Utica & Mohawk Cotton Mills, Inc.

In the Matter of UTICA & MOHAWK COTTON MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA, C. I. O. Case ' No. R-559.-July 12, 1943 Messrs. James F. Hubbell and Ralph T. Marshall, both of Utica, N. Y., for the Company. Mr. Jack Rubenstein, of New York City, and Mr. James Dundon, of Utica, N. Y., for the CIO. Rilyat, Walsh, Myers c Speiller, by Mr. John J. Walsh, of Utica, N. Y., for the A. F. L. Mr. David V. Easton, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by Textile Workers Union of America, C. I. 0., herein called the CIO, alleging that a question affecting com- merce had arisen concerning the representation of employees of Utica & Mohawk Cotton Mills, Inc., Utica, New York, herein called the Company, the National Labor Relations Board provided for an ap- propriate hearing upon clue notice before Francis V. Cole, Trial Ex- aminer. Said hearing was held at Utica, New York, on June 11, 1943. The Company, the CIO, and United Textile Workers of America, Loomfixers Local No. 1442, A. F. of L., herein called the AFL, ap- peared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. The AFL made a motion to dismiss the petition herein on the grounds that the CIO did not represent a sub- stantial number of employees in the unit which it claims as appro- priate, contending that the petition is premature, and also involves A. question already before the National War Labor Board. This motion was referred to the Board by the Trial Examiner. For reasons ap- pearing below, the motion is denied. 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 with the Board. 51 N. L. R. B., No. 56. 257 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Utica & Mohawk Cotton Mills, Inc., a New York corporation, is, engaged in the manufacture of sheets and pillow cases. For this pur- pose it maintains two plants located in Utica, New York, with which we are concerned herein. Between January 1 and December 31, 1942,. the Company used at its Utica plants raw materials valued at approxi- mately $3,85,0,000, of which approximately 100 percent was received from points outside the State of New York. During the same period the Company manufactured at its Utica plants finished products val- ued at approximately $9,000,000, of which 38 percent represents ship- ments made to points outside the State of New York. The Company admits that it is engaged in commerce within the meaning of the Na- tional Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. United Textile Workers of America, Loomfixers Local No. 1442, is. a labor organization affiliated with the American Federation of Labor,, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company refuses to grant recognition to the CIO as the exclu- sive bargaining representative of its employees engaged as loomfixers on the ground that there is an existing contract, expiring August 15, 1943, between the Company and the AFL concerning these employees. In view of the fact that this contract has only about 1 month to run,_ we are of the opinion and find that it is not a bar to a present determi- nation of representatives.' A statement of the Field Examiner introduced into evidence at the- hearing indicates that the CIO represents a substantial number of em- ployees in the unit hereinafter found appropriate .2 We find that a question affecting commerce has arisen concerning- the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. ' Matter of Houde Engineering Corp, 36 N L R B 5S7 ; Matter of Chrysler Motors Parts Corp , 38 N L R B 1379; Matter of Dain Mfg. Co ., 41 N L R. B. 1056. z The Field Examiner reported that the CIO submitted 44 designation cards bearing- apparently genuine original signatures , of which 34 contain the names of persons appear- ing upon the Company 's pay roll of May 15, 1943 . This pay roll contained the names of 88 persons within the appropriate unit The AFL relies upon its contract with the Company to establish its interest therein.. UTICA & MOHAWK COTTON MILLS, INC. 259 IV. THE APPROPRIATE UNIT In substantial accordance with a stipulation of the parties we find that all employees of the Company at its Utica plants engaged as loomfixers, spare loomfixers, helpers and apprentices to loomfixers, excluding office, clerical, and executive employees and any 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 purpose of collective bargaining within the meaning of Section 9 (b) of the Act., V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can, best be resolved by an election by secret ballot. The CIO contends that eight employees of the Company who were formerly en- gaged as loomfixers, but who were subsequently suspended from their positions after they had dropped their membership in the AFL,4 should be permitted to vote in an election of loomfixers inasmuch as they are employees of the Company who would ordinarily be em- ployed as loomfixers. The AFL contends that these employees are ineligible to vote in such an election since they are not engaged as loomfixers at the present time. We agree with the contention of the AFL. These employees were properly suspended from their positions in accordance with a valid agreement existing between the Company and the AFL, and the suspension is not violative of any of the rights guaranteed to these employees under the provisions of the Act.5 We shall, therefore, direct that the employees of the Company eligi- ble to vote in the election shall be those in the appropriate unit who 'This unit is substantially the seine as that provided for under the contract between the Company and the AFL 4 These eight employees failed to pay their dues to the AFL after the contract between the AFL and the Company had been executed , in February 1943, the AFL formed a trial committee, and, after notifying these employees , suspended them from membership. There- after, the AFL caused the Company to suspend them as loomfixers , in