American Hair & Felt Co.

In the Matter of AMERICAN HAIR & FELT COMPANY and JUTE, HAIR fit, FELT WORKERS LOCAL #163 (UNITED FURNITURE WORKERS OF AMERICA, CIO) Case No. R-1J, 35.Decided September 22, 1939 Felt dtanufactnrtng Industry-Investigation of Representatives: no question concerning representation : petition for, dismissed, without prejudice to renewal at a reasonable time before the wage agreement in the existing contract ex- pires: divergent views of Board members: (1) (Madden) where there is an unexpired contract containing a wage agreement running for a year between employer and a labor organization which has been certified by the Board as the exclusive representative within a year of the date of the execution of said contract, and.where employer has no knowledge at date of execution of the contract with 'the certified representative that a rival labor organizatidu claims to represent a majority in the appropriate unit no question concerning: representation arises before expiration of wage agreement; (2) (Leiserson) since petitioning union made no showing that a majority of the employees had, authorized said union to represent them, the labor organization previously certified by the Board remains the authorized representative of the employees. and there is no question concerning representation; (3) (Smith, dissenting in part) since rival union presented a petition purporting to show that a majority of the employees had repudiated the certified. representative and before the hearing notified employer that it had been designated by a majority, there is a question concerning representation, determination of which is not barred by' the unexpired contract, especially since more than a year has elapsed since' the labor organization making the contract was certified by Board-Order:- dismissing petition. Mr. Mark Laufer, for the Board. Pitney, Hardin & Skinner, by Mr. William J. Brennan, Jr., of' Newark, N. J., for 'the Company. Isserman, Isserman. d Kapelsolinn, by Mr. Sol D. Kapelsohn, of Newark, N. J., for the C. I. O. Local. Mr. William Karlin, of New York City, and Mr. Leo Green field, of New York City, for the A. F. of L. Local. Mr. N. Barr Miller, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On March 6, 1939, Jute, Hair & Felt Workers Local #163, United Furniture Workers of America, affiliated with the C. I. 0., herein, 15 N. L. R. B., No. 61. 572 AMERICAN HAIR & FELT COMPANY 573 called the C. I. O. Local, filed with the Regional Director for the Second Region (New York City) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of American Hair & Felt Company, herein called the Com- pany, at its Newark plants, and requesting an investigation and cer- tification of representatives pursuant to Section 9 (c) of the Na- tional Labor Relations Act, 49 Stat. 449, herein called the Act. On 11Iay 31, 1939, the National Labor Relation Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III9 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 June 17, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the C. I. O. Local, and upon Hair, Felt & Jute Workers Local #163, Upholsterers International Union of North America,' affiliated with the American Federation of Labor, herein called the A. F. of L. Local, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was. held from June 27 to July 11, 1939, at New York City, before William Seagle, the Trial Examiner duly designated by the Board. The Board, the Company, the C. I. O. Local, and the A. F. of L. Local were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and to cross-examine witnesses, and to introduce evidence bearing 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 evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committted. The rulings are hereby affirmed. Briefs were filed by the Company, the A. F. of L. Local, and the C. I. O. Local, and all parties participated in oral ,argument before the Board on August 10, 1939. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 2 American Hair & Felt Company is a Delaware corporation with its principal offices in Chicago, Illinois. It operates two plants in New- ark, New Jersey, which are the plants involved in this proceeding, 2 Formerly Upholsterers, Furniture, Carpet, Linoleum and Awning Workers National Union of North America. These findings are based on a stipulation of facts. 574 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD and plants in California, Delaware, Illinois, Kentucky, Massachu- setts, Pennsylvania, and Wisconsin. At its Newark plants, the Company manufacturers Ozite carpet cush- ions, insulation felts, gun wadding, slipper felts, and felted carpet. Raw materials consisting chiefly of animal hair, jute, burlap, and dyes are almost wholly purchased and shipped. from points outside the State of New Jersey. In 1938, total expenditures of the Company for raw materials amounted to $815,6JO.89. Sales of the finished products of the Company during the same year amounted to $2,255,185.24, more than 93 per cent of which were shipped to points outside New Jersey. The Company stipulated that it is engaged in interstate commerce within the meaning of Section 2 of the Act and would not contest in any