Proximity Print Works

In the Matter of PROXIMITY PRINT WORKS and TEXTILE WORKERS ORGANIZING COMMITTEE Case No. R-486 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES February 16, 1939 On June 9, 1938, the National Labor Relations Board, herein called the Board, issued a Decision, Direction of Election, and Order in the above-entitled case and a related case., The Direction of Elec- tion directed that an election be conducted within twenty (20) days from the date of the Direction among all the piece-rate and hourly production employees of the Proximity Print Works, of Proximity Manufacturing Company, Greensboro, North Carolina, herein called the Company, who were employed by the Company during the pay- roll period next preceding October 8, 1937, excluding watchmen and clerical and supervisory employees and those who had since quit or been discharged for cause, to determine whether or not they desired to be represented by Textile Workers Organizing Committee, herein called the T. W. O. C., for the purposes of collective bar- gaining. On June 21, 1938, at the request of the Regional Director for the Fifth Region (Baltimore, Maryland) the Board issued an Amendment to Direction of Election,2 providing that the election be held at such time as the Board might in the future direct. On July 23, 1938, the Board issued a Second Amendment to Direction of Election,3 providing that the election be held within twenty (20) days from the date of the Second Amendment to Direction of Elec- tion. Pursuant to the Direction of Election, as amended, an election by secret ballot was conducted under the direction and supervision of the Regional Director on August 2, 1938. Full opportunity was 17 N. L. R. B. 803. 2 7 N. L. R. B. 816. 8 8 N. L. R . B. 574. 11 N. L. R. B., No. 35. 379 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accorded to all the parties to this investigation to participate in the conduct of the secret ballot and to make challenges. On August 3, 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 his Inter- - mediate Report on the election. As to the balloting and its results, the Regional Director reported as follows : Total number eligible to vote--------- ----------------------- 342 Total number of ballots cast -------------------------------- 304 Total number of blank ballots------------------------------- 0 Total number of void ballots------------------------------- 0 Total number of challenged ballots------------------ -------- 16 Total number of ballots cast for Textile Workers Organizing Committee----------------------------------------------- 160 Total number of ballots cast against Textile Workers Or- ganizing Committee--------------------------------------- 128 Thereafter the Company filed objections to the Intermediate Re- port upon the secret ballot with respect to the above election, all of which objections pertain primarily to the insufficiency of the notice of the election held August 2, 1938, and requested that a hearing be held thereon. It appearing to the Regional Director that the objec- tions raised a substantial and material issue with respect to the conduct of the ballot, the Regional Director, pursuant to Section 9 (c) of the National Labor Relations Act, herein called the Act, and Article III, Section 9, of the Rules and Regulations, authorized a hearing to be held to determine the issues raised by the objections. On October 4, 1938, the Regional Director issued a notice of hearing on the objections, copies of which were duly served upon the Com- pany and upon the Union. Pursuant to the notice, a hearing was held on October 13 and 14, 1938, at Greensboro, North Carolina, before E. G. Smith, the Trial Examiner duly designated by the Board. The Board and the Company were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 1, as amended , Trial Examiner Smith filed a report dated November 29, 1938, in which he found the exceptions of the Company to be without merit and in which he recommended that the exceptions be overruled. PROXIMITY PRINT WORKS ET AL. 381 Upon the entire record in the hearing on the objections, the Board makes the following : SUPPLEMENTARY FINDINGS OF FACT The first exception of the Company to the Intermediate Report upon the secret ballot is that a majority of the eligible employees have not voted in favor of the T. W. 0. C., but only a majority of the employees voting in the election. The Board considered in detail in Matter of R. C. A. Manu f acbwring Company, Ine.4 a similar contention. It was there pointed out that the words "by a majority of the employees" used in Section 9 (a) of the Act refer to a majority of the eligible employees voting in an election. The first objection is accordingly overruled. The Company's second exception is upon the ground that the election was held and conducted under such circumstances as to render it void and of no effect. The Company alleges in this connection that the calling of the election was surrounded with secrecy and notice thereof was given so as to make it impossible for all the eligible em- ployees to have notice of the time and place of the election and to prepare to participate therein; that it was common knowledge among the members and supporters of the T. W. 0. C. as early as the 28th or 29th of July, if not sooner, that the election would be held, but such information was not communicated to and was not known by the Company, or any of the unorganized employees of the Company; that because of the shortness of the time between the posting of the notice and the election, and the actual ignorance of such notice on the part of many employees engaged on the third shift