Cohn Goldwater Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 6, 1953

103 N.L.R.B. 399 (N.L.R.B. 1953)

COHN GOLDWATER MANUFACTURING COMPANY 399
ployment tenure or compensation, he directs the other bench employees
in their work and reports to the plant superintendent only those per-
sonnel problems and operational matters which he is unable to settle
himself. In addition Cloke has full charge of the bench room while
the plant superintendent is absent. This occurs daily while the
plant superintendent is on his lunch period as well as for other
absences such as the vacation period each year. In view of the fore-
going, including the regularity with which he takes full charge of the
bench room, we find that Cloke is a supervisor within the meaning
of the Act .4 %
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 optical technicians employed in the surface and bench rooms of
the Employer, at its prescription shop at Los Angeles, California,
including edgers, assemblers, layout and inspection, final inspector,
cylinder grinder, blocking and takeoff, polisher, and sphere grinder,
but excluding all other employees 5 and all supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication in this
volume.]
4 East Tennessee Packing Company , 89 NLRB 535
', Excluded is the washup girl who, although she works in the surface room, performs
the unskilled duty of washing and drying with a towel the finished product , which work
is in no way part of the training for a skilled optical technician.
CORN GOLDWATER MANUFACTURING COMPANY' and Los ANGELES JOINT
BOARD, AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO, PETI-
TIONER . Case No. 21-RC-2801. March 6, 1953
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 Irving Helbling, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.2
1 The name of the Employer appears as corrected at the hearing
2 The Intervenor , United Garment Workers of America, Local 125, AFL, argued at the
bearing and in its brief that it was denied due process of law because the hearing officer
would not divulge the Petitioner' s showing of interest . As the validity and sufficiency of
the showing of interest is a matter for administrative determination not litigable by the
parties, we find that this contention is without merit. N. L. R. B. v. J. I. Case Co., 201 F.
2d 597 (C. A. 9). Moreover, we are satisfied that the Petitioner has made an adequate
showing in this proceeding.
103 NLRB No. 37.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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-mem-
ber panel [Chairman Herzog and Members Houston and Murdock].
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 certain em-
ployees of the Employer within the meaning of Section 9 (c) (1) and
Section 2 (6) and (7) of the Act.
3. The Employer and the Intervenor joined in a motion to dismiss
the petition on the ground that their current contract bars this pro-
ceeding. The Petitioner contends that the contract is a premature
extension of a preexisting contract, in relation to which the petition
was timely filed. The Intervenor replies in its brief that the preexist-
ing contract contained an illegal union-security clause and would not
have been a bar at any time. It follows, the Intervenor argues, that
the premature extension doctrine is not applicable in these circum-
stances.
The first collective-bargaining contract between the Employer and
the Intervenor, executed January 3, 1949, provided that it would be
in effect for a 2-year period (or to January 3, 1951), and that it would
be "automatically continued beyond said date of expiration" unless
either party gives written notice 60 days prior to the "anniversary"
date. No such notice was given. A second contract between the
Employer and the Intervenor was executed September 20, 1951, which
provided for a termination date of September 20, 1953, and also con-
tained a 60-day automatic renewal provision. The petition was filed
on October 30, 1952.
The original contract contained a union-security clause providing :
All employees . . . must affiliate with Local Union No. 125,
U. G. W. of A. within thirty (30) days from the time of employ-
ment in the factory... .
The second contract changed this clause to read :
All employees . . . must affiliate with Local Union No. 125,
U. G. W. of A. New employees if hired on a trial basis may work
for 30 days in the factory, after which time they must affiliate
with the Union at the next regular meeting. . . .
Both contracts contained an additional provision, headed
"Legality":
"If any Provision in this agreement shall at any time during
the term thereof conflict with the Labor Management Relations
Act of 1947 or said Act as may be amended, then such Provision
COHN GOLDWATER MANUFACTURING COMPANY 401
shall be deemed modified, but continue in effect to the extent per-
mitted by the applicable law.
If any single Provision, clause, paragraph, sentence or section
of this agreement is held by court, bureau, or administrative
agency to be illegal or inoperative it shall not invalidate the re-
maining portion, or portions, of this agreement, except as herein
above set forth.
