Grinnell Pajama Corp.

GRINNELL PAJAMA CORP. 289 rulings. The decisional basis of the Board's July 29, 1952, order is described in our decision in the Shell Chemical Corpo- ration case issued this day, and need not here be repeated. Thereafter, following the Respondent's unsuccessful attempts to obtain the Court's review of the Board's interlocutory order of July 29, 1952, the case was litigated on the merits before Trial Examiner Ralph Winkler who, on July 13, 1953, issued an Intermediate Report disposing of the complaint on the merits. He found that, as was alleged in the complaint, the Respondent violated Section 8 (a) (1) and (3) of the statute upon the same acts which had formed the basis of the initial, abortive proceedings detailed above. Thereafter, the .Respondent filed exceptions and a brief in support thereof dealing with the merits of the case, but also including, in effect, a renewal of the motion. to dismiss which was the subject of the Board's July 29, 1952, order. We have now reexamined, on the basis of the record as a whole, the question of whether the summary dismissal of the complaint without regard to the merits is justified as a matter of policy. Upon the entire record, and in light of the similarity of the circumstances under which this and the Shell Chemical Corporation proceeding were placed before us, we are con- vinced that substantially the same considerations are here pres- ent as those motivating our decision in the Shell Chemical Corporation case to the effect that sound policy reasons exist for not proceeding further in the kind of unusual situation we here face. Therefore, we find, as we did in the Shell Chemical Corporation case, that it will not effectuate the broad purposes and policies of the Act to proceed further in this case, and we shall accordingly dismiss the complaint in its entirety, with- out passing upon its merits. [The Board dismissed the complaint.] Member Beeson took no part in the consideration of the above Decision and Order. GRINNELL PAJAMA CORP. and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, Petitioner. Case No. 1-RC- 3519. April 19, 1954. 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 M. Alice Fountain, 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: 108 NLRB No. 60. 339676 0 - 55 - 20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Employer is engaged in commerce within the meaning of the Act.' 2. The labor organization involved claims to represent cer- tain employees of the Employer.: 3. A question affecting commerce exists concerning the rep- resentation of 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: The Petitioner seeks a unit of production and maintenance employees with the statutory exclusions . The Employer, how- ever, would also exclude the shipping and receiving clerks as confidential employees , the examiners as managerial em- ployees, and the shipper and two assistant foremen as super- visory employees. In addition, the Employer contends in its brief for the first time that cutters and spreaders are a skilled and functionally coherent group and should be separately repre- sented from other production and maintenance employees. The Petitioner would include all of these employees in the unit. 1 The Employer, on a labor contract basis, is engaged in the business of cutting, sewing, and trimming ladies', children's, and men's pajamas at its plant in Massachusetts. Material is shipped to the Employer from without the State of Massachusetts by out-of-State sellers of the finished product. After the material is cut and sewn, the finished product is shipped to customers of the sellers, at the latter's instructions. For its services during the past year, the Employer received from the sellers from $250,000 to $300.000. In view of the fore- going, we find that the Employer is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. Hollow Tree Lumber Company, 91 NLRB 635. In agreeing to assert jurisdiction here, Chairman Farmer and Member Beeson are not thereby to be deemed as concurring with the Board's present jurisdictional standards. 2 The Employer refused to stipulate that the Petitioner is a labor organization. We are satisfied that the Petitioner exists for the purpose of collective bargaining with the Employer with respect to wages, hours, and other cotditions of employment and therefore is a labor organization as defined in the Act. Moreover, contrary to the Employer's contention, we find that the Petitioner is not disqualified from seeking to represent the Employer's production and maintenance employees solely because it customarily represents employees engaged in the manufacture of men's wear. 3The Employer moved to dismiss the petition on the grounds that: (a) No previous demand for recognition as bargaining agent was made by the Petitioner; (b) the Petitioner's showing of interest was not attached to the copy of the petition served on the Employer; (c) the petition was not sworn to before a notary public; and (d) the Petitioner failed to answer correctly question 11 of the petition that another labor organization was interested in this proceeding. We find no merit in the Employer's contentions and therefore deny its motion. (a) The filing of a petition is itself sufficient demand for recognition to raise a question con- cerning representation. Advance Pattern Company, 80 NLRB 29. (b) A labor organization's showing of interest is an administrative matter for the determination of the Board and is not subject to direct or collateral attack by the parties. Stokely Foods, Inc., 78 NLRB 842; C. D Jennings & Company, 68 NLRB 516. Accordingly, a copy of the Petitioner's showing of interest need not be served upon the Employer. (c) Under Section 102.52 of the Board's Rules and Regulations it is unnecessary that a representation petition