Minneapolis Knitting Works

In the Matter Of MINNEAPOLIS KNITTING WORKS, EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER Case No. 18-RC-310.-Decided June 29,1919 DECISION AND CERTIFICATION OF REPRESENTATIVES On January 27, 1949, pursuant to a "Stipulation for Certification upon Consent Election," an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Eighteenth Region, among the employees in the stipulated unit. Upon the conclusion of the election a Tally of Ballots was furnished the parties. The tally shows that 157 ballots were cast, of which 77 were for the Petitioner, 75 were for United Garment Workers of America, Local 174, AFL, the Intervenor, and 5 were challenged. The Inter- venor filed timely objections to the conduct of the election, alleging (1) that the Petitioner had coerced employees in the exercise of their self-organizational rights before the election, and (2) that the Peti- tioner was not entitled to certification because it was not the real party in interest, but was acting as a front for one or both of two of its non- complying locals which had actively participated in organizing employees of the Employer for the Petitioner. After an investigation, the Regional Director issued, on February 25, 1949, his Report on, Challenges and Objections in which he found that: (1) none of the objections raised substantial or material issues with respect to the conduct of the election, and recommended that all be overruled; and (2) the challenges to the five ballots, which are sufficient in number to affect the results of the election, should be over- ruled, and recommended that the Board direct that they be opened and counted. On March 3, 1949, the Intervenor filed Exceptions to the Report on Challenges and Objections. Upon the basis of the Intervenor's Objections to the Conduct of the Election, the Regional Director's Report on Challenges and Objec- tions, the Intervenor's Exceptions thereto, and the entire record in the case, the Board finds : 84 N. L. R. B., No. 92. 826 MINNEAPOLIS KNITTING WORKS 827 The Alleged Coercive Statements - The Regional Director found that the following statements had been made to employees of the Employer:' 1. Several rank and file employees of the Munsingwear Com- pany, who are members of or officers of Local No. 66, told a num- ber of employees of the Employer that they had better sign with the CIO [Petitioner] if they wanted to work for the Company; 2. Another employee was told that she had better join the CIO now because she was going to have to join later; and 3. Another employee was told by two rank and file employees of the Employer, following a meeting of the Intervenor, that she had better stick to the CIO " or else." We do not believe that the first of these statements, while somewhat similar to others which a majority of the Board has held to be unfair labor practices under Section 8 (b) (1)' (A) of the Act,2 constituted, in this context, a threat that would justify setting aside the election. We note that the statement was made by employees of another employer, who held no official position with the Petitioner and at most were merely membership solicitors for the Petitioner. There is no reason to believe that they were invested with authority to speak for the Petitioner, or that the Employer's employees believed them to have such authority. Furthermore, there is absent here any indica- tion that these statements were part of a concerted effort to intimidate employees, by this or any other means, in their rights to self- organization.3 We do not consider the second statement to have been a threat of loss of employment, because it contained no implication that the employee would be prevented from joining the union later if union membership should have become necessary to retain her job. Indeed, the expression that "she was going to have to join later" implies that she would, in fact, be permitted to join at whatever time membership was required. The implications of the third statement were vague, but not neces- sarily threatening, particularly because it was uttered by one rank and file employee, without official status in the petitioning union, to I In the opinion of the Regional Director these statements merely constituted union electioneering activity which did not violate Section 8 (b) (1) (A). The Intervenor took no specific exception to this finding, but its Exceptions incorporate by reference the material set out in the original Objections 2 Matter of Smith Cabinet Mfg. Co , Inc , 81 N. L. R. B. 886 ("when we get in with the Union , you old fellows won't have a job ") , Matter of Seamprufe Inc, 82 N. L. R. B. 892 ("those who do not join the Union will eventually lose their jobs"). 3 Cf. Matter of Seamprufe Inc., supra. 828 DECISIONS -OF,-NATIONAL -LABOR RELATIONS BOARD another rank and file employee. ° - None of us considers this statement comparable to the threats which two Members of the Board thought coercive in- the -Hess `case 4 - I , - The Alleged "Fronting" - Tlie'Regional• Director's investigation- discloses no evidence to sup- port the Intervenor's allegation that Petitioner was not the real party in -interest'. The ,petition was filed by the International '(Textile Workers'Unioh of AmericaCIO). Its interest showing consisted of combined application for membership' and collective bargaining authori'zation' eards bearing the name 'of the International: The re- guest'of th'e Petitioner for recognition by the Employer was made by a business representative of the International. Tlie-Regional Director reported; however, that the presidents of two of the Petitioner's Locals were among the signers of a handbill used -in the organizing campaign; that members,of these- Locals attended the Petitioner's organizational meetings'and solicited employees at the Employer's plant to join-the Petitioner; and that the Petitioner announced that when it is certified as the bargaining representative at the plant and has signed a contract with the Employer, it will set up a new Local for the employees there. The Exceptions to the Regional Director's Report make no allega- tions that contradict or supplement these findings. There is no reason why. an -International Union which is not prohibited by its constitu- tion from entering, into collective bargaining contracts may not be certified by us, and bargain directly with an Employer. The possi- bility that the Petitioner may, after its own certification, attempt to turn-over to a non-complying local its status as collective bargaining agent is remote and speculative. We do not consider it an obstacle to immediate certification, if the Petitioner is otherwise qualified 5 The Challenged Ballots As the five' challenged ballots were sufficient in number to affect the results of the election, the Regional Director investigated the status of the persons casting them and concluded that the challenges should be overruled and the ballots counted. The Regional Director found-that the five challenged ballots were cast by laid-off employees; who had not, however, been discharged. The Intervenor contends 4 Matter of S. H. Hess, Inc , 82 N L. R B 463 (See the opinion of Members Reynolds and Gray ) - . 