Merrimack Manufactoring Co.

In the Matter of MERRIMACK MANUFACTURING COMPANY and AMER- ICAN FEDERATION OF LABOR In the Matter of MERRIMACK MANUFACTURING COMPANY and TEXTILE WORKERS ORGANIZING COMMITTEE Oases Nos. R-1036 and R-1037, respectively.Decided October 10, 1938 Cotton Textile I'ndaustry-Investugat,oa of Representatives : controversy con- cerning representation of employees : controversy concerning appropriate unit- Employee Status: during temporary lay-off-Unit Appropriate for Collective Bargaining : all production and maintenance employees , second hands, and watchmen, excluding supervisory employees other than second hands-Election Ordered-Certification of Re present atvves. Mr. Berdon M. Bell, for the Board. Mr. Borden Burr, of Birmingham, Ala.,-for the Company. Mr. Sam E. Roper, of Birmingham, Ala., for the A. F. of L. Mr. H. G. B. King, of Chattanooga, Tenn., for the T. W. O. C. Miss Carolyn E. Aqqer, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 15, 1938, the American Federation of Labor acting in behalf of its affiliate, Federal Local Union No. 20656, herein called the A. F. of L., and on August 18, 1938, the Textile Workers Organ- izing Committee, herein called the T. W. O. C., filed with the Re- gional Director for the Tenth Region (Atlanta, Georgia) separate petitions, each alleging that a question affecting commerce had arisen concerning the representation of employees of Merrimack Manufac- turing Company, Huntsville, Alabama, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 2, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, 9 N. L. R. B., No. 27 173 174 NATIONAL LABOR RELATION S BOARD ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, acting pursuant to Article III, Section 10 (c) (2), of said Rules and Regulations, further ordered that the cases be consolidated for the purposes of hearing. On September 12, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the A. F. of L., and the T. W. O. C. Pursuant to the notice, a hearing was held on September 26 and 27, 1938, at Huntsville, Alabama, be- fore L. Richard Insirilo, the Trial Examiner duly designated by the- Board. The Board, the A. F. of L. and the T. W. O. C. NN ,ere repre- sented by counsel and participated in the hearing. At the beginning of the hearing, the Company appeared specially by counsel to con- test the jurisdiction of the Board. It thereafter participated further in the hearing after counsel for the Board stated that by such par- ticipation the Company would not waive rights reserved by the . special appearance. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues 'was afforded all parties. At the hearing, the Company raised objection to the jurisdiction of the Board. In support of the objection, the Company stated that it had not operated its Huntsville mills since December 18, 1937; that it might not operate such mills in the future; that it was not engaged in interstate commerce or in any commerce; that there was no reason for any collective bargaining between the Company and its former employees; and that any action taken with respect to the petitions would be premature and deprive the Company of its con- stitutional rights. We find the objection to be without merit. Sec- tion 9 (c) of the Act vests jurisdiction in the Board "whenever a question affecting commerce. arises concerning the representation of employees." The evidence discloses that' such a question has arisen in the instant case. Shortly after the Company closed down its mills, it continued negotiations previously undertaken with repre- sentatives of persons who had worked in the mills and such negotia- tions clearly showed that the Company expected to resume its opera- tions. This indicates that at the time the Company closed its mills it intended to reopen them at a future date and that it considered the persons working for the Company at the time the mills were closed down as persons temporarily laid off rather than as discharged. Accordingly, these persons retained their status as employees. This status is not affected by a possibility that the mills may not be reopened. That a question has arisen concerning the representation of these employees is clearly shown by the facts set forth in Section III below. Furthermore, this question is one affecting commerce. DECISIONS AND ORDERS 175 :Section 2 (7) of the Act states that the term "affecting commerce" means "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor -dispute burdening or obstructing commerce or the free flow of com- merce." As pointed out in Section I below, the Company has for some time engaged in commerce among the several States. Although the Company closed down its mills on December 18, 1937, it concedes that the mills may be reopened. Under such circumstances, the,ques-, tion' concerning representation which has arisen undoubtedly is one "tending to lead to a labor dispute burdening or obstructing com- merce or the free flow of commerce." During the course of the hearing, the Trial Examiner made several rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the 't'rial Examiner and finds that no prejudicial errors were made. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. TILE BUSINESS OF THE COMPANY The-Company was incorporated under the laws of the State of Massachusetts in 1822 and is licensed to do business in Alabama. It is engaged in the manufacture and sale of cotton cloth. The Com- pany's principal office is located in Boston, Massachusetts, and it owns mills in Lowell, Massachusetts, and Huntsville, Alabama. Only the Huntsville mills are here involved. The'principal raw material used by the Company in the Huntsville mills when they are in operation is cotton. The cotton is purchased by the Boston office of the Company through brokers, some of whom have Boston representatives from-whom the purchases are made. A large percentage of the cotton comes from Alabama, although some of it is sent into Alabama from Tennessee and Texas. Ninety per cent of the machinery employed in the Huntsville mills is obtained from outside the State of Alabama. During the year 1937 the Company produced at its Huntsville mills about eight million pounds of cloth of which approximately 90 per cent were shipped out of the State of Alabama. The sale of the finished product was handled by the Company's Boston office. On December 18, 1937, the Company closed down its Huntsville mills and they had not been reopened at the time of the hearing. Subsequent to December 18, 1937, the Company sold 158,000 pounds of cloth produced at the Huntsville mills, such cloth representing stock on hand at the time the mills were closed. 176 NATIONAL LABOR RELATIONS BO.AItll II. THE ORGANIZATIONS INVOLVED Federal Local Union No. 20656 is a labor organization affiliated with the American Federation of Labor, admitting to its membership all employees of the Company engaged in production and maintenance work in the mills and excluding supervisory employees who have authority to hire and discharge. The Textile Workers Organizing Committee is a labor organiza- tion affiliated with the Committee for Industrial Organization. It admits to its membership all employees of the Company engaged in production and maintenance work in' the mills and excludes super- visory employees who have authority to hire and discharge. III. THE QUESTION CONCERNING REPRESENTATION In June 1937, the A. F. of L. and the T. W. O. C. each requested the Company to bargain with it and were informed that the Com- pany was willing to bargain collectively with any union which the Board might certify as bargaining representative of. the employees. Thereafter, on July 29, 1937, an informal consent election was held- under the supervision of the Regional Director of the Board for the- Tenth Region. The T. W. O. C. received a large majority of the ballots cast in the election. The Company and the T. W. O. C. there- upon entered into negotiations which were still being conducted at the time the Company closed its mills on December 18, 1937. The negotiations continued for a time thereafter and a tentative agreement was reached. However, in June 1938, the Company informed the T. W. O. C. that the A. F. of L. also claimed to represent a majority of the employees. The Company subsequently informed the Regional Director that it was willing to negotiate with any organization which the Board might certify. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The A. F. of L. and the T. W. O. C. contend that the appropriate unit consists of all the production and maintenance employees of the DECISIONS AND ORDERS 177 Company, including watchmen and second hands, but excluding supervisory employees. The Company states that the second hands are supervisory employees and contends that such employees and the watchmen should be excluded from the unit. The parties stipulated that the second hands have no power to hire or discharge employees; have authority to give orders and expect them to be obeyed; may recommend that employees be discharged; and have the duty of instructing apprentices and -learners. The second hands' duties were stated by one witness to consist of carrying out "orders given him by the-overseer, placing the workers, and seeing that the work is done. The parties agreed that the watchmen watch for fires, prevent persons from being improperly on the premises and from committing unlawful acts, make regular rounds to check up on these matters, and at times fire the boilers and switch the electric current off and on. The watchmen receive approximately the same rate of pay as the production and maintenance employees. Although the second hands apparently perform some supervisory functions, we are of the opinion that such employees and also the watchmen may appropriately be included in the same unit with the general production and maintenance employees, where, as in the instant case, the only labor organizations involved relative to the bargaining unit desire that they be included in such unit. We shall, therefore, include the second hands and watchmen within the unit. We find that all the production and maintenance employees, second hands, and watchmen, but excluding supervisory employees other than second hands, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing the T. W. 0. C. introduced cards signed by 957 employees designating it as their bargaining representative and the A. F. of L. introduced designation cards signed by 553 employees. A majority of the A. F. of L. cards were signed between May 1 and June 15, 1938; the T. W. 0. C. cards were signed between June 15 and September 1938. The cards of both organizations were subse- quently withdrawn and lists of names made up from the cards were substituted. The T. W. 0. C. and the A. F. of L. agreed, the Com- pany not objecting, that the pay roll of December 18, 1937 (the last pay roll of the Company prior to the date on which it closed down its mills), was a fair representation of employment in the mills and that the cards submitted by them "reflect names of employees who. 178 NATIONAL LABOR RELATIONS BOARD are-on the pay-roll list of December 18, 1937." - Since this pay roll contains 1,226 names , it is apparent that there is substantial duplica- tion between the cards of the two organizations and that in any event neither organization has on the