The Hawk and Buck Co., Inc.

In the Matter of THE HAWK AND BUCK Co., INC. and UNITED GARMENT WORKERS OF AMERICA, LOCAL No. 229 Case No. R-1136.-Decided April 12,1939 Clothing Manufacturing Industry-Investigation of Representatives: con- troversy concerning representative of employees: refusal by employer to recog- nize union until union certified by the Board-Unit Appropriate for Collective Bargaining : all production employees including operators , pressers , cutters, line boys, and ticket girl, excluding maintenance, clerical, and supervisory employees, floorladies, head mechanic, head cutter, machinists , shipping clerk, and porter ; controversy as to inclusion and exclusion of certain employees- Representatives: dispute as to pay-roll date to be used to determine eligibility ; proof of choice : comparison of employee list with union designations ; valid union designations do not constitute majority from among employees in appro- priate unit-Election Ordered Mr. E. P. Davis, for the Board. Samuels, Foster, Brown and MeGee,,by Mr. Sidney L. Samuels and Mr. Sproesser Wynn, of Fort Worth, Tex., for the Company. Mr. William R. Brooks, of Kansas City, Mo., for the United. Guthrie and Guthrie, by Mr. Jim Guthrie, of Dallas, Tex., for the Amalgamated. Mr. William Strong, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 13, 1938, United Garment Workers of America, Local No. 229, herein called the United, filed with the Regional Director for the Sixteenth Region, Fort Worth, Texas, a petition, and on August 15, 1938, an amended petition, alleging that a question affect- ing commerce had arisen concerning the representation of the em- ployees of The Hawk and Buck Co., Inc.,' Waco, Texas, herein called the Company, and requesting an investigation and certifica- tion of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 'Incorrectly designated in the notice of hearing as "Hawk and Buck Manufacturing Company." At the hearing the title of the proceeding was corrected by stipulation. 12 N. L. R. B., No. 33. 230 THE HAWK & BUCK CO., INC. 231 11, 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 Regula- tions-Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 16, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and the United. Pursuant to the notice, a hearing was held on Decem- ber 1, 2, and 3, 1938, at Waco, Texas, before Charles E. Persons, the Trial Examiner duly designated by the Board. On the first day of the hearing, Amalgamated Clothing Workers of America, Local No. 334, herein called the Amalgamated, presented a motion for leave to intervene. The motion was granted. The Board, the Company, and the Amalgamated were represented by counsel, and the United by a representative; all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. Dur- ing the course of the hearing, the Trial Examiner made several rulings on motions and 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 notice, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on February 14, 1939. The Company, the United, and the Amalgamated were repre- sented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the follow- ing : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Hawk and Buck Co., Inc., is a Texas corporation engaged, at its plant in Waco, Texas, in the manufacture, sale, and distribu- tion of overalls, jumpers, work pants, work shirts, and coveralls. During 1937, the Company used raw materials valued at approxi- mately $500,000, of which about 84 per cent were delivered to the plant from points outside the State of Texas. The Company's sales amounted to $800,000 in 1937, and $650,000 in 1938. Approximately 20 per cent of its products are shipped by the Company to points out- side the State, principally to Oklahoma, Louisiana, Arkansas, and New Mexico. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT. THE ORGANIZATIONS INVOLVED United Garment Workers of America, Local No. 229, is a labor organization affiliated with the American Federation of Labor. It admits to membership all production employees of the Company, ex- clusive of maintenance, clerical and supervisory employees, shipping clerks, floorladies, and machinists. Amalgamated Clothing Workers of America, Local No. 334, is a labor organization affiliated with the Committee for Industrial Or- ganization. It admits to membership all production and maintenance employees of the Company, excluding officials and executives and those having the power to hire and discharge. III. THE QUESTION CONCERNING REPRESENTATION On August 8, 1938, at a time when the United represented a sub- stantial number of the Company's employees, a committee designated by it attempted to bargain with John R. Cassidy, the Company's superintendent. Cassidy refused to bargain with the United unless it should be certified by the Board. The Amalgamated, in its peti- tion for leave to intervene, claims to represent employees of the Company. We find that a question has arisen concerning the representation of the 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 oi5structing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT In its amended petition, the United asserts that all production employees of the Company, excluding maintenance, clerical, and su- pervisory employees, and including operators, pressers, and cutters, constitute a unit appropriate for the purposes of collective bargain- ing. At the hearing, the United specifically designated the follow- ing as those whom it desired excluded from the appropriate unit : Cassidy, the superintendent; Kirkpatrick, his assistant; York, the head forelady ; Woods, the head mechanic ; the head cutter ; floor- THE HAWK & BUCK CO., INC. 233 ladies; mechanics; line boys; the ticket girl; the shipping clerk; and the porter. The Company contends that the appropriate unit consists of all persons in its employ, with the exception of Cassidy, Kirkpatrick, York, and Woods. The Amalgamated desires that all of the Company's employees, except officials and executives and those who have the power to hire and discharge, be included in the unit. At the hearing, testimony was introduced as to the duties of the various employees of the Company. It appears that Cassidy, Kirk- patrick, York, Woods, the head cutter, and the floorladies perform supervisory duties. We shall exclude them from the unit as super- visory employees. The machinists, the shipping clerk, and the porter take no part in production activities. Their interests and problems differ from those of the production employees. They will be excluded from the unit. The two line boys, employed at the plant, however, are engaged in assisting the operators. They bring bundles of cloth from the cut- ters to the