Standard Cigar Co.

National Labor Relations Board - Board Decisions

Mar 28, 1957

117 N.L.R.B. 852 (N.L.R.B. 1957)

852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pompton Lakes, New Jersey, plant, excluding all other employees,.
guards, and supervisors as defined in the Act.
If a majority vote for the Petitioner they will be taken to have indi-
cated their desire to constitute a separate appropriate unit, and the
Regional Director conducting the election directed herein is instructed
to issue a certification of representatives to the Petitioner for the
Vemployees described above, which- the Board, under such circum-
stances, finds to be appropriate for purposes of collective bargaining.
In the event a majority do not vote for the Petitioner, these employees
;shall remain a part of the existing unit and the Regional Director will
issue a certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
Standard Cigar Company and Cigar Makers International Union
of America, AFL-CIO, Petitioner . Case No. 12-RC--8 (formerly
10-RC-.3525). March 28,1957
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 Allen Sinsheimer, Jr., hear-
ing officer. 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
2. The labor organization involved claims to represent certain
employees of the Employer.'
i During the hearing, the Employer renewed motions to dismiss which had been previ-
ously made to, and denied by, the Regional Director for the Tenth Region, and made addi-
tional motions to dismiss, all of which were referred by the hearing officer to the Board.
The Employer also made several offers of proof and motions for continuance of the hearing,
which were denied by the hearing officer. These various motions were based upon alleged
inadequacies in the Petitioner's showing of interest and in its compliance with the filing
requirements of Section 9 (f), (g), and ( h) of the Act In addition , after the hearing,
the Employer filed with the Board motions to dismiss, to investigate these matters
administratively , or to reopen the hearing for further evidence regarding the adequacy of
the Petitioner ' s interest showing and Section 9 compliance , resting on grounds set forth
in its accompanying brief. All these motions are hereby denied for the reasons set forth
below, except the motion for an administrative investigation of Petitioner 's compliance
which is the subject of an administrative determination of compliance status.
2 As the Employer annually sells cigars valued at over $200 ,000 to companies in the
State of Florida, each of which annually ships goods valued at over $50,000 out of the
State, we find that the Employer is engaged in commerce within the meaning of the Act,
and that it will effectuate the purposes of the Act to assert jurisdiction herein Jonesboro
Grain Drying Cooperative, 110 NLRB 481.
3 The Employer refused to stipulate that the Petitioner is a labor organization within
the meaning of the Act. As the Petitioner is an organization which represents employees
for collective bargaining purposes , we find that it is a labor organization within the
meaning of Section 2 ( 5) of the Act
117 NLRB No. 129.
STANDARD CIGAR COMPANY 853 '
3. (A) Interest showing: Prior to the hearing, which was held on
August 20 and 21, 1956, the Employer filed a motion to dismiss, alleg-
ing that the Petitioner's showing was inadequate and had been ob-
tained by coercion, restraint, and misrepresentation. On July 30,
1956, the Regional Director for the Tenth Region issued an order
stating that he was satisfied, on the basis of an independent investiga-
tion, that the Petitioner's "interest among the employees involved is
substantial and adequate, and that it was not improperly obtained,"
and, accordingly, denying the Employer's motion to dismiss. The
Employer sought to litigate this matter at the hearing, but the hearing
officer properly refused to permit it. The Employer thereupon re-
newed its motion to dismiss on this ground, which motion was referred
to the•Board. Again in its motions to dismiss and accompanying brief
filed with the Board, the Employer raised the issue of the adequacy
of the interest showing, and urged (1) reopening of the hearing to
permit litigation of this matter, (2) dismissal of the petition, or
(3) administrative reversal of the Regional Director's order.
It is well settled that showing of interest is a matter for administra-
tive determination, and is not subject to collateral attack by the
parties.4 Moreover, we are administratively satisfied that, at. all
times pertinent herein, the Petitioner had an adequate and proper
showing of interest.-' The said motions are therefore denied.
(B) Section 9 compliance: Before the hearing, the Board had
administratively determined that the Petitioner was in compliance
with the filing requirements of Section 9 of the Act. Nevertheless, at
the hearing, the Employer attacked the Petitioner's compliance on
several grounds, and the hearing officer, while refusing to permit some
of the matters thus raised to be litigated, did permit litigation of
others.
