The Monte Glove Co., Inc.

In the Matter of THE MONTE GLOVE COMPANY, INC. and INTERNA- TIONAL GLOVE WORKERS UNION OF AMERICA, LOCAL No. 94, AFFILIATED WITH THE A. F. OF L. Cases Nos. 0-1281 and R-1350.-Decided November 6, 1939 Glove Manufacturing Inditstry-Collective Bargaining : charges of, dismissed for failure to prove majority , Board finds ballot of employee challenged in consent election should have been counted , election results in tie vote when challenged ballot is opened and counted at hearing-Investigation of Repre- sentatives : question concerning representation of employees : claim of the union that it represents a majority disputed by the respondent-Unit Appropriate for Collective Bargaining : production and maintenance employees, excluding super- visory and clerical employees-Representatives : claim of union, results of con- sent election-Election Ordered Mr. Colonel C. Sawyer, for the Board. Mr. Wilbur F. Pell, Shelbyville, Ind., for the respondent. Mr. Thomas Durian, of Milwaukee, Wis., for the Union. Mr. Albert J. Hoban, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 27, 1938, International Glove Workers Union of America, Local No. 94, affiliated with the A. F. of L., herein called the Union, filed charges with the Regional Director for the Eleventh Region (Indianapolis, Indiana), alleging that The Monte Glove Company, Inc., Shelbyville, Indiana, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 7, 1938,. pursuant to agreement, a consent election was conducted among the respondent's employees. On De- cember 10, 1938, the Union filed amended charges and on December 15, 1938, a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of the 17 N. L. R. B., No. 25. 405 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent and requesting an investigation and certification of rep- resentatives pursuant to Section 9 (c) of the Act. On March 14, 1939, 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 Regulations-Series 1, as amended, ordered an investigation of representatives and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Section 10 (c) (2) and Article II, Section 37 (b), of said Rules and Regula- tions ordered that the cases be consolidated for the purposes of hearing.' Upon the above charges and. amended charges duly filed by the Union, the Board, by the Regional Director, issued its complaint dated March 20, 1939, against the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint, the peti- tion, and notices of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that on October 7, 1938, November 2, 1938, and at all times thereafter the respondent refused to bargain collectively with the Union as the exclusive representative of all the employees in an appropriate unit,arjthough the Union .was ,the .representative4or col- lective bargaining of a majority of the employees in said unit. On March 25, 1939, the respondent filed an answer admitting that it had at all times since October 7, 1938, refused to bargain with the Union but denied that the Union was the duly authorized representa- tive of a majority of its employees in an appropriate unit and denied that it had engaged in the unfair labor practices alleged in the com- plaint. The respondent's answer also alleged that the Act and the proceedings herein were in violation of its constitutional rights. On March 25, 1939, the respondent also filed with the Regional Director a demurrer and a motion to dismiss the amended charges and complaint. Pursuant to notice, a hearing upon the petition and the complaint was held in Shelbyville, Indiana, on April 6; 7, and 10, 1939, before William P. Webb, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and par- ticipated in the hearing. The Union was represented by an officer. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all par- ' On March 18, 1939 , the Union tiled amended charges and an amended petition and on March 28, 1939 , the Board issued an . amended order directing an investigation of repre- sentatives,and ' consolidating the complaint and representation cases. THE MONTE GLOVE COMPANY, INC. 407 ties. During the hearing- the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. He also denied the respondent's request for the issuance of three subpoenas daces tecum. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 4, 1939, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, denying the re- spondent's motion to dismiss on which he had reserved ruling at the hearing and finding that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from such unfair labor practices and upon request bargain collectively with the Union and take cer- tain specified affirmative action to effectuate the policies of the Act. On May 16, 1939, the respondent filed exceptions to the Intermediate Report. Neither the respondent nor the Union filed briefs or requested oral argument before the Board. The Board has considered the respondent's exceptions to the Inter- mediate Report and except as they are inconsistent with the findings herein, hereby sustains them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Monte Glove Company, Inc., an Indiana corporation, is en- gaged at its plant in Shelbyville, Indiana, in the manufacture, sale, and distribution of cotton-flannel gloves and mittens and jersey-cloth gloves. During 1938 the value of the raw materials purchased by the respondent for use at the Shelbyville plalit, consisting of cotton flannel, jersey cloth, knit tubing, gauntlet material, and thread, amounted to $70,181.44. Over 90 per cent of these raw materials were purchased from firms outside the State of Indiana. During the same year, approximately 80 per cent of the products manufactured by the respondent were shipped to customers located outside the State of Indiana. The respondent employs approximately 70 persons and its gross pay roll for the year 1938 was $51,480.74. II. THE ORGANIZATION INVOLVED International Glove Workers Union of America, Local No. 94, affiliated with the American Federation of Labor is a labor organiza- tion admitting to membership the production employees of the respondent, excluding supervisory and clerical employees. 