West Endicott Bag Co.

In the Matter Of HILLARD ROZEN AND CHARLES ROZEN, CO-PARTNERS D/B/A WEST ENDICOTT BAG Co., EMPLOYER and AMERICAN FEDERA- TION OF GRAIN MILLERS, LOCAL 22, A. F. L., 'PETITIONER Case No. 3-RC-477.Decided October 2, 1950 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John C. McRee, 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 this case, the Board finds : 1. The Employer is engaged in the business of reprocessing used burlap and cotton bags at its plant in Endicott, New York. It com- menced operations about January 1, 1950. Production ceased on June 14, 1950, when the employees went out on strike. During this period, the Employer purchased used bags in the amount of $21,053.11 and machinery and equipment in the amount of $2,148.95. During the same period of time, the Employer's sales totaled $30,381.57. Ap- proximately 32 percent of the products sold by the Employer was shipped directly to customers located outside the State of New York and $12,859.42 of the products sold was shipped to R'ozen Brothers Bag Company, Inc., a corporation located within the State of New York but engaged in interstate commerce. Upon the basis of the foregoing, we find, contrary to the contention of the Employer, that the Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. The Employer contends that the petition herein should be dis- missed because the, Employer has discontinued its operations. The testimony adduced at the hearing shows that the Employer com- menced operations about January 1, 1950, and that on June 14, 1950, the employees went on strike. The Employer's plant has been closed since the latter date. Although Hillard Rozen, one of the partners, testified that the plant involved herein will not be reopened, it appears that the Petitioner disputes this statement and is currently main- taining picket lines at the premises. We are of the opinion that the 91 NLRB No. 100. 610 W'EST ENDICOTT BAG CO. 611 record fails to establish definitely that the Employer's operations have been permanently discontinued. Accordingly, in view of the possibility that the Employer's operations may be resumed at a later date, 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. 4. We find, in accordance with the agreement of the parties, that all employees of the Employer at its plant at Endicott, New York, ex- cluding office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. [Text of Direction of Election omitted from publication in this, volume.] CHAIRMAN HERZOG and MEMBER MURDOCK, dissenting : We cannot agree with our colleagues' decision to order an election here. The uncontradicted testimony of the Employer discloses that, the plant is closed and that operations will not be resumed. Under these circumstances we would dismiss the petition at this time. 917572-51-vol. 91-40 I