Colonial Hardwood Flooring Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1948

76 N.L.R.B. 1039 (N.L.R.B. 1948)

In the Matter of COLONIAL HARDWOOD FLOORING CO., INC., EMPLOYER
and ROBERT K. MILLER, PETITIONER and UNITED FURNITURE WORK-
ERS OF AMERICA, CIO, UNION
Case No. 5-RD-4.-Decided March 31, 1948
Messrs. Gerard D. Reilly and C. E. Rhetts, of Washington, D. C., for
the Employer.
Mr. Robert K. Miller, of Chewsville, Md., pro se.
.Mr. Harry Weinstock, of New York City, and Mr. Michael Tyson,
of Hagerstown, Md., for the Union.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition for decertification duly filed, hearing in this case
was held at Hagerstown, Maryland, on December 29, 1947, before
Charles B. Slaughter, hearing officer.' The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.2
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Colonial Hardwood Flooring Co., Inc., a Maryland corporation, is
engaged in the manufacture and sale of woodwork at its plant in
Hagerstown, Maryland, which is the only plant here involved. Dur-
ing the 6-month period preceding October 1, 1947, the Employer
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three-man panel consisting of the undersigned Board Members [ Houston, Reynolds, and
Gray].
2 The hearing officer properly excluded evidence offered by the Union that he Employer
bad assisted in obtaining signatures in support of the decertification petition . Matter of
Magnesium Casting Company, 76 N L. R B. 251. The hearing officer , also, in accord
with our usual practice , prevented inquiry into the showing of interest by the Petitioner.
Matter of Mascot Stove Co., 75 N L R . B. 427. This and other rulings , of the hearing,
officer are discussed,, in detail below.
76 N. L. R. B., No. 150.
1039
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bought lumber valued at about $131,739, of which an estimated 75
percent was received from points outside the State. During the same
period, the Employer sold finished products valued at approximately
$344,000, of which an estimated 75 percent was shipped to points out-
side the State.
The Employer admits and we find that it is engaged in commerce
within the meaning of the Act.
II. THE PARTIES INVOLVED
The Petitioner, an employee of the Employer, asserts that the Union
is no longer the representative of the Employer's employees as defined
in Section 9 (a) of the amended Act.
The Union, a labor organization affiliated with the Congress of
Industrial Organizations, was certified by the Board on August 2,
1944, as representative of the employees here involved.3
III. TILE QUESTION CONCERNING REPRESENTATION
On August 2, 1944, the Union, as already noted, was certified as
the representative of the production and maintenance employees of the
Employer at its Hagerstown, Maryland, plant. On December 18,
1946, the Employer and the Union entered into a contract, which ex-
pired on October 15, 1947. On October 3, 1947, the Union called a
strike, which is -still in effect.
The Union contends that the Board may not entertain the instant
petition, inasmuch as the Union is not in compliance with Section 9
(f) and (h) of the amended Act. This contention is overruled for
reasons set forth in Matter of Harris Foundry c Machine Company,
76 N. L. R. B. 118.
At the hearing the Union offered in evidence authorization cards
alleged to have been signed by 61 strikers, alleged to constitute a ma-
jority of the employees in the unit.' This evidence, which seems to
have been offered primarily for the purpose of overcoming the prima
facie showing of interest by the Petitioner, was properly rejected by
the hearing officer. Such evidence, when offered by an intervening
union in a certification proceeding, would not be admissible, under our
Case No. 5-R-1509. The 'Decision and Direction of Election in that case is reported
at 56 N L. R B 1875 The Union was certified as representative of all production and
maintenance employees , including inspectors, gang leaders , truck drivers , the shipping clerk,
and the automobile mechanic , but excluding managers , salesmen , watch men - fi remen, office
employees, superintendents, assistant superintendents , and all supervisory employees A.
somewhat different unit was set up in the ensuing contract between the Union and the
Employer. See footnote 10, below '
There were 89 In the unit during the last pay -roll period prior to the strike -
COLONIAL HARDWOOD FLOORING CO., INC. 1041
rules of decision, to defeat the prima facie showing of the petitioning
union in such a case.,' We see no reason for adopting a different rule
in decertification cases.6
As already indicated, the hearing officer also refused-to permit in-
quiry into the nature of Petitioner's showing of interest. The Union
contends that disclosure of this data is required by the language of Sec-
tion 9 (c) (1) of the amended Act, which reads:
If the Board finds upon the record of such hearing [ i. e., a
hearing on a petition filed under Section 9 (c) (1) ] that such a
question of representation exists, it shall direct an election .. .
