Modern Upholstered Chair Co., Inc.

In the Matter Of MODERN UPHOLSTERED CHAIR COMPANY, INC., EMPLOYER and TEXTILE WORKERS' UNION OF AMERICA, CIO, PETITIONER Case No. 1O-RC-&7.-Decided June 9, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing was held on April 1, 1949, before John C. Carey, Jr., 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. The hearing officer reserved for the Board ruling upon the Employer's motion to dismiss the petition. The motion is hereby denied for the reasons set forth in paragraph 3 below. 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-member panel [Members Houston, Reynolds, and Murdock]. 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. The Petitioner is a labor organization claiming to represent employees of the Employer. 3. The question concerning representation : In support of its motion to dismiss the petition, the Employer con- tends that the C. I. O. Organizing Committee is a noncomplying "labor organization" within the meaning of the Act and that the Petitioner is not the real party in interest but, to the contrary, is acting in behalf of the United Furniture Workers of America, which las failed to comply with Section 9 (f), (g), and (h) of the Act. We do not agree." 'The Employer moved to dismiss the petition on the further grounds that : (a) there are unfair labor practice cases against the Employer pending before the Board, and (b) the Petitioner, by the terms of its constitution, does not have jurisdiction to organize or represent employees in a furniture manufacturing plant, which is the sole operation 84 N. L. R. B., No. 13. 95 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that the C. I. O. Organizing Committee consists of a group of individuals selected by the Congress of Industrial Organizations to assist affiliated national and international unions of the C. I. O. in organizing activities. The Petitioner's representative, who testified at the hearing, is the Tennessee State Director of the Organizing Committee. Although he has assisted in organizational drives of the United Furniture Workers in the past, he is neither a member nor representative of that union. On the contrary, he holds credentials from the Petitioner and has held them since 1939, serving at one time as International Vice President. Although testimony indicated that another of the Petitioner's representatives at one time assisted the United Furniture Workers, it appears that he is now a representative of the Petitioner. In this case the Petitioner made the request for recognition, and we have noted that all the membership application cards submitted to the Board are those of the Petitioner. Moreover, there is no evidence that the Petitioner will not be the actual representative of these employees or that it is acting in behalf of a noncomplying Union. Accordingly, we reject the Employer's con- tentions.' of the employer. In connection- with the first of these grounds, the Employer alleges that it is unfair for the Board to hold an election until the complaint cases are disposed of. The Petitioner has waived any right to object to an election held in the present proceedings on the basis of any acts alleged as unfair labor practices in the charges in Cases Nos 10-CA-625 and 10-CA-670. In these circumstances , it is our opinion that to delay the holding of an election , until the validity of the charges referred to are decided , would not only be without purpose but would , moreover, result in postponing, if not defeating , the exercise by the employees of their right to the free expression of their wishes concerning representation , which is guaranteed by the Act. Accordingly, we reject this contention of the Employer See Matter of Wilson and Co, Inc, 80 N L. R. B. 1466; Matter of Ruh-R Engraving Company, 79 N L R B 332: Matter of Linde Air Products Company, 77 N L R B. 1206 ; Matter of Carrollton Furniture Manufacturing Company, 75 N L R B 710 , and Matter of New England Retinneng , Inc, 74 N L R B. 938 As to the second ground , the Petitioner is willing to represent the employees of the Employer , and there is no showing that it will not adequately do so We will not inquire into a labor organization's constitution in the absence of proof that it will not effectively represent the employees . Accordingly , we find no merit in this contention. See Matter of United States Gypsum Company , 80 N. L R B 779 , Matter of J I. Case Company, 80 N L. R B 223 , Matter of Ranknn Equipment Co , 79 N L. R. B 1439 ; Matter of the Baldwin Locomotive Ww ks, 76 N L. It. B 922, and Matter of NAPA New York Warehouse, Inc., 75 N L R B 1269. 2 See Matter of Tin Processing Corporation , 80 N L R B 1369 , Matter of Sampsel Time Control, Inc, 80 N L R B 1250 ; Matte? of American Enka Cot poration (Lowland), 80 N L It B. 298 ; Matter of General Plywood Corporation , 79 N L R B 1458 ; Matter of McGraw - Curran. Lumber Co , Inc., 79 N L R B 705 , Matter of Mississippi Products, Inc, 78 N. L R B 873; and Matter of E. J Las.ino and Company, 78 N L R B. 806. See also Matter of Northern Virginia Bioadca.sters, Inc. 75 N L It . B II Cf Matter of American Optical Company, 81 N L R. B 453 ; Matter of Stokely Foods Inc, 83 N L. R B 123 In connection with these contentions at the hearing, the Employer requested five sub- penas daces tecum iequirnig four named individuals , including the Petitioner 's repre- sentative who testified, another who did not, the Petitioner' s State Director , and Van A. Bittnei, and "the secretary of the United Furniture Workers of America, CIO, whoever or wherever lie may be" to produce all books , records, correspondence, and documents relating to the discontinuance by the C I 0 Organizing Committee of any organizing campaign in Morristown , Tennessee , on behalf of the United Furniture Workers of MODERN UPHOLSTERED CHAIR COMPANY, INC. 97 The Employer urges that it does not believe a majority of the employees desire the Petitioner to represent them, and it requests the Board to scrutinize the evidence of majority status which the Petitioner has allegedly presented. On this further ground the Employer demands the dismissal of the petition. We find this con- tention to be without merit. The membership application cards sub- mitted