Crown Upholstering Co.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conferences because it is bound by the working hours for the employees covered by the contract, and attendance at these conferences would, in large part, be outside of regular working hours. We do not believe the contemplated change in the duties of the sales- men and special representatives is sufficient reason to exclude them from the unit.' A unit determination must depend on the present duties of the employees involved, not on speculation as to future changes in work assignments. Nor do we believe that inclusion in the unit would make it impossible for these employees to function in the best interests of the Employer. There is no incompatibility between the faithful performance of duty and the enjoyment of benefits under the Act' Moreover, the Board has held that attendance ut staff meet- ings at which company policies are discussed is not sufficient to confer managerial status upon employees.' We find that all physical employees, office employees, clerical em- ployees, salesmen, and special representatives, excluding executives, supervisors, confidential secretaries of executives and supervisory 'employees,9 driver clerks employed in connection with offices of the president and treasurer, cashier, the assistant cashier and stock trans- fer clerk in the treasurer's office, payroll clerks, timekeepers, the con- tinuing property record accountant, and the general accountants, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.1° [Text of Direction of Election omitted from publication.] 9 Cf. Jordan-Rogers Company, 107 NLRB 1136; Certain-Teed Products Corporation, 102 NLRB 1324, 1325; Atlas Tag Company, 84 NLRB 685, 686; Aluminum Company of Amer- ica (Harvard Plant, Cleveland), 80 NLRB 1342, 1345. The instant case is distinguishable from those cases where the Board has found a bargaining history not to be controlling because there has been an actual change in operations. See The Mennen Company, 108 NLRB 355 7 E. I. DuPont De Nemours and Company, Inc., Construction Division, Savannah River Plant, 107 NLRB 734. 8 Westinghouse Radio Stations, Inc., covering Radio Stations KEX and KEX-FM, 107 NLRB 1407 ; Westinghouse Electric Corporation (Kansas City, Mo.), 97 NLRB 1271, 1272. 9 The parties stipulated that the secretaries to President Jeffords, Vice-Presidents Weber, Reilly, and Fouse, Assistant Treasurer Dillon, Treasurer Steers, Plant Superintendent Loftus, and Secretary Baas, should be excluded as confidential secretaries. 39 This is the unit covered by the contract between the Employer and the Intervenor. CROWN UPHOLSTERING Co. and FURNITURE WORKERS, UPHOLSTERERS & WOOD WORKERS UNION, LOCAL 576, INDEPENDENT, PETITIONER. ,Case No. 21-RC-3484. September 03,1954 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 Leo Fischer, hearing officer. 110 NLRB No. 10. CROWN UPHOLSTERING CO. 23 The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed., Subsequent to the hearing, on May 24, 1954, the Employer filed a motion with the Board, in which it urged as grounds for dismissal of the petition, inter alia,2 that a valid election had been held within 12 months, and that the Petitioner is not in compliance with Sec- tion 9 (h) of the Act. The first of the above grounds is, in effect, a renewal of the Em- ployer's motion to dismiss made at the hearing. The Petitioner, Local 576, was certified on October 23, 1953, after an election held on October 15 in Case No. 21-IZC-3219 (not reported in printed volumes of Board Decisions and Orders) among employees in the unit herein sought. However, on February 26, 1954, the Board re- voked the certification and dismissed the petition in that case because of Local 576's noncompliance with Section 9 (h) of the Act at all times relevant thereto.' As the entire proceeding in that case, includ- ing the election, was thereby invalidated, we find no merit in the con- tention that an immediate election is precluded by Section 9 (3) (c) of the Act 4 In urging dismissal of the petition because of the alleged noncom- pliance of the Petitioner with the filing requirements of Section 9 (h) of the Act, the Employer contends that the Board should find that certain members of the Petitioner's executive board,' who have not filed non-Communist affidavits, are "officers" within the meaning of Section 9 (h). In support of this contention the Employer urges that, although not described as officers, the executive board members involved have duties and responsibilities of such a nature that the Board should treat them as officers, and that therefore they were re- quired, under Section 9 (h) of the Act, to file non-Communist affi- davits, which they have not done. ' United Furniture Workers of America, CIO, intervened at the hearing on the basis of a card showing. The hearing officer referred to the Board the Employer 's motion to dismiss on the grounds stated below. This motion is denied for the reasons set forth below. 3 'The Employer also questioned the propriety of using the Petitioner's membership dues receipts as evidence of a showing of interest . However, it is clear that showing of interest is an administrative matter not litigable by the parties . Moreover, we are satisfied that the issue raised by the Employer can best be resolved by a secret election . East Coast Fisheries, Inc., 97 NLRB 1261. 