General Furniture Corp.

GENERAL FURNITURE CORPORATION 479 MEMBER RODGERS, dissenting : I cannot agree with my colleagues' denial of the Petitioner's mo- tion to submit additional evidence to the Board which would, among other things, tend to show that the Petitioner is a union which tradi- tionally represents the crafts here sought. The petitions in this proceeding were filed on December 4, 1953. A hearing was held on January 12, 13, and 14, 1954. Briefs were filed on February 4, 1954. Subsequent to the hearing and the filing of briefs, the Board, on March 1, 1954, issued its decision in American Potash d Chemical Corporation, 107 NLRB 1418, in which it an- nounced for the first time the traditional union test as a prerequisite in craft severance cases. The motion in question was filed on March 24,1954. It is crystal clear from the above chronological statement that when the hearing was held in January 1954, the Petitioner had no possible way of knowing that the Board would at some future time promul-, gate a new rule in cases of this kind. Under these circumstances, it goes without saying that when the hearing was held the Petitioner presented only such evidence as it deemed necessary in the light of the Board policy that prevailed at that time. To now deny the Peti- tioner the opportunity to adduce testimony for the purpose of meeting the Board's new test-a test which did not come into existence until some time later-is to penalize the Petitioner because it did not possess the powers of divination at the earlier date. I regard this as most unjust and inequitable. My colleagues apparently are satisfied that they can decide that the Petitioner failed to meet the newly established traditional union test, without any evidence before them on the-.record-a failure in no wise occasioned by the Petitioner but rather by the Board's own change of its policy while the present case was pending. I am unable to do so. I find that I must have the pertinent evidence with respect to this issue before me before I can reach a determination. For the foregoing reasons, I must necessarily dissent from that portion of the majority decision which dismisses the Petitioner's petitions for failure to show that the Petitioner is the traditional union within the meaning of the American Potash decision. GENERAL FURNITURE CORPORATION ' and UNITED FURNITURE WORKERS OF AMERICA, CIO, PETITIONER . Case No. 9-RC-2183. July 27, 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 George LoVerde,,hearing offi- 1 As amended at the hearing. 109 NLRB No. 60. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cer. The hearing officer's rulings made at the hearing are free from prejudicial 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. 2. The Employer moved to dismiss the petition on the grounds that (1) the Petitioner is not a labor organization within the meaning of the Act because it is a Communist-dominated organization, (2) its offi- cers are Communists and that the non-Communist affidavits filed by them are fraudulent, and (3) Alexander Sirota, a key member of Petitioner, did not file a non-Communist affidavit, and should be re- quired to do so. In support of these motions, the Employer requested the issuance of subpenas to various officers of Petitioner and to Sirota, and offered to prove that certain officers of Petitioner and Sirota have a record of past Communist activities as well as a record of present Communist activities. Both the request for subpenas and the offer of proof were denied by the hearing officer. As to (1), the record shows that Petitioner is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Accordingly, we find this contention to be without merit.3 As to (2), in American Communications Association v. Herzog et al., 110 F. Supp. 220 (D. C., D. C.), the court held that the Board lacks authority to investigate the truth and validity of affidavits filed under Section 9 (h) and permanently enjoined the Board from conducting any such investigation.4 This holding has been reaffirmed in two recent decisions.5 The Employer's contention that the court's reservation in the United Electrical, Radio and Machine Workers case as to what its position would be if it can be shown that the membership was aware of the falsity of the affidavits, permits the Board to ignore the general rule and in this instance go behind the affidavits is without merit, for the reason that there is no allegation that the membership was aware that Petitioner's officers had filed false affidavits. Indeed, the Employer urges as one of the reasons such an investigation should be held is to inform the membership of such alleged falsity. As to (3) 2 For the reasons set forth in paragraph numbered 2 , the hearing officer's denial of the Employer's offer of proof relating to matters dealing with Petitioner's compliance status was proper. Although the hearing officer acted improperly in denying the Employer's re- quest for the issuance of subpenas , Townsend Sash, Door & Lumber Company, 96 NLRB 950, we find such error was not prejudicial, for the reason that the purpose of the sub- penas was to adduce evidence as to a matter not subject to litigation in this proceeding, as more fully explained in paragraph numbered 2. 8 Sunbeam Corporation, 89 NLRB 469, 473, 94 NLRB 844. 4 American Cable & Radio Corporation, 102 NLRB 877; United Tanners, Inc., 103 NLRB 760, 761. 5 Farmer v. United Electrical, Radio & Machine Workers, Civil No 11729, 211 F. 2d 36 (C. A. D C ), cert. denied 347 U. S. 943; Farmer v. International Fur & Leather Workers, Civil No. 11729, 117 F. Supp. 35 (D. C , D. C.), cert. denied 347 U. S 943. GENERAL FURNITURE CORPORATION 481 the compliance status of a union which is required to comply is a matter for administrative determination and not one to be litigated in a com- plaint or representation proceeding.6 Although compliance matters may not be litigated in Board complaint or representation proceed- ings, it has been Board practice to permit parties to representation or complaint proceedings to cause to be instituted an administrative in- vestigation of those compliance matters which the Board may properly decide in collateral proceedings before the Board. We intend to con- tinue that practice.7 However, the Employer's offer of proof at the hearing on the merits is not sufficient to warrant the Board in ordering a collateral proceeding, inasmuch as the offer contains no allegations nor does it otherwise indicate that the Employer has evidence that Petitioner has omitted from its constitution the designation of any position as an office for the purpose of evading or circumventing the filing requirements of the Act. The Employer's statement in its brief that it has asserted facts which would give the Board reasonable cause to believe that the Union evaded the filing requirements of Section 9 (h) is not borne out by the record. Accordingly, we find that the hear- ing officer's denial of the Employer's offer of proof was proper and his denial of the Employer's request for the issuance of certain subpenas was not prejudicial error. As the Board is administratively satisfied that at all pertinent times herein, the Petitioner has been and now is in compliance with Section 9 (f), (g), and (h), of the Act, and as the Employer's offer of proof is not sufficient to warrant the Board in ordering a collateral proceeding, the Employer's motion to dismiss the complaint on the ground that the Petitioner is not in compliance is denied." We find further that Petitioner is a labor organization within the meaning of Section 2 (5) of the Act, and that it claims to represent certain employees of the Employer. 