Dixie Lou Frocks, Inc.

National Labor Relations Board - Board Decisions

May 13, 1957

117 N.L.R.B. 1583 (N.L.R.B. 1957)

DIXIE LOU FROCKS, INC. 1583
television service section supervisor, the radio and television field su-
pervisor, the radio and television technical supervisor, the electronics
department manager, the electronics service shop supervisor, commu-
nication specialists, communication technicians, intercommunication
technicians, and all other supervisors as defined in the Act.13
[Text of Direction of Election omitted from publication.]
12 As noted supra, the radio and television chief technician will be permitted to vote
under challenge.
Dixie Lou Frocks, Inc. and June Melton and Eleanor Burdge,
Petitioners and Local 290, International Ladies Garment Work-
ers Union, AFL-CIO. Case No. 35-UD-2. May 13, 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (e) of the National Labor
Relations Act, a hearing was held before John W. Hines, hearing of-
ficer. 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 employees
of the Employer.
3. A question exists concerning the Union's authority to make a
union-security agreement within the meaning of Section 9 (e) of the
Act.
On February 11, 1956, the Employer and the Union executed a.
4-year collective-bargaining agreement which contains a union-
security provision. The petition in this case, which was filed on
September 17, 1956, seeks an election to rescind the Union's authority
to make a union-security agreement.
The Union asks for dismissal of the petition on the asserted ground
that the Employer, primarily through the activities of one Koontz, is
responsible for the election request in this case. It is true that Koontz,
who is regularly engaged in production work, actively participated in
the movement aimed at bringing about the petition. Contrary to the
Union's contention, however, the record does not support the asser-
tion that she is a supervisor. There is no evidence to indicate, nor is
it claimed, that Koontz is otherwise a representative of management.'
The supervisory contention rests entirely upon the fact that on a
'On the contrary the Board 's records indicate that this employee has filed with the
Thirty-fifth Subregional Office a non-Communist affidavit in her capacity of sergeant-at-
arms of Local 290, ILGWU, AFL-CIO, the union involved in these proceedings.
117 NLRB No. 194.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
single occasion Koontz substituted for Wicks, an assistant forelady,
and during vacations or any chance absence, takes the place of 'a table
girl, of whom there are five, all, according to the stipulation of the
parties, themselves rank-and-file employees.
The Employer is engaged in the manufacture of ladies' cotton
dresses in Henderson, Kentucky, where it employs a total of 85 to 100
employees. There are about 65 production employees in the contract
unit here involved. The entire plant is under the personal overall
supervision of Eldon Smith, the president of the Employer, and Opal
Smith, his wife, who is secretary-treasurer. Five of the six produc-
tion departments are under the supervision of Forelady Rebecca
Conley and Assistant Forelady Myskle Wicks, both of whom, as all
parties stipulated and as the record shows, are supervisors. In each of
the five production units which are run by the forelady and assistant
forelady, there is a table girl. The record contains considerable
descriptive detail concerning their work, all leading to the parties'
agreement, on the record, that all the table girls properly belong in
the bargaining unit. It does appear that 3 of them do no more than
instruct operators how to do the work and assign the work as directed
by the 2 foreladies. The remaining two, Shelton and Sellars, also
assign the work and are permitted to use their own discretion in
distributing it among the employees in their sections. The group as
a whole are essentially instructors, and none of them has any authority
to hire or discharge employees. There is a single statement in-the
record to the effect that Shelton, who works with only six other
employees, may recommend changes in the status of others. At
another point, this is explained as a possible referral of friends for
employment. Whether any such recommendation would be effective,
however, was not shown. As to Sellars, who works with 15 others,
the record shows that she is not expected to make any recommenda-
tions whatever. There is every indication in the record that none of
the table girls has ever made any recommendations of any kind. The
record as a whole falls far short of showing "responsible direction" as
the phrase is used in the statute; we therefore find, as the parties
agreed, that the table girls are not supervisors. Koontz' occasional
substitution for any of them therefore cannot serve to elevate her to
supervisory status.
