Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1949

81 N.L.R.B. 504 (N.L.R.B. 1949)

In the Matter Of WILSON & CO., INC., EMPLOYER and LODGE No. 831 of
THE INTERNATIONAL ASSOCIATION OF MACHINISTS , PETITIONER
In the Matter Of WILSON & CO., INC., EMPLOYER and UNITED PACKING-
HOUSE WORKERS OF AMERICA , C. I. 0., LOCAL No. 3,1 PETITIONER
Cases Nos. 18-RC--'x'.24 and 18-RC-233, respectively .Decided
February 8, 1949
DECISION
AND
DIRECTION OF ELECTION
AND
ORDER
Upon separate petitions duly filed, a consolidated hearing was held
before a hearing officer of the National Labor Relations Board. Ex-
cept as indicated below, the hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed?
Upon the entire record in the case, the Boards finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner in Case No. 18-RC-224, hereinafter called the
I. A. M., is an unaffiliated labor organization claiming to represent
employees of the Employer. The Petitioner in Case No. 18-RC-233,
is a labor organization affiliated with the C. I. 0., claiming to repre-
I This Petitioner 's name appears as amended at the bearing ; it will be referred to here-
inafter as Local No. 3.
2 The hearing officer properly excluded evidence purporting to show the non-compliance
of Local No . 3 and United Packinghouse Workers of America , C. I. 0., hereinafter called
the International , with Section 9 (h) of the Act , and the Employer 's motion to dismiss
because of such alleged non -compliance is hereby denied . Matter of Lion Oil Company,
76 N. L . R. B. 565. The Employer's motion to dismiss because of the pendency of unfair
labor practice charges in Cases Nos. 13-CA-108 and 18-CA-56 is hereby denied, as the
charging unions have filed appropriate waivers with the Board . The Employer 's conten-
tion that these waivers are ineffective because copies were not served on the Employer
is hereby rejected . Nothing in the Act or in the Board 's procedures requires such service.
The purpose of the waivers is to preclude the charging unions from urging the unfair labor
practices alleged in the charges as a basis for setting aside any election that may be held
in these cases . The Employer , accordingly , cannot be prejudiced in any way by its failure
to receive a copy of such waivers.
a 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-man panel consisting
of the undersigned Board Members [ Houston , Reynolds , and Gray).
81 N. L. R. B., No. 93.
504
WILSON & CO., INC. 505
sent employees of the Employer. Amalgamated Meat Cutters and
Butcher Workmen of North America, A. F. of L., Local 142-B3, here-
inafter called Local 142-B3, is a labor organization claiming to repre-
sent employees of the Employer.4
3. A question affecting commerce exists in Case No. 18-RC-233 con-
cerning the representation of employees of the Employer, within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit.
A. In Case No. 18-RC-224
The I. A. M. seeks to sever from the existing plant-wide unit a unit
of certain employees at the Employer's Cedar Rapids, Iowa, plant
engaged in the installation, repair, and maintenance of machinery,
consisting of maintenance machinists, millwrights, housemen, their
handymen and welders, and the powerhouse maintenance mechanic.
The other parties oppose such severance. Local No. 3 and the Inter-
national have bargained for these employees since 1940 as part of the
over-all unit of production and maintenance employees.
The maintenance machinists repair the production machinery and
plant equipment. One welder is assigned to this group. The mill-
wrights are engaged in moving, installing, maintaining, and perform-
ing major repairs on the heavy machinery and equipment in the
plant. There is one welder in this group. The housemen inspect,
oil, and grease the production machinery and perform minor repairs.
The powerhouse maintenance mechanic, who works under the chief
engineer in the plant's powerhouse, is charged with the repair and
maintenance of the machinery in the powerhouse.
These employees do not have common immediate supervision,5 and
are not physically segregated from other production and maintenance
employees. They often work in association with such other em-
ployees. Employees not included in the proposed unit do work sim-
ilar to that of the welders and the maintenance mechanics.
In view of the foregoing, we do not believe that the unit sought by
the I. A. M. is appropriate for collective bargaining purposes, and we
will, therefore, dismiss the I. A. M.'s petition s
4 Local 142-B3's motion to intervene in both the cases at bar was granted by the hearing
officer without objection . However, as Local 142-B3 is not in compliance with the filing
requirements of Section 9 of the Act , it was not entitled to intervene . The hearing officer's
ruling permitting intervention is, accordingly , overruled and Local 142-B3 will not be
placed on the ballot in the election hereinafter directed.