which went on duty at approximately 11: 00 p. m., very few employees on the third shift voted in the election; and that the election was intention- ally and designedly held so as to disfranchise as many unorganized employees as possible and at the same time enable the T. W. 0. C. to secure the maximum number of votes, and as a direct result thereof 38 eligible employees did not vote and have been deprived of the right to express their free choice as guaranteed to them by the Act. The aforesaid exception and the allegations made in connection therewith are fully answered by the facts disclosed at the hearing on the exceptions. The facts are as follows : About June 13, 1938, a representative of the Regional Director held a meeting with representatives of the Company regarding the election which the Board directed on June 9, 1938. It was agreed that the election should be held on June 21, 1938, between the hours of 1: 00 and 4:30 o'clock in the afternoon, and a list of eligible voters was 4 Matter of R. C. A . Manufacturing Company, Inc. and Unsted Electrical & Radio Workers of America, 2 N. L. R . B. 159. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compiled and agreed upon. Thereafter the Regional Director fur- nished the Company with copies of the notice of election which were posted in conspicuous places throughout the plant about 6 days before the election was to be held. There were affixed to the notices copies of the list of eligible voters. On June 18, 19, and 20, 1938, there appeared in two Greensboro newspapers full-page advertisements which dealt with the election at the Proximity Print Works plant and which reflected unfavorably upon the C. I. O. and its leaders. Copies of the newspapers in which the advertisements appeared were delivered free of charge to the homes of employees of the Company. , Protest was made to the Regional Director that the employees of the Company had been coerced and intimidated thereby. At the request of the Regional Director and pending an investigation, the Board, on June 21, 1938, issued an Amendment to the Direction of Election, providing that the election be held, at such time as the Board might in the future direct. On July 23, 1938, the Board issued a Second Amendment to the Direction of Election directing that the election be held within 20 days from that date. Pursuant to the Direction of Election and amendments thereto, the Regional Director on Saturday, July 30, 1938, mailed to the Company and to the T. W. O. C. letters each of which stated that the election originally scheduled for June 21, 1938, would be conducted on Tuesday, August 2, 1938, between the hours of 1:00 and 4: 30 o'clock in the afternoon. The letter of the Regional Director to the Company also stated that representatives of the Regional Director would call upon the Company on August 2, 1938, to obtain a list of the eligible voters which was prepared for the election as originally scheduled. The Regional Director on July 30, 1938, also mailed to the Company copies of the notice of election for posting throughout the plant. The letter which was mailed to the representative of the T. W. O. C. reached him at the hotel where he was staying on Sunday afternoon, July 31, 1938. The union representative thereupon informed a num- ber of the active union members of the election and asked them to spread the word about. The union representative on the same after- noon called the president of the Company by telephone and informed him of the letter from the Regional Director and its contents. The Company received its letter from the Regional Director on Monday, August 1, at approximately 8:30 a. m. and shortly there- after received copies of the Notice of Election. The Company posted before noon on August 1, in each of its departments at the plant, copies of the Notice of Election together with copies of the sample ballot and copies of the eligibility list which had been prepared for the election as originally scheduled. PROXIMITY PRINT WORKS ET AL. 383 On the morning of August 2, 1938, at approximately 10:30 o'clock, representatives of the Regional Director met with representatives of the Company and the T. W. O. C. at the offices of the Company and the parties checked the eligibility list which had been previously prepared to ascertain whether any changes were necessary. It ap- pears that a representative of the Company at that time commented to one of the representatives of the Regional Director regarding the shortness of time between the posting of the notice and the elec- tion, but the Company did not then nor at any time preceding the election otherwise makes any protest in this regard. The Company stated that two persons whose names appeared on the list had been discharged for cause and the two names were crossed out. The T. W. O. C. challenged 10 persons whose names appear on the list on the ground that they were supervisors. At about 12:30 p. m. three employees who had been designated as observers for the unor- ganized employees were called in and they checked the list of em- ployees for about 20 minutes. They challenged 3 names on the list on the ground that such persons held positions similar to the 10 persons challenged by the T. W. O. C. as supervisors. The chal- lenged ballots are considered hereinbelow. The voting began at 1:00 p. in. and continued until 4: 30 p. in. As noted above, the Company contends that 38 employees 5 whose names appeared on the list of eligible voters did not participate in the election because of inadequate notice of the election. The per- sons whose names appeared on the eligible list, but who did not participate in the election, are