The Pantasote Co.

National Labor Relations Board - Board Decisions

Mar 30, 1953

103 N.L.R.B. 1271 (N.L.R.B. 1953)

THE PANTASOTE COMPANY 1271
THE PANTASOTE COMPANY and TEXTILE WORKERS UNION OF AMERICA,
CIO , PETITIONER . Cares Nos. 2-RC-5366 and RC-,5367. March
30, 1953
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
Milton A. Shaham, 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 these cases, 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.
3. United Textile Workers of America, AFL, herein called the AFL,
contends that an existing contract between it and the Employer is a
bar to this proceeding. On November 21, 1952, the Petitioner filed its
petitions with the Board, and on the same day notified the Employer
that it had filed such petitions. The current contract between the
Employer and the AFL was entered into on November 26, 1952. As
the contract was not executed until after the filing of the petitions
herein, we find that it is not a bar to this proceeding.'
The hearing officer referred to the Board the AFL's motion to dis-
miss the petitions on the ground that the contractual interest sub-
mitted by the Petitioner does not raise a valid question concerning
representation. The Petitioner was the recognized bargaining agent
for the Employer's production and maintenance employees since 1943,
and for its clerical employees since 1947. The most current contracts
between the Employer and the Petitioner expired on August 1, 1952.
On June 12, 1952, the Employer filed a petition for an election,
stating that the Petitioner and the AFL both made claims to represent
its employees. On July 11, 1952, the Petitioner filed unfair labor
practice charges against the Employer which delayed the processing
of the Employer's petition. On November 21, 1952, the Petitioner
filed the petitions which are the subject of the present proceedings.
On November 23, 1952, the Employer requested withdrawal of its
petition. This request was approved by the Regional Office on
November 25, 1952.
A valid question concerning representation was raised by the filing
of a petition by the Employer.2 This petition was still pending at
the time the Petitioner filed its petition. Under all the circumstances
of this case, we find that the question concerning representation which
1 Kohler Company, 93 NLRB 398.
2 Commercial Equipment Company, Inc., 95 NLRB 354.
103 NLRB No. 116.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was raised by the filing of the Employer's petition still exists.3 Be-
cause the Petitioner would not have had to make any further showing
of interest had the question of representation been resolved on the
Employer's petition, the Board regards the showing as sufficient to
warrant proceeding here.
We find 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.
4. We find that the following employees at the Employer's Passaic,
New Jersey, plant constitute separate units appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act :
a. All production and maintenance employees, including truck-
drivers and helpers, and laboratory helpers, but excluding office clerical
employees, guards, time-study, professional, sales, and confidential
employees, and supervisors.
b. All office clerical employees, excluding all production and main-
tenance employees, truckdrivers and helpers, laboratory helpers, time-
study, sales, professional, and confidential employees, and supervisors.
[Text of Direction of Elections omitted from publication in this
volume.]
MEMBER PETERsoN, dissenting:
I am constrained to disagree with the conclusion of my colleagues
that an election should be directed in this case. With respect to the
propriety of entertaining the petition herein, Section 9 (c) (1) (A)
of the Act, in pertinent part, requires that the petition of a labor
organization allege the support of "a substantial number of employ-
ees." In administering the provision, the Board has consistently
required a showing by authorization cards or other similar evidence
that at least 30 percent of the employees in the bargaining unit sup-
port the petition.4 This requirement is based upon the Board's experi-
ence that, in absence of such showing of interest, an election seldom
would serve any purpose of the statute.5 The Petitioner failed to
produce the customary 30-percent card showing or any employee
designations, but merely relied upon a contract with the Employer
which expired almost 4 months before the petition was filed. Clearly,
it would be a wholly unwarranted departure from established Board
practice to accept such a contractual relationship as an adequate sub-
stitute for the required showing.
2 Labor organizations named in employer petitions need not make a showing of interest
to be entitled to participate in proceedings instituted by the filing of such petitions. P. R.
Mallory & Co., Inc., 89 NLRB 962.
4 For example , see Oklahoma Gas and Electric Co., 86 NLRB 437.
5 Statements of Procedure of National Labor Relations Board, Section 101.17.
THE PANTASOTE COMPANY 1273
My colleagues apparently do not disagree with this view. They
base their position not upon the sufficiency of the Petitioner's showing
