J. Sullivan & Sons Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jun 11, 1953

105 N.L.R.B. 549 (N.L.R.B. 1953)

J. SULLIVAN & SONS MANUFACTURING CORPORATION 549
13. By discriminating in regard to the hire and tenure of employment of Joe Steelman,
thereby discouraging membership in American Federation of Hosiery Workers, AFL,
Respondent has engaged and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and 8 (a) (3) of the Act.
14. The aforesaid labor practices are unfair labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
J. SULLIVAN & SONS MANUFACTURING CORPORATION,
Petitioner and TEXTILE WORKERS UNION OF AMERICA,
CIO
J. SULLIVAN & SONS MANUFACTURING CORPORATION and
J. SULLIVAN & SONS MFG. CORP. INDEPENDENT UNION,
Petitioner . Cases Nos. 4 -RM-87 and 4 -RC-1789. June 11,
1953
DECISION AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 ( c) of the
National Labor Relations Act, a consolidated' hearing was held
before Herbert B. Mintz, hearing officer. The hearing officer's
rulings2 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, Murdock, and
Peterson],
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 Textile Workers Union, CIO, herein called TWU,
asserts that the J. Sullivan & Sons Mfg. Corp. Independent
Union, herein called Independent , is not a labor organization
within the meaning of the Act. We find no merit in this conten-
tion. The constitution and bylaws of the Independent , received
IThe cases were consolidated for hearing by order of the Regional Director dated March
24, 1953.
2The hearing officer referred to the Board for ruling the TWU's motion to dismiss the
"RC" petition on the grounds that: (1) The Independent is not a labor organization; and (2)
a contract between the Employer and TWU operates as a bar. As regards the first and
second grounds , this motion is denied for reasons hereinafter stated in paragraphs num-
bered , 2 and 3 respectively , infra.
The TWU further contends that the petition should be dismissed for the reason that the
Independent was not in compliance with Section 9 (f), (g), and (h) of the Act at the time the
petition was filed we find no merit in this contention. The Board has frequently held that
compliance is a matter for administrative determination and is not a litigable issue
Florence Manufacturing Co., Inc., 92 NLRB 185; Muntz Television, Inc., 92 NLRB 29. We
are, moreover , administratively satisfied that the independent is in compliance
105 NLRB No. 65.
550 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD
in evidence, show clearly that the organization exists for the
purpose of representing employees and dealing with the Employ-
er with respect to wages and working conditions generally.
Moreover, the Independent has held meetings, adopted the
above constitution, admitted members, and appointed temporary
officers. The fact that the Independent has never actually bar-
gained with the Employer and the further fact that the Inde-
pendent has been functioning informally are not controlling
considerations .3 Accordingly, we find that both the TWU and
the Independent are labor organizations as defined in Section
2 (5) of the Act, and that both claim to represent certain em-
ployees of the Employer.4
3. The TWU has bargained with the Employer since July
1949, their first contract runningfrom July 11, 1949, to July 11,
1951. In June 1951 the Employer filed an "RM" petition chal-
lenging the majority status of the TWU.6 The second contract,
although dated and made effective as of July 11, 1951, was
actually executed on December 14, 1951, and expired on
November 30, 1952. Prior to the contract's expiration, the
Independent, on October 13, 1952, filed an "RC" petition, by
which it sought to represent those employees in the unit then
represented by TWU. Negotiations toward a new contract took
place between the Employer and TWU in November 1952, cul-
minating in full agreement on all terms of a collective-bar-
gaining contract on November 26, 1952. That contract was to
be effective December 1, 1952, and to expire on December 1,
1953. However, the contract was never reduced to writing and
signed. 6
The TWU contends that the accord reached on November 26,
1952, constitutes a binding contract which, though not reduced
to writing , should bar this proceeding. We findno merit in this
contention. The record shows that the contract which expired
on November 30, 1952, was not renewed and was not superseded
by a new written signed contract. We have consistently held
that, for an agreement to be considered a bar, it must have
been reduced to writing and signed prior to the filing of the
petition sought to be barred.? Neither condition is present
9See General Shoe Corp., 90 NLRB 1330, 1354; Union Carbide and Carbon Corp., 89 NLRB
460.