The hearing officer permitted evidence to be adduced regarding the
Employer's contentions that the Petitioner's compliance was defective
because it has not furnished its members with the financial reports re-
quired by Section 9 (f) and (g) ; an affidavit filed by a vice president
of the Petitioner under Section 9 (h) is false; and a number of in-
dividuals, although not designated in the Petitioner's constitution as
officers, are in fact officers who have not filed the affidavit required by
Section 9 (h).
These contentions do not raise questions of statutory interpretation
of Section 9 (f), (g), or (h), but merely questions as to whether the
4 hl iron Building Products Co , Inc, 116 NLRB 1406.
5 Globe Iron Foundi y, 112 NLRB 1200, on which the Employer ielies, is distinguishable.
There, the question as to the adequacy of the interest showing was raised for the first
time at the hearing, and thereafter, in view of evidence submitted by the employer
therein, the Board investigated the showing and found it inadequate. Here, however, the
question was raised, and was investigated by the Regional Director, prior to the hearing,
and no new evidence has been submitted to warrant a reversal of the Regional Director's
findings and order.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner has in fact fulfilled the filing requirements of those sec-
tions. The Board has declared in a number of decisions that the fact
,of #compliance by a labor organization required to comply may not be
,litigated in Board representation or complaint proceedings, and has
-also repeatedly stated that the parties to such proceedings should, in-
stead, seek an administrative investigation of those compliance matters
•which the Board may properly decide in collateral proceedings.6 Ac-
cordingly, the parties had no right to litigate in the present hearing
the adequacy of the Petitioner's compliance with the filing require-
ments of Section 9, and the hearing officer erred in permitting any
evidence to be presented with respect to such compliance questions.
We are aware that in a few cases where hearing officers have sim-
ilarly disregarded Board policy and permitted such questions to be
litigated, the Board, while reaffirming the nonlitigability of such
questions, nevertheless, because of special considerations, has con-
sidered the evidence and passed upon the issues, assuming, arguendo,
that the questions were litigable or that the issue was properly before
it in a collateral proceeding.' As a result, perhaps, of these excep-
tional situations; some hearing officers have continued to disregard
the Board's reiterated policy in such cases.
;Under all the circumstances of this case, we shall grant the Em-
-ployer's Motion for an Administrative Determination of the questions
raised regarding the Petitioner's compliance. In the administrative
-determination we have considered the evidence erroneously adduced
in this case. This is, however, the last such exception to be granted.
In all future cases, we shall apply our policy strictly, and require the
_parties to present such compliance issues for administrative deter-
mination completely separate and apart from the representation or
complaint proceedings. Where motions for administrative deter-
mination are filed, the Board decides whether a hearing and receipt of
evidence is necessary to dispose of the motion. Any evidence which
may be adduced in any other proceeding contrary to this policy will
be disregarded for all purposes.
In our Administrative Determination of Compliance Status, issued
simultaneously with this Decision, we find that the Petitioner is in
full compliance with the requirements of Section 9 (f), (g), and (h).
The Employer's motion to dismiss the petition herein on the ground
that the Petitioner is not in compliance is therefore denied.
Of the compliance questions raised by the Employer, the only one
which could appropriately be litigated in this proceeding was the
Ekco Products Company, 117 NLRB 137; Kohler Co., 117 NLRB 321; Crenshaw's
Inc , 115 NLRB 1374; "111" System, Inc., 115 NLRB 1316; Desaulniers and Company,
115 NLRB 1025.
7Kolaer Co , supra ; see also Ekco Products Company, supra ; Crenshaw's Inc, supra.
STANDARD CIGAR COMPANY 855
necessity, but not the adequacy,8 of the compliance by the Petitioner's
locals in the Tampa area and the Joint Advisory Board.' In this con-
nection, the Employer contends that these locals and the Joint Ad-
visory Board, which is composed of delegates from these locals, must
comply with the filing requirements of the Act before the Board can
process the present petition because an industrywide pattern of bar-
gaining has been established in the Tampa area; the Petitioner's locals
are represented, for purposes of bargaining with an employer associa-
tion, by the Joint Advisory Board; and if the Employer's employees
designate the Petitioner as their bargaining representative, the local
in the Employer's plant would be required, by the Petitioner' s consti-
tution and bargaining practices, to participate in the multiemployer
bargaining pattern.
