Morrison Turning Co., Inc.

National Labor Relations Board - Board Decisions

May 18, 1949

83 N.L.R.B. 687 (N.L.R.B. 1949)

In the Matter of MORRIBON TURNING COMPANY, INC., EMPLOYER and
TExTILE WORKERS UNION OF AMERICA, 010, PETITIONER
Case No. 10-RC-353.-Decided May 18, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing in this matter was held before
M. V. Martin, hearing officer. At the hearing, the Employer moved
to dismiss the petition upon various grounds stated below. The hear-
ing officer reserved ruling, ,on the motion, fob,„the„Board. For reasons
-stated hereinafter, the motion is denied.' '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 National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent em-
ployees of the Employer.
3. The question concerning representation :
The Employer contends, in effect, that the petition should be dis-
missed, as the Petitioner is not the real party in interest but is acting
1 The Employer 's motion to dismiss upon the ground that the Petitioner does not represent
a majority of the employees in the proposed unit is denied for the reasons stated in Matter
of O. D. Jennings and Company , 68 N. L. R. B. 516.
The Employer also asserts , in support of its motion to dismiss, that the pendency of
unfair labor practice charges filed against the Employer by the Furniture Workers ,- consti-
tutes a bar to this proceeding . We find no merit in the Employer 's objection , as the Peti-
tioner is not the charging party in the complaint proceeding . Moreover, the Petitioner has
waived any right to object to an election held in•this proceeding on the basis of any acts
alleged as unfair labor practices in the afore-mentioned charges.
The Employer further moved to dismiss upon the ground that the Petitioner , because of
jurisdictional limitations set forth in its constitution , is unable to represent the employees
in the requested unit. For the reasons stated in Matter of Rankin Equipment Company,
79 N. L. R. B. 1439 , and cases cited therein , we find no merit in this contention.
The Employer 's motion to dismiss upon the grounds that ( a) the Petitioner is fronting
for the Furniture Workers, and (b ) is being dominated by the CIO Organizing Committee,
is denied for the reasons stated in paragraph 3, infra. The Employer 's motion to dismiss
the petition upon the ground that its employee complement is continually expanding and
contracting is denied for the reasons stated in paragraph 5, infra.
83 N. L. R. B., No. 106.
687
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as "a front" for the United Furniture Workers of America, CIO,
herein called the Furniture Workers, which has not complied with
the filing requirements of Section 9 (f), (g), and (h) of the Act, and
is dominated by the CIO Organizing Committee, herein referred to as
the CIO, which also has not complied with these filing requirements..
In support of these contentions the Employer points to the fact that
the Furniture Workers endeavored to organize the Employer's em-
ployees in 1946 and.1947,2 and was, assisted by the CIO, which later
assisted the Petitioner in organizing the same employees. The Em-
ployer argues that there must be some arrangement between the Furni-
ture Workers and the Petitioner whereby the latter is seeking to be-
come the bargaining representative of these employees for the use
and benefit of the Furniture Workers.
We are not persuaded that the evidence before us leads to the con-
clusion that the Petitioner is either a, "front" or is dominated by
another labor organization. It is clear that 'the Petitioner is a bona
,fide labor organization capable of representing the Employer's em-
ployees, and that the authorization cards, signed by these employees,
bear the Petitioner's name. We have no reason to believe that these
employees are in doubt that the Petitioner, and not some other labor or-
ganization, is seeking to represent them. Moreover, if the Petitioner
.wins in the election we shall order,.it alone will be certified and the
Employer will have the right to refuse to recognize any other labor
organization claiming to represent its employees. We have consid-
ered the same issue as that raised by the Employer in numerous cases,
in which we have found, as we do here, that the Employer's conten-
ations are without merit.
At the close of the hearing the Employer petitioned for subpenas,
daces tecwm, which the hearing officer granted,4 directing certain offi-
cers of the Petitioner, the CIO, and the Furniture Workers, to produce
all books, records, correspondence, and documents in their possession
relating to the organizing of the Employer's employees by these labor
.organizations. The hearing officer thereafter revoked the subpena
on motion of the Petitioner's representative, who contended that the
Y On February 28, 1947 , the Board conducted an election at the Employer 's plant, wherein
the Furniture workers was the sole participating labor organization This election did
not result in a determination of representatives , because the Board, on November 20, 1947,
dismissed the petition for failure of the Furniture workers to comply with the provisions
of Section 9 (f), (g), and (h) of the Act.
'Matter of Mississippl Products, Inc., 78 N. L. R. B . 873; Matter of McGraw Curran
Lumber Co., Inc , 79 N. L . R B. 795; Matter of Tin Processing Corporation , 80 N. L R B_
1369
The Employer objected that, although it sought a separate subpena for each witness,
the hearing officer caused a subpena to be issued consisting of a single document containing