4Nassau Mutual Fuel Co., Inc , 90 NLRB 1233; Lake County Farm Bureau Cooperative
Assn, Inc., 101 NLRB 110.
5The TWU moved to dismiss the "RM" petition and the Employer moved to amend Its
petition. As we hereinafter find that the 'RC" petition raises a question concerning rep-
resentation, we need not pass upon those motions directed to the "RM" petition.
6In setting forth the bargaining history of the Employer and the TWU, we have made
reference to our own findings in a prior decision involving the Employer (J Sullivan Rc
Sons Mfg. Corp., 102 NLRB 2). See Salant & Salant, Inc., 92 NLRB 343. It is the practice
of the Board to take notice of its own records and proceedings. Stewart-Warner Corp.,
100 NLRB 608. In this connection, TWU moved to "consolidate" or incorporate the record
from the prior proceeding involving this Employer into the instant record. Inasmuch as
the record in the prior proceeding has already been evaluated by the Board and as the
Board takes judicial notice of its own proceedings, no useful purpose could be served by
granting such a motion. Accordingly, the motion is denied. Underwood Machinery Co ,
79 NLRB 1287; Shell Chemical Corp, 81 NLRB 965.
7 American Supplies, Inc., 98 NLRB 692.
J. SULLIVAN & SONS MANUFACTURING CORPORATION 551
herein. First , the agreement can be characterized as, at most,
an oral contract , and, second , the Independent ' s "RC" petition
was filed prior to any contract presently existing between the
Employer and TWU. Accordingly , we find that the agreement
reached on November 26, 1952 , does not operate as a bar to
the "RC" petition.'
On January 7, 1953, the Board issued a Decision and Order, 9
pursuant to charges filed by the TWU, finding a violation of
Section 8 ( a) (5) of the Act against the Employer . The TWU
contends that the Employer has not complied with the Board
Order, and that the petitions should not be entertained until
compliance . We have already passed upon this contention. In
reversing the Regional Director ' s dismissal of the instant
petitions , on March 3 , 1953, the Board said that the Employer
had, in effect , complied with the Board's Order . Accordingly,
we reject the TWU's position . Furthermore , we are of the
opinion that it will best effectuate the policies of the Act, and
promote the orderly processes of collective bargaining to direct
an immediate election herein. io
4. We find that all production and maintenance employees at
the Employer's Philadelphia, Pennsylvania, plant, excluding
factory clerical employees , office clerical employees , engineer,
watchmen, and supervisors as defined in the Act 11 constitute
a unit appropriate for purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
5. The TWU objects to the establishment of any unit at this
time, contending that the present complement of employees is
allegedly not a representative or substantial group because the
Employer ' s production operations will be resumed in the near
future.
The plant is presently being used by the Employer exclusively
for finishing narrow fabric tape. The Employer maintains a
complement of approximately 50 employees. While the Em-
ployer once was engaged in weaving narrow fabric tape at this
plant, using 100 employees in that operation , it has not, since
November 1952 , had any employees engaged in weaving. The
weaving operation was discontinued at that time, the weaving
machinery sold , and the space used for the weaving operation
has been leased to other companies. Furthermore , there is no
indication in the record that the Employer has any intention of
resuming the weaving operation at this plant . Under these cir-
cumstances, we can perceive no reason for not directing an im-
mediate election among the production and maintenance
employees presently employed. i2
[Text of Direction of Election omitted from publication.],
8See Weidemann Machine Co., 100 NLRB 124; Michigan Bakeries. Inc , 100 NLRB 658;
Weyerhauser Timber Co. 93 NLRB 842,
9J Sullivan Rr Sons Mfg. Corp , supra,
10 See Jasper Seating Co , 101 NLRB 322; U . S. Smelting , Refining and Mining Co , 93
NLRB 1280; West-Gate Sun Harbor Co., 93 NLRB 830
ii The unit was stipulated by the parties.
12 Chrysler Corp., (DeSoto-Warren Ave. Plant), 81 NLRB 649; Frank Foundries Corp .
92 NLRB 1754
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