New Era Shirt Co.

In the Matter of NEW ERA SHIRT Co., EMPLOYER , and UNITED GAR- MENT WORKERS OF AMERICA, A. F. L., PETITIONER Case No. 14-R-1736.-Decided August 07, 1948 DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board,' in accordance with its then Rules and Regulations-Series 4, on June 27, 1947, conducted a prehearing election among the employees of the Employer, in a unit alleged to be appropriate, to determine whether or not they desired to be represented by the Petitioner for the pur- poses of collective bargaining. The Tally of Ballots shows the results of the election as follows : Approximate number of eligible voters----------------------- 42 Void ballots-- ---------------------------------------------- 0 Votes cast for the Petitioner--------------------------------- 15 Votes cast against the Petitioner---------------------------- 10 Valid votes counted----------------------------------- Challenged ballots------------------------------------------ 17 Valid votes counted plus challenged ballots------------------- 42 Thereafter, a hearing on all the issues was scheduled by the Regional Director for July 23, 1947, but at the request of counsel for the Em- ployer it was postponed until August 27, 1947. On August 25, 1947, the Regional Director postponed the hearing again as the Petitioner had not yet complied with the filing requirements of Section 9 (f) and (h) of the amended Act, which was then effective .2 On December 23, 1947, the Regional Director administratively dis- missed the petition, on the grounds that (a) the pay-roll date used in determining voting eligibility was too remote from the day of the election, and (b) in his opinion, the Board would no longer proceed 1 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 [Chairman Herzog and Members Murdock and Gray]. 2 The Petitioner complied with those Sling requirements on October 30, 1947. 79 N. L. R. B., No. 32. 213 ; ;809095-49-vol. 79-15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to a final determination in prehearing election cases. The Union appealed that decision to the Board. Before the appeal was acted upon, the Regional Director, concluding that he had erred in dis- missing the petition, revoked his dismissal. Thereafter, a hearing vv as Bell on March 24, 1948, at Piedmont, Missouri, before Glenn L. Moller, hearing officer., - - - At the hearing, the Employer moved to dismiss the petition primarily on the grounds that: (1) the Regional-Director'exceeded his, power in directing a prehearing election because substantial issues then existed; (2) the Act, as amended, does not authorize or permit prehearing elec- tions; (3) the Regional Director's letter of dismissal of December 23, 1947, became a "final judgment" because the Petitioner did not file its request for review, in writing, within the 10 days prescribed by the Board's regulations; and (4) the Petitioner's amendments of its origi- nal,petition brought this proceeding within the ban on prehearing elections contained in the Act, as amended: We find no merit in any of these contentions. On June 27, 1947, the day of the balloting, the holding of a prehearing election was a matter within the discretion of the Regional Director. We perceive no abuse of that discretion in this case.3 We have previously con- sidered and rejected the argument that the Board cannot now proceed to a final determination in a representation proceeding in which a pre- hearing election was conducted before August 22, 1947, the effective date of the amended Act 4 We also reject the Employer's arguments that the Regional Direc- tor's dismissal letter of December 23, 1947, constituted a "final judg- ment" because the Petitioner did not file a written request for review of the Regional Director's dismissal of the petition, and that the Peti- tioner's amendments of the petition after the effective date of the amendments to the Act in themselves invalidate the prehearing elec- tion. With regard to the first point, the record reveals that the Board accepted and acted upon a timely oral request for review made by the Petitioner. The Petitioner's amendments to its original petition do not constitute an abandonment of the original petition so as to make this proceeding one entirely under the amended Act.5 Accordingly, the Employer's motion is denied. 3 See Matter of Postece Cotton Mills, 73 N. L. R B. 673; Matter of Estee Bedding Co., 73 N. L. R. B.; 825; Matter of Union Switch d Signal Co . 76 N L R. B. 205 4 Matter of Farmers Feed Company, 75 N. L. R. B. 617 , Matter of Lehigh Riser Mills, Inc, 75 N. L. R. B. 280. 5 The original petition was filed by United Garment Workers of America, District Council 15, A. F. of L. That was the designation on the ballots used in the election. On October 21, 1947, the petition was amended to show United Garment Workers of America, Local 342, A. F L. as the Petitioner . At the hearing, the hearing officer allowed a second amend- ment to show United Garment Workers of America, A F L., as the Petitioner The Em-, ployer objected to this amendment on the ground that any certification which might issue as a result of this proceeding would run to a labor organization for which its employees NEW ERA SHIRT *CO. 215 The rulings made by the hearing officer at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER New Era Shirt Co., a Missouri corporation With its principal office in St. Louis, Missouri, is engaged in the manufacture and sale of shirts. It operates manufacturing plants in St. Louis, Arcadia, and Piedmont, all in the State of Missouri. Only the Piedmont plant is involved in this proceeding. The Employer annually receives at its Piedmont plant, raw mate- rials valued in excess of $50,000, of which more than 90 percent is shipped to the plant from points outside the State of Missouri. The Employer annually produces finished products at this plant valued in excess of $200,000, of which more than 75 percent is shipped to points outside the State. The Employer admits and We find that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION 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 agreed at the hearing that all production and mainte- nance employees 6 at the Employer's Piedmont, Missouri, plant exclud- had not voted. We cannot agree with this argument. The union designation on the ballot contained the name of the United Garment Workers of America, A F L The amendment simply allows the International Union to substitute itself for its District Council 15, which could not appear on its own behalf as it , like Local 342, was defunct at the time of the hearing See Matter of Texas Hardwood Manufacturing Company and Southern Hardwood Company, 73 N. L. R. B. 356. At the time of the election the Petitioner took the position that Otho Berryman , a main- tenance mechanic, and E P . Pyles, a janitor , should be excluded from the unit . Their bal- lots , cast under challenge , were segregated along with the other challenged ballots. How- ever, at the hearing the Petitioner withdrew its challenges when it discovered that Berry- man and Pyles worked on a full-time basis at the Employer 's Piedmont plant. As the parties now agree to their inclusion in the unit , we shall direct that the ballots of Berryman and Pyles be opened and counted 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing office and clerical employees and supervisors, constitute an appro- priate bargaining unit. They disagreed, however, as to the status of Martha Sheifer, whom the Employer would include in the unit, and whom the Petitioner would exclude as a supervisor. Martha Sheifer was hired on the day that the plant opened and, after working about 10 weeks on a sewing machine, was made a floor watcher. In that capacity, she circulated among the employees, di- rected their work methods, and moved pieces of material from one employee to another. The Employer concedes that she was a super- visor at the time of the hearing, but asserts that she only achieved that status after the election. However, several months before the election, the Employer's plant manager told the employees to take orders from Sheifer. Before the election, Sheifer transferred em- ployees from one job to another, authorized time off, and was in sole charge of the plant during the plant manager's absence. We find that Martha Sheifer was a supervisor at the time of the election. We shall exclude her from the unit. The challenge to her ballot is sustained. We find that all production and maintenance employees at the Employer's Piedmont, Missouri, plant, including maintenance me- chanic and janitor, but excluding office and clerical employees, and supervisors as defined in the Act,7 constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES At the hearing, the Employer contended that the election should be set aside, on the ground that the plant did not have a representative conlplelnent of employees at the time of the election. AW reject this contention. The plant was substantially complete and in full opera- tion at the time of the election. Although there was a considerable personnel turn-over during the 9 months between the election and the hearing, the record reveals that the employee complement of 42 on May 2, 1947, had only increased to 62 by the date of the hearing on March 24, 1948. Finally, the Employer argued at the hearing that the election should be set aside because the eligibility date used was not the one' listed in the Board's Notice of Election. It was, the understanding of the Regional Director, when he ordered the election for June 27, 1947, that the Employer would not furnish a pay roll later than that of May 2, 4 This Includes Martha Sheifer. NEW ERA SHIRT CO. 217 1947. Accordingly, May 2, 1947, was used as the eligibility date in the Notice of Election. However, on the day of the election a repre- sentative of the Employer itself gave the Board's agent who con- ducted the election a copy of the pay roll of June 20, 1947. The Board's agent thereupon corrected his eligibility list to show the hirings and separations between May 2 and June 20, and, before the voting began, notified all employees in the plant that those hired be- tween these two dates were eligible to vote. Eight of the nine em- ployees hired during this period cast ballots, as did six of the employees whose services were terminated between the two pay-roll dates. The Board agent, as a matter of course, challenged each of these 14 ballots. As the employees were notified of the change in the eligibility date before the election was conducted, and all but one of the newly hired employees cast ballots, we conclude that the change, after the posting of the Notice of Election, did not constitute prejudicial error. We therefore overrule the challenges to the ballots of the eight newly hired employees, Edith Merdes, Carrie Kieser, Jean McAllister, Effie Mc- Cullough, Maude Newlan, Evelyn Moss, Norman Rabon, and Pat Rabon, and shall direct that their ballots be opened and counted. Of the six remaining challenged ballots, four were cast by individ- uals who, the Petitioner alleges, had only temporarily quit their em- ployment at the time of the election. These individuals, Bernice Beatty, Almedia Howard, Ruth Shattuck, and Norma Webb all volun- tarily stopped work for personal reasons before the election. Although there is testimony in the record that some of them were told by the Employer that they would be rehired if jobs were available at the time they reapplied, no definite promises of reemployment were made. We conclude that these individuals had completely terminated their employment with the Employer at the time of the election, and were therefore not eligible to vote. Accordingly, the challenges to their ballots are sustained. The two other challenged ballots were cast by Dorothy Saunders and Louise Chitwood, who, the Petitioner alleges, were discrimina- torily discharged, and on whose behalf the Petitioner has filed charges of unfair labor practices, which are now pending before the Boards We shall not dispose of these challenges at this time. However, if the ballots cast by these two individuals are sufficient to affect the outcome of the election, after the counting of the other ballots which we herein find valid, final outcome of this proceeding will await the disposition of the unfair labor practice charges. 8 Case No. 14-C-1307. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with New Era Shirt Co., Piedmont, Missouri, the Regional Director for the Fourteenth Region shall, pursuant to the Rules and Regulations of the Board, within ten (10) days from the date of this Direction, open and count the ballots of Edith Merdes, Carrie Kieser, Jean McAllister, Effie McCullough, Maude Newlan, Evelyn Moss, Norman Rabon, Pat Rabon, E. P. Pyles, and Otho Berryman; and thereafter prepare and cause to be served upon the parties a supplemental tally of ballots embodying therein his findings as to the outcome of the election; and take such further steps in the investigation as may be necessary in accordance with the Rules and Regulations of the Board.