the names of all the witnesses sought to be served . The Employer asserted that this would
render adequate service impossible . As the revocation of the subpena is hereby sustained,
we find it unnecessary to rule on this objection.
MORR'ISON' TURNING COMPANY; 'ANC. 689'
evidence sought to be adduced was immaterial, irrelevant, and that
the record was already sufficiently complete. The Employer then'
made an offer of proof in which it alleged that it "hoped" to prove
through the requested records that the Petitioner is acting as a "front,"
that the Furniture Workers had contributed money and aid to the
Petitioner in organizing its employees, and that dues and initiation
fees collected by the Petitioner from these employees had been credited
to the account of the Furniture Workers.
We find that the hearing officer properly revoked the subpena.
:Substantially, the Employer seeks to adduce evidence through the
-desired records which may show a collusive arrangement, between the
Petitioner and the Furniture Workers or CIO. We have previously
-decided that evidence of aid by another labor organization under cir-
circumstances similar to those in the case before us does not support a
contention of "fronting." Nor does proof of payment by a Petitioner
for such assistance in itself establish fronting." To the extent that
the evidence sought by the Employer consists of proof of aid to the
Petitioner by other labor organizations and payment for such assist-
ance, we deem it immaterial. Moreover, the record, the Employer's
brief, the petition, and the offer of proof in support of the request
for subpena, furnish no facts, directly or inferentially, upon which
we may reasonably believe that the desired records contain evidence
of 'a collusive arrangement. Under these circumstances, we are satis-
fied that the Employer's broad and inclusive request for the production
of records is a mere "fishing expedition" for which it is not entitled to
a subpena from the Board."
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.
4. The appropriate unit :
The following employees of the Employer constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
Matter of M28a1s8tppi Products, Inc., supra ; Matter of McGraw Curran Lumber Co,
Inc , supra.
° The Employer further contends that only the Board may revoke a subpena and that such
authority may not be delegated to a hearing officer The Board 's authority , in a compl5int
case, to delegate to a Trial Examiner the power to revoke a subpena was recently upheld in
the case of N. L R. B. v. International Typographical Union, at al ., 76 F. Supp. 895. We
believe that we are similarly empowered to delegate such authority to the hearing officer
in a representation proceeding.
The Employer also objects to revocation of the subpena upon the motion of the Peti-
tioner's representative , claiming that Section 11 (1) of the Act prescribes revocation only
on petition of the persons subpenaed within 5 days after service upon them . We deem this
objection also to be without merit . The provision in the Act relied upon by the Employer
is, at best , a limitation upon the time within which persons subpenaed may petition for
revocation . We do not believe that the Employer was in any way prejudiced by revocation
pursuant to motion made at the hearing.
690 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
All employees employed in the Employer's plant at Morristown,,
Tennessee, excluding office clerical employees, guards," professional.
employees, and supervisors as defined in the Act.
5. The determination of representatives :
The Employer objects to the holding of an election at this time,
because of the possibility of an increase or a decrease in its employee
complement. In support of its objection, the Employer asserts that
"uncertain" conditions in the wood-turning industry frequently cause
cancellation of orders and reduction in its working force. However,
the record does not indicate that any material change is contemplated
in the composition of the unit, nor is there any definite prospect of a
substantial variation in its size.8 In view of these circumstances, we
believe that the Act will best be effectuated by the direction of an,
immediate election.'
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations-Series 5, as amended, among{
the employees in the unit found appropriate in paragraph numbered 4, .
above, who were employed during the pay-roll period immediately
preceding the date of this Direction of Election, including employees
who did not work during said pay-roll period because they were ill or
on vacation or temporarily laid off, but excluding 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, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be represented, for purposes of collective
bargaining, by Textile Workers Union of America, CIO.
4 Excluded as within this category are the three armed guards, who spend about 75 percent
of their working time in the performance of plant-protection duties. We find that they
are employed as guards within the meaning of Section 9 (b) (3) of the Act. See Matter of
C. V. Hill .f Company, Inc., 76 N. L. R. B. 158 ; Matter of Steelweid Equipment Company,
Inc., 76 N . L. R. B. 831.
8 Twelve months before the hearing , the Employer 's complement consisted of 120 em-
ployees ; 6 months before the hearing there were 75 employees ; and at the time of the
hearing, the number had increased to 92 . Because of a possible lack of orders, the Employer
speculated that its working force might be reduced to 80.
9 Matter of General Electric Company, 76 N. L . R. B. 995, 997, and cases cited therein.