basis of unduplicated cards presented evidence of designation by more than a narrow maj ority . of the. em- ployees of the Company . In the circumstances of this case, we find that the question which has arisen concerning the representation of employees of the Company can best be resolved by the holding of an election by secret ballot. Those persons within the appropriate unit who were employed by the Company during the pay-roll period ending December 18, 1937, shall be eligible to vote in the election . Both labor organizations agreed that such pay-roll period was a representative one for the purposes of any election which the Board might direct. The Com- pany raised no objection to determination of eligibility to vote upon the basis of such pay-roll period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS or LAW 1. A question affecting commerce has arisen concerning the rep- resentation of employees of Merrimack Manufacturing Company, Huntsville, Alabama, within the meaning of Section 9 (c) and Sec- tion 2 (6) and (7) of the National Labor Relations Act. 2. All the production and maintenance employees, second hands, and watchmen, of Merrimack Manufacturing Company, excluding supervisory employees other than second hands , constitute a -unit appropriate for the purposes ' of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to' Article - III, Section 8; of National Labor Relations Board Rules and Regulations-Series 1, as amended, it is hereby DIRECTED that, as a part of the investigation authorized by the Board to ascertain representatives for the purposes of col- lective bargaining With Merrimack Manufacturing Company, Hunts- ville,- Alabama, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction, under the direction and supervision of the Regional' Director for the Tenth Region, acting in this matter as agent for the National Labor Rela- DECISIONS AND ORDERS 179 tions Board and subject to Article III, Section 9, of said Rules and Regulations, among all the production and maintenance employees, second hands, and watchmen, who were employed by Merrimack Manufacturing Company, Huntsville, Alabama, during the pay-roll period ending December 18, 1937, excluding supervisory employees other than second hands, to determine whether they desire to be represented by Textile Workers Organizing Committee, affiliated with the Committee for Industrial Organization, or by Federal Local Union No. 20656, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. MR. DONALD WAKEFIELD SMITH took no part in the consideration of the above Decision and Direction of Election. [SAME TITLE CERTIFICATION OF REPRESENTATIVES November 10, 1938 On October 12, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceedings. The Direction of Election provided that an election by secret ballot be held among the production and main- tenance employees, second hands, and watchmen, who were employed by Merrimack Manufacturing Company, Huntsville, Alabama, dur- ing the pay-roll period ending December 18, 1937, excluding super- visory employees other than second hands, to determine whether they desired to be represented by the Textile Workers Organizing Com- mittee, affiliated with the Committee for Industrial Organization, or by Federal Local. Union No. 20656, affiliated with the American Fed- eration of Labor, for the purpose of collective bargaining, or by neither. Pursuant to the Direction of Election, an election by secret ballot was conducted under the direction and supervision of Charles N. Feidelson, the Regional Director for the Tenth Region (Atlanta, Georgia) on October 24, 1938. Full opportunity was accorded to all the parties to this investigation to participate in the conduct of the secret ballot and to make challenges. On October 27, 1938, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, issued and duly served upon the parties an Intermediate Report on the results and conduct of the election. No exceptions or objections to the Intermediate Report have been filed by any of the parties. 134068-39-vol ix-13 180 NATIONAL LABOR RELATIONS BOARD As to the balloting and its results, the Regional Director reported as follows : Number eligible ------------------------------------------ 1,212 Total ballots cast--------------------------------------- 1,078 Total number of ballots cast for Textile Workers Organizing Committee--------------------------------------------- 670 Total number of ballots cast for Federal Local Union No. 20656-------------------------------------------------- 400 Total number of ballots cast for neither-------------------- 6 Total number of challenged ballots------------------------ 2 Total number of void ballots------------------------------ 0 Total number of blank ballots----------------------------- 0 By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Textile Workers Organizing Commit- tee, affiliated with the Committee for Industrial Organization, has been selected by a majority of the production and maintenance em- ployees, second hands, and watchmen of Merrimack Manufacturing Company, Huntsville, Alabama, excluding supervisory employees other than second hands, as their representative for the purposes of collective bargaining, and that, pursuant to Section 9 (a) of the Act, Textile Workers Organizing Committee, affiliated with the Commit- tee for Industrial Organization, is the exclusive representative of all such employees for the purposes of collective bargaining in respect rates of pay, wages, hours of employment, and other conditions of employment. Mr. DONALD WAKEFIELD SMITH took no part in the consideration of the above Certification of Representatives. 9 N. L. R. B., No. 27a.