Morganton Full Fashioned Hosiery Co.

National Labor Relations Board - Board Decisions

Jan 12, 1953

102 N.L.R.B. 134 (N.L.R.B. 1953)

134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization selected by the employees in such groups, which the Board
in such circumstances finds to be separate units appropriate for the
purposes of collective bargaining.
[Text of Direction of Election omitted from publication in this
volume.]
MORGANTON FULL FASHIONED HOSIERY COMPANY, HUFFMAN FULL
FASHIONED HOSIERY MILLS, INC.' and THOMAS EDGAR PARKS, PETI-
TIONER , and LOCAL UNION No. 161, UNITED TEXTILE WORKERS, AFL.
Case No. 11-RD-36 (formerly 34-RD-36). January 13, 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 Robert Cohn, hearing
officer . The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 2
The Union contends that the petition should be dismissed on the
ground that it was inspired and fostered by the Employer, through
its supervision, alleging that the petition was circulated by super-
visors , with the assistance, knowledge, and acquiesence of the
Employer.
Although the Board normally excludes from representation pro-
ceedings evidence relating to unfair labor practices , the Board believes
that this rule should not be applied to preclude an investigation as
to the relationship of a decertification petitioner to the employer.
The precise language of Section 9 (c) (1) (A) of the Act indicates
clearly that decertification proceedings provide a remedy exclusively
for and on behalf of employees, and not of employers.3 With this
principle in mind, the Board cannot, as a matter of policy, permit an
employer to do indirectly, through instigating and fostering a decerti-
fication petition, that which we would not permit him to do directly.'
Accordingly, we agree with the hearing officer's ruling excluding
i Huffman Full Fashioned Hosiery Mills, Inc, is a wholly owned subsidiary of Morganton
Full Fashioned Hosiery Company, the two of which constitute a single Employer within
the meaning of Section 2 (2) of the Act.
2 The Union excepted to the bearing officer's ruling revoking a subpoena duces tecum
issued by the hearing officer, by means of which the Union sought to introduce into evidence
the form of the petition circulated among the Employer's employees in order to attack
the validity of the instant showing of interest . We have repeatedly held that a petitioner's
prima facts showing of interest is an administrative matter, not subject to direct or
collateral attack, and we therefore sustain the hearing officer 's ruling. See Stokely Foods,
Inc., 81 NLRB 1103.
8 Clyde J. Merris, 77 NLRB 1375.
! See Knife River Coal Mining Company , 91 NLRB 176 ; Wood Parts, Inc., 101 NLRB
445.
102 NLRB No. 8.
MORGANTON FULL FASHIONED HOSIERY COMPANY 135
evidence of alleged general unfair labor practices on the part of the
Employer, but admitting evidence of alleged participation in the
instigation and circulation of the decertification petition by super-
visors and by employees in the presence of supervisors.5
The Union here has shown, at most, the Employer's knowledge of
the petition, through its supervisors. Such knowledge by itself will
not dictate a finding that the Employer had inspired or fostered the
instant petition. The Union has not shown that any supervisors
participated in the instigation or circulation of the petition. Neither
Dorothy Roper 6 nor Verdie Moore, both of whom took active roles
in support of the Petitioner, appear from the record to be supervisors.
Because the record discloses no substantial evidence that the Employer
has fostered or inspired the decertification petition, we reject the
Union's contentions and find that the Petitioner's status' and his
relation to the Employer present no obstacle to his maintaining the
present proceeding.
Upon the entire record in this case, the Board finds : 8
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner asserts that the Union is no longer the bargaining
representative of the employees of the Employer as defined in Section
9 (a) of the Act. The Union, a labor organization, was certified by
the Board as such representative on September 5, 1946, pursuant to
a consent election.9
3. A 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 to
"See Kraft Foods Company, 97 NLRB 1097 ; Weyerhaeuser Timber Company , 93 NLRB
842. The cases of Worden -Allen Company, 99 NLRB 410 , Jell-Well Dessert Company, 81
