Tubesales

National Labor Relations Board - Board Decisions

Apr 24, 1964

146 N.L.R.B. 1064 (N.L.R.B. 1964)

1064 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
because of a hard rain , and a . third time from 6:50 a.m . to 12 : 30 p.m. On these
days the Marshall employees were actually on Okonite 's premises from 7:50 a.m. to
4:30 p .m. Under all circumstances of the case, I conclude that the picketing at the
Okonite plant gate for 1 hour at most before the actual arrival of the Marshall em-
ployees at the plant did not constitute noncompliance with criteria ( 2) of the Moore
Dry Dock standards . I am fortified in this conclusion by the recent decision of the
Board in Local 3, International Brotherhood of Electrical Workers, AFL-CIO
(New Power Wire etc. ), 144 NLRB 1089, another common -situs case , in which "the
absence of primary employees from some of the sites of the picketing for substantial
periods of time," several weeks at some sites , was held under all the circum-
stances of that case not to establish unlawful inducement of the employees of
secondary employers.
Accordingly, I conclude that the picketing at Okonite 's plant gate complained of in
this case was permissible primary picketing and not in violation of Section 8(b) (4) (i)
and (ii ) (B) of the Act.
IV. CONCLUSION OF LAW
Local 373, International Association of Bridge , Structural and Ornamental Iron
Workers, AFL-CIO; Local 1006, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO ;. and Middlesex County ( N.J.) Building Trades Council have
not violated Section 8(b) (4) (i) and (ii ) (B) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
It is ordered that the complaint herein be , and it is hereby, dismissed.
Tubesales and United Steelworkers of America , AFL-CIO, Peti-
tioner. Case No. 21-RC-8621. April 24, 1964
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election
executed on October 23, 1963, and approved by the Regional Direc-
tor, an election by secret ballot was conducted on November 20, 1963,
under the direction and supervision of the Regional Director for the
Twenty-first Region of the National Labor Relations Board among
the employees in the unit herein found appropriate. Following the
election, the parties were furnished a tally of ballots. The tally
shows that, of approximately 86 eligible voters, 84 cast ballots, of
which 39 were for the Petitioner, 36 were against the Petitioner, and
9 ballots were challenged.
As the challenged ballots were sufficient in number to affect the
results of the election, the Regional Director, pursuant to the Board's
Rules and Regulations, conducted an investigation and, on January 13,
1964, issued and served upon the parties his Report on Challenged
Ballots. On January 31, 1964, the Employer filed exceptions to the
Regional Director's report.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
146 NLRB No. 126.
TUBESALES 1065
Upon the basis of the entire record in this case , the Board finds
the following :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims 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.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act: All production and maintenance em-
ployees including truckdrivers working for the Employer at its ware-
house at 2211 Tubeway , City of Commerce , California , but excluding
office clerical employees, professional employees , guards , watchmen,
and supervisors as defined in the Act.
The Petitioner challenged the ballots of Carol Madrid , Richard
Campell, Beverly Johnston , Mary Rochester , Jerry Coleman, Mary
Wagley, Dennis Smith, and James Huddleston on the ground that
they were office clerical employees . The Regional Director recom-
mended that the challenges be sustained with respect to all excepting
employee DeWayne Lund. The Employer excepted to the Regional
Director 's recommendation as to all but DeWayne Lund. The Peti-
tioner filed no exceptions . As no exceptions to the Regional Direc-
tor's report have been filed with respect to DeWayne Lund, we hereby
adopt the Regional Director 's recommendation overruling the chal-
lenge to his ballot.
It is the Employer's position that the individu whose ballots were
challenged and the challenges sustained are p ant clericals , and since
plant clericals, in accordance with established Board precedent, are
an appropriate part of a unit of production and maintenance em-
ployees, the individuals in question were eligible to vote and the chal-
lenges to their ballots should have been overruled.
The Regional Director , in recommending that the challenges to
these ballots be sustained , found that the employees were not part
of the unit in which the election was conducted as of the payroll
period for eligibility . In so doing, he found it unnecessary to pass
on the basic issue raised by the parties , i.e., whether the named em-
ployees were office clericals or plant clericals , nor did he give cogni-
zance to any other possible issue in the case.
We conclude that the Regional Director 's recommendation should be
upheld, but on a different ground . We believe , apart from other
considerations , that the named employees are in fact office clerical
employees and hence are not eligible to vote in the election conducted
herein pursuant to the stipulation of the parties.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts as found by the Regional Director, in his investigation
of the objections, show that as of the period for eligibility, Octo-
ber 19, 1963, the work of the control and test clerks was still being per-
formed in the office building attached to the warehouse. They worked
in a large office pool area along with the office and sales personnel.
The duties of the control and test clerks were formerly broken down
into two groups with job classifications of warehouse control clerks
and test report clerks.
The Employer's operations consist of selling, warehousing, and
distributing steel and aluminum pipe and tubing. Orders for the
Employer's products, obtained by a staff of salesmen, are initially
turned over to a dispatcher in the warehouse office. After process-
ing by the dispatcher, the order forms are turned over to a ware-
house clerk for further processing. The duties of warehouse control
clerks are to assign invoice numbers to orders obtained by salesmen,
to address the order, and insert information as to billing along with
special instructions or requirements of the particular customer. The
