Bush Woolen Mills, Inc.

In the Matter of BUSH WOOLEN MILLS, INC., EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, C. I. 0., PETITIONER Case No. 8-RC-12.-Decided March 5, 1948 Messrs. J. E. Bush, Jr., and H. G. Wilkinson, of Dresden, Ohio, for the Employer. Mr. William H. Walters, of Zanesville, Ohio, for the Petitioner. Mr. Harold Moon, of Columbus, Ohio, for the Mine Workers. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Dresden, Ohio, on December 10, 1947, before John A. Hull, Jr., hearing officer. At the hearing, the Mine Workers requested leave to intervene in this case in view of its existing contract with the Employer. Although the Petitioner objected to the intervention on the ground that the Mine Workers had not complied with the registration and filing re- quirements of Section 9 (f), (g), and (h) of the Act, as amended, the hearing officer granted the request. As the Mine Workers showed a current contractual interest in this matter,' we shall affirm the hearing officer's ruling in this regard.2 The Mine Workers thereafter moved to dismiss the Petition herein, on the ground that it was prematurely filed. Ruling on the motion was reserved for the Board. For reasons set forth in Section III, infra, the motion is denied. The hearing officer's other rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the National Labor Relations Board 3 makes the following : ' Cf. Matter of Schneider Transportation Company, 75 N L R B 870 Matter of Con- solidated Steamship Company, et al, 75 N L R B 1254 2 The ruling of the hearing officer, limiting the Mine workers' intervention to prove that their contract barred this proceeding, is reversed Intervention when granted, is for all purposes Matter of American Chain cC Cable Company, Inc., Case 4-R-2752, decided February 17, 1948 However, no party herein appears to have been prejudiced, as the record indicates that, in fact, the Mine workers was permitted to participate in all phases of the hearing 3 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-man panel consisting of the undersigned Board Members [Chairman Herzog and Members Murdock and Gray] 76 N. L R B , No 94. 618 BUSH WOOLEN MILLS, INC. FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER 619 Bush Woolen Mills, Inc., an Ohio corporation, is engaged at Dres- den, Ohio, in the manufacture and sale of woolen piece goods for sportswear, bathrobes, and the shirting trades. During the fiscal year ended March 31, 1947, the Employer purchased more than $500,000 worth of raw materials, of which over 90 percent represented shipments to its plant from sources outside the State of Ohio. Dur- ing the same period, the Employer sold more than $1,000,000 worth of finished products, of which over 90 percent represented shipments to points outside the State. The Employer admits, and we find, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. District 50, United Mine Workers of America, herein called the Mine Workers, is a labor organization claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION On October 21, 1947, the Petitioner notified the Employer in writing that it claimed to have been designated by a majority of the Employer's production and maintenance employees and intended to file a rep- resentation petition with the Board. On the same day, the Petitioner filed its petition herein. The Employer did not reply to the Petitioner's representation claim. As a result of its success in a consent election ,4 the Mine Workers, on January 23, 1945, executed a collective bargaining agreement with the Employer, for the term of 1 year. On January 23, 1946, a second agreement was executed by the parties for a period of 2 years. At the hearing the Mine Workers moved to dismiss the petition, contending that the Board's acceptance of the petition before the expiration of its contract was premature. The Mine Workers urges that the acceptance of the petition, the investigation of the case, and the holding of a hearing, have "affected" its certification within tho meaning of Section 103 of the amended Act, and have impeded the 4 Held on October 5, 1944. Case No. 8-R-1000. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to strike guaranteed by Section 13 of the amended Act .5 We find no merit in these contentions. The contract executed by the Em- ployer and the Mine Workers expired on January 23, 1948. The mere fact that the petition herein was filed 3 months before its expiration did not, in our opinion, "affect" the Mine Workers' certification or -contract, even if we assume that Section 103 of the Act is applicable thereto, something which we need not pass upon. The contention with respect to Section 13 has no foundation in fact or in law. Under all the circumstances of the case, 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. IV. THE APPROPRIATE UNIT The parties are in general agreement as to the composition of a unit of production and maintenance employees at the Employer's Dresden, Ohio, plant. They disagree, however, as to the Employer's watchmen, whom both Unions seek to include, but whom the Employer would ex- clude. The record reveals that the Employer normally employs two or three watchmen whose duties include checking fire hazards, guarding the Employer's property from theft or destruction, and preventing entry by unauthorized persons. The watchmen are neither armed, deputized, nor uniformed. However, as the record reveals that the watchmen perform plant-protection duties, we shall exclude them.6 We find, substantially in accord with the agreement of the parties, and on the basis of our determination above, that all production and maintenance employees at the Employer's Dresden, Ohio, plant, ex- cluding office, clerical, and sales personnel, and all watchmen and guards, professional employees, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION" As part of the investigation to ascertain representatives for the purposes of collective bargaining with Bush Woolen Mills, Inc., Dres- 6 The Mine workers also asserts that the Petitioner has been guilty of unfair labor prac- tices in the manner in which it has conducted its organizational campaign . However, no charge relating to such matters has been filed , and evidence of unfair labor practices is inadmissible in representation proceedings 6 Matter of C. V. Hall f Company, Inc., 76 N L . R. B. 158. ' This category covers assistant foremen, foremen, and managerial personnel, all of whom are specifically excluded from the contract unit, and any other supervisors employed by the Employer 8 As the Mine workers has not complied with the registration and filing requirements of Section 9 (f) and ( h) of the amended Act, we shall not place its name on the ballot herein. BUSH WOOLEN MILLS, INC. 621 .den, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Di- rector for the Eighth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations- Series 5, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding those employees who have since quit oi been discharged for cause and have not been rehired or re- instated prior to the date of the election, and also excluding employees on strike who are not entitled to reinstatement, to determine whether ,or not they desire to be represented by Textile Workers Union of America, C. I. O., for the purposes of collective bargaining.