Gastonia Combed Yarn Corp.

In the Matter of GASTONIA COMBED YARN CORPORATION, GASTONIA PROCESSING COMPANY, AND GASTONIA THREAD CORPORATION, E,I- PLOYER and UNITED TEXTILE WORKERS OF AMERICA, LOCAL 12, A. F. OF L., PETITIONER Case No. 5-R-2513.-Decided April 3, 194F7 Brooks, JlcLendon, Brim c6 Holdeiness, by Mr. L. P. McLendon, of Greensboro, N. C., and fir. Bernard Seff, of Baltimore, Md.,,for the Employer. Messrs. John W. Pollard and Roy P. Seymour, of Gastonia, N. C., for the Petitioner. Mr. William Smith, of Charlotte, N. C., for the Intervenor. Miss Irene R. Shriber, of counsel to the Board. DECISION AND DIRECTION Upon a petition duly filed, the National Labor Relations Board on August 27, 1946, conducted a prehearing election among the employees in the alleged appropriate unit to determine whether they desired to be represented by the Petitioner or the Intervenor for the purposes of collective bargaining or by neither. At the close of the election, a Tally of Ballots was furnished the parties. The Tally reveals that of the approximately 1119 eligible voters, 731 cast ballots, of which 330 were for the Petitioner, 134 for the Intervenor, 228 for neither union, and 39 were challenged. Ten ballots were void. Thereafter, a hearing was held at Gastonia, North Carolina, on October 11, 1946, before Earle K. Shawe, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the Employer moved to dis- miss the petition on the ground that the Petitioner's request for a run-off election, which was based on the inconclusiveness of the ballot- ing, was not made within 10 days after the date of the election as required by Section 203.56 of the Board's Rules and Regulations- Series 4. For the reasons stated hereinafter, the motion is hereby denied. 73 N L R B., No 29. 169 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer has requested oral argument. This request is hereby denied inasmuch as the record, in our opinion, adequately presents the issues and positions of the parties. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Gastonia Combed Yarn Corporation is a North Carolina corporation engaged in the manufacture and sale of combed, carded, and mer- cerized.yarns in Gastonia, North Carolina. The operations of this corporation are conducted in three buildings, individually known as the Armstrong, Dunn, and Clara Mills. Annually, this corporation uses approximately $1,000,000 worth of raw materials, of which about 80 percent is shipped to it from points outside the State of North Caro- lina. Finished products annually manufactured by this corporation have a value of approximately $4,500,000, of which about 70 percent is sold to out-of-State purchasers. Gastonia Processing Company, a North Carolina corporation, is engaged in the manufacture and sale of dyed and dyed-mercerized yarns. Its operations are conducted in the basement of the afore- mentioned Clara Mill of the Gastonia Combed Yarn Corporation. During the past year, this corporation purchased raw materials having a value of approximately $1,000,000, of which about 40 percent was obtained outside the State of North Carolina. During the same period, the sales of finished products of this corporation exceeded $1,000,000, of which 95 percent represented shipments to out-of-State destinations. Gastonia Thread Corporation, a North Carolina corporation whose operations are also conducted in the basement of the Clara Mill, is engaged in the manufacture and sale of cotton thread. During the past year, this corporation purchased over $1,000,000 worth of cotton yarn, of which approximately 10 percent was obtained outside the State of North Carolina. During the same period, this corporation sold more than $1,000,000 worth of finished products to out-of-State purchasers. The three afore-mentioned corporations operate as an integrated enterprise and with identical officers. Their employees together con- stitute a unified group subject to common and integrated control. The three corporations admit, and we find, that they constitute together a single Employer of all these employees. GASTONIA COMBED YARN CORPORATION 171 We find that the Employer Auld each of the three corporation mem- bers thereof are engaged in commerce within the meaning of the National Labor helatlons Act. 11. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, clalmmnig to represent employees of the Employer. Textile Workers Union of America, herein called the Intervenor, is a labor organization affiliated with the Congress of Industrial Organ- izations, claiming to represent employees of the Employer. 