At the same time that these bargaining contracts were made, the
Employer and the Intervenor also executed a "label" agreement, set-
ting out conditions governing the use of the trade union label, and
also providing that "All employees ... must be good standing mem-
bers" of the Intervenor.
The parties apparently assumed that the change in wording of the
union-security clause from "within" 30 days to "after" 30 days estab-
lished the legality of the second contract. We do not view the change
as significant because the union-security clause, despite this change,
did not give all employees the 30-day grace period required by Section
8 (a) (3) of the Act. On the contrary, it requires those old employees
who were not already members to become members forthwith, in dis-
regard of the Section 8 (a) (3) provision that employment may be
conditioned upon union membership only "on or after the thirtieth
day following the beginning of such employment or the effective date
of such agreement, whichever is the later, ..." Moreover, the
30-day grace period is not even extended to all new employees, but
only to those hired on a trial basis. The union-security clause of the
second contract thus exceeds the limited form of union security per.
mitted by the Act. Nor was the illegality of this clause cured by
the vague "Legality" provision.3
We find that the second contract is therefore not a bar to a present
determination of representatives.4 Accordingly, the motion to dis-
miss the proceeding on the ground of contract bar is denied, and we
find that a question affecting commerce exists concerning the repre-
sentation of employees of the Employer, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in the manufacture of work clothes
and shirts at three different places of business: Its main plant, located
at 525 E. 12th Street, Los Angeles, California; its Whittier plant; and
its Azusa plant.
The petition sought a unit limited to the production employees at
the main plant, but at the hearing the Petitioner requested, alterna-
3 Sperry Gyroscope Company, 88 NLRB 907; P . R. Mallory & Co., Inc., 89 NLRB 595.
4 Hess, Goldsmith i Co., Inc., 101 NLRB 1009 ; Federal Cartridge Corporation (Twin
Cities Arsenal ), 101 NLRB 1037 . The facts here are unlike those in Kenrose Manufac-
turing Company, 101 NLRB 267, where the current contract was valid.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tively, a three-plant unit.' The Employer and the Intervenor moved
to dismiss the petition, urging that a single-plant unit is inappro-
priate, and that Petitioner's alternative request at the hearing should
not be considered as constituting an amendment to the petition.
As described above, since 1949 the Employer has had successive
collective-bargaining contracts with the Intervenor covering the em-
ployees at all 3 plants. A union-authorization election in 1948 was
conducted in the Employer's 3 plants 6
The manufacturing operations are closely integrated. The cutting
is done at the main plant. Some cut materials are then sewed at the
main plant and some are sent to the Azusa or Whittier plants for
sewing. Garments sewed at the latter 2 plants are returned to the
main plant for pressing and are placed in stock there. One superin-
tendent supervises the operations of all 3 plants, including the floor-
ladies who are in charge at the various plants. All timecards and
other employee records are maintained at the main plant, which also
prepares the payroll checks.
In view of the past history of bargaining on a multiplant basis,
the common overall supervision of the 3 plants, the similarity in the
employees' skills and functions, and the high degree of integration
in the Employer's operations, we find appropriate the established
3-plant unit.'
Accordingly, we find that the following employees may constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act:
All production employees employed at the Employer's places of
business at 525 E. 12th Street in Los Angeles, and at Whittier and
Azusa, California, including operators, pressers, inspectors, utility
girls, bundle girls, bundle boys, and packers, but excluding shipping,
receiving, and stockroom employees, maintenance employees, cleanup
men, cutters, office clerical and plant clerical employees, watchmen,
guards, professional employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
5 The parties are agreed to the exclusion of the Employer 's plant at 750, E. 12th Street,
Los Angeles , California.
6 The election also included the Pomona, California , plant, at which operations have
now been discontinued.
7 Manhattan Sponging Works, 90 NLRB 13 ; see also Phillips -Jones Corp , 90 NLRB 153
The Hycter Company decision, 72 NLRB 937 , is inapplicable here In Hyster we held
that a petition amended at the hearing to include a substantially larger unit , was unsea-
sonable with respect to a valid agreement executed between the filing and the amendment.
Here there is no valid agreement barring amendment Under Board rules and procedure,
a petitioner in such circumstances may amend its unit at any time before the close of the
hearing. Moreover , no party was prejudiced by the amendment . We therefore deny the
motion to dismiss based upon amendment at the hearing . Imperial Garden Growers, 91
NLRB 1034.