Assistant Forelady Wicks was absent during the entire months of
June and July 1956. Koontz was used in her place during the last
21/2 weeks of that period. During the entire 3-year period of her
employment, this was the only time that Koontz substituted for a
supervisor. That the event was an extraordinary and irregular expe-
rience seems clear on the record. No substitute was needed, or made,
during the first 5 weeks or so of Wicks' absence. The occasion to use
Koontz in the latter part of July is otherwise explained by the concur-
DIXIE LOU FROCKS, INC. 1585
rent absence, due to a death in the family, of Mr. Smith, the Company's
president, who exercises personal supervision of the plant. In these
circumstances, Koontz' substitution for the assistant forelady was no
more than a sporadic assignment, which, under established principles,
also cannot serve to remove her from the rank-and-file classification
in which she regularly works.2
We conclude that the record as a whole does not support the Union's
contention that this petition was company-inspired, and we shall
therefore direct an election. Moreover, the General Counsel has dis-
missed unfair labor practice charges filed by the Union involving the
same conduct by Koontz upon which the Union rests its request for
dismissal of this petition. Under the Times Square doctrine 3 the
General Counsel's action is final and binding upon the Board in any
event.
4. We find that the following employees of the Employer constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act: All production employees at
the Employer's Henderson, Kentucky, plant, including the five table
girls and Koontz, but excluding Wallace Langley,' office clerical
employees, designing department employees, foreladies, assistant fore-
lady Wicks, foremen, shipping department employees, maintenance
employees, janitors, professional employees, guards, and supervisors
as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK, dissenting :
I disagree most emphatically with my colleagues' decision to en-
tertain this petition. In my opinion, it is clear, as contended by the
Union, that the employer promoted, encouraged, supported, and par-
ticipated in the filing of the petition, and therefore that the petition
should be dismissed.
My colleagues err first in finding that two of the table girls, Shelton
and Sellars, are not supervisors. The record shows that Shelton has
six employees under her to whom she assigns work and whom she
moves about from job to job, according to her own discretion and
without consulting any higher authority. The record shows that
Sellars has 15 employees under her, and that she assigns work to these
employees and directs them in, their work according to her own discre-
tion. Section 2 (11) 'of the Act defines a supervisor as ". . . any indi-
vidual having authority, in the interest of the employer, to . . .
2 Sebastopol Cooperative Cannery, 111 NLRB 530, 531; Armstrong Cork Co , Case No.
10-RD-193; decided March 29, 1957 (not reported in printed volumes of Board Decisions
and Orders ). Cf Ohio Power v N L. R. R , 176 F 2d 385, 388 (C A. 6).
9 Tames Square Stores Corporation , 79 NLRB 361
4 Langley is excluded because he is an irregular part - time employee.
423784-57-vol. 117-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assign . . . other employees, or responsibly to direct them . . .
if . . . such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment." Thus, Shelton and
Sellars clearly fall within the statutory definition of a supervisor,
and the Board has repeatedly held that individuals with authority
such as theirs are supervisors.5 My colleagues' finding that Shelton
and Sellars are not supervisors is, therefore, wholly inconsistent with
the statutory definition of a supervisor as construed in numerous
Board decisions. Accordingly, it should be found that Shelton and
Sellars are supervisors as defined in the Act, despite the contrary
agreement of the parties.6
My colleagues err again in finding that Koontz is not a supervisor.
The record shows that Koontz substituted for Assistant Forelady
Wicks from July 11, 1956, to July 30,1956, in Wicks' absence from the
plant, and also is the regular substitute for the table girls anytime one
is absent, including vacation periods. Thus, Koontz not only substi-
tutes for Wicks in her absence, but also is the regular substitute for
two other supervisors, Shelton and Sellars. As Koontz substitutes
for 3 supervisors anytime 1 is absent, it is a reasonable conclusion that
Koontz acts as a supervisor with sufficient frequency and regularity
to render her a supervisor as defined in the Act."' Indeed, if, as the
Board has held, a substitution for 1 supervisor for a period of 15 to
20 days a year is sufficient to make the substitute a supervisor,8 then
Koontz has clearly met the test for 1 of her substitutions alone during
1956 was for a period of 20 days. Accordingly, it is clear, and I
would find, that Koontz is a supervisor as defined in the Act.9
As my colleagues have failed to state fully the facts surrounding the
filing of the petition, and as such a full statement is essential for
proper consideration of the case, I shall state these facts. On July 1,
1956, the Union increased the dues of the employees of the Employer.