NLRB 101 , and C h M Lumber Co., Inc., 83 NLRB 1258 , insofar as they are inconsistent
with our present policy, are hereby overruled.
° See footnote 11, infra.
7 We find, contrary to the contention of the Union , that the Petitioner is an individual
qualified to file the petition in this matter . (there is no requirement in the Act that an
individual petitioner, seeking the decertification of a labor organization , be an employee of
the employer. Standard Oil Company ( Indiana ), 80 NLRB 1022.
8 As the record and the Union 's brief adequately present the issues and position of the
Union, we deny the Union's request for oral argument.
Case No 5-R-2556.
io The contract between the Employer and the Union terminated on December 9, 1952.
As the contract has expired, we find, contrary to the Union's contentions , that it is not a
bar to a present determination of representatives . Shenango Pottery Co., 85 NLRB 490.
The Union further contends that the Petitioner 's showing of interest was stale and that the
employee signatures in support of the instant petition were obtained through fraud and
deceit . We reject these contentions . The currency of a petitioner 's showing of interest
is an administrative matter . Newport News Children's Dress Co., 89 NLRB 442.
Furthermore , evidence showing that employee signatures were obtained by fraud and
deceit is inadmissible, since a showing of interest is an administrative matter not subject
to attack at a hearing. Radio Corporation of America ( Victor Divisson ), 89 NLRB C)99;
American Suppliers, Inc., 98 NLRB 692. Accordingly , we have not considered any evidence
in the record bearing on the alleged fraudulent securing of employees' signatures.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. 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 maintenance employees employed by the Mor-
ganton Full Fashioned Hosiery Company, Huffman Full Fashioned
Hosiery Mills, Inc., at their Morganton, North Carolina, plants, includ-
ing the collector," but excluding office and clerical employees, fixers,
timekeepers, guards, professional employees, and supervisors as
defined in the Act.
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER HOUSTON took no part in the consideration of the above
Decision and Direction of Election.
11 The Union contends that Dorothy Roper, the collector ,. Is a supervisor . She is con-
sidered to be a production employee by the Employer , and she is paid on an hourly basis.
She keeps the production employees ( preboarders ) supplied with work and returns the
work to bins as particular operations are completed . She does not check the work of the
preboarders and all instructions which she gives are routine in nature. Nor can she
effectively recommend the hire , discharge , or discipline of employees . We find therefore
that she has no supervisory authority and, accordingly , include her in the unit. See
Standard Romper Co., Inc., 77 NLRB 421.
CHENEY FOREST PRODUCTS, INC. and LUMBER AND SAWMILL WORKERS,
LOCAL UNION No. 3009, AFL.' Case No. 36-CA-276. January
13,1953
Decision and Order
On August 5, 1952, Trial Examiner Howard Myers i ssued his Inter-
mediate Report in the above-entitled proceeding , finding that the
Respondent 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 , the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
charging party filed a brief.
The Board 2 has reviewed the rulings made by the Trial Examiner
1 Subsequent to the hearing , the charging party , Klamath Basin District Council , Lumber
and Sawmill Workers, AFL, herein called the Council , and Lumber and Sawmill Workers,
Local Union No. 3009 , AFL, herein called Sawmill Workers, jointly ' moved the Board to
substitute in place of the Council the name of the Sawmill Workers wherever the former
appears in the record . The affidavit of the attorney for both organizations reveals that
the Council was disbanded on June 20, 1952 , and that all rights, title , and interest which
the Council had in this case have been transferred to and received by the Sawmill Workers.
No objections have been filed to this motion . We find that Sawmill Workers is , in effect,
the successor to the Council . Accordingly , the motion is granted.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powersin connection with this case to a three -member panel [ Members Houston , Murdock,
and Styles].
102 NLRB No. 24. 1