111. THE QUESTION CONCERNING REPRESENTATION Following a Board-directed election 1 and the subsequent certifica- tion of the Petitioner as the exclusive bargaining representative of the Employer's production and maintenance employees, the Employer and the Petitioner entered into a collective bargaining agreement dated April 3, 1944. The contract was for 1 year; on its termination, the Petitioner requested the Employer to negotiate a new contract. The Employer refused the request until the Petitioner is again certified by the Board 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 With the exception of the section hands, fixers, overhaulers, and the timekeeper, all of whom the Employer desires to include and the Petitioner and Intervenor desire to exclude, the parties are agreed that the appropriate unit should be composed of all production and main- tenance employees, including the chemist, the watchman, the packing clerk, but excluding the electrician, master mechanic, head shipping clerk, armed guards, all clerical employees, overseers, and all other supervisory employees. The unit claimed by the Petitioner and the Intervenor is substantially similar to the unit found by the Board in the previous proceeding and covered by the afore-mentioned collective bargaining agreement between the Petitioner and the Employer. The section hands were specifically excluded from the unit in the earlier proceeding and from the contract unit as well. The fixers, overhaulers, and the timekeeper, however, were not mentioned either in the earlier proceeding or in the contract unit. The section hands: ' In the earlier proceedings, the Board followed the agreement of the parties to exclude these employees from the unit. I ,Itatter of Gastonia Combed I'm it Corporation, 56 N L R B 1883 1 The classifications section hand and section men are the same 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties thereafter excluded these employees from the contract unit. Since the earlier unit determination, there has been no change in the duties of the section men. While the record does not show that the section men have duties which would necessarily exclude them from the unit in this case, in the absence of compelling circumstances war- ranting a departure therefrom, we shall adhere to our usual practice and not disturb the prior unit determination or the contract unit established as a result of collective bargaining between the Employer and the Petitioner.3 Accordingly, we shall exclude the section men. The fixers and overhaulers: These two categories of employees are mechanics who are responsible for the maintenance and repair of ma- chines, the difference between them being that the fixers do the minor repair jobs while the overhaulers do the major repair jobs. Neither the fixers nor the overhaulers were excluded from the unit in the earlier proceeding nor from the collective bargaining history predicated thereon. In view of the foregoing and the evidence showing that neither of these two groups of employees has supervisory duties, we shall include them in the unit. The timekeeper: This employee works in the mercerized and winding department of the Clara plant under the supervision of the plant super- intendent. She devotes her full time to copying the time records of production employees on certain forms which are forwarded to the pay-roll department. The original time records are prepared by the overseer, a supervisory employee. The timekeeper was not specifically excluded from the unit established in the earlier case nor from the subsequent contract unit. • Under all the circumstances, we shall include the timekeeper.' the find that all production and maintenance employees of the Em- ployer, including the chemist, the watchman, the packing clerk, the timekeeper, fixers and overhaulers, but excluding the electrician, mas< ter mechanic, head shipping clerk, armed guards, all clerical employees, the section hands, the overseers, and all other supervisory employees with authority to hire, promote, 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 bar- gaining within the meaning of Section 9 (b) of the Act. V. TIIE DETERMINATION OF REPRESENTATIVES Of the 39 challenges at the time of the election, 17 were interposed by the Petitioner and 22 by the Board representative conducting the election. 