be sworn to where, as here, the petition contains a declaration by the person signing it that the contents thereof are true and correct to the best of his knowledge and belief under the penalties of the Criminal Code. (d) Although the record discloses that the Petitioner incorrectly answered question 11 of the petition, the Employer is not prejudiced thereby. However, the InternationalLadies'Garment Workers' Union, which may be interested in this proceeding, may, upon timely motion and proper showing of interest, antedating the date of the hearing, intervene in this proceeding and be accorded a place on the ballot in the election hereinafter directed. GRINNELL PAJAMA CORP. 291 Cutters and spreaders: As it appears that cutters and spreaders are part of the production force and are subject to the same general terms and conditions of employment, we find t no reason to exclude them. Shipping and receiving clerks: The Employer would exclude the shipping and receiving clerks as confidential employees because in the performance of their duties they learn the names' and addresses of the Employer's customers, and the prices and styles of the Employer's products. We find no merit in this contention. As the record reveals that these employees do not assist or act in a confidential capacity to any person who exercises managerial functions in the field of labor relations, we find that the shipping and receiving clerks are not con- fidential employees within the meaning of Board decisions.4 Accordingly, we will include them in the unit. Examiners: These employees inspect the finished work of the stitchers. Because their duties include the rejection of defective work, the Employer would exclude them as managerial employees having diverse interests from those of production and maintenance employees. We do not agree. As examiners do not exercise any supervisory authority and their work is essentially that of inspectors, we will, in accord with Board policy, include them in the unit.' The assistant foremen and the shipper: The Employer would exclude, and the Petitioner would include, the two assistant foremen and the shipper. The assistant foremen are responsible to the plant foreman for the operations conducted in the plant. The evidence shows they have the authority effectively to recommend the hire and discharge of employees in their depart- ments. Accordingly, we will exclude the assistant foremen as supervisory employees. For the same reason, we will also exclude the shipper who is in charge of the shipping department and who the record shows has direct authority to hire and dis- charge shipping and receiving employees. We find that all production and maintenance employees at the Employer's New Bedford, Massachusetts, plant, including cutters, spreaders, shipping and receiving clerks, and exam- iners, but excluding office clerical employees, professional employees, watchmen, guards, the shipper, assistant foremen and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act .6 4E. I DuPont De Nemours and Company, Inc. (Construction Division, Savannah River Plant), 107 NLRB No. 135 at 15; Miller Electric Company, 103 NLRB 1492. 5 Palmer Manufacturing Company, 103 NLRB 336. 6The Employer questioned whether seasonal employees should be included in the unit and held eligible to vote. The record discloses that, although the Employer did not employ seasonal employees at the time of the hearing, it customarily hires approximately 25 em- ployees each year in May for its busy season during May, June, and July. Under Board practice, such employees, if they perform functionally related work, are included in the 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Text of Direction of Election omitted from publication] Member Rodgers took no part in the consideration of the above Decision and Direction of Election. unit irrespective of the number of hours they work or the tenure of their employment. As the record does not disclose the nature of their duties or the regularity of their employment, we will permit seasonal employees to vote subject to challenge if they are employed during the eligibility period prescribed in the Decision and Direction of Election herein. Cf. L: Wiemann Company, 106 NLRB 1167. MARVEL ROOFING PRODUCTS , INCORPORATED ; WESTERN PROCUREMENT COMPANY , INCORPORATED; NEW MEXICO FELT MILLS , INCORPORATED ' and CHAUF- FEURS, TEAMSTERS AND HELPERS , LOCAL UNION 492, AFL, Petitioner . Case No. 33-RC-469 . April 19, 1954 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 Byron E. Guse, 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 three companies listed above are New Mexico corporations occupying the same premises in Albuquerque, New Mexico . Western Procurement Company, Incorporated, is engaged in buying and selling basic raw materials used in the manufacture of asphalt composition roofing products by New Mexico Felt Mills. During the year 1953, Western Procurement Company purchased scrap paper , sawdust , asphalt coating and saturants , and other products valued at $240,520 from outside the State of New Mexico , and products valued at $42,500 from within the State . All of its sales, amounting to $ 365,767 , were made within the State to New Mexico Felt Mills. New Mexico Felt Mills, Incorporated , manufactures asphalt composition roofing products . All but 7 percent of its materials is purchased from Western Procurement Company. During the year 1953 , all of its manufactured products , valued at approximately $ 612,133, were sold within the State to Marvel Roofing Products. Marvel Roofing Products , Incorporated , in turn, sells all the roofing products manufactured by New Mexico Felt Mills in New Mexico , Arizona, Colorado , Texas, Oklahoma, and ' The names of the companies appear as corrected at the hearing. 108 NLRB No. 58.