5Matter of O'ainite - Teitsle Mills Inc, 76 N 'L. R B 613 ; Matter of Oppenhetim-Collins- and-Co , Inc., 79 N. L R R 435 In Matter of Lane-TVells Company, 79 N L R B 252, we called attention to the Board 's power of policing certifications in the event of super- vening developments. - - J MINNEAPOLIS KNITTING WORKS , 829 that the employment of these five laid-off employees had been ter- minated, before the pay-roll eligibility date, by discharge. . The Intervenor had been the recognized bargaining representative of the Employer's mill employees for some years, its most'recent col- lective bargaining agreement with the Employer expiring January 27, 1949, (the day of the election). This contract contained a union- 'security provision which had been authorized by an election conducted in February 1948. The Employer reduced its working force by over 200 employees during the 9-month period preceding the January 1949 election in the present case. On January 3, 1949, the Intervenor sent the Employer a list of names of 87 employees (including the 5 chal- lenged voters) who were already in a laid-off status and who were no longer in good standing with .the Union because they had been de- linquent in their dues for 3 months or more. The Intervenor re- quested the Employer to remove these names from its seniority list and to terminate their employment immediately. Upon receipt of this communication, early in January 1949, the 87 employees on the list furnished by the Intervenor were dropped from the Employer's seniority list by removing.their cards from the "laid off" card file and placing them in the permanent "out" file. Each of the 87 cards was marked "Removed from seniority list of January 3, 1949 as per union request, nonpayment of dues; A. F. of L. Local 174." It is agreed that these 87 laid-off employees were each actually delinquent for 3 months in his dues, and that under the Intervenor's constitution they thereby forfeited all the privileges and benefits of membership in the Union. ' The Regional Director relied for his finding that the challenged voters had not been discharged on the following provision in the Intervenor's contract with the Employer : ARTICLE XIV 1. Any employee covered by this agreement may be dismissed or discharged without any notice by the Company for drunken- ness, dishonesty, or-refusing to properly do the job. 2. The Company shall not discharge any employee for reasons other than those set forth above without first giving at least one warning notice in writing of the complaint against such employee to the employee and the Union. If such employees are so dis- charged, they may protest such a discharge to the management. If unable to settle the matter, it shall be in accordance with Article XVII hereof. [Article XVII is the grievance procedure and arbitration clause of the contract.] - 853396-50-vol S4-55 - 830 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD The Employer sent no warning notice to the 87 employees that they might ,be discharged, for ,delinquency, in, payment of their union dues, nor did it notify them of its action when it removed them from 'its seniority list. The Regional Director reasoned from these facts that the Employer had not taken the proper steps to discharge the 87 employees, and that therefore the 5 challenged voters remained in the status of laid-off employees during the eligibility period and were 'entitled to vote. It is clear that employees covered by a union-security contract may not vote after a discharge at the union's request, unless it is alleged that their discharge was illegal, in which event the votes are impounded pending' a. determination by the:Board as to -whether an unfair labor practice was committed.' No charges have been filed asserting that the'discharge of any of the 87 laid-off employees constituted an unfair -labor practice. It appears that the 5 challenged voters had been dis- charged before the date of the election. The issue as to whether or not their discharges were made in accordance with the contract between the Employer and the Intervenor is one that can be decided only by interpreting the provisions of that contract. We do not believe it to be our function to decide in this proceeding whether the 5 laid-off employees were discharged rightfully or wrongfully; it is sufficient for our purposes here that their, employment was in fact definitely terminated, and that no unfair labor practice charges have been filed concerning them. We therefore find that the challenges should be, and they hereby are, sustained. As the tally shows that the Petitioner had secured a majority of the -valid votes cast in the election, we shall certify it as the bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES IT IS HEREBY CERTIFIED that Textile Workers Union of America, CIO, has been designated and selected by a majority of the employees of Minneapolis Knitting Works, Minneapolis , Minnesota, in the unit heretofore stipulated by the parties to be appropriate , as their repre- sentative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, the said organization is the exclusive rep- resentative of all the employees in such unit for the purposes of collec- tive bargaining with respect to rates of pay , wages, hours of employ- ment, and other conditions of employment. MEMBER GRAY took no part in the consideration of the above De- cision, and Certification of Representatives. G Matter of Phelps -Dodge Company, 27 N L. R . B. 729 ; aarod Radio Corporation, 32 N. L. R B. 1010; Matter of National Tea Company, 35 N. L. R. B. 340.