International Ladies' Garment Workers' Union

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . In summary, as the record does not contain a sufficient basis for application of either the retail or nonretail standards, I am constrained to recommend dismissal of the complaint without regard to the reason for Marez ' discharge.8 Upon the basis of the foregoing findings of fact, and upon the entire relevant record in this proceeding, I make the following: II. CONCLUSIONS OF LAW 1. The evidence does not establish that the Respondent 's operations meet any of the Board's existing criteria for the assertion of its jurisdiction. 2. The evidence relating to interstate commerce is insufficient to support a finding that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding. III. RECOMMENDATION Upon the basis of the foregoing findings of fact and conclusions of law , I recom- mend that the Board enter an order dismissing the complaint in this proceeding. 8In view of my conclusion that the record , for the reasons stated , is Insufficient to meet either the Board 's retail or nonretall jurisdictional standards , I deem it unnecessary to deal with the Issue, in effect raised by the pleadings read in the light of the evidence,. whether the mere fact that products used in the Respondent 's construction projects "originated outside . . . California " is sufficient, without more, to bring the Respondent's operations within the Board's statutory jurisdiction. International Ladies' Garment Workers' Union and Federation of Union Representatives, Petitioner. Case No. 2-RC-11158. June 22, 1962 SECOND SUPPLEMENTAL DECISION, DIRECTION, NOTICE, AND ORDER Pursuant to a Supplemental Decision, Direction, and Order issued by the Board on October 3, 1961, in the above-entitled proceeding,' a hearing was held before Murray S. Freeman, hearing officer, on November 8, 9, 14, 15, 16, 17, 20, and 21, 1961, to resolve the issues raised with respect to certain challenged ballots. The Employer and the Petitioner appeared and participated at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On December 22, 1961, the hearing officer issued and served upon the parties his report in which he recommended that the challenges be overruled and the ballots be opened and counted. The Petitioner filed timely exceptions to the hearing officer's report. The Board has reviewed the rulings of the hearing officer made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the hearing officer's report and the exceptions thereto, and upon the entire 'Not published in NLRB volumes. In accordance with the Supplemental Decision, Direction, and Order, the Regional Director issued and served upon the parties a revised tally of ballots which showed that of approximately 231 eligible voters, 231 ballots were cast of which 115 were for, and 104 were against, the Petitioner, and 12 challenged ballots remained unopened. 137 NLRB No. 86. INTERNATIONAL LADIES' GARMENT WORKERS' UNION 749 record in this case hereby adopts the hearing officer's findings and recommendations 2 Accordingly, we shall direct the Regional Director to open and count the ballots of Sam Feuerstein, Frank Trykoski, Irving Horo- witz, John Fruda, Morris Nemson, Isadore Wallach, Irving Astrow, Sam Patti, and John Marazita, and to prepare a revised tally of ballots. In the event that the results, according to the revised tally, indicate that a majority has voted for the Petitioner, we shall direct the Regional Director to issue a certification of representatives. DIRECTION, NOTICE, AND ORDER IT IS HEREBY DIRECTED that as part of the investigation to ascertain representatives for the purpose of collective bargaining, the Regional Director for the Second Region shall, pursuant to the Board's Rules and Regulations, within 10 days from the date of this Decision, open and count the ballots of Sam Feuerstein, Frank Trykoski, Irving Horowitz, John Fruda, Morris Nemson, Isadore Wallach, Irving Astrow, Sam Patti, and John Marazita, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said challenged ballots. IT IS FURTHER DIRECTED that, in the event the Petitioner receives a majority of the total valid ballots cast, including the ballots of the three individuals involved in an unfair labor practice proceeding 2 As no exceptions were filed to the hearing officer's recommendations to overrule the -challenges to the ballots of Feuerstein , Horowitz, and Nemson , we adopt these recom- mendations, pro forma. With respect to the six remaining managers, the record , in our opinion, fails to estab- lish that these individuals possess any of the indicia of supervisory authority . The record shows that the managers and business agents in the cloak-out -of-town department work individually and, on occasion , as a team in carrying on the business of their respective locals, including making price settlements and adjustments , and processing grievances of the employees. As a matter of practice, the manager and business agent regularly confer with one another , engaging in a mutual exchange of information concerning the various problems which arise in their shops. Frequently, the business agent will seek the benefit of the manager's superior knowledge and more extensive experience in handling these problems In such instances , the decision ultimately reached is the result of mutual agreement on the part of the manager and business agent, not superior authority or direction from the manager . Certain portions of the testimony of Richard Kosten, a former business agent in this department , which might tend to indicate that authority to -direct the business agent is vested in the manager, are insufficient , viewing the record as a whole, to support a finding that the managers are supervisors . We note that Kosten's testimony remained uncorroborated although there were six business agents working with managers in the department at the time , only one of whom, Haber, was called to testify at the bearing Haber's testimony is inconsistent and inconclusive as to the relationship between the manager and the business agent. Accordingly, we find, as did the hearing .officer, that a preponderance of the evidence establishes that, in discharging their common function , the relationship between the managers and business agents in the cloak-out-of- town department is that of senior or more experienced employee to junior or less ex- perienced employee. The Boaid ordered the ballot of Patricia Levenstein held in abeyance pending the dis- position of the unfair labor practice charge concerning her. The Regional Director dis- missed the charge, and no appeal was taken . Accordingly , we find, in agreement with the Regional Director, and contrary to the Petitioner 's contention , that Levenstein had in fact been discharged prior to the date of the election and order that the challenge to her -ballot be sustained 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which have remained unopened pending the outcome of that matter,, the Regional Director shall certify the Petitioner as the exclusive bargaining representative of the employees in the unit found appropriate. NOTICE IS HEREBY GIVEN that, in the event the aforementioned ballots when opened and counted do not determine the results of the election, the Board will entertain briefs from the parties, to be filed within 10 days from the date of the revised tally of ballots, as to their respective positions concerning the Petitioner's motion requesting the Board to direct the Regional Director to open and then set aside the ballots of the three challenged voters currently the subject of an unfair labor practice case, and to certify the Petitioner if one or more of those ballots was cast for the Petitioner. IT IS HEREBY ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for the Second Region for further proceedings consistent with this Decision. Local 991, International Longshoremen 's Association, AFL-CIO; Local 1406, International Longshoremen's Association, AFL- CIO; South Atlantic and Gulf Coast District, International Longshoremen's Association, AFL-CIO and Union Carbide Chemical Company, Division of Union Carbide Corporation. Case No. 23-CD-46. June 22, 1962 DECISION AND DETERMINATION OF DISPUTE This proceeding arises under Section 10(k) of the Act, which pro- vides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(d) of sec- tion 8(b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen ...." On May 16, 1961, Union Carbide Chemical Company, Division of Union Carbide Corporation, herein called Carbide or the Employer, filed with the Regional Director of the Twenty-third Region a charge alleging in substance that on May 15, 1961, Local 991, Local 1406, and the South Atlantic and Gulf Coast District, International Longshore- men's Association, AFL-CIO, herein called Local 991, Local 1406, and the District, or collectively the ILA, violated Section 8(b) (4) (i) and (ii) (D) of the Act, as amended, by inducing and encouraging individuals employed by Carbide and by other employers to engage in a strike or refusal to work, and threatened, coerced, and restrained Carbide and other employers where an object in both cases was to force and require Carbide to assign particular work to employees rep- 137 NLRB No. 85.