The Petitioner maintained at the hearing that there was no local
in the picture at the Employer's plant; that all organizing among the
Employer's employees had been carried on by the Petitioner; and
that, if certified, it would not designate an existing local to represent
these employees but would establish a new local at the Employer's
plant. It maintained also that this new local would not bargain
through the Joint Advisory Board, but would negotiate separately
with the Petitioner's assistance,9 because the Employer's methods of
manufacture are somewhat different from those of other manufac-
turers in the area, and because most of the Employer's employees are
English-speaking whereas the employees at the other cigar plants
speak a foreign language, chiefly Spanish, and the Joint Advisory
Board carries on all its activities in Spanish.10 In these circumstances,
the Board finds that the Petitioner's status in this proceeding is not
dependent upon the compliance of the Tampa locals or the Joint Ad-
visory Board, and the Employer's contention with respect to their
compliance does not warrant further consideration.li
Accordingly, the Board finds 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.
8 The Employer complains , in its Motion for an Administrative Determination , that it
was denied "an opportunity to litigate the sufficiency of compliance of these locals. . . "
The Employer relies on Illinois Bell Telephone Company , 100 NLRB 101 , where,
although a new local was to be established at the plant of the employer there involved,
the Board required all locals in the area belonging to the Joint Board , as well as the
Joint Board, to be in compliance. In that case, however, the Joint Board was the petitioner,
and not the international as stated in the Employer 's brief. Moreover , the Joint Board
was comprised of delegates from each local in the area, and it was authorized to enforce
wage and hour scales, conduct all strikes , determine jurisdictional questions , and approve
all contracts affecting locals in the area as well as the employees involved in the case
before the Board. The facts of that case are, therefore , clearly distinguishable from
those in the instant case
10 The contract which the Joint Advisory Board negotiated with the employer association
is printed in both Spanish and English.
11 See Brooklyn Borough Gas Company, 110 NLRB 18 , Ozark Manufacturing and
Supply Company, 108 NLRB 1476.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. In accord with the agreement of the parties,12 we find that all
production employees at the Employer's Tampa, Florida, plant, in-
cluding shipping department employees and the janitor, but excluding
the plant engineer , mechanics , office employees , watchmen , executives,
foremen, and all other supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.13
[Text of Direction of Election omitted from publication.]
MEMBER RODGERS took no part in the consideration of , the above
Decision and Direction of Election.
The Petitioner originally proposed a unit excluding teachers and janitors . When the
Employer stated that it had no employees classified as teachers , that foremen were
primarily responsible for training new employees , and that the foremen were supervisors,
the Petitioner agreed with the Employer that the reference to teachers should be omitted
Further , when the Employer stated that it had only one janitor , that he was sometimes
replaced by other employees , and that lie did other kinds of work in addition to his
janitorial duties, the Petitioner agreed with the Employer that the janitor should be
included The parties agreed to the exclusion of mechanics , who are highly skilled
employees trained in the maintenance of cigar machinery . Routine maintenance work
is done by production employees.
is The Employer moved to dismiss on the ground that the Petitioner , if certified, would
not represent all the employees in the unit but only those who became members of the
Petitioner . The evidence does not establish that the Petitioner intends , if certified, not to
represent all employees in the unit If it should fail to do so, its certificate would be
subject to revocation.
Compliance Status of Cigar Makers International Union of
America, AFL-CIO. March 28,1957
ADMINISTRATIVE DETERMINATION OF
COMPLIANCE STATUS
In connection with Case No. 12-RC-8, a representation proceeding
involving its employees, Standard Cigar Company, herein called the
Employer, has filed a motion for an administrative determination of
the compliance status of Cigar Makers International Union of
America, AFL-CIO, herein called the Union.
In the Decision and Direction of Election issued in the representa-
tion case, the Board reiterated its policy that "the fact of compliance
by a labor organization required to comply may not be litigated in
Board representation or complaint proceedings," and, further, that
the parties to such proceedings must "seek an administrative investi-
gation of those compliance matters which the Board may properly
decide in collateral proceedings." In this regard, the Board stated
further as follows :
... the parties had no right to litigate in the present hearing the
adequacy of the Petitioner's compliance with the filing require-
117 NLRB No. 130.