operators, change and bring thread when needed, and, at times, repair belts. Their duties are directly related to production. The ticket girl inserts lot and size numbers on small tickets, which are then assorted and counted by her, and later sewed on to garments by operators. Her duties, too, are a part of production. She and the line boys also will be included within the unit. We find that all production employees of the Company, including the line boys and the ticket girl, but excluding maintenance, clerical, and supervisory employees, machinists, the shipping clerk, and the porter, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Com- pany the full benefit of their right to self-organization and to col- lective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The pay rolls of the Company for August 10, 1938, containing the names of 308 persons, and November 23, 1938, containing the names of 222 persons, were introduced in evidence. The United urges the use of the August 10, 1938, pay roll as the basis for determination of representatives. The Company objects on the ground that the employees named thereon are not all "regular" employees. It asserts that its "regular" employees number approxi- mately 220 persons; that although these persons have no seniority rights, nevertheless they are the ones who are employed during peri- ods of normal operation ; that for these "regular" employees, the Company carries a group-insurance policy. It states that during peak seasons, it employs an additional group, numbering about 100, which it classes as "irregular." It suggests the use of the November 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 23 pay roll, contending that this pay roll most accurately reflects normal employment. The Amalgamated suggests the use of a pay-roll date sometime in November or December 1938. Whenever necessary to secure employees described by it as "irregu- lar," the Company places an advertisement in the newspapers and sends postal cards to individuals whom it desires to reemploy. It was testified that, if steady work is available, the "irregular" employees ultimately achieve the status of "regulars." There appears to be little distinction between the two groups. From the fact that most of the employees on the August 10 pay roll have been employed by the Company during past seasons it is evident that they will, in all probability, be reemployed in the future. It is our desire to insure eligibility to the largest number of em- ployees affected by our determination of representatives. Inasmuch as the individuals whom the Company denominates "irregular" em- ployees will probably be reemployed by it when production requires increase in employment, we shall seek to determine the choice of all the employees of the Company within the appropriate unit who were on the August 10, 1938, pay roll. The United introduced in evidence 153 authorizations purportedly signed by employees of the Company, designating the United as their sole collective bargaining agent. It contends that on August 10, 1938, there were 283 persons within the unit claimed by it to be appropriate, and that its authorizations indicate that it has been designated by more than 51 per cent of such persons. Inclusion of the two line boys and of the ticket girl, however, increases the number within the appropriate unit on that date to 286. During the hearing, moreover', it was established that four of the persons who signed authorizations designating the United were never employed by the Company, and that four additional such persons were not in the Company's employ on the date their authori- zations were signed, or on August 10, 1938. Four other of the em- ployees who designated the United testified that they no longer de- sired to be represented by that organization. There was additional testimony to the effect that other persons whose authorizations are in evidence also no longer desire to be represented by the United. The choice of the majority of the employees who were in the appro- priate unit on August 10, 1938, is, therefore, in doubt. We shall order an election by secret ballot among all employees in the appropriate unit, who were employed by the Company during the pay-roll period ending August 10, 1938, excluding any who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by the United, by the Amalgamated, or by neither. THE HAWK & BUCK CO., INC. 235 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLusIONs OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Hawk and Buck Co., Inc., Waco, Texas, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production employees of The Hawk and Buck Co., Inc., including line boys and the ticket girl, but excluding maintenance, clerical, and supervisory employees, machinists, the shipping clerk, and the porter, 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 Re- lations 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 DIREEcTED that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining, an election by secret ballot shall be conducted within fifteen (15) days from the date of this Direction of Election 'under the direc- tion and supervision of the Regional Director for the Sixteenth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production employees, including line boys and the ticket girl, of The Hawk and Buck Co., Inc., Waco, Texas, whose names appear on the Company's pay roll of August 10, 1938, excluding maintenance, clerical, and supervisory employees, machin- ists, the shipping clerk, and the porter, and all employees who have since quit or have been discharged for cause, to determine whether they desire to be represented by United Garment Workers of America, Local No. 229, affiliated with the American Federation of Labor, or by Amalgamated Garment Workers of America, Local No. 334, affili- ated with the Committee for Industrial Organization, or by neither, for the purposes of collective bargaining. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [SAME TITLE AMENDMENT TO DIRECTION OF ELECTION April 19, 1939 On April 12, 1939, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. The Direction of Election provided that an election be held within fifteen (15) days from the date of the Direction, under the direction and supervision of the Regional Director for the Sixteenth Region (Fort Worth, Texas). At the request of the Regional Director, we shall postpone the election for the present. The Board hereby amends the Direction of Election by striking therefrom the words "within fifteen (15) days from the date of this Direction of Election" and substituting therefor the words "at such time as the Board may in the future direct." 12 N. R. L. B., No. 33a.