warehouse control clerks would then pull the copies of the order which
were retained in the office and send the order by pneumatic tube to the
section of the warehouse where the material was located for the order
to be filled.:
After the order is returned to the office, it is sent to the test control
clerks for additional processing. The duties of the test control clerks
are to type u certificate or test report from mill reference to show the
alloy specification of the material being sent. This report was at-
tached to the order and sent to the dispatcher who sends it on to the
shipping clerks.
On September 12, 1963, the Employer decided upon a reclassifica-
tion of the warehouse control clerks and the test report clerks as "con-
trol and test clerks." It was decided to transfer the clerks from the
office payroll to the warehouse payroll and to relocate them in the
warehouse area under warehouse supervision. Under this arrange-
ment it was also planned that both the test report clerks and the ware-
house control clerks would be interchangeable in their functions.
Thus, the typing work performed by the test report clerks was to be
integrated with the addressing work and that the test clerks were not
to be limited to test reports but would be able to take part in work
formerly performed by the warehouse control clerks. It is apparent,
however, as the Regional Director found, that the reorganization
did not materially change the nature of the work previously performed
by the group as a whole, and that their duties which we find are essen-
tially those of office clerical employees continued to be such, notwith-
standing the change in location and supervision.
TUBESALES .1067
We are strengthened in our conclusion that the warehouse and test
clerks are office clericals by the Employer's history of collective bar-
gaining. Since April 1958, the Employer's warehouse employees have
been represented by an independent union. In March 1960, the in-
dependent union sought to have the control clerks included in the
warehouse unit. The Employer rejected the request on the ground
that these employees were governed by general office personnel policies
and practice. The collective-bargaining agreement entered into
between the Employer and independent union in January 1962 did
not include the warehouse control clerks and test report clerks in the
warehouse unit, although they were then, as now, under the supervision
of the warehouse superintendent and carried on the warehouse payroll.
In view of the foregoing, we find that Carol Madrid, Richard Camp-
bell, Beverly Johnston, Mary Rochester, Jerry Coleman, Mary Wag-
ley, Dennis Smith, and James Huddleston are office clericals and were
ineligible to vote in the election herein. Accordingly, we sustain the
challenges to their ballots.
As the tally of ballots shows that the Petitioner received a majority
of the valid ballots cast, and as the one challenged ballot that was
overruled is insufficient to affect the results of the election, we shall
certify the Petitioner as the collective-bargaining representative of
the employees in the appropriate unit.
[The Board certified United Steelworkers of America, AFL-CIO,
as the designated collective-bargaining representative of the employees
in the unit found appropriate in the Decision and Direction of Election
herein.]
MEMBER LEEDOM, dissenting :
Contrary to my colleagues, I would not certify the Petitioner as the
representative of the Employer's employees. -
The election in this case was conducted on the basis of an agreed-
upon unit description. It is obvious, however, that there was • no
agreement in fact as to the composition of the unit, as the Petitioner
clearly thought the. employees whose challenged ballots are here in
issue would be excluded, while the Employer just 'as clearly thought
they would be included.. In these circumstances, as there was no meet-
ing of the minds with respect to the unit as to which the parties
thought they were agreeing, and as the question of unit composition
has not been litigated, as it must necessarily be in the absence of an
agreement, there is in my opinion no valid predicate for my colleagues'
finding as to the appropriate-unit. Consequently, I cannot.agree that
it is appropriate to resolve the question of these employees' unit
placement at this time. ' In my view, the-appropriate procedure. re-
quires that the election and-the election agreement be set 'aside and the
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case -be remanded to the Regional Director for further proceedings,'
so that the unit issue may appropriately be resolved, either after hear-
ing or by an agreement which in fact represents a meeting of the
minds.
Moreover, even were I to agree that the unit issue was properly
before us at this time, I could not agree that these employees ought to
be excluded as office clerical employees. In reaching their conclusion
that these employees are office clericals, the majority appears to rely
on the former location of these employees in the office building, their
former office supervision, and their historic exclusion from the ware-
house unit. The fact of historic exclusion, however, cannot in my
opinion be relevant to the question of their proper classification. Fur-
ther, in relying so heavily on the employees' location and supervision
as the eligibility date, my colleagues have in my opinion accorded in-
sufficient weight to the Employer's plans to place them in the ware-
house under warehouse supervision-plans which the Employer has
carried out-and have not accorded proper, or apparently any, weight
to the fact that the work of these clericals is clearly integrated with the
work of other employees included in the unit.
In view of all the foregoing circumstances, I must dissent from the
conclusion that the employees whose ballots are here in issue are office
clerical employees, and from the certification of representative issued
herein.
i See The Welch Grape Juice Company , 96 NLRB 214 , 215; Cohn-hall-Marx Company,
86 NLRB 101.
M. Swack Iron and Steel Co. and Bus , Sales, Truck Drivers, Ware-
housemen and Helpers, Local No. 637, affiliated with the Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case No. 8-CA-3036. April 27,
1964
DECISION AND ORDER
On October 1, 1963, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent,and the General Counsel each
filed exceptions to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
146 NLRB No. 125.