Birmingham Casket Co.

National Labor Relations Board - Board Decisions

Dec 8, 1950

92 N.L.R.B. 573 (N.L.R.B. 1950)

In the Matter of BIRMINGHAM CASKET COMPANY, EMPLOYER and IN-
TERNATIONAL LADIES GARMENT WORKERS UNION, AFL, PETITIONER
Case No. 10-RC-1047.-Decided December 8,1950
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 James W. Mackle, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
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
,employees of the Employer.
i The Employer moved to dismiss the instant proceeding on the following grounds :
(1) That there was no evidence at the hearing of the Petitioner's compliance with the
filing requirements of Section 9 (f), (g), and (h) of the Act. However, compliance in
this respect is a question for administrative, determination and is not litigable. Trueman
Fertilizer Company, 81 NLRB 72.
(2) That there was no showing at the hearing that any question exists concerning the
representation of the Employer's employees . In support of this contention the Employer
asserts that there is no competent evidence in the record that the Petitioner requested
recognition by the Employer. We find, on the contrary, that there is competent , uncon-
tradicted evidence in the record that the Petitioner requested, and the Employer declined
to grant, recognition . In any event, insofar as the Employer relies on the requirement
)f Section 9 (c) (A) that a representation petition contain an allegation that the
employer has declined to recognize the petitioner as the representative of the employees,
the Board has held that the absence of such allegation , or the failure of proof that the
employer prior to filing the petition declined to recognize the petitioner , does not preclude
the Board from entertaining the petition. Advance Pattern Company, 80 NLRB 29.
(3) That there was no showing at the hearing that the Petitioner is a labor organiza-
tion. However, we find that this fact is sufficiently shown by evidence in the record.
(4) That no showing has been made that any of the Employer 's employees are mem-
bers of, or desire to be represented by, any labor organization . The Petitioner 's showing
of interest is, however, a matter for administrative determination . C. D. Jennings c6
Company, 68 NLRB 516.
For the reasons stated above , the Employer ' s motion to dismiss is denied.
The Employer requested oral argument . Inasmuch as the record , including the Em-
ployer 's brief, adequately sets forth the issues and the contentions of the parties, this
.request is denied.
92 NLRB No. 109.
573
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 appropriate unit :
The Employer is engaged in the manufacture and sale of caskets and
burial shrouds. at its plant located in Birmingham, Alabama. There
is no history of collective bargaining.
The Petitioner seeks a unit of all production and maintenance em-
ployees, excluding office, clerical, and professional employees, guards,
and supervisors. The Employer is neutral.
The Petitioner contends that four employees, Odgers, Wehmut,
Lane, and Chappell, should be excluded from the unit as supervisors..
The Employer is neutral. These four employees, when their foreman
is ill or on vacation, assign work to other employees, and keep produc-
tion flowing. Even assuming that these duties are supervisory, their
sporadic exercise is not sufficient to constitute these four employees
supervisors within the meaning of the Act .2 Accordingly, we find that
they are not supervisors within the meaning of the Act, and shall
include them in the unit.
The Employer employs an over-the-road truck driver, whom the
Petitioner would include in the unit. As no other union is seeking to
represent him, we shall include him in the unit.'
We find that all production and maintenance employees at the Em-
ployer's plant in Birmingham, Alabama, including the over-the-road
truck driver, but. excluding all office and clerical employees, profes-
sional employees, guards, and supervisors, constitute a unit ap-
propriate for the purpose of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
2 Ann Arbor Press, 85 NLRB 946; Bakers Shoe Store, 86 NLRB 1305.
3 New England Casket Company, Inc., 89 NLRB 1388.