Wilson & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1949

81 N.L.R.B. 501 (N.L.R.B. 1949)

In the Matter of WILSON & Co., INC., EMPLOYER and UNITED PACK-
INGHOUSE WORKERS OF AMERICA, C. I. 0., LOCAL No. 6,1 PETITIONER
In the Matter of WILSON & Co., INC., EMPLOYER and HARRISON LUKENS
AND RICHARD SMITH, EMPLOYEES, PETITIONERS and UNITED PACK-
INGHOUSE WORKERS OF AMERICA, C. I. O. LOCAL No. 6, UNION
Cases Nos. 18-RC-234 and 18-RD-22, respectively.Decided
February 8,1949
DECISION
AND
DIRECTION OF ELECTION
Upon separate petitions for certification and decertification duly
filed, a consolidated hearing was held before a hearing officer of the
National Labor Relations Board. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.2
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.*
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. Local No. 6 claims to represent certain employees of the Em-
ployers The Petitioners in the decertification case, employees of the
Employer, assert that Local No. 6 is no longer the representative of the
Employer's employees within the meaning of Section 9 (a) of the Act.
I The name of this Petitioner, hereinafter called Local No . 6, appears as amended at
the hearing.
2 The Employer moved to dismiss the petition in Case No . 18-RC-234, because of the
pendency of unfair labor practice proceedings instituted against the Employer by Local
No. 6 and its International , in Cases Nos . 13-CA-108 and 18-CA-60. This motion is
denied inasmuch as waivers with respect to those cases have been filed with the Board by
the charging unions.
The Employer's motion to dismiss the RC petition herein on the ground that United
Packinghouse Workers of America , C. I. 0., hereinafter called the International , has not
complied with Section 9 ( h) is also denied, the Board having determined administratively
that said Union is, in fact , in compliance with Section 9 (h). The hearing officer properly
rejected the Employer 's offer of proof on this point . Matter of Lion Oil company, 76
N L. R. B . 565. The Petitioners in the RD case moved to sever that case from the RC
case. This motion is denied , as is the motion of Local No . 6 to dismiss the RD petition
and to direct an election on the basis of the RC petition alone . Matter of General Motors
Corp., 79 N. L. R. B. 1525
*Houston , Reynolds , and Gray.
B On September 3, 1940 , the Board certified Local No . 6 as the representative of the
employees as indicated in paragraph 4, herein . See 14 N . L. R. B. 283, 291 ; 24 N. L. R. B.
731. Thereafter the International executed a series of contracts with the Employer cover-
ing the instant employees.
81 N. L. R. B., No. 92. 501
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of certain 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:
On September 3, 1940, the Board certified Local No. 6 as the repre-
sentative of the production and maintenance employees at the Em-
ployer's Albert Lea plant, excluding clerical and office employees,
teamsters, checkers, foremen, assistant foremen, and "supervisory
employees."
In addition to the foregoing exclusions, the Employer and the RD
Petitioners seek, and Local No. 6 opposes, the exclusion of garage
maintenance employees , scalers , and restaurant employees . The Em-
ployer and the RD Petitioners would , moreover, include in the unit
only "hourly paid and piece work" production workers. Local No. 6
opposes the quoted limitation.
(1) The proposal that we distinguish between employees solely on
the basis of difference in the mode of payment is, in the absence of
agreement of the parties , rejected as contrary to Board policy. Mat-
ter of E. I. du Pont de Nemours and Company, 63 N. L. R. B. 1387.
(2) Garage maintenance employees . These employees grease,
wash, repair, and otherwise maintain the Employer's trucks. Since
1944, when the maintenance garage was first established, these em-
ployees have been treated by the parties as within the contract unit.
No other union has sought to represent them. In Matter of Wilson &
Co., Inc., 80 N. L. R. B. 560, the Board declined to sever similar em-
ployees from the plant-wide unit at another plant of the Employer.
We will, accordingly, include the garage maintenance employees in
the unit.
(3) The scalers. These employees determine and record the weight
of products, which they report to the plant office. Their reports are
used as a basis for billing customers and in determining production
and labor costs. The Employer would exclude them either as clerical
workers or as confidential employees. Part of the scalers (hourly
paid) have been treated as within the contract unit in this plant and in
the majority of the Employer's other plants; the weekly paid scalers
have however, been excluded from such plant-wide unit in this and in
all other plants of the Employer. While the duties of hourly paid and
weekly paid scalers are substantially identical, the hourly paid, but
not the weekly paid, scalers, interchange with the production em-
ployees and often assist in production work while scaling. We find
that the work of the scalers is not such as to require their exclusion
from the unit as confidential employees. See Matter of Wilson cfi Co.,
Inc., 68 N. L. R. B. 592. While the duties of the scalers are in the main
WILSON & CO., INC. 503
similar to those of the plant clerks, who are excluded from the unit, we
believe that, in view of the special bargaining history of the hourly
paid scalers in this plant and other plants of the Employer, and their
interchange with production workers, they may appropriately be in-
cluded in the unit 4 Absent any similar factors in the case of the
weekly paid scalers, they will be excluded.
(4) The restaurant employees work in the plant cafeteria, where
they serve production employees, among others. They were not spe-
cifically named in the Board certification of Local No. 6, but from
1940 to 1944 were treated as within the contract unit. For reasons
stated in Matter of Wilson & Co., 81 N. L. R. B. 497, we will include
the restaurant employees in the unit.
We find, therefore, that the following employees of the Employe
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 at the Employer's plant
in Albert Lea, Minnesota, including the garage maintenance employ-
ees, restaurant employees, and hourly paid scalers, but excluding
clerical and office employees, teamsters, checkers, weekly paid scalers,
foremen, assistant foremen, and all other supervisors as defined in the
Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with the Employer, an election by secret
ballot shall be conducted as early as possible, but not later than 30
days from the date of this Direction, under the direction and supervi-
sion of the Regional Director for the Region in which this case was
heard, 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 in paragraph numbered
4, above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, 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 deter-
mine whether or not they desire to be represented, for purposes of
collective bargaining, by United Packinghouse Workers of America,
C. I.O., Local No. 6.
i See Matter of Wilaon A Go., Inc., 68 N. L. R. B. 592 ( where weekly paid scalers in the
Employer 's Chicago Wholesale Market were included in a production unit, the Board relying
in part on their prior voluntary inclusion in that unit).