S. Slater & Son

National Labor Relations Board - Board Decisions

Oct 23, 1951

96 N.L.R.B. 1026 (N.L.R.B. 1951)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The following employees 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 at Dixie's and Brollier's
Houston, Texas, plants, including truck drivers 6 and night watch-
men, but excluding office clerical employees , guards, and supervisors.7
[Text of Direction of Election omitted from publication in this
volume.]
6 There is no merit in the Employers ' contention that the production and maintenance
unit sought herein , including , among others, production employees , truck drivers, and
mechanical employees , is inappropriate . Where, as here , no other labor organization
sought to represent such categories as truck drivers and mechanical employees , the Board
has frequently included employees in these categories in similar production and main-
tenance units appropriate for bargaining purposes . See, e. g., Riverside Mills, 85 NLRB
969, and Veneer Products, Inc, 81 NLRB 492.
7 The parties agree, and we find, that night watchmen are not employed as guards
within the meaning of Section 9 (b) (3) of the Act, and that shipping clerks Mallett,
Skelton , Hill , and Compere are supervisors within the meaning of Section 2 (11).
SAM SLATER D/B/A S. SLATER & SON1 and LEATHER & NOVELTY
WORKERS UNION, LOCAL #31, INTERNATIONAL HANDBAG, LUGGAGE,
BELT & NOVELTY WORKERS, AFL, PETITIONER . Case No. 20-RC- .
1472. October 23,1951.
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 Natalie Allen, hearing offi-
cer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.2
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 [Members Houston, Murdock, and Styles].
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.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) andSection 2 (6) and (7) of the Act.
1 The name of the Employer appears as amended at the hearing.
a Furniture Workers Local 262, United Furniture Workers of America, CIO, was per-
mitted to intervene on the basis of its contractual interest.
96 NLRB No. 154.
S. SLATER & SON 1027
The petition herein was filed on July 13, 1951. The Employer and
the Intervenor urge as a bar to this proceeding a contract executed by
them on October 1, 1950, to be effective until July 1, 1954, and there-
after from year to year unless notice to modify or terminate is given
by either party 30 days before the expiration date of the contract, or
the end of any subsequent annual period.
Section 2 (b) of the contract contains a union-security provision
effectively postponed by a saving clause found in the same section.3
However, section 6 of the contract, among other provisions, provides
that layoffs and rehirings of employees shall be governed by seniority.
It further provides that only union members enjoy seniority rights.
In case of employees temporarily laid off, the contract requires that
they obtain union clearance before they are rehired. The. clear effect
of these latter provisions is to require the Employer to give prefer-
ential treatment to members of the Intervenor. We find that these
provisions exceed the permissible limits of Section 8 (a) (3) and are
therefore unlawful, without regard to whether a union-shop author-
ization election has been conducted under Section 9 (e) (1) of the
Act.' The general savings clause appearing in the supplement to the
contract does not cure this defects Thus, without regard to other
considerations, the contract in question cannot operate as a bar to a
present determination of representatives.
4. The appropriate unit :
The Petitioner seeks a unit consisting of all the employees of the
Employer, including the part-time janitor, but excluding guards,
watchmen, and supervisors. The Employer and Intervenor agree
generally with the composition of the unit sought. There is disagree-
ment only as to inclusion or exclusion of the following individuals :
Berek Winter: The Petitioner urges the exclusion of this individual
from the unit on the ground that he is a supervisor. The Employer
and Intervenor would include him.
The Employer employs 15 employees as cutters and operators. _ The
principal duties of Winter consist of receiving shipments, preparing
goods for shipment, cutting lining for garments, and on occasions
designing garments with the assistance of Sam Slater, the owner. In
conjunction with these duties, Winter also has the responsibility of
assigning work to the cutters and operators in order to fulfill orders
for merchandise. The record further reveals that Winter also checks
completed garments. Either he or Sam Slater decides whether a gar-
8 The Intervenor urges that this savings clause should also be applied to the seniority
provisions of the contract . We find no merit in the contention . The savings clause found
in Section 2 (b) applies by its own terms to the union -shop provisions of Section .2 (b) only.
Cf. Morley Manufacturing Company, 83 NLRB 404, Nicholson Transit, 85 NLRB 692.
Broadway Iron and Pipe Corporation, 83 NLRB 942, Monroe Browne and Leonard Rurup,
d/b/a McCoy Truck Tire Recap Company, 93 NLRB 667.
Cf. 0 . F. Shearer d Sons, 93 NLRB 1228 , and cases cited therein.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment should be returned to an operator for correction or be classified
as a second.
Winter does not possess the power to hire or discharge any employee
nor the authority effectively to recommend any such action. All per-
sonnel action is taken by Sam Slater alone. However, during the
latter's occasional absences from the plant, Winter is in charge of the
operations.
While it appears that Winter is a valuable and trusted employee and
apparently occupies a position of some responsibility in the Em-
ployer's organization, the record indicates that his regular authority
with regard to the cutters and operators amounts to no more than
routine directions As it does not otherwise appear from the record
that Slater's absences from the plant are other than occasional and
temporary in nature, Winter's assumption of responsibility for plant
operations during these periods is not sufficient to warrant the con-
clusion that he is a supervisor within the meaning of the Act.'
We find, therefore, that Winter is not a supervisor within the mean-
ing of the Act and accordingly shall include him in the unit.
Part-time janitor: The Petitioner would include this employee in
the unit; the Employer and Intervenor would exclude him on the
ground that he is not a production worker. This employee performs
usual janitorial duties on, the average of two to three times a week,
approximately 4 hours each time. In addition, he delivers packages
to the post office for parcel post shipment. During the Employer's
busy season, the janitor works every day for the same number of
limited hours. Thus it appears that there is a pattern of regularity
in the employment of this employee. As the unit here found appro-
priate is in effect a plant-wide unit consisting of all the employees of
the Employer, we shall include the janitor in the unit as a regular
part-time maintenance employee.8
We find that a unit consisting of all the employees employed at the
Employer's San Francisco plant including the part-time janitor and
Berek Winter but excluding office clerical employees, guards, and all
supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
[Text _of Direction of Election omitted from publication in this
volume.]
° Cf. Republic Steel Corporation, Canton Plant, Central Alloy District , 91 NLRB 904.
° See Phillips Oil Company , 91 NLRB 534.
° Cf. R J. Gould Welding and Erecting Company, Inc., 95 NLRB 460.