Royal Jet, Inc.

1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "wholesale" cooperative. I consider this an utterly unwarranted dis- tinction. The Greenwich Gas criterion is based on gross volume of business of public utilities. To assert jurisdiction over a cooperative which fails to Iheet the minimum gross volume figure because it sells to its members at "wholesale" is manifestly in derogation of the juris- dictional standards with respect to public utilities recently adopted, and serves only to unduly complicate, without warrant in fact or logic, an -otherwise simple rule. I disagree that any such result was intended when the rule was adopted. Clearly, the so-called "whole- sale" cooperative, operating, as it does, within the State, is essentially as local and no different from any other cooperative. The majority's distinction, in my opinion, is therefore more fancied than real. _ As the Employer's annual gross volume of business is far below the minimum figure established in Greenwich Gas, I would dismiss` the petition. Royal Jet, Incorporated and Independent Metal Workers of America, Petitioner. Case No. 21-RC-3922. August'25, 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 Ben Grodsky, hearing officer. The, hearing officer's rulings made at the hearing are free from lfrej- udicial'error and-are hereby affirmed.1 _ i The Employer and Sheet Metal Workers International Association, Local Union No, 170,, AFL, contend that the Petitioner has failed to make a proper showing of interest as- serting that the showing may be tainted with fraud. Where, as -here, parties'are advised at the hearing that evidence of fraud in procurement of cards may be adduced before the Re- gional Director and fail to do so, there is no warrant for further inquiry into their authen- ticity. Under all the circumstances, we are administratively satisfied that the-Petitioner's showing of interest is sufficient. See Fos Manufacturing Company, 112 NLRB 977; Poto, mac Electric Power Company, 111 NLRB 553. The Employer and Intervenor' moved to dismiss or remand this proceeding because of the hearing offreeg's prejudicial error in: ( 1) Refusing evidence to prove that the Peti- tioper `was not -a labor . organization and, is effect, ruling that the_ Petitioner was a labor organization ; (2) permitting the-Petitioner to`ameed the unit description to conform with-that in the Intervenor's contract ; (3) denying the Intervenor's motion to dismiss; and (4 ) closing the record before the Board ruled on'the motions made at the hearing. As to (1), we agree that the hearing officer erroneously restricted the attempts to present evidence pertaining to the status of the Petitioner as a, labor organization because it is a proper issue to be investigated at the hearing and to be determined by_the Board. How- ever, we find no prejudicial error because the hearing officer made no such , determination and because the record reveals sufficient evidence upon which the Board can make such a, determination. As to (2), the hearing officer did not abuse his discretion in permitting the unit amendment , nor was anyone prejudiced because the parties were afforded full ,opportunity to litigate the unit issues. As, to ( 3), Section 102.57 of the Board's Rules and Regulations provides that motions to dismiss be referred to the Board for disposition. The hearing officer inadvertently denied the Intervenor's motion to dismiss but promptly corrected his error and referred the motion to the Board. We do not believe that this constitutes prejudicial error. As to (4), the hearing examiner properly closed the record at the end of the hearing -without waiting for the Board's determination of motions made on the record In accord with Section 102.59 of the Board's Rules and Regulations, the Regional Director forwarded the entire record, including rulings and motions, for review 113 NLRB No. 101. ROYAL JET, INCORPORATED, 1065 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 Intervenor, a labor organization claiming to represent em- ployees of the Employer, moved to dismiss the proceedings on the ground that the Petitioner is not a labor organization. The Petitioner, an,organization with officers, represents employee members under cur- rent collective-bargaining contracts with their employers.' In these circumstances, we find that the Petitioner is a labor organization within the meaning of the Act and that it claims to represent certain employees of the Employer.4 Accordingly, we deny the Intervenor's motion to dismiss. 