Tabardrey Manufacturing Co.

In the Matter of TABARDREY MANUFAVroEING COMPANY and W. L. STEWART, CHAIRMAN, ET AL. Case No. R-54O2.Decided July 1. ,194 Messrs. Earle K. Shawe and Robert Levett, for the Board. Mr. L. P. McLendon, of Greensboro, N. C., for the Company. Mr. Louis C. Allen, of Burlington, N. C., for the Petitioners. Mr. Isadore Katz, of New Work City, for the C. 1. 0. Mr. Arthur Leff, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a petition duly filed by W. L. Stewart, Broadie Terrell, Earl Clanton, B. H. Keck, James Glenn, Linwood Newlin, and Robert Lamb, herein called the Petitioners, alleging that a question affecting com- merce had arisen concerning the representation of employees of Ta- bardrey Manufacturing Company of Haw River, North Carolina, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before J. J. Fitz- patrick, Trial Examiner. Said hearing was held at Burlington, North Carolina, on May 18 and 19, 1943. At the commencement of the hear- ing the Trial Examiner granted a motion of Textile Workers Union of America,' herein called the C. I. 0., to intervene. The Company, the Petitioners, and the C. I. O. appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues. At the close of Petitioners' case and again at the close of the hearing, counsel for the C. I. O. moved to dismiss the petition, and decision thereon was reserved for the Board. For reasons appearing below the motion is granted. The Trial Examiner's rulings-made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs. 'Textile Workers 'Union of America, affiliated with the Congress of Industrial Organi- zations, is a labor organization admitting to membership employees of the Company. 51 N. L. R. B., No. 54. 246 TABARD'REY MANUFACTURING COMPANY 247 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Tabardrey Manufacturing Company is a North Carolina corpora- tion having its plant and principal place of business at Haw River, North Carolina, and is engaged in the manufacture of cotton grey goods, principally herringbone, corduroy, and moleskins. The chief raw material used by the Company is cotton. The Company produces annually approximately 10,000,000 yards of goods having an approxi- mate value of $2,500,000.- Approximately 99 percent of the Company's products is sold to the Proximity Manufacturing Company, of Greensboro, North Carolina. At least 60 percent of such products, after processing by the said Proximity Manufacturing Company, is sold and transported into States other than the State of North Caro- lina. One officer and 3 directors of the Company are also officers and directors of said Proximity Manufacturing Company. The Company employes approximately 500 persons. II. THE ALLEGED QUESTION OF REPRESENTATION On December 19, 1939, the C. I. O. was certified by the Board as the exclusive bargaining representative for all hourly and piece-rate pro- duction and maintenance employees of the Company, exclusive of clerical and supervisory employees and watchmen.2 Thereafter the C. I. O. bargained with the Company concerning grievances, but made no effort to negotiate, a contract until about May 1, 1942. Negotiations for a written contract beginning on or about that date ended in an impasse on practically all issues. On November 3, 1942, after the un- successful intervention of the United States Conciliation Service, the Secretary of Labor of the United States certified the dispute to the National War Labor Board. Hearings before a Panel of the War Labor Board were held in Washington, D. C., on December 8, 9, and 10, 1942. After the contract dispute was certified to the War Labor Board, a small group of employees of the Company constituted themselves into a self-appointed committee and circulated a petition among the Com- pany's employees. On or about December 14, 1942, the said petition, bearing apparently genuine signatures of a majority of the Company's employees, was presented to Sidney S. Paine, the Company's president. The petition read as follows : We the undersigned hereby petition you, Sidney S. Paine and the War Labor Board, not to enter into or sign any contract for us. We 2 Matter of Tabardrey Manufacturing Company, 17 N. L. R. B. 6; 18 N. L. R. B. 472. 248 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD are happy in our present condition and represent most of the employ- ees of the Company. On January 5, 1943, the committee instituted the instant proceeding by filing a petition for investigation and certification of representa- tives. The petition alleges, inter alia, that : The undersigned hereby alleges that a question has arisen con- cerning the representation of employees in the above bargaining unit,3 in that: Majority of employees contend that C. I. O. no longer represents them and is not their bargaining agent. On January 22, 1943, the Company filed a written motion with the War Labor Board to reopen the proceedings before that Board on the issue of representation. On February 6, 1943, the Panel of the War Labor Board filed its report, recommending that the Company and the C. 1. 