3 lfattei of Petersen and Lytle, 60 N L. R B 1070; Matter of American Cyonamut t Chemical Corporation, 62 N T, R B 470 N L. R B 925 ; Matter of Chicago Bridges and Iron Go, 69 a Jfatter of Noi thicest fngineei ing Company, 73 N L R B 40 GASTONIA COMBED YARN CORPORATION 173 A. The 17 ballots challenged by the Petitioner Rachel Bess: The Petitioner challenged the ballot of this employee on the ground that she was a clerical worker. The evidence discloses that she is a packing clerk who, in addition to her packing duties, wraps and inspects combs in the Mercerizing plant. At the hearing, the Petitioner withdrew its challenge to Bess' ballot and agreed with the Employer and the Intervenor that she was an eligible voter. Accord- ingly, we shall direct that the ballot of Rachel Bess be opened and counted. Mary L. Long: This employee's ballot was challenged on the ground that she was a clerical employee. Long is the timekeeper whom we have included in the unit hereinbefore found appropriate. We shall, therefore, direct that the ballot of Mary L. Long be opened and counted. Charlie Ballard, Rule Cathy, Roy Hooker, C. C. Wortman: The ballots of these four employees were challenged on the ground that they were section men. Inasmuch as we have excluded section men from the bargaining unit, we shall sustain the challenges to the ballots of Charlie Ballard, Rufe Cathy, Roy Hooker, and C. C. Wortman. Dale Broyles, Edward Outlaw, F. R. Peeler, Thomas W. Smith: The Petitioner challenged the ballots of these four employees on the ground that they were overhaulers. In our unit determination, we have found that overhaulers should be included. Accordingly, we shall direct that the ballots of Dale Broyles, Edward Outlaw, F. R. Peeler, and Thomas W. Smith be opened and counted. John M. Blalock, Fanzy Leatherwood, Henry Parker, James R. Robertson: The ballots of these four employees were challenged on the ground that they were section amen. The record, however, shows that all four men are production workers. Blalock, Leatherwood, and Robertson are doffers while Parker is a yarn boy. The Petitioner has withdrawn its challenges to the ballots of these employees. We shall, therefore, direct that the ballots of John M. Blalock, Fanzy Leatherwood, Henry Parker, and James R. Robertson be opened and counted. J. O. Carpenter, Charlie Jenkins: Carpenter's ballot was challenged on the ground that he was a section man and Jenkins' ballot on the ground that he was a fixer. Both employees, however, are fixers, a category of employees we have included in the bargaining unit. We shall, therefore, direct that the ballots of J. O. Carpenter and Charlie Jenkins be opened and counted. John Autrey: This employee's ballot was challenged on the ground that he was an overseer. At the hearing, it was revealed that Autrey is a production employee working as a card hand in the Armstrong 6 A doffer removes bobbins of yarn from the twister' s spindles. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant and that the challenge to his ballot was withdrawn. We shall, therefore, direct that Autrey's ballot be opened and counted. B. The w0 ballots challenged by the Board representative Lela Brocle and Susie Chapman: The ballots of these employees were challenged because their navies did not appear oil the eligible voting list. These employees are production workers, wllo, because of illness, were absent from work during the hay-roll period ending August 11, 1946, the date designated for determining eligibility. Brock left the plant on June 25, 1946, but returned to work September 2, 1946, while Chapman left on July 18, 1946, and returned on August 25, 1946. Since their return, both employees have been working it their regular jobs. At the hearing, all parties agreed that those two employees were eligible voters and that their ballots should be opened and counted. We shall, therefore, direct that the ballots of Lela Brock and Susie Chapman be opened and counted. Veneda Gross, Alice Porter, Ruth Tart: The ballots of these em- ployees were challenged because their names did not appear on the list of eligible voters. All three employees are production workers who had been absent from the plant because of illness on the eligibility date. Cross had been absent from June 9 to August 20, 1946, and after working 5 clays again absented herself until September 22, 1946. Since that date, she has been continuously employed. Porter remained away fi-om the plant from June 4 to August 20, 1946, and Tart from August 4 to August 27, 1946. Both Porter and Tart were back at work at the time of the election and are still in the Employer's employ. At the hearing, the Employer alleged that during their absences these three employees had been marked "quit" on its pay roll m accordance with the procedure established under its contract with the Petitioner whereby the Employer could discharge employees who had been absent for 5 days or more without permission. The record, however, shows that the Employer did not in practice automatically drop