247384-40-vol. 1.7-27 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED REFUSAL TO BARGAIN A. The appropriate unit The complaint alleges that all the production employees of the respondent in the Shelbyville plant, ' excluding officials of the com- pany, clerical, salaried, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The petition alleges substantially the same unit. In an agreement for a consent election entered into on August 29, 1938, and discussed below, the parties set forth a unit consisting of all production employees of the respondent at the Shelbyville plant excluding supervisory and clerical employees.2 Where the parties have consented to the conduct of an election by the Regional Director in a stated unit we have held that it is within our discretion to find such a unit appropriate to effectuate the policies of the Act.3 We find therefore that all the production and maintenance em- ployees of the respondent at the Shelbyville plant, excluding super- visory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the respondent the full benefit of their right to self- organization and collective bargaining and otherwise effectuate the policies of the Act. B. Representation by the Union of a majority in, the appropriate unit On August 29, 1938, after the original charges alleging that the respondent had refused to bargain had been filed, by the Union, rep- resentatives of the Union and the respondent entered into an agree- ment for a consent election. The agreement was signed on behalf of both parties and provided that any dispute concerning the eligibility of employees to participate and challenged ballots was to be de- termined by the Regional Director. On September 7, 1938, the election was duly conducted under the supervision of Rush F. Hall, a Field Examiner of the Board, acting as agent for the Regional Director. Observers representing the Union and observers representing employees opposed to the Union were present. During the course of the balloting the union observers 2 It is clear from an examination of the pay roll which was used at the consent election that all employees at the plant except clerical and supervisory employees were eligible to vote. In accordance with our usual practice where the desires of the parties to include maintenance employees within the term "production employees" is apparent, we shall expressly include maintenance employees within the appropriate unit . Matter of Hydril Company of California and Oil Workers International Union, Ilydril Local 123, C. I. 0., 13 N. L. R. B. 507 ; Matter of Kansas Milling Company and Flour, Feed, Cereal d Etcvator Workers Union, No. 29991, A. F. of L., 15 N. L. R. B. 71. 3 See Matter of Harry Schwartz Yarn Co., Inc., and Textile Workers Organizing Com- mittee, 12 N. L . R. B. 1139. THE MONTE GLOVE COMPANY, INC. 409 challenged the eligibility of Mae McClellan, Frank R. Williams, and John Thomas Young. Each of these employees voted and his ballot was placed in a numbered white envelope, sealed in the presence of the observers and deposited in the ballot box. At the conclusion of the balloting the ballot box was opened and the votes counted. Of the 68 ballots cast in the election, 34 were cast for the Union, 31 against the Union and, as noted above, 3 were challenged and remained uncounted. Thereafter, acting in accordance with Hall's instructions, repre- sentatives of the Union, of the employees opposed to the Union, and of the respondent submitted to the Regional Director information for his consideration in determining the question concerning the eligibil- ity of the employees challenged. On September 14, 1938, the Re- gional Director issued a decision respecting the challenges in which he decided that McClellan and Williams were eligible to vote as production employees. He decided that John Thomas Young was not eligible. On September 15, 1938, acting pursuant to directions contained in the Regional Director's decision, Hall reconvened the observers at Shelbyville and in the presence of all except one of the observers who was ill, opened the envelopes containing the ballots of McClellan and Williams. Both had been marked to signify that the voters did not desire to be represented by the Union. On September 16, 1938, the Regional Director mailed to the re- spondent's attorney his certification of the results of the election conducted on September 7, 1938. The tabulation of the ballots as certified by the Regional Director show that the Union had received 34 of 67 valid votes cast. On September 19, 1938, the respondent filed with the Regional Director its protest and objection to the certification and on September 20, 1938, the Regional Director noti- fied the respondent that the procedure followed had been in accord- ance with the terms of the agreement for consent election. There- after the respondent refused to bargain with the Union and amended charges alleging new violations of Section 8 (5) of the Act were