Woodco Corp.

National Labor Relations Board - Board Decisions

Jan 5, 1961

129 N.L.R.B. 1188 (N.L.R.B. 1961)

1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodco Corporation and Local 522, Lumber Drivers, Ware-
housemen and Handlers International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
Petitioner. Case No. 23-RC-909. January 5, 1961
DECISION AND ORDER
On July 22, 1960, the instant petition was filed under Section 9(c)
of the National Labor Relations Act. Prior thereto, on July 20, 1960,
the Employer had filed charges against the Petitioner herein, in Case
No. 22-CP-9, alleging that it was engaged, since on or about July 19,
1960, in picketing at the Employer's North Bergen, New Jersey, plant,
in violation of Section 8(b) (7) of the amended Act. On July 29,
1960, Screens and Fabricated Metals Corp., herein referred to as
Fabrico, a wholly owned subsidiary of the Employer, filed charges
against the Petitioner in Case No. 22-CP-10, alleging a similar viola-
tion with respect to picketing at Fabrico's plant located across the
street from the Employer. In these charges it was alleged that the
picketing involved all employees of the Employer and Fabrico, re-
spectively. The instant petition requested a unit of all drivers of the
Employer. The Regional Director believed that an expedited election
proceeding under Section 8(b) (7) (C) was warranted, but as he be-
lieved that issues were present which should be decided by the Board,
he issued a notice of hearing. Accordingly, a hearing was held before
David B. Ellis, hearing officer.
At the hearing, the Employer sought to introduce evidence tending
to show (1) that the, Petitioner had demanded that it sign a recogni-
tion agreement for a unit of all its employees and instituted picketing
the next day to compel such recognition, (2) that the picketing had
inflicted serious and irreparable injury upon the Employer's business,
and (3) that the picketing had already continued for an unreasonable
period of time when the instant petition was filed. The hearing officer
sustained objections to the introduction of such evidence on the ground
that it raised issues which were germane to the pending unfair labor
practice charges and not to the representation proceeding, and he re-
jected the Employer's offers of proof with respect thereto. The Em-
ployer in its brief contends that these rulings of the hearing officer
were erroneous and that notwithstanding prior precedents of the
Board concerning intrusion of unfair labor practice issues in repre-
sentation proceedings, the Board must resolve the issues raised by its
offers of proof in an 8(b) (7) (C) election proceeding.
For the reasons which follow, we agree with the Employer that the
matters contained in its offers of proof, insofar as they indicate the
group of employees involved in the Petitioner's picketing, are relevant
129 NLRB No. 153.
WOODCO CORPORATION 1189
to a determination of the unit appropriate for an expedited election.
The instant case for the first time presents questions concerning the
procedures to be followed by the Regional Director on behalf of the
Board in the processing of petitions under subsection (C) of 8(b) (7)
of the Act. Subsection (C) comes into play where charges of 8(b) (7)
violation have been filed and it has been determined by the General
Counsel that the subject picketing is for a proscribed object. Sub-
section (C) and its first proviso limit the proscription to situations
where such picketing has been conducted without a petition
under section 9 (c) being filed within a reasonable period of time
not to exceed thirty days from the commencement of such picket-
ing : Provided, That when such a petition has been filed the Board
shall forthwith, without regard to the provisions of Section
9(c) (1) or the absence of a showing of a substantial interest on
the part of the labor organization, direct an election in such unit
as the Board finds to be appropriate and shall certify the results
thereof.
In our opinion, this statutory scheme contemplates that a violation of
this section may be avoided where an expedited election is held in an
appropriate unit encompassing the employees for whom the labor
organization seeks recognition or whom it seeks to organize by means
of the picketing. Thus, the unit for an 8(b) (7) (C) expedited elec-
tion is not necessarily the unit alleged in the petition because it must
as a minimum include the employees who are involved in the picket-
ing. This requires a determination first as to which employees are
in fact involved in the picketing, and then a finding as to the smallest
unit encompassing such employees which would be appropriate under
familiar Board principles. Depending upon the circumstances of the
case, the appropriate unit may comprise the categories of employees
involved in the picketing or it may be broader in scope.
Our Rules and Regulations and Statements of Procedure generally
provide the procedures for implementing the statutory objective of
the proviso in question. Section 102.75 of the Rules provides that if
it appears to the Regional Director that issuance of a complaint on
8(b) (7) charges may be warranted but for the pendency of a timely
petition, the Regional Director shall suspend proceeding on the
charges and shall proceed to make an administrative investigation of