About July 19, 1956, Supervisor Koontz conducted a poll among the
employees during working time as to whether they were opposed to
the increase in dues, and this was done despite the fact that the Em-
ployer has a rule prohibiting any kind of solicitation during working
hours. Pursuant to a notice placed on the plant bulletin board some-
time prior thereto, there was then a meeting held of the employees
5 See e g, The Eureka Pipe Line Company , 115 NLRB 13, 14 ; Price-Pfister Brass Mfg.
Co, 115 NLRB 918 , 919; Sunnyland Packing Company, etc, 113 NLRB 162, 165, 166.
0 Central Cigar it Tobacco Co , 112 NLRB 1094, 1096.
' Cf. United States Gypsum Company , 116 NLRB 1771 , and Sebastopol Cooperative
Cannery, 111 NLRB 530, 531, where the substitution was for only one supervisor, and
it was therefore a reasonable conclusion that the substitution was infrequent and sporadic,
requiring a nonsupervisory finding.
8 Gary Steel Products Corporation , 116 NLRB 1192.
U The fact , adverted to by the majority , that Koontz filed a non -Communist affidavit
with the Board in her capacity as sergeant -at-arms of the Union , is wholly immaterial in
determining whether she is a supervisor as defined in the Act . Such determination must
be based on her actual duties and authority in connection with her employment, as out-
lined above
DIXIE LOU FROCKS, INC. 1587
on July 24 or July 25 in the plant during a noon hour, at which meet-
ing the increase in dues was again discussed. However, this meeting
was not confined to employees, for Koontz was present and active in
the discussion. Moreover, the record indicates that only company
notices, and union notices by prior agreement with the Employer, are
posted on the plant bulletin board ; and the notice for this meeting
was not posted by the Union. On July 26, at the instigation of
Koontz, another poll was conducted among the employees as to whether
they were opposed to the increase in dues. This poll was conducted
at least partially on company time despite the company no-solicitation
rule, and Koontz conducted at least part of this poll. Moreover, this.
poll, too, like the first one was not secret, and it resulted in a unanimous
vote, except for one, against the increase in dues. The Petitioners
herein, who were also very active in the meeting and the July 26 poll,
then filed a decertification petition on August 31, but this petition was
withdrawn on September 7 apparently because it was discovered that
the current contract between the Employer and the Union was a bar
to such a petition. In its place the petition herein was filed on Sep-
tember 17. Prior to its filing, a union representative told Opal Smith,
the Employer's secretary-treasurer, that petitions in favor of the pe-
tition herein were being circulated on company time, but Mrs. Smith
stated that this was none of her business.
In view of this sequence of events, and in view of the parties' stipu-
lation that the principal reason for the filing of the petition herein was
dissatisfaction with the increase in dues, it is obvious, and I would find,
that the events prior to the filing of the petition were the preliminary
steps which led to the filing of the petition, and that these preliminary
steps must be considered as an integral part of the filing of the petition.
As these preliminary steps consisted of an initial poll of the employees
by a supervisor on company time in the face of and with an apparent
waiver of a company no-solicitation rule prohibiting such a poll, a
meeting of the employees held in the plant pursuant to a notice placed
on the plant bulletin board at which this supervisor was present and
active, a second poll at least partially on company time which was
instigated and participated in by this supervisor, and petitions in favor
of the petition herein circulated on company time with the acquiescence
of the Employer's secretary-treasurer, it is clear, and I would find,
that the Employer, through Supervisor Koontz and its secretary-
treasurer, promoted, encouraged, supported, and participated in the
filing of the petition.1° Accordingly, as the statutory provisions for
union-security deauthorization proceedings provide a remedy exclu-
sively for and on behalf of employees and not of employers, and the
Board's policy in such circumstances is not to permit an employer to
10 Cf The Curtiss Way Corporation, 105 NLRB 6,42; Philadelphia Chewing Guns Corpo-
ration, 107 NLRB 997, Southeast Ohio Egg Producers, 116 NLRB 1076
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do indirectly that which he would not be permitted to do directly, I
would dismiss the petition."