therefore filed. At the hearing, the respondent contended that the Union did not receive a majority of the votes cast in the consent election and was thus not entitled to recognition. The ballot of John Thomas Young was opened and introduced in evidence. It indicated that he did not desire to be represented by the Union. Thus, the question of whether the Union was designated by a majority of tha employees within the appropriate unit on September 7, 1938, depends upon the eligibility of Young. The agreement for the consent election provided that all the em- ployees in the appropriate unit who were on the pay roll of July 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2, 1938, except those who had quit or been discharged for cause be- tween that date and the date of the election should be eligible to vote. The election was conducted on September 7, 1938. On June 6, 1938, at the conclusion of his junior year at Shelby- i ille High School, Young, the son of the respondent's vice president and superintendent, was hired by the respondent as a production em- ployee. His duties were varied but consisted principally in making boxes, taking incoming flannel tubing to the wareroom, spreading cloth, and packing. During the summer vacation of 1938, he worked approximately the same number of hours as the other production employees. His name appears on the pay roll of July 2, 1938. From September 8, 1938, until the hearing Young worked only after school and on Saturdays. On the basis of the foregoing facts, we find that at the time of the election Young was a production employee and should have been per- mitted to vote.' Accordingly only 34 of the 68 eligible employees who voted at the election designated the Union as their collective bargaining agent. We find that the Union did not represent a majority of the re- •spondent's employees in an appropriate unit at the times mentioned in the complaint. We shall, therefore, dismiss the complaint. IV. THE QUESTION CONCERNING REPRESENTATION As disclosed by the results of the consent election the Union repre- sents a substantial number of the respondent's employees. At the time of the hearing, the Union claimed to represent a majority of such employees. The respondent, on the basis of the election, dis- putes the claim of the Union. The consent election, however, was conducted over a year ago and the results thereof may not reflect the present desires of the employees. We find that a question has arisen concerning representation of employees of the respondent. V. 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 respondent described in Section I above, has a close, intimate, and substantial 4 See Matter of Armour & Company and Local No. 511, United Packinghouse Workers of America, of Packinghouse Workers Organizing Committee , affiliated with the C. I. 0., 14 N. L. R. B. 865; Cf. Matter of Superior Felt and Bedding Company and Local No. 173, International Upholsterers Union, affiliated with the American Federation of Labor, 14 N. L. R. B. 835. THE MONTE GLOVE COMPANY, INC. 411 relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE DETERMINATION OF REPRESENTATIVES The Union submitted no evidence of majority representation at the hearing although it claimed at that time to represent more than a majority of the employees in the appropriate unit. We find that the question concerning representation which has arisen can best be resolved by holding in election by secret ballot. Those employees in the appropriate unit who were employed by the respondent during the pay-roll period next preceding the date of the issuance of the Direction of Election, excluding those who have since quit or been discharged for cause, shall be eligible to vote. Upon the basis of the above findings of fact and upon the entire record in the proceedings, the Board makes the following: CONCLUSIONS OF LAW 1. The operations of the respondent , The Monte Glove Company, Inc., occur in commerce , within the meaning of Section 2 (6) of the Act. 2. International Glove Workers Union of America , Local No. 94, affiliated with the A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 3. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. 4. A question affecting commerce has arisen concerning the rep- resentation of employees of the respondent within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 5. The production and maintenance employees of the respondent at its Shelbyville plant, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of la-kv and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the complaint against The Monte Glove Company, Inc., be, and it hereby is, dismissed. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for purposes of collective bar- gaining with The Monte Glove Company, Inc., Shelbyville, In- diana, 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 of Election, under the supervision of the Regional Director for the Eleventh Region, acting in this matter as agent for the Na- tional Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among all the production and Inain- tenance employees of The Monte Glove Company, Inc., at the Shelby- ville plant, employed by the respondent during the pay-roll period next preceding the date of this Direction of Election, including em- ployees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding supervisory and clerical em- ployees, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Glove Workers Union of America, Local No. 94, affili- ated with the A. F. of L. for the purposes of collective bargaining.