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. The Employer operates three plants in Alhambra, California, where it is engaged in the manufacture of residential gas fired heating equip- ment,for eventual retail sale. It also manufactures airplane external fuel tanks for the United States Government. The Intervenor, Sheet Metal Workers International Association, Local Union No. 170, AFL, and the Employer are parties to a contract executed May 12, 1953, with a terminal date of June 30, 1956.5 The Employer and the In- tervenor contend that this contract is a bar to the petition filed herein on March 22, 1955, because of the bargaining practices with respect to the length of contracts in the aircraft industry, to which they claim the Employer properly belongs. The Petitioner, in effect, argues that the record fails to establish that the Employer belongs to an in- dustry covered in substantial part by contracts of more than 2 years' duration and that, therefore, the contract, having run more than 2 years, is no bar. The record establishes that the contract in question, when executed in 1953, covered "employees engaged in production of heating, venti- lating, and air conditioning equipment and similar appliances." Ap- parently, the Employer was not engaged in the production of fuel tanks until sometime thereafter. It thus appears that the manufac- and final determination by the Board . Accordingly, we find that the hearing officer's rulings were not barred by Section 9 (c) (1) of the Act nor did he thereby violate Section 11 of the Administrative Procedure Act which is not applicable to Board representation proceedings See Wh4tang Corporation, 107 NLRB 493, footnote 1. We therefore deny the motion to dismiss or remand these proceedings 2 Jonesboro G, ain Drying Cooperative, 110 NLRB 481, at 483-484. 3 The fact that there are pending unfair labor practice charges alleging violation of Section 8 (a) (2) of the Act against the other employers with which the Petitioner has contracts does not prevent it from being a labor organization. Marine Optical Mann/ac- luring, Co , 92 NLRB '571, at 571-572. 4 Knox Corporation , 104 NLRB 789. 6 The original contract was executed by predecessors to the Employer and Intervenor, both of whom , in turn, have assumed the rights and obligations thereunder . Before this contract, there had been only 1- and 2-year contracts. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ture of fuel tanks, in addition to the Employer's primary heating equipment business, is a recent development. Although last year the Employer's fuel tank production exceeded that of heating equip- ment, current production of heating equipment, based on dollar value, is 60 percent of total production, and 60 percent of the employees are presently engaged in this type of production. The Employer and the Intervenor contend that this case concerns. the aircraft industry, a substantial portion of which is covered by 3-year contracts and that the instant contract therefore constitutes a bars On the basis of the entire record, however, including the cur- rent production volume of heating equipment and the number of em- ployees engaged in manufacturing heating equipment, we find that the Employer is primarily engaged in the manufacture of heating equipment and cannot be considered part of the aircraft industry for the purposes of this case.7 Accordingly, even on the basis of the rule. on which the Employer and Intervenor rely, the contract having run more than 2 years cannot constitute a bar.' 4. At the hearing, the Petitioner amended its original unit request to conform to the composition of the historical contractual bargain- ing unit. The Employer, with whom the Intervenor agrees, moved to dismiss the proceeding because the original unit request did not coincide with the historical bargaining unit and was therefore inap- propriate. As we have previously found that the unit 'has been prop- erly amended, and as the parties do not dispute the appropriateness of the. contractual unit, we find that the amended unit sought by the Petitioner is appropriate. We therefore deny the Employer's mo- tion., Accordingly, we find that all production and maintenance em- ployees at the Employer's operations at Alhambra, California,, includ- ing shipping and receiving clerks, stock handlers, and truckdriversl but excluding all guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.' [Text of Direction of Election omitted from publication.] CHAIRMAN FARMER took no part in the consideration of the above Decision and Direction of Election. 8Republio Aviation Corp, 109 NLRB 569, at 570, Bendix Aviation Corporation, Ilarnil- ton Division, 111 NLRB 456 7 The Budd Company, 111 NLRB 457, of Bendix Aviation Corporation, Hamilton Di- vision, supra 8 Member Rodgers agrees that the current contract between the Employer and the Inter- venor is not a bar to the instant petition However, he bases this finding solely upon the fact that the contract has been in effect for more than 2 years See his dissent in Repub- lto Aviation Corp , supra U Although the Petitioner seeks to include leadmen, no evidence was offered in the record relative to their duties. Accordingly, they are included or excluded in the emit accord- ing to whether they are employees of supervisors respectively.