My colleagues find further in effect that, even if Koontz is a super-
visor, the Board is precluded from dismissing the petition under the
Times Square doctrine.12 In so finding, they rely on their allegation
that the General Counsel has dismissed unfair labor practice charges
filed by the Union involving "the same" conduct by Koontz upon
which the Union relies here to establish that the Employer inspired
and fostered the petition, and on a conclusion that the Times Square
doctrine is therefore applicable. This represents both factual and
legal error. The General Counsel did dismiss unfair labor practice
charges filed by the Union, but such charges involved only Koontz'
participation in the second poll of the employees which led to the
filing of the petition. As the record here discloses three other incidents
to support a finding that the Employer inspired and fostered the peti-
tion, the General Counsel's limited action is hardly dispositive of the
issue here as to whether the totality of the Employer's conduct invali-
dates the petition, and therefore the Times Square doctrine is not ap-
plicable for that reason. Moreover, even if the unfair labor practice
charges dismissed by the General Counsel did involve "the same" con-
duct relied on here to establish Employer sponsorship of the petition,
the Times Square doctrine would still not be applicable. Thus, in the
Times Square case, the Board held that the Act precluded it from mak-
ing a finding in a representation case which would be contrary to a dis-
missal of unfair labor practice charges by the General Counsel. How-
ever, the finding which the Board refused to make there involved a
clear unfair labor practice issue, viz, whether a strike was an unfair
labor practice strike. Accordingly, because the Act bestows on the
General Counsel final authority over the issuance and prosecution of
unfair labor practice complaints, the Board refused to reverse in effect
what had been in effect a determination by the General Counsel that
the strike was not an unfair labor practice strike. No such unfair
labor practice issue is involved here. Section 9 (e) of the Act provides
that a union-security deauthorization petition may be filed only by
"employees," and empowers "the Board" to conduct an election on such
a petition. Clearly, therefore, the Board has the exclusive authority
and responsibility to make certain that such a petition is filed only by
employees, and to refuse to entertain such a petition where it is shown,
as here, that such a petition is in reality filed by an employer. In
exercising this authority and responsibility, the Board is not passing
upon an unfair labor practice issue, but simply upon the factual issue
as to whether the petition has been filed by the proper persons. Of
course it may be that the filing of such a petition by improper persons
11 See Cold Bond, Inc., 107 NLRB 1059.
12 Times Square Stores Corporation , 79 NLRB 361, 364, 365.
COMBUSTION ENGINEERING, INC. 1589
may under some circumstances also constitute an unfair labor practice,
but it is not necessary that it be such. The situation is analogous to
the cases in which the Board has held that conduct that creates an
atmosphere which renders improbable a free choice in an election
may warrant invalidating the election, even though that conduct
may not be sufficient to constitute an unfair labor practice.13 Just
as the Board in those cases has said that it is the Board's duty to make
certain that elections are conducted under the proper conditions, so,
too, it is the Board's duty here to make certain that a union-security
deauthorization petition is filed by the proper persons. Accordingly,
I disagree with my colleagues' finding that the Times Square doctrine
is applicable to this case.
In conclusion, it is my opinion that the majority decision in this case
constitutes a serious contravention of both the letter and the purpose
of Section 9 (e) of the Act by processing a union-security deauthoriza-
tion petition which the record shows was in reality filed by the
Employer.
MErMBER JENKINS took no part in the consideration of the above
Decision and Direction of Election.
'a See General Shoe Corporation, 77 NLRB 124 at 126, 127.
Combustion Engineering, Inc. and Combustion Engineers Asso-
ciation , Engineers and Scientists of America , Petitioner. Case
No. 10-RC-3701. May 14, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hugh Frank Malone, hear-
ing 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Murdock, Rodgers, and
Bean].
Upon the entire record in the 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 representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
117 NLRB No. 203.