the petition. Section 102.77 of the Rules provides that the Regional
Director, on the basis of his investigation, shall determine whether
an expedited election is warranted and, if so, what is the appropriate
unit for such election. This section also authorizes a hearing whereby
-certain issues maybe referred to the Board for initial decision.
Although in the instant case the Regional Director ordered a hear-
ing, it does not appear that prior thereto he made an investigation as
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which employees of the Employer are involved in the picketing, a
necessary predicate for a determination of the appropriate unit for
an expedited election. We shall therefore remand the case to the
Regional Director to enable him to determine in the first instance the
appropriate unit for an expedited election , upon the basis of an in-
vestigation of all the facts, including the matters alleged in the
Employer's above -mentioned offers of proof.
[The Board remanded the instant petition to the Twenty-second Re-
gion to determine the appropriate unit and to further process the case.]
MEMBERS FANNING and KIMBALL, dissenting:
Contrary to our colleagues we could treat this petition-or any
petition under Section 8(b) (7) (C ) which seeks a unit inconsistent
with the picketing of the Petitioner-as an ordinary 9 (c) petition and
process it in the usual way. The Board in its Rules , Series 8, Section
102.80 (b), has empowered the Regional Director to make just such
determination and immediately to proceed with the 8 (b) (7) com-
plaint. The picketing is then enjoinable without further delay. The
practical result of this processing already especially provided in the
Rules to implement 8(b) (7) (C) -would be to encourage picketing
unions, who file petitions under 8(b) (7) (C) in order to prolong their
organizational picketing, to tailor their picketing to the unit they in-
tend to petition for if voluntary recognition is not achieved.
Here the petition seeks a unit limited to truckdrivers, but it appears
that the picketing, particularly in the light of events preceding it, was
actually for an all-employee unit. Our colleagues would have the Re-
gional Director conduct an election in the much broader unit, although
there is no petition on file for that unit, and no postpetition indication
by the Petitioner that it seeks to represent the larger unit. The result
may be an unfair penalty on the employees who, unless they vote for
Petitioner who does not now claim to represent them, will be deprived
for a year of the opportunity to select a bargaining agent by Board
election. (See Member Fanning's opinion in Hvmko, 123 NLRB 310,
313.) In effect our colleagues say that an 8 (b) (7) (C) petition neces-
sitates an expedited election and that the unit must include as a mini-
mum all employees involved in the picketing. We believe that their
interpretation of that section is basically unfair to the rights of em-
ployees and will tend to create uncertainty in that highly important
body of Board law concerning appropriate units for collective
bargaining.
Clearly the challenge of the new legislation expediting certain elec-
tions can be met effectively by processing on an expedited basis those
petitions which are consistent with the picketing , and by processing in
the usual 9 (c) manner those petitions which are inconsistent with the
JAMEL, INC. 1191
picketing. Evidence as to inconsistency should be put before the Re-
gional Director as outlined in Section 102.77 of the Rules. We do not
see the necessity or wisdom of what amounts to a separate unit stand-
ard for expedited elections.
Jamel, Inc. and International Ladies Garment Workers Union,
AFL-CIO. Case No. 11-CA-1599. January 6, 1961
DECISION AND ORDER
On June 30,1960, Trial Examiner Sidney Sherman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.'
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].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and, except as set forth hereinafter, hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
As found by the Trial Examiner, Tant was one of six employees who
attended a union meeting on February 2, which meeting was kept
under surveillance by Respondent; was one of three employees who
Respondent knew had signed cards at that meeting; and was, as Re-
spondent knew from Gilliam's interrogation, an active union adherent.
On Monday, February 8, 'Pant and Robbins voluntarily accepted a
layoff. Tant's testimony was that she agreed to a layoff only for the
balance of the week while Supervisor Gilliam, corroborated by Rob-
bins, testified that Tant requested that she be the last one called back
to work. On February 10, the Union filed a, charge, which was served
on Respondent on February 13, alleging, inter alia, that Respondent
had discriminated against Taut on February S. On February 15 Rob-
bins was recalled to work, but Tant was not recalled, either then or at
any other time prior to the hearing. In late March Supervisor Mc-
Millin told Tuck that Respondent had laid off some of its best hands
because of the Union.
'The Respondent 's request for oral argument is denied as the record , including the
briefs, adequately presents the issues and the positions of the parties.
129 NLRB No. 142.