[Italics ours.]
The Union argues that the italicized language in the foregoing
quotation precludes the Board from basing its decision that a repre-
sentation question exists, upon evidence not in the record. However,
it does not in our opinion follow from this that the Board must include'
in the record of a hearing the evidence relating to the Petitioner's
showing of interest. Such a showing does not enter into the Board's
final determination that a question of representation exists, but bears
only on the preliminary question whether the Board is to investigate
the petition. Accordingly, we do not believe that the Act, as amended
requires any change in our practice of foreclosing inquiry into a Peti-
tioner's showing of interest.'
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in substantial agreement with the parties, that all produc-
tion and maintenance employees at the Employer's Hagerstown plant,
including truck drivers and inspectors, but excluding all office employ-
ees, foremen, assistant foremen, and all supervisors, guards, and pro-
fessional-employees, as defined in the amended Act, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act."
5 Matter of Semen Bache if Company, 72 N L R B 531 ; and Matter of Potosi Tae if
Lumber Company, 73 N L R B 500
° The Senate Labor Committee report on the proposed amendments to the Act, in referring
to the decertification provisions, states that those provisions do "not change the Board's
rules of decision with respect to requirements of substantiality in order to obtain a hear-
ing " Senate Report No 105, 80th Cong, 1st Sess , pp. 10, 24.
7 Matter of Mascot Stove Company , 75 N L R B 427
8 This is virtually the unit requested in the petition as modified upon oral motion of the
Petitioner at the hearing to conform to the contract unit. The description has been changed
slightly to conform with the provisions of the,amended Act.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE DETERMINATION OF REPRESENTATIVES
As already stated, a strike has been in effect at the Employer's plant
since October 3, 1947. The Employer contends that 12 of the strikers
have been replaced by new employees, and, on the assumption that the
strike is an economic one, urges that these new employees be deemed
eligible, and that the strikers who are found to have been replaced by
them be deemed ineligible, to vote in the election. The Union, on the
other hand, claiming that the strike was provoked by unfair labor
practices, requests that all the strikers, but not the alleged replacements
be deemed eligible to vote in the election. However, despite its claim
of unfair labor practices by the Employer, the Union has not filed
with the Board any charges of unfair labor practices.
For reasons indicated in an earlier case," we shall direct an ilnme-
diate election, permitting all employees to participate who were
employed during the pay-roll period immediately preceding the date
of this Direction. All persons hired since October 3, 1947, the date
of the strike, and all strikers shall be deemed presumptively eligible to
vote, subject to challenge.10 The challenged ballots shall not be
counted unless they affect the result of the election, in which case the
question as to which of these ballots shall be opened and counted will
await a further investigation concerning the employment status of
the affected individuals.
As already stated, we shall place the name of the Union on the ballot,
although it has not complied with the registration and filing require-
ments of the Act, as amended. Under our policy, the Union would
be certified if it wins the election, provided that at that time it is in
compliance with Section 9 (f) and (h) of the Act. Absent such
compliance, the Board would certify the arithmetical results of the
election.,,
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Colonial Hardwood Flooring
Co., Inc., Hagerstown, Maryland, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days from
9 Hatter of The Pipe Machinery Company, 76 N L R B 247.
10 Nothing in this Direction should be construed as indicating that the Board has pre.
judged in any respect any of the questions which may be drawn into issue by a challenge
to the eligibility of certain voters, including such questions as whether ( 1) a new employee
is a permanent replacement , ( 2) a striking employee has been validly replaced , or (3) any
employees position no longer exists by reason of its permanent discontinuance for,economic
reasons. - Matter of-Longhorn Roofing ,Products, Inc, 67 N. L . It. B. 84, Matter of r3eitich
Tanning Company , 59 N L. R B. 1183 ; Matter of The Pipe Machinery Company, 76. N. L.
R B 247.
11 Matter of Harris Foundry & Machine Company, supra.
COLONIAL HARDWOOD FLOORING CO., INC. 1043
the date of this Direction, under the direction and supervision of the
Regional Director for the Fifth Region, and subject to Sections 203.61
and 203.62 of National Labor Relations Board Rules and Regula-
tions-Series 5, and to our determination in Section V, above, among
the employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding the
date of this Direction, including employees who were on strike at that
time and employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, but exclud-
ing those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the election,
to determine whether or not they desire to be represented by United
Furniture Workers of America, CIO, for the purposes of collective
bargaining.
781902-48-vol. 76--67