Petco Corp.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus it appears that, in those classifications which were in existence at the time of the hearing, the Employer had a substantial and repre- sentative segment of the working force it contemplated within the ensuing 6-month period.3 In those classifications which it contem- plated establishing the Employer's own testimony indicates that hiring will take place within the current month. On this record there is no reason to suppose that all classifications will not be represented when the election directed herein takes place, in sufficient quantity to be representative of the working force actually contemplated for the next 6 months. In these circumstances we shall not dismiss the peti- tion, as the Employer requests, but shall direct an immediate election in accord with our usual policy.' We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and mainte- nance employees of the Employer at its operations located at 2718 Pershing Avenue, Memphis, Tennessee, excluding office and clerical employees, professional employees, technical employees, watchmen, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication in this volume.] 2 The complement anticipated with some degree of certainty for June 1952 appears to be approximately 112; real estate maintenance 3; piano assembly and cabinet 75; sounding boards 2; hammers 22-S4, action and keys 10. Thirty-five production and maintenance employees were employed at the time of the hearing. The record indicates that February hirings would bring this 35 to at least 55 4 Bell Aircraft Corporation, 96 NLRB 1211, IL P Schei er Corporation, Hypospray Division, 95 NLRB 1426. PETCO CORPORATION-NEW ORLEANS DIVISION 1 and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONER . Case No. 15-RC-515. February 18,1952 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 J. M. Mitchell, hearing officer. The hearing officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed .2 Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 1 The name of the Employer appears as amended at the hearing. 2 Independent Oil Workers Union of Jefferson was permitted to intervene in this proceed= ing upon a proper showing of interest. 98 NLRB No. 28. PETCO CORPORATION 151 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. At the hearing, the Employer made several motions to dismiss, all of which were referred to the Board by the hearing officer. The basis of these motions to dismiss is that a legally valid petition does not exist in this case because : (1) The petition was withdrawn with the approval of the Regional Director and therefore the case is closed;, and (2) the petition is defective in that certain spaces were left blank. The petition was originally filed on April 20, 1951. In a letter dated June 1, 1951, the Petitioner requested that its petition be with- drawn. As the Board Rules and Regulations provide that " . . . Whenever the Regional Director . . . approves the withdrawal of any petition, the case shall be closed,"' it is clear that a with- drawal can only be effected with the Regional Director's consent. Therefore, whether or not such consent was officially given in the, present instance must determine the issue before us. We believe that, the Regional Director never officially approved the withdrawal of this petition and that as it was never effectively withdrawn, it con- tinned valid. In reaching this conclusion, we are persuaded by certain facts : ft is true that the Regional Director indicated approval of the with- drawal at the time of the receipt of the request, by writing "approved" at the bottom of his own file copy of the letter. However, the order issued and served by the Regional Director provided only for the withdrawal of the notice of hearing on the petition, as distinguished from withdrawal of the petition itself.4 Only the limited hearing withdrawal order was served on the parties, and it was only upon that order that they were entitled to rely. Because no notice of the approval of the withdrawal petition was given to the parties, in our opinion the Regional Director failed to take all the steps required for official approval of the request for withdrawal. Accordingly, we conclude that the Regional Director, whether he intended to or not, never actually approved the withdrawal of this petition. Because of our finding above that this petition was never legally withdrawn, and is therefore still in existence for the purpose of this. proceeding, we find without merit the Employer's contention that a legally valid petition does not exist in this case .5 8 Section 102.52, Series 6, Rules and Regulations of the NLItR The actual terms of the order issued by the Regional Director are as follows : Order Withdrawing' and Revoking Notice of Representation Hearing Notice of Representation Hearing having issued on the 31st day of May 1951, setting: the date of the hearing as June 7, 1951 ; and Petitioner having filed request for with. drawal of Petition, IT Is HEREBY ORDERED that the Notice of Representation Hearing be , and is, with- drawn and revoked Dated at New Orleans, Louisiana, on this 5th day of June 1951. Thus, the question of the Regional Director's authority to reinstate a withdrawn petition is immaterial , and need not be here resolved. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - The Employer further contends that the petition is invalid because blanks were left in the spaces provided in the petition form for in- ,dicating the number of employees supporting the petition and for 'showing that a request for recognition was made to the Employer. These technical defects, which were remedied at the hearing and which certainly did not prejudice the Employer, are no basis for any valid objections Accordingly, the motions to dismiss are hereby denied. • We find that a question affecting commerce exists concerning the representation of the employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. In accordance with the agreement of the parties, we find that all production and maintenance employees at the Employer's Marrero, Louisiana, plant, including operating employees, laboratory men, office and clerical employees, but excluding all guards, professional em- ployees, sales managers, and supervisors as defined in the Act, con- stitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] . MEMBER MURDOCH, dissenting: I would grant the Employer's motion to dismiss the petition in this case. The Regional Director here approved the Petitioner's request of June 1, 1951, to withdraw its petition. The Board's Rules and Regulations 7 explicitly provide that whenever a Regional Director approves a withdrawal request "the case shall be closed." Accord- ingly, the Regional Director acted entirely without authority in rein- stating the petition. The majority argue that the Regional Director did not intend to and did not "officially" approve the withdrawal of the petition despite his notation "approved" on the withdrawal request, because, they say no "official record" was made of this approval and the order he sent the parties said only that the notice of hearing was revoked. I find nothing in the Board's Rules which specifies what form the Regional Director's "approval" of a withdrawal request shall take; I fail to understand why his notation "approved" on the withdrawal request is not an "official record." I would deem his omission to include a specific statement that the petition had been withdrawn in his order revoking the notice of hearing merely an oversight and not operative to extinguish his approval already noted on the withdrawal request. I believe we should interpret a Regional Director's actions in the light of an assumption that he intends to comply with the clear mandate of our Rules. I find it paradoxical 9 See The White Motor Company, 86 NLRB 380 ; Marrtn County Employers Council, 87 NLRB 296; C & M Lumber Co., Inc., 83 NLRB 1258. 7 Sec. 102.52, Series 6. WEST STEEL , CASTING COMPANY 153 that the majority apparently are not only proceeding on the contrary assumption but go even further and hold that because in their view, the Regional Director disobeyed the clear mandate of our Rules, he is permitted to exercise an authority to reinstate a petition which he would not have possessed had he abided by our Rules. WEST STEEL CASTING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, PETITIONER. Case No. 8-RC 1439. February 1971952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Charles A. Fleming, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of production and maintenance employees at the Employer's steel castings and wheel manufacturing plant at Cleveland, Ohio. International Molders & Foundry Workers Union of North America, Local 244, the Intervenor herein, contends that its current contract with the Employer operates as a bar to the instant petition. The Petitioner, in reply, alleges that the contract is not a bar (1) because of an illegal union-security clause in the contract and (2) because of a schism within the Intervenor's local organization. The Employer takes no position with respect to the contract bar issue. The Union-Security Clause On June 9, 1951, the Employer and the Intervenor entered into a contract effective for a period of 1 year and containing a provision 'We find, contrary to the contention of the Petitioner, and in view of the facts set forth below, that the Intervenor herein is a currently existing and functioning labor organization , within the meaning of the Act. Twentieth Century-Fox Film Corporation, 96 NLRB 1052. 98 NLRB No. 32.