0 There is one foreman for the millwrights, housemen , and steamfitters . Another fore-
man supervises the maintenance machinists . The chief engineer supervises , in addition to
the powerhouse maintenance mechanic , all the other employees in the boiler room and
engine room.
See Matter of Owens-Corning Fiberglas Corp ., 79 N. L . it. B. 594.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. In Case No . 18-RC-232
Local No. 3, its predecessor union, and the International have since
1934, represented the production and maintenance employees in the
Cedar Rapids plant.? The unit as defined in the last contract, reads :
All production and maintenance employees, and hourly paid
checkers, scalers, gang leaders, livestock handlers and restaurant
employees, but excluding superintendents, foremen, assistant fore-
men, plant clerical employees, buyers, general office employees,
truck drivers and all other supervisory employees.
The parties have agreed to amend the unit description to read as
follows:
All production and maintenance employees,8 excluding office
employees, clerical and sales employees, laboratory employees,
plant clerks, timekeepers, planning and methods employees, em-
ployment and casualty employees, medical employees, receiving
office employees, watchmen, wholesale market employees, truck
drivers, livestock buyers, and weekly-paid scalers.
In addition, the Employer would exclude, and the other parties
include, the following categories :
Hourly paid shrink and yield scalers, checkers, office janitors,
firemen, restaurant employees, livestock handlers, storeroom dis-
tributors, dressing room matrons and dressing room custodians.
The hourly paid shrink and yield scalers
These employees, who are under the supervision of the chief clerk,
weigh the Employer's output before and after processing to determine
shrink and yield for statistical and cost accounting purposes.9 All
7 The predecessor union in 1934 and thereafter represented the production and main-
tenance employees in this plant in adjusting grievances , and, beginning in 1936, reached
oral agreements with the Employer on wages and other matters.
In January 1940, the Board determined that the predecessor union was the exclusive
representative of the production and maintenance employees at this plant and ordered
the Employer to bargain with such representative and to embody any agreement reached
in a written contract . 19 N. L. R B. 990 . Since 1943 , the International , on behalf of
Local No. 3 and on its own behalf , has executed with the Employer three master agree-
ments ( the last of which apparently expired in 1948 ), in which the International was
recognized as the representative of the production and maintenance employees in the Cedar
Rapids plant . No issue of contract bar is raised in the instant case.
D The Employer proposes , and the other parties to this case oppose, use of the qualifying
phrase all "hourly -paid" production and maintenance employees . However, it appears
that all the production and maintenance employees are hourly paid . Moreover, in the
absence of agreement of the parties on this point , it would be contrary to Board policy to
distinguish between employees solely on the basis of manner of payment . Matter of Wilson
& Co., Inc ., 81 N L. R B. 501.
Other scalers weigh the product only for the purpose of packing and shipments to cus-
tomers ; they are all hourly paid. The parties have agreed to their inclusion.
WILSON & CO., INC. 507
but five of these scalers are weekly paid and the parties have agreed to
exclude them. The only dispute is as to the inclusion of the five hourly
paid scalers in this category. They have consistently been included
in the plant-wide unit in this plant, as in the majority of the Em-
ployer's plants 10
The Employer contends that these five employees should be excluded
on the ground that they are clerical, confidential, and managerial.
They do not formulate or determine management policies, nor do they
act in a confidential capacity to persons who exercise managerial
functions in the field of labor relations. While their duties are
chiefly 11 clerical in nature, in view of their special bargaining history
we shall include them in the unit 12
The checkers: This group includes seven employees who check
against customers' orders on outgoing products as they are loaded
into cars or trucks, and seven others who work in various production
departments and check the quantity and quality of incoming and out-
going products, materials, or supplies. They are under the super-
vision of the production foremen in the department to which they are
assigned and their operations are integrated with the production
process. The checkers have been consistently included in the plant-
wide bargaining unit since it was first established in 1934, and checkers
have been included in the plant-wide unit in most, if not all, of the
other plants of the Employer. The Employer contends that they
should now be excluded from the unit as clerical, confidential, and
managerial employees. We reject the contention that they are con-
fidential and managerial, for the same reasons as are given above
with respect to the scalers 13 Although their work is primarily cleri-
cal, in view of the fact that they work with production and mainte-
nance employees, are supervised by production foremen and have been
included for 14 years in the bargain unit, we will include them in the
unit herein found appropriate.14
Office janitors: These employees have been consistently excluded
from the plant-wide unit. They do clean-up work in the general office,
are on the general office pay roll and are supervised by the office man-
ager. The parties have agreed to exclude office employees generally.
