Cookeville Shirt Co.

In the Matter Of COOKEVILLE SHIRT COMPANY, EMPLOYER and UNITED GARMENT WORKERS , A. F. L., PETITIONER Case No. 10-R-1744.-Decided August 20, 1946 Martin & Cochran and Robert c0 Roberts, by Messrs. Carinack Cochran and A. J. Roberts, Jr., of Nashville, Tenn., for the Employer. Mr. C. D. ,Stone, of Cookeville, Tenn., for the Petitioner. Mr. Benjamin Cook, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE Upon a petition duly filed, the National Labor Relations Board, on` April 16, 1946, conducted a prehearing election pursuant to Article III, Section 3, of the National Labor Relations Board Rules and Regulations , among employees of the,Employer in the alleged appro- priate unit, to determine whether or not they desired to be represented by the Petitioner for the purposes of collective bargaining. At the -close of the election, the Tally of Ballots cast in the election was as. follows : Approximate number of eligible voters--------------------- 179 Void ballots--------------------------------------------- 1 Votes cast for the Petitioner------------------------------- 120 Votes cast against the Petitioner--------------------------- 57 Challenged ballots - --------------------------------------- 14 Valid votes counted plus challenged ballots-- -------------- 191 The Employer thereafter refused to sign a Stipulation for -Certi- fication after election. Pursuant to Article III, Section 10,' of the Rules and Regulations, the Board thereafter provided for an appro- priate hearing upon due- notice before Marion A. Prowell, Trial Examiner. The hearing was held at Cookeville, Tennessee, on June 5, 1946. The Trial Examiner's ruling made at the hearing are free from prejudicial error and are hereby affirmed. 70 N. L. R. B., No. 19. 174 COOKEVILLE SHIRT COMPANY 175 Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Cookeville Shirt Company is a Tennessee corporation, engaged in the manufacture of garments under contract for other companies. During the year 1945, the Employer purchased raw materials which were valued at approximately $100,000, approximately '50 percent of which came from points outside the State of Tennessee. During the same period, the Employer sold finished products which were valued in excess of $100,000, approximately 75 percent of which were shipped to customers outside the State of Tennessee. We find that the Employer is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED The Petitioner is a labor organization, affiliated with the American Federation of Labor, claiming to represent employees of the Em- ployer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The, parties stipulated at the hearing that the appropriate unit should be composed of all production employees, exclusive of guards, watchmen, clerical, maintenance, and supervisory employees. At the hearing, the parties were in dispute as to the inclusion of Pauline Shipley and Ruby Morgan. The Employer had challenged the ballot of Pauline Shipley, but later in the hearing withdrew the challenge. The ballot of Ruby Morgan was challenged by the Peti- tioner. The undisputed testimony clearly shows that Morgan does not possess supervisory authority within the Board's customary definition thereof. Accordingly, we hereby overrule the Petitioner's 176 _ DECISIONS OF NATIONAL- LABOR RELATIONS BOARD challenge and shall include both Ruby Morgan and Pauline Shipley in the unit." We find that all production 2 employees of the Employer at its plant, Cookeville, Tennessee, excluding guards, watchmen, clerical, main- tenance, and all supervisory employees with authority to hire, pro- mote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The Employer objects to the conduct of the election, urging that it was held without proper notice, that the current pay roll was not used in determining the eligibility of voters, and that the challenged ballot of-Ruby Morgan should have been counted, and further alleg- ing that the Petitioner should have been required to waive, as a pre- requisite to the representation proceeding, its pending unfair labor, practice charges. The Employer contends that although the notices of election were posted on the afternoon of April 11th and remained posted through the 16th, the plant was not in operation during the intervening Satur- day and Sunday, and for that reason, the posting did not meet the Board's notice requirements. The posting here involved is consistent with the Board's customary procedure; furthermore, the record dis- closes that approximately 98 percent of the eligible voters participated in the election. We therefore find no merit in this objection. ' The Employer alleges that the pay-roll date should have been April 5, 1946, instead of March 2, 1946, and that 12 employees hired after March 2 should have been permitted to vote. No showing was made that the pay roll used was not of a sufficiently recent date. Moreover, assuming, without deciding, that the, pay-roll date of-April 5 was a more appropriate one to use in determining eligibility, if the 12 employees hired subsequent to March 2 had been permitted to vote, their votes could not have affected the result of the election. Accord- ingly, we find no merit to this objection. Under the Board's election procedure, an employer or participating labor organization may question any claimant's eligibility to vote. Accordingly, although Ruby Morgan was eligible to vote,, the chal- lenge of her ballot does not afford a basis of objection to the conduct of the election. We therefore overrule this objection. ' The Employer contends that under the Board's practice, it was in-, clunbent upon the Petitioner to incorporate in the representation record Inasmuch as the results of the election cannot be altered'by counting the ballots of ^ • Pauline Shipley and Ruby Morgan , we,shall not direct that they be opened and counted. x Including Pauline Shipley and Ruby Morgan. See footnote 1, supra. COOKEVILLE SHIRT COMPANY 177 a waiver of the unfair labor practice charges filed by it on May 9, 1946, and that because of its failure to do so, the Petitioner cannot proceed with the unfair labor practice charge and at the same time accept the benefits arising under the representation proceeding. With this posi- tion we do not agree. Although the Board customarily will not direct an election unless the Petitioner agrees that it will not make the subject matter of its pending unfair labor practice charges' the basis of an objection to the conduct of an election in case it loses, here, the charges were filed after the election, thereby obviating any necessity, for the filing of a waiver by the Petitioner. Insofar as the remainder of the Employer's contention is concerned, the holding of an election and the certification of the charging union, as the collective bargaining representative, in no way precludes the Board from proceeding under its statutory duty to a determination of unfair labor practice charges filed either before or after the election; it is well settled that the duty of the Board, with respect to a representation proceeding, is wholly different and distinct from that imposed upon it with respect to unfair labor practice cases 4 Accordingly, we overrule this objection. In view of the foregoing, we shall overrule the Employer's objections to the election. The results of the election held prior to the hearing show that the Petitioner has secured a majority of the valid votes cast and that the challenged ballots are insufficient in number to affect the result of the election. Under these circumstances, we shall not direct that 'the challenged ballots be opened and counted, but instead we shall certify the Petitioner as the collective bargaining representative of the employees in the appropriate unit. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act,, pursuant to Article III, Sections 9 and 10,.of National La1?or Relations Board Rules and Regulations-Series 3, as amended, IT IS HEREBY CERTIFIED that United Garment Workers, A. F. L., has been designated and selected by a majority of all production employees of Cookeville Shirt Company, Cookeville, Tennessee, but excluding watchmen, guards, clerical and maintenance employees and all super- visory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, as their representative for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, the aforesaid organization is the exclusive- representative of all such employees for the'purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. ' See Matter of The Pickwick Company, 69 N. L. R. B. 314.