Erwin Mills, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ERWIN MILLS, INC. (NEUSE PLANT) and UNITED TEXTILE WORKERS OF AMERICA, AFL, PETITIONER. Case No. 11-RC-414 (formerly 34-RC-414) . November 14, 1952 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 Louis Perloff, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 Petitioner and Textile Workers Union of America, CIO, the Intervenor, claim to represent certain employees of the Employer. 3. On March 31, 1951, the Employer and the Intervenor executed a collective-bargaining contract covering the employees sought herein to be in effect until March 31, 1952, and automatically renewable each year thereafter subject to 60 days' written notice to terminate. The Intervenor and the Employer contend that this contract bars the petition filed on June 30, 1952. At the hearing, the Employer moved to dismiss the petition on this ground. For the reasons stated below, this motion is denied. A bargaining relationship between the Employer and the Inter- venor has existed from 1948 to the present date.2 In April and May of 1952, the Intervenor held its national convention at Cleveland, Ohio.3 Following the convention, a number of the Intervenor's or- 'On October 9, 1952, the Intervenor by telegram requested the Board to reconsider its denial of the Intervenor's motion to reopen the record. The Intervenor offered to intro- duce evidence that, following the hearing, 14 employees at a regularly constituted meeting voted unanimously to remain with the Intervenor. This evidence is insufficient to warrant the conclusion that there are no longer two factions of employee labor organizations at the Employer 's plant, both claiming to be the contractual bargaining representative of these employees . Accordingly, the Intervenor's request for reconsideration of the Board's action in denying its motion is hereby denied. ' The Intervenor was certified as bargaining representative of the production and maintenance employees of the Employer by the Board in The Erwin Cotton Mills Company, Plant #7, Case No. 34-RC-59, not reported in printed volumes of Board decisions. J It was stipulated by the parties that for somewhat over 2 years, there has been a conflict within the Textile Workers Union of America, CIO, involving local unions and officers and members of the International Union. This conflict came up in the regular biennial convention held in Cleveland, Ohio, in April and May 1952. After the convention, the conflict culminated in the disaffection of some members in some locals from the Textile Workers Union of America, CIO. The Petitioner and the Intervenor are in disagreement as to the nature of the conflict and as to the extent of the disaffection . The identical testimony and exhibits introduced in Wade Manufacturing Company, 100 NLRB 1135, 101 NLRB No. 46. ERWIN MILLS, INC. 317 ganizers, Durham joint board managers, and other employees left the employ of the Intervenor and entered the employ of the Petitioner.'' On May 12, 1952, the executive board of Local 1048 at the Neuse plant decided to call a meeting of the Local on May 21, 1952, to determine whether it wished to disaffiliate from the Intervenor and affiliate with the Petitioner. Notices calling the meeting were prepared in the customary manner and posted in the customary places 3 days before the meeting was to be held. The notices stated that the purpose of the meeting was to consider and to take action regarding disaffiliation from the Intervenor. Two meetings of Local 1048 were held, the second shift at 1 p. m., and the first and third shifts at 2: 30 p. m., on May 21, 1952. The business agent of the Durham joint board and of Local 1048, who was a delegate to the national convention of the Intervenor, addressed each meeting regarding the activities at the convention, making no recommendations regarding the action of the members of the Local at either meeting. Fifteen to twenty persons were present at the 1: 30 meeting; the 2: 30 meeting was attended by 30 to 40 individuals. These figures approximated the average at- tendance at previous meetings of the Intervenor. The motion to dis- affiliate from the Intervenor was unanimously carried at both meetings. Since the disaffiliation meeting of May 21, 1952, the same officers of Local 1048 have continued to serve in the same capacities. Local 1048 of the Petitioner has continued to hold meetings and shop stew- ards and committeemen have continued to function. A grievance pending at the time of the meeting and another one, which has arisen since the meeting, have been handled by Local 1048 up to the company level. The record reveals that the Employer has refused to go for- ward with these two grievances until the disaffiliation question be- tween the Intervenor and the Petitioner has been determined. The Intervenor has no officers functioning as officers of Local 1048. A deputy administrator of the Durham joint board of the Intervenor has been instructed by the Intervenor to handle grievances at the Neuse plant and at several other plants. The record indicates that the administrator has made an effort to handle such grievances, but to date has handled none at the Neuse plant. The Petitioner made a demand upon the Employer for recognition by letter dated May 23, 1942, informing the Employer that its em- were introduced at the hearing in the present proceeding subject to the objections of each party in the Wade case. As these objections were disposed of in the Wade case, they will not be discussed in this decision 4 We have considered those portions of the record in Sterling Cotton Mina, Inc, Case No. 34-RC-399, which the Intervenor during the course of the hearing referred to the Board. We do not agree that the activities of certain of the Intervenor 's former interna- tional representatives, who were influential in the disaffiliation movement of this Local, as well as others, and who left the employment of the Intervenor and joined the Petitioner about the time of the disaffiliation , constitute, under the circumstances of this case, a raiding expedition by the Petitioner. Wade Manufacturing Company, supra. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees at a regularly constituted meeting voted to withdraw and dis- affiliate from the Intervenor and to affiliate with the Petitioner. The Employer refused to recognize the Petitioner because of its existing contract with the Intervenor. On the basis of these facts, particularly the grave extent of the intraunion split in the representative of the Employer's employees, we find that the bargaining relationship between the parties to the ,existing contract is in a state of serious confusion and that a recog- nizable schism exists in the contracting union at the Employer's plant. Accordingly, we find that the contract is not a bar to a present deter- mination of representatives. A question affecting commerce exists concerning the representation of the Employer's employees within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act .5 4. We find that all production and maintenance employees at the Employer's plant #7, excluding section men, watchmen, and all 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 .6 [Text of Direction of Election omitted from publication in this volume.] 5 Boston Machine Works Company, 89 NLRB 59; Wade Manufacturing Company, supra, and cases cited therein. The description of the unit was amended at the hearing to conform to that found appropriate by the Board in an earlier case involving this Employer , The Erwin Cotton Mills Company, supra, not reported in printed volumes of Board decisions. The Petitioner and Employer would exclude , and the Intervenor include, section nien in the bargaining unit. The record indicates that the duties and authority of these individuals at the time of the hearing had not changed since the Board excluded them as supervisors from the established production and maintenance unit. JOSEPH C. SZABO AND RAYMOND A. LONGWORTH, PARTNERS, D 3B/A SZABO FOOD SERVICE 1 and HOTEL AND RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION, A. F. L., PETITIONER. Cage No. 10-RC-2002. November 14, 1952 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 Morgan C. Stanford, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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, Styles, and Peterson]. 3 The Employer's name appears as amended at the hearing. 101 NLRB No. 78.