court the jurisdiction of the Board in this proceeding. II. THE ORGANIZATIONS INVOLVED Jute, Hair & Felt Workers, Local #163, is a labor organization, a subsidiary of the United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, admitting to its mem- bership all the employees of the Newark plants of the Company, excluding executives, clerical employees, supervisory foremen, and teamsters. Hair, Felt and Jute Workers Local #163 is a labor organization, a subsidiary of the Upholsterers International Union of North America, affiliated with the American Federation of Labor, and admits to its membership all the employees - of the Newark plants of the Company, excluding executives, clerical employees, supervisory foremen, and teamsters. III. THE APPROPRIATE UNIT At the hearing the parties stipulated that the appropriate unit should consist of all employees of the Company at its Newark plants including watchmen and teamsters' helpers, but excluding executives, clerical workers, supervisory foremen, and teamsters. This is the unit we found appropriate in our Decision and_ Direction of Election of April 16, 1938, and we see no reason for altering it. We therefore find that all employees of the Company at its Newark plants including watchmen and teamsters' helpers, but excluding ex- ecutives, clerical workers, supervisory foremen, and teamsters, con- stitute 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. 3 6 N. L. R. B. 648. AMERICAN HAIR & FELT COMPANY IV. TIIE QUESTION CONCERNING REPRESENTATION 575 On May 26, 1938, after a hearing and- an election upon the petition of the C. I. O. Local, the Board certified the A. F. of L. Local as sole bargaining agent of the employees at the Newark plants of the Company.4 It had polled 191 votes to 161 for the C. I. O. Local. Thereafter, in July 1.938, the employees of the Company went out on strike to prevent a proposed reduction in wages. During the strike the Company and the A. F. of L. Local reached an agreement, the terms of which were embodied in a written contract dated July 29, 1938, and the men returned to work. The contract dealt with hours of employment, overtime, vacations, seniority, and methods of deal- ing with grievances. The Company recognized the A. F. of L. Local as exclusive collective bargaining agent and agreed not to negotiate nor bargain collectively "with any other labor organization, or group of employees, during the life of this contract." It was also agreed by the parties that a supplemental agreement would be negotiated on or before September 5, 1938, standardizing and adjusting wages in the two plants. Finally, it was provided that the contract should continue in force until July 31, 1939, and from year to year there- after, unless either party gave the other notice of a contemplated change 30 days prior to the end of any 1-yeas period. Pursuant to this contract, a supplemental agreement was reached on September 12, 1938, in regard to standardization of wage rates. Its effect was to increase wages in a few cases, decrease them in others, and to allow the Company a net saving of 8 per cent. On December 5, 1938, the Company increased wages 5 per cent. At that time the A. F. of L. Local notified the Company that it desired a conference in January to consider methods of eliminating certain dissension and unrest in the plant. This conference was finally held on Jan- uary 25, 1939. The A. F. of L. Local demanded a closed-shop agree- ment, another wage. increase to take effect on August 1, 1939, and extension of the July 1938 contract to July 1940. On the other hand, the Company proposed to cut the current wage rate and flatly rejected the demand for a closed shop. On the wage question, the parties finally agreed to continue the present rate, without change, until December 31, 1939, at which time the A. F. of L. Local might seek a, further increase. At the same time the July 1938 contract was extended to July 31, 1940. A contract containing these terms was signed by the parties within a few days after January 25, 1939. - In the meantime, between January 14, 1939, and some time in February, the C. I. O. Local had circulated a petition among the 4Matter of American Hair & Felt Company and Jute, Hair & Felt Workers,- Local ho. 163, 6 N. L. R. B. 648, 7 N. L. R. B. 479. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees which stated, among other things, that "we do not want our local to be our bargaining agent any more because it has not represented us," and requested the National Labor Relations Board to conduct an election to determine the collective bargaining repre- sentative. The petition does not purport to designate any other labor organization as bargaining representative, nor does it make any men- tion whatever of the C. I. 0. Local. Thereafter, on March 6, 1939, the C. I. 0. Local filed with the Board its petition for investigation and certification. The Company and the A. F. of L. Local take the view that there can be no question concerning representation during the life of the extended contract. The C. I. 0. Local insists that the contract is no bar to an immediate election because the A. F. of L. Local did not represent a majority of the employees when