TubesalesDownload PDFNational Labor Relations Board - Board DecisionsApr 24, 1964146 N.L.R.B. 1064 (N.L.R.B. 1964) Copy Citation 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. Copy with citationCopy as parenthetical citation