by the Petitioner are merely considered for the purpose of enabling the Board to determine the existence of a prima facie show- ing of interest justifying further investigation. As we have fre- quently held,3 this showing of interest is an administrative matter not subject to direct or collateral attack. Nor is the question concerning representation decided by this preliminary evidence of interest; it is the secret election hereinafter directed which will decide whether or not the majority of the employees wish to be represented by the Petitioner.4 4. The appropriate unit : The parties agreed that all production and maintenance employees should be included in the appropriate unit and that guards, profes- sional employees, and supervisors should be excluded. The Petitioner would exclude office clericals and truck drivers; the Employer would include them. Both parties would include watchmen if they are not found to be guards within the meaning of Section 9 (b) of the Act. T,.here is no history of collective bargaining. Office clerical: There are six clerical employees who work in the office, which is separated by a wall from the plant proper. Their work is entirely clerical and consists of preparing the pay roll, billing, invoicing, acknowledging orders, handling correspondence, and per- forming other routine clerical duties. We find that these employees America and to the undertaking by the Organizing Committee of its drive on behalf of the petitioner Also requested was the production of all books, records, and correspond- ence which show who bore the expense of the organizing drives and who received the financial benefits The Employer also moved for continuance of the hearing until April 15, 1949. As provided by the Board 's Rules and Regulations , the hearing officer issued the five subpenas , and the Petitioner , accepting service of four of them, filed a petition to revoke the four Although in support of its request for the subpenas the Employer alleged collusion between the Petitioner and the United Furniture Workers of America, it admitted at the hearing that it had neither knowledge of any collusive action nor any facts tending to show that the Petitioner might not, in tact, represent the employees The hearing officer , at the conclusion of the evidence, granted the petition to revoke and denied the motion for continuance of the hearing. We hereby affirm the hearing officer 's rulings and also do hereby revoke the outstanding subpena , B111S7, directed to the secretary of the United Furniture Workers of America, CIO. See Matter of Gluck Bros, Inc, 83 N L. R. B. 105, Matter of Morrison Turning Company, Inc, 83 N L R B 106 " See Matter of Armstrong Cork Company, 80 N L R B 566, Matter of Amos Molded Plastics Division of Amos Thompson Corporation, 79 N L R B 201 ; and Matter of Southern Advance Bag & Paper Co , Inc, 75 N L R B 614 * See Matter of W C Nabors, 79 N L R B 40, Matter of Charles Enen Johnson,and Company, 77 N. L. R B . 41; and Matter of 0 D Jennings & Company, 68 N L R B 516. 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come within our customary definition of office clerical employees and, in accordance with our established policy,6 we shall exclude them from the unit of production and maintenance employees. Truck driver: There is one truck driver, who picks up freight at the freight office, delivers it to the plant, and occasionally makes deliveries of the Employer's products. In addition he is regularly assigned to the stockroom where he spends a substantial portion of his time clean- ing and keeping the stock in order. When not otherwise engaged he performs odd jobs around the plant. He is paid on an hourly basis as are the production and maintenance employees. As a substantial portion of his time is spent cleaning and handling the material used by the production and maintenance employees in the production process, as he is paid on an hourly basis and there is community of interest between him and the production and maintenance employees, and in view of the fact that if excluded from the unit he would be unrepresented for collective bargaining purposes, we find that we would not be warranted in excluding the truck driver from the unit herein- after found appropriate. Accordingly, the truck driver will be included in that units Watchmen: The two watchmen are neither armed nor deputized. According to testimony at the hearing, these employees would begin within 10 days to operate a bending machine, which had recently been installed but which had not, up to the time of the hearing, been used. The operation of this machine would occupy approximately three- quarters of the watchmen's time. Prior to the hearing these employees, in addition to making regular rounds of the plant, performed the duties of firemen for approximately 4 or 5 hours of their 11-hour shifts. As they are now spending approximately three-quarters of their time on nonguard work, we are of the opinion that they are not guards within the meaning of the Act.7 We find that all production and maintenance employees of the Employer at its plant at Morristown, Tennessee, including truck driv- ers and watchmen, but excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 6 See Matter of Arrow Throwing Rayon Company, 76 N. L. R. B 1335; and Matter of Hall Level & Manufacturing Works, 72 N. L R. B 165 6 See Matter of Tin Processing Corporation, 80 N L R. B. 1369 ; Matter of Glazer Steel Corp., 81 N L. R. B. 530 ; Matter of Astor Packing Company, 80 N. L R. B. 302; and Matter of Scanlon-Morris Division of The Ohio Chemical & Mfg. Co., 71 N L. R B 903 4 See Matter of Sampsel Time Control, Inc, 80 N. L R B 1250; Matter of Line Mate- rial Co., 80 N. L. R. B. 599, and Matter of California Growers , Inc., et at, 80 N. L R B. .578. MODERN UPHOLSTERED CHAIR COMPANY, INC. DIRECTION OF ELECTION 99 As part of the investigation to ascertain representatives for the purposes 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 supervision 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 excluding employees on strike who are not entitled to reinstate- ment, to determine whether or not they desire to be represented, for purposes of collective bargaining, by Textile Workers' Union of America, CIO.