Comfort Slipper Corp.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD met. The latter phrase is not one taken from the standards and I also have some doubts that the statement is true. Nevertheless, my col- leagues are unquestionably the authority on the meaning of standards which they framed over my dissent, and unless some compelling rea- son to the contrary appears, I am not disposed to dispute their inter- pretation of the meaning of phrases like "directly utilized" in the stand- ards. If, as has been said, crushed stone furnished for the railroad roadbeds is not "directly utilized" in the operations of a railroad, the holding here is consistent with that. Under the circumstances I ac- quiesce in the decision. COMFORT SLIPPER CORPORATION i and UNITED SHOE WORKERS OF AMERICA, CIO, PETITIONER. Case No. 1-RC-3775. January 12, 1955 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 Francis Paone, hear- ing 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 commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all production em- ployees of the Employer, excluding maintenance, shipping, receiving, and office clerical employees, guards, and supervisors. The Employer would include the maintenance, shipping, and receiving employees, as well as the seasonal employees as to whom the Petitioner took no po- sition, but otherwise agrees with the Petitioner's request. The Employer manufactures shoes at Fitchburg, Massachusetts. Its manufacturing operations are all located in a plant located on River Street, and in addition, it has a warehouse located on Nocket Street, about one-half mile from the plant, where raw materials and finished shoes are stored. All production employees are located at the River Street plant. 1 The name of the Employer appears as amended at the hearing. 2 After the close of the hearing, the Employer filed a "Motion to Incorporate Affidavit in Record " In view of our findings herein we find it unnecessary to pass upon this motion. 111 NLRB No. 29. COMFORT SLIPPER CORPORATION 189 Considered as maintenance employees are 2 handymen and 2 sweep- ers. The handymen perform miscellaneous unskilled maintenance tasks 3 at the plant and at the warehouse. They take orders from the various production foremen in whose departments work arises and are under the general supervision of the plant superintendent. One of the sweepers works in the cutting room; the other in the stitch- ing room. Their duties appear to be confined to sweeping in these departments. There are 5 shippers at the warehouse and 1 part-time shipper at the plant. They are supervised by the shipping department super- visor, located at the warehouse, and an assistant located at the plant. There are two receiving department employees, both of whom ap- parently work at the plant under the supervision of a receiving de- partment supervisor. The shipping and receiving department em- ployees interchange with one another and move between the ware- house and the plant, as needed. In addition during peak production periods, when it becomes necessary to train new production employ- ees, employees from these two departments are transferred into pro- duction jobs. All the employees in the plant receive the same va- cation benefits and are covered by a group life insurance policy. The Petitioner contends that the maintenance, shipping, and re- ceiving employees should be excluded from the unit because (1) it has bargained only for production employees in other Massachusetts plants it represents and (2) such employees fall outside its jurisdic- tion. However, as to the first contention, we note that in other cases involving the Petitioner and shoe manufacturers 4 the Board has di- rected elections among units of production and maintenance employ- ees. Furthermore, the fact that a union limits its jurisdiction to cer- tain classifications in no way restricts the Board in its determination of the appropriateness of a bargaining unit.5 Accordingly, as the Petitioner has advanced no cogent reason in support of its proposed limited unit, which would disregard the community of interest be- tween the production employees and those in the disputed categories, as no other union seeks to represent the disputed categories, and as it appears that there is no bargaining history for any of these employees, we find that a unit limited to production employees is inappropriate and that the appropriate unit includes those in the disputed cate- gories as well as the production employees e 3 All but minor repairs on the Employer's production equipment are performed by out- side repairmen 4International Shoe Company, 93 NLRB 331 ; Spack Shoe Company, 85 NLRB 701, International Shoe Company, 83 NLRB 386 ; Bell-Moe, Inc , 81 NLRB 6 ; Prosper Shevenell c& Son, Inc., 81 NLRB 1303; Dover Shoe Mfq Co, 80 NLRB 139 In all but the Spack case , maintenance employees were included with the agreement of the petitioner and, in all but the International Shoe cases, the plants involved were located in New England. s Florence Manufacturing Company, Inc , 92 NLRB 185. 9 Florence Manufacturing Company, Inc., supra ; Spack Shoe Company, supra . See also Standard Coil Company, 98 NLRB 1296. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer employs a number of seasonal employees during its seasonal peaks each year. They are recruited from the area around the plant and about 60 percent of them return from year to year. They are employed in the same classifications as permanent employees and receive similar rates of pay and benefits of employment. Under these circumstances, we agree with the Employer that the seasonal em- ployees should be included in the unit.' The following employees of the Employer at its Fitchburg plant and warehouse constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees, including handymen, sweepers, shipping, and receiving employees and seasonal employees, but excluding office clerical employees, guards, and supervisors with- in the meaning of the Act. As noted above, the unit found appropriate is broader than that sought by the Petitioner. Although the Petitioner did not indicate its desire to represent such a unit, it did not unequivocally state that it did not desire to represent such a unit.' In these circumstances, in- cluding the fact that the Petitioner has an adequate showing of inter- est in the larger unit, we will direct that an election be held in that unit. If, however, the Petitioner does not desire to participate in an election in such a unit, we shall permit it to withdraw its petition upon notice to the Regional Director, within 5 days from issuance of this Direction and shall thereupon vacate the Direction of Election. 5. The Employer contends that the election should be postponed until its seasonal peak, which will be reached during February or March. The record indicates that the minimum complement of em- ployees is around 260, reached during September. In November or December the Employer begins to increase its work force and expects to reach a peak of around 460 employees in February or March. How- ever, as it appears that the permanent employees comprise over 50 percent of the Employer's payroll and constitute a substantial and 4 Smith Rice Mill, Inc., 102 NLRB 1252. 8 Although the Petitioner 's regional director testified that the Petitioner in the past has not represented or admitted to membership employees similar to those it sought to exclude from the appropriate unit because it had no facilities for representing them and could not represent them properly, he denied that the Petitioner was so organized that it could not represent them at all. We do not believe that his testimony , taken as a whole, is sufficient to support a finding that the Petitioner in the future will not properly repre- sent all the employees in the unit found appropriate herein, if it is certified as the repre- sentative for that unit . Furthermore , a union is not disqualified from representing em- ployees because it has no previous experience in representing similar employes, nor because such employees are ineligible for membership in it . Wayside Press, 104 NLRB 1028; Jacksonville Linen Service, 89 NLRB 1354. It is clear , however , that our unit finding relieves the Employer of all responsibility to deal with the Petitioner, if certified , on the basis of any unit other than that found appro- priate herein . A.nheuser-Busch, Inc., 102 NLRB 800, at 812 , 813. Moreover, the Peti- tioner must , if certified , accord equal representation to all employees in the appropriate unit. See Hughes Tool Company, 104 NLRB 318. GARNER AVIATION SERVICE CORPORATION 191 representative group, we will not postpone the election.' According- ly, we shall direct an immediate election among those permanent and seasonal employees currently employed. [Text of Direction of Election omitted from publication.] 0 The Borden Company, 89 NLRB 227; Arkport Dairies, Inc., 86 NLRB 319. GARNER AVIATION SERVICE CORPORATION AND LYNCHBURG AIR TRANS- PORT AND SALES CORPORATION, D/B/A GARNER AVIATION SERVICE CORPORATION ' and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, PETITIONER . Case No. 10-RC-2899. January 13, 1955 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 Allen Sinsheimer, Jr., 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 :2 1. The Employer is engaged in commerce within the meaning of the Act. Under a cost-plus-fixed-fee contract with the Department of the Air Force, the Employer furnishes flight training to Air Force cadets at the Bartow Air Force Base. In connection with this activity, the Employer operates the field and other facilities and maintains the air- craft. The Employer moves to dismiss the petition for want of juris- diction on the grounds that: (a) It is not an "employer" of the em- ployees involved, as these terms are defined in the Act, but is merely a contract agent of the Government, which is really the substantial employer, and for which it is performing a governmental function; and (b) it is not engaged in "commerce" within the meaning of the Act. The facts pertaining to the relationship between the Employer and the Department of the Air Force are the same as those considered in an earlier case involving the Petitioner and Employer herein, where the Board found, contrary to the Employer's contention, that it was an Employer within the meaning of Section 2 (2) of the Act.' More- over, as the Employer provides services directly related to national defense pursuant to a Government contract in an amount exceeding I The petition was amended at the hearing to show the correct name of the Employer as indicated above. 2 The Employer' s request for oral argument is denied because the record and the briefs, in our opinion , adequately present the issues and positions of the parties S Garner Aviation Service Corporation, 101 NLRB 517 ; accord, Hawthorne School of Aeronautics, 98 NLRB 1098 ; Anderson Air Activities, 104 NLRB 306. 111 NLRB No. 28.