3 On January 14, 1954, in connection with its reexamination of the sufficiency of Local 576's compliance in California -Wrought Iron, Inc, 107 NLRB 1095, the Board had found that Local 576 omitted from its constitution the designation of recorder, trustees, mem- bership director , and business agents as officers for the purpose of evading or circumvent- ing the filing requirements of Section 9 (h) of the Act, and administratively determined that Local 576 was not in compliance during such time as the incumbents of the afore- mentioned positions failed to file the required affidavits . See Compliance Status of Furni- ture Workers, Upholsterers and Woodworkers Union, Local 576, Independent, 107 NLRB 872. 4 The Nashville Corporation, 77 NLRB 145 at 147. 6 Division chairmen, representative of divisions , the chairman of the steward council, and organizers. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 complaint or representation proceedings Although compliance matters may not be litigated in Board complaint or representation proceedings, it has been Board practice to permit parties to represen- tation or complaint proceedings to cause to be instituted an administra- tive investigation of those compliance matters which the Board may properly decide in collateral proceeding before it. We intend to con- tinue that practice.? However, the Employer's motion to dismiss in this proceeding is not sufficient to warrant the Board in ordering a collateral proceeding. Under the Board's "constitutional" test, an officer is a person occupying a position identified as an office in the union's constitution.8 Inasmuch as there is no showing that any of the executive board members referred to above occupies a position so designated in the Petitioner's constitution (nor is it contended that any such position has at any time been so designated) we find that the Employer's motion to dismiss on this ground is without merit 9 and that the Petitioner has complied with the filing requirements of Section 9 (h) of the Act. We cannot subscribe to the rule proposed by our dissenting col- leagues which invokes a penalty denying a union a new election during a 1-year period following an election and certification which have been set aside because it has been subsequently determined that the union omitted officer designations from its constitution and hence did not have all the requisite officer affidavits on file at the time of the prior election. The short answer to such a penalty is that there is no warrant in the statute for creating it. Moreover, instead of en- couraging a union to get into full compliance, which we believe is the goal Congress was seeking, such a penalty would operate to discourage a union from promptly correcting its compliance status. 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 certain em- ployees of the Employer.lo 9 Coca-Cola Bottling Company of Louisville , Inc, 108 NLRB 490, and cases cited therein. 7 Coca-Cola Bottling Company of Louisville, Inc., supra. 9 Sec 102 13 ( b) (3) National Labor Relations Board Rules and Regulations , Series 6, as amended. These regulations provide further that, even where a position has not been designated as an officer in a union 's constitution , it may be treated as an office of the board if it is shown that the union had failed to designate such position as an office in order to evade or circumvent the filing requirements of the Act. However, no such showing has been made in this proceeding. e See Coca-Cola Bottling Company of Louisville, Inc, supra io The Intervenor, United Furniture Workers of America, CIO , and the Employer would not stipulate as to the Petitioner's status as a labor organization However, the record shows, and we find, that the Petitioner is a labor organization within the meaning of the Act. BRADY AVIATION CORPORATION 25 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. We find that the following employees of the Employer consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees at the Employer's 1933 West 60th Street, Los Angeles, California, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act.ll [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER and MEMBER BEESON, dissenting : We would dismiss the petition. While we agree that the election of October 15, 1953, was an invalid one and, for this reason, does not bar an immediate election under the ban of Section 9 (c) (3), of the Act, we nevertheless believe that where a union is certified after an election and thereafter the Board, upon finding that the union has omitted officer designations from its constitution for the purpose of evading the filing requirements of Section 9 (h) of the Act, revokes its certification, the Board should, as a deterrent to such deliberate evasion, deny a new election to the union for a period of 1 year from the date of the prior invalid election. Such a rule would, in our opinion, effectuate the provisions of Section 9 (h) of the Act. Other- wise, we accomplish nothing by revoking the prior certification except to incur for the public the trouble and expense of holding a second election. "The parties agree as to the unit , except that the Employer would exclude clerical em- ployees generally . However, as the Board customarily includes plant clerical employees in plantwide units, we will exclude only the office clerical employees. See Mrs. Tucker's Products, Division of Anderson, Clayton ,f Company, Inc., 106 NLRB 533. The Em- ployer also made a request for the inclusion of the plant address in the unit description, which was opposed by the Petitioner on the ground the plant might be moved. However, as Board unit findings, in any. event , relate only to existing operations, we have specified the present plant location. BRADY AVIATION CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, (UATV-CIO). Case No. 16-CA-640. September 24, 1954 Decision and Order On December 29, 1953, Trial Examiner Stephen S. Bean issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and 110 NLRB No. 13.