as follows : (a) Chester Collins, Samuel Priddy, James Pruitt, and Robah Purdue appear to have left the employ of the Company. The record indicates that Collins, Priddy, and Pruitt were last seen or heard of on September 30, 1937, February 16, 1938, and June 30, 1938, respectively. Purdue last worked for the Company on February 10, 1938, and thereafter joined the Navy. It is clear that the failure of these employees to vote in the election was not caused by any inadequacy in the notice of the election. (b) Eleven 6 of the approximately 20 employees on the third shift which works from 11: 00 p. m. to 7: 00 a. m. did not vote in the elec- tion. Only 3 of the 11 testified at the hearing. One stated that he did not see the notice and did not know of the election. The second stated that he did not see the notice of election, but admitted on cross-examination that he had to pass the bulletin board to go to the washroom and stated that "I always know if there is anything on r The Company states in its exceptions that 38 eligible employees did not vote. It appears that Glenn Pugh, one of the 38 employees named by the Company, did in fact vote. 9 Peter Brown, Charlie Basham , William Fulp, Jr., Clayton Greer, Clyde Lamb, Garland Reives, Roy Way, Garland Wyrick, Thomas Ward, Paul Guy, and Ellinger McAdoo. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it." It seems to be undisputed that a notice was on the bulletin board while this employee was working. The third testified that he did not have notice of the election until 2: 00 p. m. on the day of the election, but conceded that he had adequate time thereafter to vote if he had so desired. All of the 11 employees in question worked on the shift beginning at 11: 00 p. m. on August 1. Since the notices of election were posted prior to noon on August 1 and since a large number of employees on such shift voted in the election, it appears inconceivable that all employees on the shift did not have adequate opportunity to know of the election. At most the evidence creates doubt as to knowledge of the election on the part of two employees on the third shift inasmuch as the testimony of one of the three persons testifying showed that he had adequate knowledge and inasmuch as no testimony was introduced as to the eight employees on the third shift who did not vote and who did not testify. (c) A group of nine employees' did not work at the plant on August 2 and a tenth employee 8 worked only 2 hours on that day. The Company stated that 6 of the 10 employees had not worked on August 1. It appeared from testimony on behalf of the Company that one of the six men was in Canada and a second was engaged in Army maneuvers. Only 1 of the 10 employees testified at the hearing. He stated that he did not have notice of the election, but also stated that he would not have voted on August 2 even if he had received 6 months' notice inasmuch as he was taking care of his brother-in-law who was ill on that day. On the basis of the record, we conclude that it has not been established that any lack of notice was the reason for their failure to vote. (d) The remaining 12 9 of the 38 employees on the eligibility list who did not vote in the election worked on the first and second shifts at the plant and worked on the day of the election. The first shift worked from 7: 00 a. m. to 3: 00 p. in. and the second shift worked from 3: 00 p. m. to 11: 00 p. in. The election was held from 1: 00 p. m. to 4: 30 p. m. Thus all the employees were at the plant during the election. By agreement of the parties, the employees at the plant voted by departments, although some employees who were in the vicinity of the polling place were permitted to vote regardless of department. The overseer of each department would advise the employees when to go to the polling place and the employees would leave or not as they saw fit. 4 Jasper Evans, James Gordon, Melvin Huffman, Philip Kimber, James Kernodle, Arthur May, Fred Marshall, Orville Snyder, and Charlie Stewart s Kent Summers. John Dalton, Elmer Simmons, Aubrey Beal, Will Artis, Ethel Gregory, Richard Hobbs, Noah Blackburn, Walter Roberson, Elisha Wells, Preston Weeks, Eva Welborn, and Clyde Spires. PROXIMITY PRINT WORKS ET AL. 385 None of the 12 employees in question testified at the hearing. Barnes, plant superintendent, conceded that he knew of no reason why these employees could not have voted. He conceded also that no com- plaint had been made to him by any of the 12 employees as to a lack of notice of the election. Under the circumstances, we think it clear that the 12 employees on the first or second shift who did not vote in the election had adequate notice thereof. Certain additional facts should be noted with respect to the second exception of the Company. At the hearing on the exceptions, the files of the Acting Regional Director were made available for examination relative to the allegation of the Company that information concerning the election was made available to the T. W. 0. C. prior to the date on which it was made available to the Company and the unorganized employees. The examination covered the period from June 21, the date the election was originally scheduled, to August 2, the date the election was held. The files disclosed, and the Acting Regional Director testified, that on June 28 the representative o^ the T. W. 0. C. sent him a telegram suggesting that the election be held that week, but that he replied that he could not comply with such a request until he received an order from the Board authorizing him to conduct the election. The files also disclosed, and the Acting Regional Director testified, that