Waterous Co.

National Labor Relations Board - Board Decisions

Nov 15, 1950

92 N.L.R.B. 76 (N.L.R.B. 1950)

In the Matter of WATEROUS COMPANY, EMPLOYER and DISTRICT LODGE.
No. 77 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS,.
PETITIONER
Case No. 18-RC-717.-Decided November 15, 1950
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 Clarence A. Meter,
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. District Lodge No. 77 of the International Association of Machin-
ists claims to represent certain employees 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. Since 1937 the Petitioner has been recognized as the bargaining
representative of the Employer 's hourly paid production and main-
tenance employees.' In this proceeding the. Petitioner seeks an elec-
tion and certification in the. historical -bargaining unit and desires
to enlarge that unit by the addition of five employees , namely, a re-
ceiving clerk , a shipping clerk, a tool crib attendant , and two store
tenders .2 The Employer objects to the Petitioner 's proposal to add
these employees to the existing unit on the ground that they are
salaried clerical workers.
The shipping clerk and receiving clerk work in production areas
and in the shop office, located in the machine shop, where they have
desks. The tool crib attendant and store tenders have their stations
of work in production areas. We find that these individuals are plant
clerical employees , and, in accordance with our usual policy, should
1 The last contract between the Employer and the Petitioner expired June 30, 1950.
= The Petitioner also seeks to,- elude 'in...the existing ,^ unit a so-called office . 3a._nitor,
whom the Employer would exclude as an office service employee. As this employee per-
forms janitorial duties in both the office and the plant , weshall include him in the pro-
duction and maintenance unit.
92 NLRB No. 29.
76
WATEROt7S COMPANY ^7
be grouped With the production and maintenance employees for col-
lective bargaining purposes.5 In addition, the 'reco'rd shows that
the shop clerical section in this plant includes three other clerks who
work in the shop Ace .4 Like the five plant c ei cals described above,
these three clerks work in close proximity to the Employer's produc-
tioil and maintenance employees, and have no administrative or
functional connection with the Employer's general office workers, who
are located on another floor of the building. Notwithstanding the
fact that all these plant clerical workers are paid on a salary basis 5
and, perhaps for that reason, have been excluded from the bargaining
unit in the past, we are of the opinion that they are closely allied
in interest with the Employer's production and maintenance em-
ployees. We find, therefore, that the receiving clerk, shipping clerk,
tool crib attendant, store tenders, general shop office clerk, record
clerk, and expediter clerk may properly be added to the existing
unit.
The question remaining is whether or not a separate election should
be conducted among the plant clericals. As these employees con-
stitute a comparatively small but distinct fringe groups never before
covered by the contracts between the Petitioner and the Employer,
the situation is one in which it has been the Board's practice to conduct
a self-determination election before finally deciding whether or not
the small group in question shall be included in the larger historical
unit.' However, upon reconsidering our past practice, we have come to
the conclusion that. there is no cogent reason of statutory policy for
balloting fringe employees separately in circumstances where, as here,
the only union (or unions) seeking to represent the fringe employees
on any basis is, at the same time, asking for an election and certifica-
tion ifi the basic appropriate unit in which the fringe group properly
belongs. Accordingly, in this case, We shall direct an election in the
single voting group which includes all employees in the unit herein
found appropriate $
3 Fourteenth Annual Report; p. 41 ; The Clark Thread Company, 79 NLRB 542 ; Southern
Alkali Corporation, 84 NLRB 120; and Ball Brothers Company , Incorporated, 87 NLRB 34.
4 A general shop clerk , a record clerk , and an expediter clerk.
b Truscon Steel Company , 88 NLRB 331 ; Southern Alkali Corporationi , 84 NLRB 120.
' Unlike the employees who were added to preestablished units in Lone Star Producing
Cdiitpaily, $5 NLRB 1137 Beuner• Tea Coihpaiiy,.S8 NLRB 1409; qnd Bronx County News
Corporation, 89 NLRB 1567:
7 Petersen & Lytle, 60 NLRB 1076 ; Union Manufacturing Company, 69 NLRB 640;
1VihdAlette Valley Lumber t'ompdny, d/b/a Snoifi f'eai Logging Comiidnij, 69 NLRB 1141 ;
Blair Limestone Company , 70 NLRB 689 ; The 1V55eland Company , 72 NLRB 351 ; Long-
Bell Lumber Co., 72 NLRB S90; The Sorg Paper Company, 74 NLRB 5; The hyau Aero-
nautical Co., 76 NLRB 356; and Allis - Chalmers Manufacturing Company, 84 NLRB 30.
To the extent not consistent with this ruling, the cases in footnote 7 are hereby
overruled.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have chosen this course because, in the circumstances of this
case, it seems the most realistic and efficient means of insuring that
all employees within the same circle of common interests will share
equally in the benefits of collective bargaining and in the opportunity
to select representatives. This result, in our judgment, is consonant
with the statutory policy of fostering the practice and procedure of
collective bargaining. We disagree with our dissenting colleagues'
position, and we have overruled the line of cases upon which they
rely, because the practical net effect of that position is to perpetuate
conditions in which fringe employees-typically too few in number
and too indistinct to be organized independently-are excluded from
participation in a collective bargaining relationship which the "over-
whelming" majority of their fellow workers may have found bene-
ficial enough to continue. We of course adhere to ' the Board's estab-
lished policy of giving great weight to the form of bargaining unit
which has stood the test of time and experience. But we think there
is nothing in that sound and practical policy which ought to inhibit
this Board from correcting a fringe defect in an historical bargaining
unit. That is all we are doing in this case, as our decision perpetuates
what is essentially the very same industrial unit which has proved
satisfactory in this plant.
We find that all production and maintenance employees, including
the janitor watchman, the office janitor, the working foremen,9 the
receiving clerk, shipping clerk, tool crib attendant, store tenders, gen-
eral shop office clerk, record clerk, and expediter clerk, and all other
plant clericals at the Employer's St. Paul, Minnesota, plant, but ex-
cluding office clerical employees, professional employees, salesmen,
tool designers, pattern makers, pattern maker apprentices, guards,
and all supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning. of Sec-
tion 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
CHAIR?IAN HERzoa, dissenting :
I am constrained to dissent from the decision in this case. My
colleagues correctly say that where employees who have previously
been excluded from collective bargaining form a small and distinctly
fringe group, it has been the Board's practice to afford them an oppor-
. 9 The parties agree, and on the basis of evidence in the record we find, that the working
foremen are not supervisors within the meaning of the Act.
WATEROUS COMPANY 79
tunity to indicate, in a separate election, whether they currently desire
to be included with the other employees in the established larger unit.
Recognition was thereby given to the form of unit which the history
of actual bargaining had shown to be practical 10 This practice also
avoided the possibility that any expression of choice by the previously
excluded.employees might be overwhelmed by mere weight of numbers
in the unit from which they had been excluded.
I believe that both of these objectives remain valid. The distinc-
tion now proposed to be drawn between cases in which the petitioning
union.does, and those in which it does not, ask for an election among
the employees already bargained for, bears no relation to these funda-
mental purposes underlying the Board's ancient practice. I would
therefore direct a separate election among the shop clerical employees,
to give them an opportunity to say whether or not they now desire to
be included in the historically established production and maintenance
unit.
MEMBER REYNOLDS, dissenting :
Like the Chairman, I dissent from the decision in this case and
would direct an election among the shop clerical employees. How-
ever, I do so for reasons set forth in my dissenting opinion in Lone
Star Producing Company, 85 NLRB 1137.
20 Peterson & Lytle, 60 NLRB 1070 (1945), and cases following it.