West Coast Paperboard Mills

National Labor Relations Board - Board Decisions

Apr 8, 1948

76 N.L.R.B. 1236 (N.L.R.B. 1948)

In the Matter of WEST COAST PAPERBOARD MILLS, EMPLOYER and
WORTH S. KERR, LYMAN O. WILSON AND CHARLES F. SMITH,
EMPLOYEES , PETITIONERS and INTERNATIONAL UNION OF OPERATING
ENGINEERS , AFL, AND ITS LOCAL UNION No. 63, UNION
Case No. 201-RDA.Decided April 8, 194.8
Mr. J. N. Mills, of Los Angeles , Calif., for the Employer.
Mr. Lester O. Wilson, of Los Angeles , Calif., for the Union.
Mr. Worth 8 . Kerr, of Bell, Calif ., and Mr. Lyman O. Wilson, of
Maywood, Calif., for the Petitioners.
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition for decertification duly filed, hearing in
this case was held at Los Angeles, California, on December 22, 1947,
before Daniel J. Harrington, 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 the case, the National Labor Relations
Board 1 makes the following :
FINDINGS Or FACT
1. THE BUSINESS OF THE EMPLOYER
West Coast Paperboard Mills, a California corporation, has its only
office and plant at Los Angeles, California, where it is engaged in the
manufacture and sale of paperboard. During the calendar year 1947,
the Employer purchased, for use at its plant, raw materials valued at
approximately $200,000, of which amount 20 percent was received from
outside the State of California. During the same period, the Em-
ployer's sales of finished products amounted to $100,000, of which
5 percent was shipped to points outside the State of California.
1 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 -man panel consisting of Chairman Herzog
and Members Houston and Reynolds.
76 N. L. R. B., No 178.
1236
WEST COAST PAPERBOARD MILLS 1237
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE PARTIES INVOLVED
The Petitioners, employees of the Employer, assert that the Union
is no longer the representative of certain of the Employer's employees
as defined in Section 9 (a) of the amended Act.
The Union, a labor organization affiliated with the American
Federation of Labor, is the recognized representative of the employees
of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On July 1, 1946, the Employer and the Union entered into a collec-
tive bargaining contract for 1 year, renewable thereafter from year
to year unless notice was given by either party 30 days prior to such
termination date of a desire to modify the agreement. On May 5,
1947, the Union notified the Employer that in conformity with the
provisions thereof, it desired to modify such agreement. Thereafter,
negotiations resulted in an oral agreement on all terms of the proposed
contract, but a written contract was not executed until October 2,
1947. Before that date, on September 18, 1947, the Petitioners filed
their original petition with the Board. The Union contends that
the present petition is barred by reason of the existing contract, which
by its terms is effective until June 30, 1948.
In view of the foregoing, we are of the opinion that the Union's
notice of a desire to modify the original agreement stayed the operation
of the automatic renewal clause and effected a termination of the agree-
ment as of June 30, 1947. We find, therefore, that this agreement is
not a bar to this proceeding. Nor can it be claimed that the 1947
agreement bars the present proceeding, as the original petition was
filed prior to its execution.2
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties hereto are in substantial agreement that all operating
and maintenance engineers employed by the Employer at its Los
Angeles, California, plant, excluding supervisors, constitutes an appro-
2 Public Service Corporation of New Jersey, 72 N. L. R. B. 224 , Southern Advance Bag &
Paper Co, Inc , 75 N. L R B 614 ; Indianapolis Power & Light Company, 76 N L R B.
136.
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
priate unit. The only question remaining for consideration is the
status of the Chief Operating Engineer. The Petitioners and Union
agree to his inclusion in the unit. The record discloses that the Chief
Operating Engineer receives at least 20 percent higher wages than the
operating engineers and has authority to hire in consultation with the
mill manager, and to discipline or discharge in flagrant cases. He
also has general authority to transfer, lay off, and recall, to recom-
mend promotions, to lay out work and to adjust informally on a daily
basis the grievances of employees. Although it does not appear that
the Chief Operating Engineer has exercised such authority except to
the extent of laying out work for employees, the fact that he is vested
with such authority makes him a supervisor within the meaning of
the Act. Accordingly, although the Petitioners and the Union agree
on, and the Employer does not oppose, his inclusion, we shall, in view
of the clearly supervisory status of this employee, exclude him from
the unit found appropriate for the purposes of'collective bargaining.3
We find that all operating and maintenance engineers employed at
the Los Angeles, California, plant of the Employer, excluding the
Chief Operating Engineer, and all supervisors, constitute a unit' ap-
propriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act 4 '
V. THE DETERMINATION OF REPRESENTATIVES
The Union and the Petitioners contend that an employee known as
the relief operating engineer and employed for only part of his work-
ing time in the capacity of an operating engineer should be permitted
to vote in the election. The Employer takes no position on his
eligibility.
The relief operating engineer is employed less than 5 percent of
his working time as an operating engineer. He acts in this capacity
only when one of the regular operating engineers is ill, on leave, or
otherwise temporarily absent, and in emergencies.r, On the other
hand, the relief operating engineer is one of the individual Petitioners
herein and has taken an active part in the affairs of the Union.e Al-
though we would ordinarily deem ineligible to vote any employee who
8 American Tool Works Co., 59 N. L. R. B. 862; WCAU Broadcasting Co., 72 N. L. R. B.
537
4 This is virtually the unit provided for in the Employer 's contract with the'Union.' The
description has been changed slightly to conform with the provisions of the amended Act.
5 During the remaining 95 percent of his time , the relief operating engineer works through-
out'the plant as a maintenance employee, in the course of which work he is covered'by the
bargaining agreement of another labor organization representing the production and mainte.
nance employees.
6 The relief operating engineer now occupies the position of shop steward for the employees
in the group herein concerned. '
WEST COAST PAPERBOARD MILLS 1239
spends as little of his working time in the appropriate unit as he does,7
we shall, in view of the special circumstances here present and in the
absence of any issue raised by the parties with regard to his eligibility,
permit the relief operating engineer to vote in the election hereinafter
directed.
We shall direct an election in this proceeding and shall place the
Union's name on the ballot in such election 8
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purpose of collective bargaining with West Coast Paperboard Mills,
Los Angeles, California, an election by secret ballot shall be conducted
as early as possible, but not later than thirty (30) days from the date
of this Direction, under the direction and supervision of the Regional
Director for the Twenty-first Region, and subject to Sections 203.61
and 203.62, of National Labor Relations Board Rules and Regula-
tions-Series 5, among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the date of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, but excluding those employees
who have since quit or been discharged for cause and have not been
rehired or reinstated prior to the date of the election, and also exclud-
ing employees on strike who are not entitled to reinstatement, to
determine whether or not they desire to be represented by International
Union of Operating Engineers, AFL, and its Local Union No. 63,
for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above.
Decision and Direction of Election.
See Matter of Great Trails Broadcasting Go , 73 N. L. R. B. 396.
e The Union will be certified if it wins the election , provided that at that time it is in
compliance with Section 9 ( f), (g), and (h) of the Act. Absent such compliance, the
Board will only certify the arithmetical results of the election . See Matter of Harris Foun-
dry d Machine Company, 76 N. L. It. B. 118.