0. be directed to enter into a contract with a maintenance of mem- bership provision, "pending the outcome of the representation ques- tion before the National Labor Relations Board:" On or about May 5, 1943, the War Labor Board issued its Interim Directive Order 4 directing the parties to include in their contract various provisions, including the maintenance of membership clause, but making no refer- ence to the representation question.5 The Company, since on about March 25, 1943, has taken the position that it will decline to recognize the C. I. O. as the exclusive bargaining agent for its employees until and unless the C. I. O. is recertified as' such agent by this Board. - The Petitioners at the hearing made no showing that they had been designated by employees of the Company as their representative for the purposes of collective bargaining. For their showing of interest, the Petitioners relied upon the employee signatures which had been affixed to the petition which was submitted to the Company in De- cember 1942, and which requested the Company not to enter' into a contract.6 Two of the Petitioners who were called as witnesses testi- fied that the Petitioners had not been authorized by the Company's employees to represent them in collective bargaining, that their only authority was derived from the "no-contract" petition, and that although employees, at the titme the petition was circulated, had ex- pressed their opposition to the C. I. 0., nothing had been said about the Petitioners acting as bargaining agent on their behalf. The rec- 9 The bargaining unit as alleged in the petition is "Haw River plant ." At the hearing, petitioners clarified this statement by indicating that they intended a unit substantially identical to that previously certified In re Tarbardrey Manufacturing Company, 12 L. R . R. 427. 5 Decision on the wage question was deferred by the war Labor Board. G The C. 1. O. submitted 367 designation cards which were checked. These were dated in 1942 and 1943. Of the cards checked by the Trial Examiner , 252 bore apparently genuine signatures of persons appearing on the Company's December 12, 1943, pay roll which contained the names of 472 persons within the alleged appropriate unit. The Trial Examiner reported that the C . I. O. submitted, in addition , approximately 264 current cards, with apparently genuine signatures, attached , which were not checked. TABARDREY MANUFACTURING COMPANY 249 ord shows, and at the hearing their counsel conceded, that the Peti- tioners at the present time exist as a "no union" group and that they -are neither organized nor authorized to deal collectively with the Com- pany on questions of wages, hours, or working conditions. In sum, the record establishes, and we find, that Petitioners are not a labor organization nor are they otherwise qualified to act as representatives for the purposes of collective bargaining within the meaning of the Act.7 Nor is the present infirmity in their status cured by Petition- ers' intimation that they might form a• labor organization and seek to bargain with the Company at some future time if the occasion should arise.8 The Petitioners, however, do not insist that their name appear on the ballot; on the contrary they state that they would prefer not to have their name appear thereon. They concede in effect that their basic object in seeking an election is not to obtain the certification of a bargaining representative but rather to check and test the asserted claim of the C. I. 0. that it continues to be the exclusive representa- tive. The Company urges that even though the Petitioners are not seeking certification, nevertheless a question concerning representa- tion may be found in the refusal of the Company to recognize and bargain with the C.I. 0. It has been our general practice, based upon considerations of pol- icy, not to require the only union involved to participate in an election against its desires. Therefore, as a general rule, we do not entertain petitions for investigation and certification of representatives except in cases where it appears that the alleged question of representation is related directly to the right or claim of the petitioner to be recog- nized as a collective bargaining representatives9 Here there is no such claim, since by their own admission it is the Petitioners' present pur- pose not to act as bargaining representative. Nor do we think that we should, in the circumstances of this case, depart from our general rule and direct an election on the question of whether the C. I. 0. is now the representative desired by the majority of the employees. The considerations of policy which impel us to refrain • from testing the representative status of a union upon the request of a group of em- ployees who in effect desire no representation for collective bargain- ing are especially applicable where, as here, the employer is refusing to bargain with the only union claiming representation and that union does not desire an election. Consequently, we shall dismiss the peti- tion. However, our dismissal is not to be construed as a recertifica- * See Section 2 (4), (5), and Section 9 (a), (c) of the Act. Of. Matter of Solar Var- nish Company, 36 N. L. R. B. 1101. 8 Matter of J. & A. Young, 9 N. L. R B. 1164. In the case of an employer petition , we entertain the petition only where the question concerning representation arises from conflicting claims presented by two or more labor organizations . Article III, Section 2 (b), Board Rules and Regulations. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of the C. I. O. nor as a finding that the certification of December 19) 1939, continues to have operative effect. Nor do we decide that the C. I. O. has lost the majority established in the November 1939 elec- tion, or that the Company must accept or challenge the C. I. O.'s status as the representative of the employees. These questions are not prop- erly before us in this proceeding. ORDER Upon the basis of the foregoing findings of fact and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of Tabardrey Manufacturing Company, Haw River, North Carolina, filed by W. L. Stewart, Chairman, et al., be, and it hereby is, dismissed.