Tol-Pac, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1960

128 N.L.R.B. 1439 (N.L.R.B. 1960)

TOL-PAC, INC. 1439
carried on in such a manner , or at times that in the normal course of events,
Respondent must have noticed him.
After a careful review of the Board and court cases dealing with the question of
inferred company knowledge the Trial Examiner is convinced that these decisions
hold that company knowledge of union activity may be inferred, provided it is a
reasonable inference under all of the circumstances of the case . The size of the
plant is only one circumstance or factor which is to be considered in the resolution
of such inference?
Under all the circumstances of this case and particularly including the credited
testimony of the Respondent 's supervisors it is impossible to arrive at a conclusion of
inferred knowledge on the part of the Respondent of union activity among their
clerical employees . I find that the Respondent had absolutely no knowledge of
union activity among its clerical employees and specifically the dischargees, Fitz-
patrick and Hagner, on February 3, 1959. Based on the findings and reasons set
forth above I shall recommend dismissal of the complaint in its entirety.5
Upon the above findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
[Recommendations omitted from publication.]
A Compare Wiese, Plow Welding Co., Inc., 123 NLRB 616 , and Diamond Ginger Ale,
Incorporated , 125 NLRB 11173.
S At the hearing the Trial Examiner rejected Respondent 's Exhibit No. 1, a decision of
New York State Unemployment Insurance Section involving Hagner, and General
Counsel's Exhibit No . 5, 'a transcript of the hearing before the same State agency. In
accordance with the Board's decision in Cadillac Marine and Boat Company , 115 NLRB
107, footnote 1, the Trial Examiner's ruling at the bearing is hereby reversed and the
exhibits received and made a part of the official record herein.
Tol-Pac, Inc. and International Longshoremen 's Association,
Local 1317, AFL-CIO, Petitioner. Case No. 8-RC-3826. Au-
gust 31, 1960
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 John Vincek, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial 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 Leedom and Members Jenkins and Fanning].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in the commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
128 NLRB No. 132.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and'Section2(6) and (7) of the Act.'
4. The appropriate unit.
The Petitioner seeks a unit of laborers at the Employer's plant in
Toledo, Ohio. The Employer moved to dismiss the petition on the
ground that it now employs only two individuals in the proposed unit,
both of whom are supervisors, and that the laborers are casual em-
ployees who do not comprise an appropriate unit because their employ-
ment is sporadic and uncertain.
The Employer crates and packs machinery and other goods for
domestic and foreign shipping. It permanently employs a superin-
tendent of operations, an office clerical employee, and two individuals
named Edward Hack, Jr., and David Phares. Hack is classified as a
foreman. The parties concede, and we find, that he is a supervisor
who should be excluded. Phares is classified as a. subforeman who
hires and disciplines the laborers whose status is discussed hereafter.
Accordingly, we find that Phares is a supervisor within the meaning
of the Act and we exclude him.
In addition to Hack and Phares, the Employer also hires laborers
for crating and packing work as its business requirements dictate.
Since 1957, when operations commenced, the Employer has hired as
many as 40 laborers per year who have worked anywhere from 8 to
1,800 hours throughout the year. The Employer has a policy of re-
calling laborers who have worked for it in previous years. Thus, of
the laborers whose names appear on the 1960 payroll, only one of them
did not appear on the 1959 payroll. Moreover, approximately 50
percent of the laborers employed during 1959 were employed in 1958.
In view of the foregoing and the entire record, we find that the employ-
ment of the laborers has a sufficient regularity and continuity to
warrant their establishment in a unit as regular part-time employees.'
Accordingly, we find that all laborers at the Employer's plant in
Toledo, Ohio, excluding office clerical employees, Edward Hack, Jr.,
David Phares, and all other supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
5. The Petitioner requests that laborers who have worked 50 hours
or more during 1959 should be eligible to vote. The record reveals that
the vast majority of laborers worked in excess of this figure for 1959.
Accordingly, we find that laborers who worked 50 hours or more dur-
ing 1959 have substantial, continuing interest in their employment
1 The Employer moved to dismiss the petition on the grounds that the Petitioner
intimidated and coerced its employees, and that the petition was filed to intimidate and
coerce a company affiliated with the Employer . The motion to dismiss is denied as
allegations of unfair labor practices are not litigable in representation proceedings. See
Union Manufacturing Company , 123 NLRB 1633.
1 See Sucesores de Abarca, Inc., 101 NLRB 523.
INDIANA BOTTLED GAS COMPANY 1441
conditions, and that selection of this figure will insure a representative
vote. We therefore find that laborers who worked 50 hours or more
at any time during 1959 are eligible. To insure that these laborers
are still in the industry, we shall further require that their names shall
have appeared on at least one daily payroll during 1960 preceding
issuance of the Direction of Election herein.3
[Text of Direction of Election omitted from publication.]
8 See Toledo Marine Terminals, Inc, 123 NLRB 583.
Joseph Crowden and Thomas Crowden , a Partnership, d/b/a
Indiana Bottled Gas Company and District 50, United Mine
Workers of America, Petitioner . Case No. 25-RC-181$. Au-
gust 31, 1960
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 Arthur Halley, hearing
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 contends that the Board should not assert juris-
diction. The Employer is a partnership engaged in the wholesale
and retail distribution of liquid petroleum, or propane, gas. Its 3
bulk plants are located in Indiana, and its sales are made in 13 cities
in Indiana and 2 cities in Illinois. During 1959, the Employer pur-
chased propane worth $172,000 which was manufactured in the State
of Indiana, and propane worth $12,000 which was manufactured in
Texas, Oklahoma, and Louisiana, and shipped directly to the Em-
ployer. Its gross annual sales amounted to $591,998, of which $25,000
represented sales in Illinois and the remainder represented sales in
Indiana. Of the total sales, at least $45,000 represented wholesale
sales to manufacturers, restaurants, and motels. The remaining sales
were made to homeowners.
It is evident that the Employer's business is a single integrated
enterprise, encompassing the distribution of its product at both whole-
sale and retail. The Board has determined that it will assert jurisdic-
tion over this type of enterprise if the employer's total operations meet
either the Board's retail or nonretail jurisdictional standard.' As the
Employer's gross volume of business exceeds $500,000 annually, it falls
within the retail jurisdictional standard.' We therefore find that the
3 Man Products, Inc., 128 NLRB 546.
3 Carolina Supply and Cement Company , 122 NLRB 88 We find no merit in the
Employer's contention that the value of sales made through distributors stipulated by
the parties to be independent contractors should be excluded when computing gross
128 NLRB No. 130.