We will exclude the office janitors.
Firemen: The firemen, who are under the supervision of the fire
chief, maintain fire prevention equipment throughout the plant, elimi-
10 The weekly paid group on the other hand has been consistently excluded from the unit
in this, and all other, plants of the Employer.
11 They do some manual work in handling the articles to be weighed.
12 See Matter of Wilson & Co., Inc., 68 N. L. R. B . 592; Matter of Wilson & Co., Inc.,
81 N. L. R. B. 497.
13 See Matter of Wilson & Co , Inc., 68 N. L. R. B . 592, 595.
14 See Matter of Wilson & Co ., Inc., supra, at p. 595.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nate fire hazards, report violations of no-smoking rules to the fire chief
or chief of police, and may enforce such rules, themselves, by admon-
ishing offenders. However, as this enforcement function is merely
incidental to their other duties, we reject the Employer's contention
that these employees should be excluded as "guards." 15 We find, also,
contrary to the Employer's contention, that there is sufficient com-
munity of interest between the firemen and the production workers,
particularly.n view of the fact that the firemen have been included
since 1934 in the plant-wide unit, to warrant their continued inclusion
in that unit.
Restaurant employees: These employees serve food to all the other
employees in the plant cafeteria, which is located in one of the produc-
tion buildings. They have for the past 5 years been included in the
plant-wide unit, as have similar employees in the three other plants
in which the Employer operates plant cafeterias. We will include
them in the unit.1'
Livestock handlers: These employees receive, feed, and care for
livestock in the Employer's stock yard. The Employer would exclude
them, contending that they lack community of interest with the rest
of the production and maintenance employees and citing the fact that,
unlike the rest of the employees, the livestock handlers are under the
supervision, not of the plant superintendent, but of the livestock buyer.
However, the livestock handlers have been consistently included in the
plant-wide unit, and we will include them in the unit herein found
appropriate.
Storeroom distributors: These employees maintain records of sup-
plies entering and leaving the storeroom department, keep inventories
of supplies in the storeroom, and make deliveries of such supplies to
other departments in the plant. They have consistently been in-
cluded in the plant-wide unit. We will include them in the unit herein
found appropriate.17
Dressing room matrons and dressing room custodians: These ma-
trons and custodians are employed in the women's and men's dressing
rooms, respectively, where they do clean-up work, provide supplies
and supervise the lockers. The custodians also clean certain of the
plant offices. The matrons and, to a lesser extent, the custodians have
certain monitorial duties. However, we are not satisfied from the
record that they are employed primarily as "guards" within the mean-
ing of Section 9 (b) of the Act. They have heretofore been included
"Matter of Carbide and Carbon Chemicals Corporation , 79 N. L . R. B. 932 ; Matter of
Wilson & Co., Inc., 81 N . L. R. B. 497.
1e See Matter of Wilson & Co.. Inc., supra.
li For the same reasons as are cited above with respect to the scalers , we reject the Em-
ployer's contention that the storeroom distributors are managerial and confidential em-
ployees.
WILSON & co ., INC. 509
in the plant-wide unit, and we will include them in the unit herein
found appropriate.
The following employees at the Employer's Cedar Rapids, Iowa,
plant constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act:
All production and maintenance employees, including hourly paid
shrink and yield scalers and all other hourly paid scalers, checkers,
firemen, restaurant employees , livestock handlers, storeroom distribu-
tors, dressing room matrons, and dressing room custodians , but exclud-
ing office employees, office janitors, clerical and sales employees,
laboratory employees, plant clerks, timekeepers, planning and methods
employees, employment and casualty employees, medical employees,
receiving office employees, watchmen , wholesale market employees,
truck drivers, livestock buyers, weekly paid scalers, and all supervisors
as defined in the Act.
ORDER
IT is HEREBY ORDERED that the petition filed by Lodge No. 831 of
International Association of Machinists in Case No. 18-RC-224, be,
and it hereby is, dismissed.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Wilson & Co., Inc., Cedar
Rapids, Iowa, 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 Eighteenth Region , and subject to Sections 203.61 and 203.62
of National Labor Relations Board Rules and Regulations-Series 5,
as amended , among the employees in the unit found appropriate 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 rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented by United Packinghouse Workers
of America, C. I. 0., Local No. 3, for the purposes of collective
bargaining.