made by the hearing officer are also free from, prejudicial error. The Employer ' s motion to dismiss the petition or reopen the hearing is hereby denied. In accordance with the Employer 's motion made subsequent to the hearing , the subpena to the Secretary of Labor and the registered receipt therefor are hereby made an official part of the record as Company Exhibit No. 16. 96 NLRB No. 190. TRI-STATE CULVERT & MANUFACTURING COMPANY 1209 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 Houston, Murdock, and Styles]. Upon the entire record in this case,3 the Board finds : 1. The Employer has its main office in Tampa, Florida. In addition to its plant in Florida, the Employer maintains another plant in De- catur, Georgia, which alone is involved in this proceeding. The De- catur plant manufactures culvert pipe and also distributes highway materials, drainage gates, and certain other type of culvert ma- terials. Some of its products go into projects for the Department of Defense and the Atomic Energy Commission. Accordingly, on July 1, 1951, 67 percent of the Employer's orders were rated orders under the control materials plan of the National Production Authority. As the Decatur, Georgia, plant is an integral part of a multistate enterprise and as the Employer is identified with the national defense effort, • we find, contrary to the Employer's contention, that it is en- gaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction in this case.4 2. The labor organizations involved claim to represent certain employees of the Employer .,5 3. A question affecting commerce exists concerning the representa- tion of the employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.e 4. The Petitioner seeks a unit of all production and maintenance employees at the Employer's Decatur, Georgia, plant, excluding 8 The Employer has requested oral argument As the record and the Employer 's brief, in our opinion , adequately present the issues and positions of the parties , this request is denied. 4 Standard Lime and Stone Company, 95 NLRB 890; The Borden Company, Southern Division, 91 NLRB 628, Johnnie W. Miller Sandwich Co, 95 NLRB 463; Westport Moving and Storage Company , 91 NLRB 902. 0 The Employer refused to stipulate that the Petitioner is a labor organization within the meaning of the Act. We find that the Petitioner is a labor organization, as it exists for the purpose of engaging in collective bargaining with the Employer with respect to wages, hours , and other conditions of employment. Balboa Pacific Corporation, 88 NLRB 1505. 9 The Employer contends that the petition should be dismissed because the Petitioner discriminates against Negroes by not permitting then to attend meetings, hold office, or obtain skilled positions . The Employer also maintains that the Petitioner as a Shopmen 's Local receives less favorable treatment than the Erection and Construction Locals in that the Petitioner's membei s do not receive the same benefits and are given disproportionately less voting power in selecting delegates to the International's con- ventions. The Board will not pass on the internal organization of the Petitioner in the absence of proof that the Petitioner will not accord adequate representation to all employees included in the unit hereinafter found appropriate . As no such proof was adduced , we find no merit in the Employer 's contentions. Plywood-Plastics Corporation, 85 NLRB 265 , Veneer Products , Inc, 81 NLRB 492. 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truck drivers, receiving and shipping clerks,' all office and clerical employees, professional employees, guards, and supervisors as defined in the Act. The Employer would include the truck drivers, receiving and shipping clerks, and office and clerical employees. The record contains no evidence that there have been any collective bargaining agreements affecting the employees herein. Truck drivers. There are three truck drivers who spend about half of their time making deliveries to customers and hauling goods be- tween the Employer's plants. They also take care of the trucks with the aid of yard and shop men. More than 30 percent of their time is spent in assisting yard employees in loading and unloading trucks and in helping shop employees in various production tasks at the plant. The truck drivers work under the same terms and conditions as the production and maintenance employees and participate with them in group insurance and hospitalization benefits. As their in- terests are closely related to those of the production and maintenance employees, and as no other labor organization is presently seeking to represent them in a separate unit, we shall include the truck drivers in the unit.' Clericals. The Employer has two office clerks and two receiving and shipping clerks all of whom work in a separate building under the supervision of an office manager. Unlike the production and main- tenance employees these employees are on a salary basis 9 and per- form no production and maintenance duties. The office clerks do typ- ing and secretarial work and the receiving and shipping clerks spend the major part of their time in the same office processing documents connected with billing, stock, shipping, and receiving. The latter also go into the plant and yard to check time cards, count incoming stock, and take inventory. In accordance with customary Board policy,10 we shall exclude the two office clerks from the production and maintenance unit. As the receiving and shipping clerks spend most of their time performing clerical tasks in the office with the other two clerks and are under the same supervision, we find that they are primarily office clerical em- ployees and we shall therefore exclude them from the unit 11 7 The Petitioner was permitted to amend its petition to exclude receiving and shipping clerks The Employer objected thereto , asserting that when the Petitioner learned there was more than one employee in this category it sought the exclusion thereof out of fear that all employees in this group might not vote for the Petitioner. As the Employer was afforded full opportunity to litigate any issues raised by the amendment to the original petition , and the Employer has not shown in what respect , if any, it was prejudiced by the granting of the amendment , we affirm the hearing officer 's ruling. Maring-Craw- ford Motor Company, 94 NLRB No. 162. The question of whether these clerks should be in the unit is discussed below. e Taunton Pearl Works, 89 NLRB 1382. ° However , the clericals are paid on an hourly basis for overtime work.. Southern Desk Company, 92 NLRB No. 137. Michigan Pole & Tile Company , 88 NLRB 339. BELL AIRCRAFT CORPORATION 1211 We find that all production and maintenance employees at the Em- ployer's Decatur, Georgia, plant, including truck drivers, but exclud- ing receiving and shipping clerks, office-clerical employees, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act 12 [Text of Direction of Election omitted from publication in this volume.] 12 Although the parties agree as to the exclusion of professional employees and guards, we shall make no findings regarding their unit placement because there are no individuals in these categories. BELL AIRCRAFT CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, PETITIONER . Case No. 16-RC-772. October 31,1951 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 Joseph A. Jenkins, 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 Herzog and Members Reynolds and Murdock]. 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.' 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. The Employer is engaged in the manufacture of aircraft in the city of Fort Worth, Texas. All parties agreed that the appropriate unit should include all production and maintenance employees of the Em- ployer's plants No. 1 and No. 2, with the usual exclusions. The parties disagreed as to the inclusion of timekeepers and inspectors. The Em- ployer and the IAM also urged that the election, if ordered, be post- poned because of an expanding unit. 1 The International Association of Machinists , herein called the IAM, and the Independent Aircraft Workers Union, herein called the Independent , were permitted to intervene upon a showing of interest in the claimed appropriate unit. 96 NLRB No. 188. Copy with citationCopy as parenthetical citation