on July 19, the union representative again sent a telegram to him, requesting that the election be held on July 26. The Regional Director sent no reply to this telegram. The only other communication was on July 30, on which date the Regional Director informed the Company and the T. W. 0. C. of the election to be held August 2. The attorney for the Board also introduced in evidence the telephone bills of the Acting Regional Director's office which show that no telephone calls were made from that office to Greensboro during July or August. The Acting Regional, Director also testified that he had no memoranda of any incoming calls from Greensboro. The representative of the T. W. 0. C. testified that from June 21 to July 31, he had not received any notice from anybody at any time or at any place regarding the election of August 2. He also testified that he did not telephone the Acting Regional Director at any time to get any information about the election which was held August 2, and that the first information he received was the letter which he received on July 31. The representa- tive of the T. W. 0. C. further testified that the above two telegrams and the one reply constituted all his communications with the Acting Regional Director. This testimony corroborated that of the Acting Regional Director. The Acting Regional Director also stated that during the time in question he had given no instructionst to any of his agents about the election. This was also corroborated by the T. W. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0. C. representative who testified that during the same time he did not see any agents of the Acting Regional Director. It is clear from the record that the first and only information sent to the parties regarding the election of August 2, was on July 30, at which time the Acting Regional Director mailed letters to both parties. In view of the foregoing, we find that the second exception of the Company is without merit. It is clear that the calling of the election was not surrounded with secrecy and that the notice thereof was not so given as to make it impossible for the eligible employees to have notice of the time and place of the election and to prepare to partici- pate therein. It is clear also that there was no discrimination against the Company and the unorganized employees relative to the notice which was given. It is still further clear that a lack of notice was not the reason for the failure of 38 eligible employees to vote in the election. The most that has been established is that 2 of the 38 employees may not have had knowledge of the election. The votes of the two employees would not have affected the results of the election. The third exception of the Company to the Intermediate Report upon the secret ballot is, in substance, as follows : Due to the shortness of time between the receipt of the notice of election and the holding of the election on August 2, the Company could not and did not revise the eligibility list by striking therefrom the names of those employees who had quit or been discharged for cause. We conclude that this exception has been sufficiently answered by the facts hereinabove set forth. In its third exception, the Company also raised the question of the persons whose ballots were challenged. The T. W. 0. C. challenged 10 persons on the ground that they were supervisors and the unorgan- ized employees challenged 3 persons on the ground that they occupied the same status as the 10 persons challenged by the T. W. 0. C. It appears that the ballots cast by three persons whose names were not on the eligible list, but who claimed that their names should have been included, were also considered as challenged ballots. Although these ballots were not apparently challenged at the time of the elec- tion, the Company took the position at the hearing that the ballots should not be counted and that eight other persons who occupied the same status as the three employees did not vote in the election and had no notice thereof. It suffices to say in connection with the eight employees that there is nothing in the record which in anywise shows that they did not have notice of the election. We find it unnecessary to consider in detail the facts concerning the ballots of the 13 persons challenged as being supervisors and the ballots of the 3 persons whose names did not appear on the eligibility list. The majority of the T. W. 0. C. would not be affected even if the contention of the Company was upheld as to all 16 ballots. PROXIMITY PRINT WORKS ET AL. 387 The final exception of the Company is upon the ground that the amendments dated June 21, 1938, and July 23, 1938, to the Direction of Election were entered without notice to the Company and an oppor- tunity to be heard. The action of the Board in this matter was within the authority vested in it by Section 9 (c) of the Act and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended. The Board finds, more- over, that the Company was not prejudiced by the action which was taken. The exception is hereby overruled. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Textile Workers Organizing Committee has been designated and selected by a majority of all the piece-rate and hourly production employees of the Proximity Print Works, of Proximity Manufacturing Company, Greensboro, North Carolina, excluding watchmen and clerical and supervisory employees, as their representative for the purposes of collective bargaining, and that, pursuant to the provisions of Section 9 (a) of the Act, Textile Workers Organizing Committee is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.