with regard to its own petition, but upon the fact that the Petitioner
would not have had to make any further showing of interest had the
question of representation been resolved on the Employer's petition.
But, until today, I had thought this was true only to the extent that
the Petitioner was an intervenor on the Employer's petition. The
Board customarily has required only a nominal card showing a or a
current or recently expired contract? as adequate proof of interest
for intervention in a proceeding instituted by a labor organization
and no showing by the union is necessary if the proceeding is initiated
by an employer.,, However, the Board has denied a request for with-
drawal by a labor organization of its petition only when the inter-
venor has made a showing of interest adequate for a petitioner among
the employees involved.9 The ground for such denial has been that
the withdrawal then would be prejudicial to the intervenor. Under
the circumstances, the intervenor becomes in effect a cross-petitioner.10
Here, the Petitioner had an adequate contractual showing as an
intervenor on an employer's petition, but did not have the substantial
showing of interest required of a petitioner or cross-petitioner in
order to maintain the proceeding if it had been commenced by a labor
organization. The Employer's petition was withdrawn with the
approval of the Regional Director and apparently without objection
by any of the parties. I believe the Regional Director's action was
correct because, in my opinion, whether the petition involved is that
of an employer or a union the result in these circumstances should be
the same. Although my colleagues are not reinstating the Employer's
petition, they are treating the situation as if permission should not
have been granted for its withdrawal apparently because they believe
that the Petitioner was prejudiced thereby. Otherwise, I can ascer-
tain no valid reason for directing an election in this case merely
because the Petitioner herein had an adequate showing of interest as
an intervenor on the Employer's petition.
Concededly, an intervening union in a proceeding instituted by an
employer's petition does not have to make any showing because the
employer has the statutory right to file a petition when a claim for
recognition has been made upon him. However, it is quite another
thing to broaden the scope of the statutory right given an employer
as my colleagues are now doing, so that it redounds to the benefit of
8 For example , Fostoria, Ohio, Works of the National Carbon Division, Union Carbide and
Carbon Corp ., 89 NLRB 460.
7 For example, Milprint, Inc., 91 NLRB 561.
8 See for example, P. R. Mallory A Co., Inc ., 89 NLRB 962.
9 Seaboard Machinery Corp ., 98 NLRB 537 ; Twentieth Century Pow Film Corp., 96
NLRB 1052.
10 The Electric Auto -Lite Co., 87 NLRB 129; Boeing Airplane Co., et al., 86 NLRB 368.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an intervening union by placing it in a much more favorable position
than it would have been in if it were a participant in a representation
proceeding instituted by another union. In my opinion, as the Peti-
tioner has neither a showing of interest adequate for a cross-petitioner
on the Employer's petition nor a sufficient showing to sustain its own
petition, there is no basis for directing an election in this case.
Accordingly, I would dismiss the petition.
A. E. ROGERS , D/B/A A. E. ROGERS Co. ;* ALFRED R. OLSTAD, D/B/A
OLSTAD MOTORS;* MCGRATH Brnoic, INC.; T. R. LITCHFIELD AND
DONALD D . LITCHFIELD , COPARTNERS , D/B/A T. R. LITCHFIELD AUTO
SALES * J. FRED KAPPUS , JR., D/B/A EAU CLAIRE MOTOR COMPANY;*
EAU CLAIRE LINCOLN MERCURY CO.;* MCDONALD MOTORS, INC., AND
GEORGE DOUGLAS MCDONALD , MICHAEL MCDONALD AND BRUCE Mc-
DONALD , D/B/A MCDONALD BROTHERS;* GEORGE S. GRINSEL AND
GERALD S. PIERCY, COPARTNERS , D/B/A GRINSEL NASH COMPANY; *
WOOD MOTOR COMPANY and LODGE No. 173, INTERNATIONAL ASSOCI-
ATION OF MACHINISTS , AFL, PETITIONER . Ca, e8 Nos. 18RC-1797,
18-RC-1798, 18RC 1799, 18-RC-1800, 18-RC-4801, 18-RC-1802,
18RC-1807, 18RC 1808, and 18-RC-1809. March 30, 1953
Decision and Direction of Elections
Upon separate petitions duly filed, a consolidated 1 hearing was held
in this case on February 10, 1953, at Eau Claire, Wisconsin, before
Clarence A. Meter, hearing officer. The hearing officer's rulings made
at the hearing. are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Herzog and Members
Murdock and Peterson].
Upon the entire record in this case, the Board finds :
1. The business of the Employers :
The Employers are separate automobile dealers, each having a fran-
chise agreement with a nationwide manufacturer of automobiles.
These Employers each sell new and used automobiles and other auto-
motive equipment and perform service operations in Eau Claire, Wis-
consin, and vicinity. Other than Grinsel and Wood, each Employer
purchases motor vehicles and parts amounting to over $250,000 annu-
ally, more than 50 percent of which represents out-of-State purchases.
* The names of these Employers appear as amended at the hearing.
I All the captioned cases were consolidated for bearing by order of the Regional Director
dated February 3, 1953.
103 NLRB No. 118. . , .