Petco Corp.

National Labor Relations Board - Board Decisions

Feb 18, 1952

98 N.L.R.B. 150 (N.L.R.B. 1952)

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus it appears that, in those classifications which were in existence
at the time of the hearing, the Employer had a substantial and repre-
sentative segment of the working force it contemplated within the
ensuing 6-month period.3 In those classifications which it contem-
plated establishing the Employer's own testimony indicates that hiring
will take place within the current month. On this record there is no
reason to suppose that all classifications will not be represented when
the election directed herein takes place, in sufficient quantity to be
representative of the working force actually contemplated for the
next 6 months. In these circumstances we shall not dismiss the peti-
tion, as the Employer requests, but shall direct an immediate election
in accord with our usual policy.'
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 and mainte-
nance employees of the Employer at its operations located at 2718
Pershing Avenue, Memphis, Tennessee , excluding office and clerical
employees, professional employees, technical employees, watchmen,
guards, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
2 The complement anticipated with some degree of certainty for June 1952 appears to be
approximately 112; real estate maintenance 3; piano assembly and cabinet 75; sounding
boards 2; hammers 22-S4, action and keys 10. Thirty-five production and maintenance
employees were employed at the time of the hearing. The record indicates that February
hirings would bring this 35 to at least 55
4 Bell Aircraft Corporation, 96 NLRB 1211, IL P Schei er Corporation, Hypospray
Division, 95 NLRB 1426.
PETCO CORPORATION-NEW ORLEANS DIVISION 1 and OIL WORKERS
INTERNATIONAL UNION, CIO, PETITIONER . Case No. 15-RC-515.
February 18,1952
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 J. M. Mitchell, hearing officer.
The hearing officer's rulings made at the hearing are free from prej-
udicial error and are hereby affirmed .2
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
1 The name of the Employer appears as amended at the hearing.
2 Independent Oil Workers Union of Jefferson was permitted to intervene in this proceed=
ing upon a proper showing of interest.
98 NLRB No. 28.
PETCO CORPORATION 151
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. At the hearing, the Employer made several motions to dismiss,
all of which were referred to the Board by the hearing officer. The
basis of these motions to dismiss is that a legally valid petition does
not exist in this case because : (1) The petition was withdrawn with the
approval of the Regional Director and therefore the case is closed;,
and (2) the petition is defective in that certain spaces were left blank.
The petition was originally filed on April 20, 1951. In a letter
dated June 1, 1951, the Petitioner requested that its petition be with-
drawn. As the Board Rules and Regulations provide that " . . .
Whenever the Regional Director . . . approves the withdrawal
of any petition, the case shall be closed,"' it is clear that a with-
drawal can only be effected with the Regional Director's consent.
Therefore, whether or not such consent was officially given in the,
present instance must determine the issue before us. We believe that,
the Regional Director never officially approved the withdrawal of
this petition and that as it was never effectively withdrawn, it con-
tinned valid.
In reaching this conclusion, we are persuaded by certain facts : ft
is true that the Regional Director indicated approval of the with-
drawal at the time of the receipt of the request, by writing "approved"
at the bottom of his own file copy of the letter. However, the order
issued and served by the Regional Director provided only for the
withdrawal of the notice of hearing on the petition, as distinguished
from withdrawal of the petition itself.4 Only the limited hearing
withdrawal order was served on the parties, and it was only upon
that order that they were entitled to rely. Because no notice of the
approval of the withdrawal petition was given to the parties, in our
opinion the Regional Director failed to take all the steps required
for official approval of the request for withdrawal. Accordingly,
we conclude that the Regional Director, whether he intended to or not,
never actually approved the withdrawal of this petition.
Because of our finding above that this petition was never legally
withdrawn, and is therefore still in existence for the purpose of this.
proceeding, we find without merit the Employer's contention that a
legally valid petition does not exist in this case .5
8 Section 102.52, Series 6, Rules and Regulations of the NLItR
The actual terms of the order issued by the Regional Director are as follows :
Order Withdrawing' and Revoking Notice of Representation Hearing
Notice of Representation Hearing having issued on the 31st day of May 1951, setting:
the date of the hearing as June 7, 1951 ; and Petitioner having filed request for with.
drawal of Petition,
IT Is HEREBY ORDERED that the Notice of Representation Hearing be , and is, with-
drawn and revoked
Dated at New Orleans, Louisiana, on this 5th day of June 1951.
Thus, the question of the Regional Director's authority to reinstate a withdrawn petition
is immaterial , and need not be here resolved.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- The Employer further contends that the petition is invalid because
blanks were left in the spaces provided in the petition form for in-
,dicating the number of employees supporting the petition and for
'showing that a request for recognition was made to the Employer.
These technical defects, which were remedied at the hearing and which
certainly did not prejudice the Employer, are no basis for any valid
objections Accordingly, the motions to dismiss are hereby denied.
• We find that a question affecting commerce exists concerning the
representation of the employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. In accordance with the agreement of the parties, we find that
all production and maintenance employees at the Employer's Marrero,
Louisiana, plant, including operating employees, laboratory men, office
and clerical employees, but excluding all guards, professional em-
ployees, sales managers, and supervisors as defined in the Act, con-
stitute a unit appropriate 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.] .
MEMBER MURDOCH, dissenting:
I would grant the Employer's motion to dismiss the petition in this
case. The Regional Director here approved the Petitioner's request
of June 1, 1951, to withdraw its petition. The Board's Rules and
Regulations 7 explicitly provide that whenever a Regional Director
approves a withdrawal request "the case shall be closed." Accord-
ingly, the Regional Director acted entirely without authority in rein-
stating the petition. The majority argue that the Regional Director
did not intend to and did not "officially" approve the withdrawal of the
petition despite his notation "approved" on the withdrawal request,
because, they say no "official record" was made of this approval and the
order he sent the parties said only that the notice of hearing was
revoked. I find nothing in the Board's Rules which specifies what
form the Regional Director's "approval" of a withdrawal request
shall take; I fail to understand why his notation "approved" on the
withdrawal request is not an "official record." I would deem his
omission to include a specific statement that the petition had been
withdrawn in his order revoking the notice of hearing merely an
oversight and not operative to extinguish his approval already noted
on the withdrawal request. I believe we should interpret a Regional
Director's actions in the light of an assumption that he intends to
comply with the clear mandate of our Rules . I find it paradoxical
9 See The White Motor Company , 86 NLRB 380 ; Marrtn County Employers Council, 87
NLRB 296; C & M Lumber Co., Inc., 83 NLRB 1258.
7 Sec. 102.52, Series 6.
WEST STEEL , CASTING COMPANY 153
that the majority apparently are not only proceeding on the contrary
assumption but go even further and hold that because in their view,
the Regional Director disobeyed the clear mandate of our Rules, he is
permitted to exercise an authority to reinstate a petition which he
would not have possessed had he abided by our Rules.
WEST STEEL CASTING COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO, PETITIONER . Case No. 8-RC 1439. February
1971952
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles A. Fleming, 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 [Chairman Herzog and Members Murdock 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 organizations involved claim to represent employees of
the Employer.
3. No 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, for the following reasons:
The Petitioner seeks a unit of production and maintenance employees
at the Employer's steel castings and wheel manufacturing plant
at Cleveland, Ohio. International Molders & Foundry Workers Union
of North America, Local 244, the Intervenor herein, contends that
its current contract with the Employer operates as a bar to the instant
petition. The Petitioner, in reply, alleges that the contract is not
a bar (1) because of an illegal union-security clause in the contract
and (2) because of a schism within the Intervenor's local organization.
The Employer takes no position with respect to the contract bar issue.
The Union-Security Clause
On June 9, 1951, the Employer and the Intervenor entered into a
contract effective for a period of 1 year and containing a provision
'We find, contrary to the contention of the Petitioner, and in view of the facts set
forth below , that the Intervenor herein is a currently existing and functioning labor
organization , within the meaning of the Act. Twentieth Century -Fox Film Corporation,
96 NLRB 1052.
98 NLRB No. 32.