employees after a 5-day absence. In fact, Porter was not marked "quit" on the pay roll until August 11 ,6 or until after she had been absent for over 2 months. Furthermore, the record shows that the Employer usually reinstated employees who had been absent for illness without regard for the length of their nonattendance, as in fact it did in the case of these three workers. In view of the foregoing, we find that Cross, Porter, and 'hart were employees of the Employer temporarily absent because of sickness on the eligibility date.7 We shall, therefore, direct that their ballots be opened and counted. "We note that Tart also was maiked "quit" on the August 11 pay roll which was the pav ioll determinative of eligibility The record does not show when Cross was marked quit ' ,11attea of Alsdo7 f and Pa under, 72 N. L R B 236. GASTONIA COMBED YARN CORPORATION 175 Ila Beheler, Thomas Beheler, Mary Costner, Carl Fincher, Thomas W. Gibson, George Hall, Boyd Lackey, Violet Lackey, Leonard Lowe, J. M. Lucas, William A. Marton, Aubrey Scott, Troy Turner, J. C. Ward, Paul Ward, W. H. Worley, Mrs. W. H. Worley: The ballots of these employees were challenged because their names were not on the eligible voting list. These 17 individuals had been discharged ap- proximately 5 months before the election and are included along with 32 other persons in an unfair labor practice charge which is pending against the Employers At the hearing, a request was made by the 17 voters, in which the Petitioner joined, that their respective ballots be withdrawn and that no ruling be made on the challenges to their ballots. The Petitioner further requested that in the event the Board denies the afore-mentioned request of the voters, that the Petitioner be permitted to withdraw the pending unfair labor practice charges without prejudice. We shall deny the request of both the Petitioner and the 17 individuals here involved.9 However, we shall defer pass- ing on the validity of these 17 challenged ballots, if it becomes necessary to do so,1o until final disposition of the unfair labor practice charges. On September 10, 1946, the Petitioner filed a request for a run-off election. The Employer contends that this request was not filed within the time prescribed by Section 203.56 of the Board's Rules and Regulations-Series 4, which provides that when the results in an election are inconclusive, a run-off election shall be conducted provided that a request is submitted therefor within 10 days after the date of, the election. We do not agree with the Employer's contention. Whether or not an election is inconclusive cannot be determined until all valid votes have been opened and counted. The counting of ballots, challenges to which we have overruled, is part of the election. Con- sequently, we believe that a realistic interpretation of the rule in question calls for the conclusion that the 10-day period begins to run when, upon the counting of all valid votes cast in the election, it appears that the result is inconclusive. We shall however, defer ruling on the Petitioner's request until the issuance of the Supplemental Tally of Ballots, hereinafter directed to be made, on the basis of which we shall be able to determine whether a run-off is in order. DIRECTION IT IS HEREBY DIRECTED that the Regional Director for the Fifth Region open and count the ballots of Rachel Bess, Dale Broyles, Edward Outlaw, F. R. Peeler, Thomas W. Smith, John M. Blalock, "Case No 5-C-2161 which was filed in the Regional Office on August 7, 1946. 'Hatter of Troy Refining Corporation, 70 N. L R B. 11 91 10 In this connection we note that these 17 ballots may affect the election results only in the event that at least 17 of the 18 ballots directed to be opened were cast for the Petitioner. 739926-47-vol 73-13 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fanzy Leatherwood, Henry Parker, James R. Robertson, J. 0. Car- penter, Charles Jenkins, John Autrey, Lela Brock, Susie Chapman, Veneda Cross, Alice Porter, Mary L. Long, and Ruth Tart, and there- after prepare and serve on the parties in this proceeding a Supple- mental Tally of Ballots together with a Report embodying therein his findings and his recommendations. IT IS FURTHER DIRECTED, that the Regional Director shall continue to impound and not open the ballots of Ila Beheler, Thomas Beheler, Mary Costner, Carl Fincher, Thomas W. Gibson, George Hall, Boyd Lackey, Violet Lackey, Leonard Lowe, J. M. Lucas, William A. Marton, Aubrey Scott, Troy Turner, J. C. Ward, Paul Ward, W. H. Worley, and Mrs. W. H. Worley. CHAIRMAN HERZOC took no part in the consideration of the above Decision and Direction.