accordance with the maintenance of membership provisions in the contract This action was approved by the Executive Director of the Second Region of the National War Labor Board. An appeal is now pending However, the Company later rehired these employees as production and maintenance employees and they are at the present time so engaged by the Company. S The contract between the Company and the AFL provided " all present loomfixers. spare loomfixers , apprentice loomfixers and learner loomfixers . . . who are members of Loomfixers Union #1442, and any that may become members, shall remain members of Loomfixers Union #1442 for the duration of this contract . . . The management will cooperate in keeping said members in good standing in such manner as it deems to be in the best interest of all concerned." The Board's holding in Matter of Rutland Coast Owners, Inc., 46 N. L R. B. 1040, is not here applicable In that case the employees were members in good standing of the contracting union and had signified their intentions to remain as such during the term of the contract at the time the union caused the employer to suspend them. In the instant case, the employees definitely indicated their desire to withdraw from the con- tracting union, and were suspended therefrom after notice and formal action taken by the Union 540612-44-vol 51-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were employed during the pay-roll period immediately preceding the date of the Direction of Election herein , subject to the limitations and additions set forth in the Direction. 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, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DrECTED that, as part of the investigation to ascertain representa- \ tives for the purposes of collective bargaining with Utica & Mohawk Cotton Mills, Inc., Utica, New York, 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 Director for the Third Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among 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 vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been discharged for cause, to de- termine whether they desire to be represented by Textile Workers Union - of America, affiliated with the Congress of Industrial Or- ganizations, or by United Textile Workers of America, Loomfixers Local No. 1442, affiliated with the American Federation of Labor, for the purposes of collective bargaining or by neither. In the Matter Of UTICA & MOHAWK COTTON MILLS, INC. and TEXTILE WORKERS UNION OF AMERICA , C. I. 0, Case No. R-5529 SUPPLEMENTAL DECISION ORDER AND AMENDMENT TO DIRECTION OF ELECTION August 5,1943 On July 12, 1943, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election in this proceeding., In said Decision, we stated : ... the employees of the Company eligible to vote in the election shall be those in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein.... On July 23, 1943, Textile Workers Union of America, C. I. 0., herein called the C. I. 0., duly filed a Petition for Reconsideration, or, in the alternative for a Stay of the Election Pending the Determination of the National War Labor Board, contending that eight persons, origi- nally employed by the Company as loom fixers,2 but as of the date of eligibility, employed in classifications not included within the appro- priate unit, should be permitted to vote under challenge; or the election should be postponed pending a determination by the Regional War Labor Board as to the status of these employees. According to the petition for reconsideration, the eight persons in question were discharged on the erroneous assumption that they were covered by a maintenance-of-membership agreement with another union, whereas, in fact, they had ceased to be members of this union 1 51 N. L. R. B., No. 56. 2 The appropriate unit consists of all employees of the Company at its Utica plants en-' gaged as loom fixers, spare loom fixers, helpers and apprentipes to loom fixers, excluding office, clerical , and executive employees with authority to hire, promote, discharge, disci- pline, or otherwise effect changes in the status of employees , or effectively recommend such action. . 51 N. L. R. B., 56a. 261 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the tine of the execution of such agreement. Although a finding to the contrary was made by an arbitrator, the petition urges that since his finding is being reviewed by an agency *of the War Labor Board, the employees in ,question should be treated as if they were discharged employees who had filed charges, and therefore that they be permitted to vote and their ballots impounded. The difficulty with this theory is that no charges have been filed on behalf of these employees, even though (if the facts recited may be taken as true) they were dismissed from the loom fixers' unit in violation of Section 8 (3) of the Act. Under the Act, this Board is vested with exclusive power to remedy unfair labor practices. Since these employees have not availed themselves of their recourse under the Act, there is no basis for concluding that they have the rights of persons claiming to be aggrieved by unfair labor practices. There- fore no point will be served by staying the election previously ordered in this proceeding pending determination of the proceeding before the Regional War Labor Board, as requested by the C. I. O. IT IS HEREBY ORDERED, that the aforesaid petition for reconsideration of the Decision and Direction of Election be, and it hereby is, denied. Since it appears that further time is necessary in which to conduct the election, the Direction of Election is hereby amended by striking therefrom the words "not later than thirty (30) days" and substitut- ing therefor the words "not later than forty-five (45) days." CHAIRMAN MmLIs took no part in the consideration of the above Supplemental Decision, Order and Amendment to Direction of Election.