the extension agree- ment of January 25, 1939, was negotiated, and the purpose of the extension agreement was to prevent the C. I. 0. Local from obtaining an election and certification as the exclusive bargaining agent of the employees in the Newark plants. The extension of the contract was made within 1 year of the Board's certification of the A. F. of L. Local as the exclusive bargain- ing agent of the employees. The A. F. of L. Local introduced a copy of its membership book, purporting to show that of the 344 employees in the appropriate unit on the Company's pay roll of January 23, 1939, 179, a majority, were members in good standing 6 of the A. F. of L. Local at the time the agreement was made. Since the petition of the C. I. 0. Local, which contains signatures of 180 of the em- ployees on the same pay roll, was not completed until some time in February and there is no satisfactory proof of the precise dates on which many of the signers affixed their signatures, said petition does not discredit the adherence of a majority to the A. F. of L. Local in January. The petition does not designate the C. I. 0. Local as bargaining representative nor does any other evidence in the record indicate that the C. I. 0. Local represented a majority of the em- ployees in the appropriate unit at the time of the extension agreement. In the absence of proof to the contrary, there is the presumption that the majority of the' A. F. of L. Local on April 25, 1938, the date of the Board's certification, continued e and we so find. As to the second contention of the C. I. 0. Local, we do not believe that the purpose of the employees' bargaining agent in making the 5In addition , the A. F. of L. Local still carried on its membership books for January 19,39, 46 who were suspended in December 1938 for non -payment of dues, but who were ordered to be retained under the constitution of the International Upholsterers Union of North America ( A. F. L.), which provides for an extension of time for payment when members are ill or unemployed. 6 See Matter of United States Stamping Company and Enamel Workers Union, No. 13630, 5 N. L. R. B. 172. 182. AMERICAN HAIR & FELT COMPANY 577 agreement is significant so long as it had the voluntary support of the majority of the employees at the time. Furthermore, the evi- dence does not indicate that the Company executed the extension agreement with any knowledge of a claim of a rival organization to represent a majority of the employees. On the part of the Com- pany there was no knowledge of the petition circulated by the C. I. O. Local until several weeks after the extension agreement was signed. In fact, it was not until May 26, 1939, 4 months after the execution of the contract, that the C. I. O. Local made any claim to the Com- pany that it represented a majority of the employees. Officers of the Company stated that they desired the extension agreement in order to protect the Company from demands for a further increase in wages during the year 1939. The extension agreement was executed within 1 year of the date of the Board's certification at a time when the A. F. of L. Local represented a majority of the employees in the appropriate unit, which majority designation had not been induced by any unfair labor practice, and at a time when the Company had no notice of any claim to majority representation by a rival labor organization. The con- tract as extended runs for approximately a year and a half, and the Wage agreement runs for approximately 1 year, from the date of the extension. Under these circumstances we are of the opinion that no election should be ordered or representatives certified at this time.' However, the extension of the contract should not preclude a new determination of representatives for as long a period as one year and a half from the date of the extension and 2 years from the date of the original certification. Since the wage agreement terminates ap- proximately 1 year from the date of the extension of the contract, we will dismiss the petition of the C. I. O. Local without prejudice to its right to renew at a reasonable time before the expiration of the wage agreement on December 31, 1939. Upon the basis oar the above findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW , No question concerning the representation of employees in the Newark plants of American Hair & Felt Company exists within the. meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upoii the basis of the foregoing findings of fact and conclusions of law, the National Labor Relations Board hereby dismisses the peti- 7 See Matter of The National Sugar Refining Company of New Jersey, L. I. City Refinery and Local 14th, Sugar Refinery Workers, International Longshoremen's Association, 10 N. L. R. B. 1410. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion for investigation and certification of representatives filed by Jute, Hair & Felt Workers Local #163, United Furniture Workers of America, affiliated with the C. I. 0., without prejudice to renewal at a reasonable time before the expiration of the wage agreement on December 31, 1939. MR. WILLIAM M. LEISEBSON, concurring in part : I should dismiss this petition on the ground that the petitioner did not present evidence showing that the employees wanted the C. I. 0. Local as their representative in place of the A. F. of L. Local. The .petition signed by the employees merely stated, "We do not want our local to be our bargaining agent any more . . ." This dismissal, however, should be without prejudice to the right of the C. I. 0. Local to request an election and certification whenever it can present authorizations from a majority of the employees stating that they desired the C. I. 0. Local to represent them. The fact that the A. F. of L. Local extended its working agreement with the company to July 1940, seems to me to have no bearing on the question concerning representation that is before the Board. The A. F. of L. Local was duly certified as the exclusive representative of the employees on the basis of the election held in April 1938, and it remains the authorized representative until another representative is designated in accordance with the provisions of the Act. It there- fore was free to modify or renew or extend its contract with the com- pany in any manner that was mutually agreeable to the parties. ' Neither the termination date of the working agreement (July -1940) nor the termination date of its wage provisions (December 1939) seem to me to have any connection with the question of repre- sentation. I regard it as arbitrary for the Board to pick out the wage provisions of an agreement and say that when these expire the employees may exercise their right to change their representatives. Congress has made it the duty of the Board to conduct an investi- gation and to certify representatives "whenever a question affecting commerce arises concerning the representation of employees" (Sec- tion 9 (c)). Such a question arose among the employees of this company early in 1938, and the Board conducted an election in April of that year. More than a year has elapsed since that election, and I can see no reason for denying the employees the right given them by Congress to change their representatives at any time that a majority of them indicate they want another organization to represent them. It is not for the Board to create representation disputes at the expi- ration dates of agreements or of any provisions contained in agree- ments. Its duty is to investigate questions of representation when. ever they arise. AMERICAN HAIR & FELT COMPANY 579 MR. EDWIN S. SMITH, dissenting in part and concurring in part : The A. F. of L. Local was certified by the Board as the exclusive bargaining agent for the employees of the Company on May 26, 1938, and has since bargained as such with the Company, eventually obtaining an extended agreement, most of the terms of which are not terminable until July 31, 1940. In January and February 1939, the C. I. O. Local circulated a petition among the employees which stated that the signers repudiated the A. F. of L. Local as their bargaining representative. The petition was signed by 205 persons, of whom 180, a majority, were on the pay roll of the Company for January 23, 1939, thus making doubtful the majority support claimed by the A. F. of L. Local in January when the extension agreement had been made. On March 6, 1939, the C. I. O. - Local filed its petition for investigation and certification of representatives and on May 26, 1939, notified the Company that it had been designated as bargaining agent by a majority of the employees. The Company refused to bargain with any other labor organization than the A. F. of L. Local until the expiration of the extended contract. These facts are ample to show that a new question concerning representation has arisen. The extension agreement of January 25, 1939, between the Com- pany and the A.F. of L. Local should not bar a determination of the question concerning representation at this time, even though the A. F. of L. Local may have had a majority when the extension con- tract was agreed upon. More than a year has now elapsed since the certification by the Board, and the terminable date of the original contract has also passed. In my opinion, to allow the extension agreement to prevent a determination of the question concerning representation, at least when it has been submitted to the Board more than a year after the previous certification, deprives the employees of a right to which they are entitled under the Act. As I pointed out in my dissent in the Matter of The National Sugar Refining Company of New Jersey, L. I. City Refinery and Local 1476, Sugar Refinery Workers, International Longshoremen's Association," the Board'has previously recognized that a change of bargaining representatives as a result of proceedings under the Act need not operate to invalidate the substantive provisions of a contract otherwise valid. Therefore, I would entertain the petition of the C. I. O. Local and order an election between the rival -unions in the unit agreed upon. If, however, the petition. is to be dismissed at this time, as the majority holds, I concur with Chairman Madden that the dismissal should be without prejudice to renewal at, a reasonable time before the expiration of the wage agreement on December 31, 1939. 810 N. L. B. B. 1410.