3. A 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. 4. The parties are in agreement as to the scope of the appropriate bargaining unit, but disagree as to whether employees Milo Beavers and Hugh Douglass are supervisors within the meaning of the Act. They agree that employees Harold Hopkins, the plant foreman, Lynn Moore, foreman of the upholstering department, and George Schifet, foreman of the cable assembling department are supervisors as de- fined in the Act, and the record supports their position. The Em- ployer contends that Milo Beavers, foreman of the woodshop, and High Douglass, shipping and receiving clerk, occupy the same po- 8 See Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB 490, and cases cited therein ° See Coca-Cola Bottling Company of Louisville, Inc., ibid. 8 See Coca-Cola Bottling Company of Louisville, Inc, ibid. 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sition in their departments, as do Moore and Schifet, in their depart- ments, and have the same authority and privileges, and are therefore supervisors. The record shows that Beavers became foreman of the woodshop 2 weeks before the hearing when Hopkins, who had held the job previ- ously, became plant foreman. Hopkins was instructed by the general manager to inform Beavers that he was the supervisor of the wood- shop and that his duties and privileges in that capacity were the same as had been exercised by Hopkins. Among other things, Hopkins, as woodshop foreman, had possessed and exercised the authority ef- fectively to recommend the hire and discharge of employees. Beavers receives the customary benefits which the Employer gives to all su- pervisors, such as greater pay than that received by production em- ployees, extra vacations, days off with pay, and a larger year-end bonus. Beavers directs the work of the production employees in the woodshop. We find that, notwithstanding the fact that Beavers operates a band saw 25 percent of the time,9 he is a supervisor within the meaning of the Act, and we will exclude him from the unit. Douglass was employed by the Employer approximately a year before the hearing, and works in the shipping department which has one other full-time employee, Bob Rutherford. Douglass is respon- sible for the shipment of all goods that are shipped by motor freight. He contacts the motor freight carriers, and determines which one to engage for particular shipments. He keeps all records. In his ca- pacity as receiving clerk, he receives goods which have been returned for repairs and normally decides whether the goods should be re- paired, doing minor repairs himself, and seeing to it that the goods are sent to the proper department for those repairs which he cannot handle himself. When not busy in the motor freight department he checks on the work of Rutherford who handles the shipping of all goods which are shipped in the Employer's own trucks. Douglass determines whether or not additional help is needed in the shipping and receiving department and requests additional help from Hop- kins who usually grants his request. Though the Employer stated that Douglass has authority effectively to recommend the hire and discharge of employees, he has never exercised such authority, and Douglass stated that he had never been informed that he had such authority. Douglass stated further that when he was hired, he was told that Rutherford was in charge. The Employer stated that he told Rutherford that he had no supervisory authority. Rutherford and Douglass receive the same rate of pay. Douglass has received days off with pay when he was sick, and received a year-end bonus similar to that received by supervisors. On the basis of the entire 9 Ideal Roller & Mfg. Co., 104 NLRB 931. CONE BROTHERS CONTRACTING CO. 483 record we are persuaded that Douglass is responsible for the orderly operation of his department and that he responsibly directs and con- trols the activities of other employees, who are assigned to him upon demand, and that he exercises the only authority within his depart- ment aside from the plant foreman who has overall responsibility. Accordingly, we find that Douglass is a supervisor within the mean- ing of the Act and we will exclude him from the unit. The Petitioner indicated on the record that it thought Joseph Bul- lock should be excluded from the unit on the grounds of his close and confidential relationship with the Employer's plant manager. Bul- lock is employed as a welder in the plant, and his wife is employed as a domestic servant by the plant manager. On these facts we can per- ceive no reason for excluding Bullock from the unit, and we shall include him. We find that all production and maintenance employees employed by the Employer at its Columbus, Ohio, plant, including truckdrivers, but excluding all office employees, guards, professional employees, and supervisors as defined in the Act, constitute an appropriate unit 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.] CONE BROTHERS CONTRACTING Co. and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO, PETITIONER. Case No. 10-RC-2572. July 27, 1954 Supplemental Decision and Certification of Representatives On March 17, 1954, pursuant to a Decision and Direction of Elec- tion of the National Labor Relations Board, an election by secret bal- lot was conducted under the direction and supervision of the Regional Director for the Tenth Region among the employees of the Employer in the unit found appropriate by the Board. Upon the conclusion of the election, the parties were furnished a tally of ballots which showed that there were approximately 414 eligible voters (including challenged voters) and that 129 valid ballots were cast for the Peti- tioner, 77 for the Intervenor, 129 against the participating labor or- ganizations, 11 were challenged, and 3 were void. No choice on the ballot having received a majority of the valid ballots cast, the num- ber of challenged ballots being insufficient to affect the results of the election, and no objections having been filed, the Regional Director scheduled a runoff election pursuant to Section 9 (c) (3) of the Act 1.09 NLRB No. 15. 334811-55-vol. 109---32