Rock River Woolen Mills

In the Matter of ROCK RIVER WOOLEN MILLS and TEXTILE WORKERS UNION OF AMERICA, AFFILIATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS Case No. R-1615.-Decided December 28, 1939 Woolen-Cloth Manufacturing Industry-Investigation of Representatives: question concerning representation : substantial doubt as to majority status ; subsequent petition for election filed by employee with Wisconsin Board; elec- tion held by Wisconsin Board under mistaken assumption that National Board case was closed ; Wisconsin Board and Company do not object to present pro- ceeding-Unit Appropriate for Collective Bargaining : production and main- tenance employees , excluding supervisory and clerical employees ; agreement as to-Representative : eligibility to participate in choice : persons on seniority list but not on current pay roll ineligible , remote probability of return to work ; present employees hired in violation of alleged contract with Union : eligible since presently employed ; conflicting evidence concerning existence of contract; no necessity of deciding conflict ; proof of choice : disagreement, as to : agree- ment among employees whereby employees agreed to remain members of Union or terminate employment with Company, cards previously signed and indicating desire not to be represented by Union; evidence presented does not warrant certification upon the record-Election Ordered : conduct of ; Union's request for delay where no unfair practice charges pending , leave given to request that election not be held in which event petition to be dismissed ; desirability of posting notice which Company agreed to post. Mr. Frederick P. Mett and Mr. Jacob I. Karro, for the Board. Jeffris, Mouat, Oestreich, Wood and Cunningham, by Mr. P. J. E. Wood, Mr. O. A. Oestreich, and Mr. Hiram M. Nowlan, of Janes- ville, Wis., for the Company. Mr. Max E. Geline, of Milwaukee, Wis., for the Union. Mr. Louis A. Roland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On July 6, 1939, Textile Workers Union of America, affiliated with Congress of Industrial Organizations, herein called the Union, filed with the Regional Director for the Twelfth Region (Milwaukee, Wisconsin) a petition and on October 25, 1939, an amended peti- 18 N. L. R. B., No. 96. 828 ROOK RIVER WOOLEN MILLS 829 tion,l both petitions alleging that a question affecting commerce had arisen. concerning the representation of employees of Rock River Woolen Mills, Janesville, Wisconsin, herein called the Company, and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 16, 1939, the National Labor Relations Board, herein called the Board,2 acting pursuant to Sec- tion 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 25, 1939, the Regional Director issued a notice of hearing and on November 4, 1939, a notice of postponement of the hearing, copies of which were duly served upon the Company and the Union. Pursuant to. the notices, a hearing was held on Novem- ber 7, 8, and 10, 1939, at Janesville, Wisconsin, before Earl S. Bell- man, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and 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 objec- tions 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. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Rock River Woolen Mills is a Wisconsin corporation, incorporated in 1913, which succeeded to the business of an Illinois corporation of the same name, incorporated in 1905. It is engaged in the manu- facture of woolen cloth at its sole plant and place of business in Janesville, Wisconsin. The principal raw materials used by the Company in its operations are wool, dye stuffs, rayon, cotton, and soaps. All these raw materials, for which the Company annually expends approximately $350,000, are shipped by interstate carriers to the Company from outside the State of Wisconsin. The average annual value of the products manufactured by the Company approxi- mates $750,000, about 95 per cent of which represents finished prod- 1 At the hearing it appeared that Textile Workers Union of America filed the petitions on behalf of its Local 207. 2 Also sometimes referred to as the National Board. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ucts shipped by interstate carriers to points outside the State of Wisconsin. The Company employs approximately 260 production and maintenance employees , including supervisors . It concedes that its business is conducted in interstate commerce. H. THE ORGANIZATION INVOLVED Local 207, Textile Workers Union of America, affiliated with Congress of Industrial Organizations , is a labor organization admit- ting to its membership employees of the Company exclusive of supervisory and office employees. Prior to May 1939, Local 207 was affiliated with Textile Workers Organizing Committee . In that month Textile Workers Organizing Committee was succeeded by Textile Workers Union of America , and thereafter Local 207 became an affiliate of Textile Workers Union of America. Each of the above organizations is herein referred to as the Union. III. THE QUESTION CONCERNING REPRESENTATION On October 5, 1937, the Company and the Union entered into a collective bargaining contract which was to continue from year to year unless terminated by notice given by either party at least 30 days prior to its expiration . The contract recognized the Union as sole bargaining agency for the Company 's employees and required that during the life of the contract existing union members remain members of the Union in good standing , and that all newly hired employees, after a 4-week probationary period, join and thereafter remain members of the Union in good standing . The Company signed the contract after the Wisconsin Labor Relations Board had certified that a majority of the Company's employees had designated the Union as their representative . In June 1938 the contract was amended and extended for another year until July 15, 1939. In March 1939 certain persons brought to the Company cards which purport to have been signed by a majority of its employees and which stated, "We the undersigned representing the majority of the employees of the Rock River Woolen Mills do no longer wish to have the C. I. O. National or local to bargain for said employees." The Company, believing that a majority of its employees had signed these cards, notified the Union on June 8, 1939 , that the exclusive bargaining contract then in effect was terminated as of July 15, 1939, and that the Company desired to cease recognizing the Union as the sole bargaining agent of, its employees. On June 10, 1939, certain of the Company's employees filed with the Wisconsin Em- ployment Relations Board, herein called the Wisconsin Board, a petition requesting an election to determine the representative of the employees for collective bargaining purposes . Thereafter, on ROCK RIVER WOOLEN MILLS 831 July 6, 1939, the Union filed with the National Board its petition for an investigation and certification of representatives, as stated above. On July 15, 1939, union and company representatives entered into a stipulation in order to dispose of the present proceeding and of charges of unfair labor practices against • the Company which the Union had filed with the National Board. It was agreed, inter alia, that the contract between the Company and the Union be extended until October 15, 1939, that a consent election be held prior to October 15, 1939, by the National Board's Regional Director for the Twelfth Region, and that the Union would petition the National Board for permission to withdraw its charges of unfair labor prac- tices. Following this stipulation, the employees who had filed a petition with the Wisconsin Board requested and secured its dis- missal, and on July 28, 1939, the Union requested and secured a withdrawal of its charges of unfair labor practices filed with the National Board. On October 6, 1939, representatives of the Union and the Company met at the National Board's Regional Office in Milwaukee. Details of the consent election were agreed upon by the company and the union representatives present at the conference. However, final agreement by the Union was made contingent upon the approval of an absent national representative of the Union, who thereafter rejected the proposed agreement on the ground that it provided for the election to be held too soon after a purported breach of contract by the Company, the alleged effect of which had been to alienate employees from the Union. For similar reasons the Union, on Octo- ber 9, 1939, requested the National Board for permission to withdraw its petition for investigation and certification of representatives. This request was not granted by the National Board, as appears more fully below. On October 14, 1939, an employee of the Company filed a new petition with the Wisconsin Board requesting an election for the determination of representatives. Prior to the filing of this petition, but after he had been consulted by a Mr. Hook, a Janesville citizen, as to the propriety of filing it, L. E. Gooding, a commissioner of the Wisconsin Board, conferred with the National Board's Regional Director for the Twelfth Region in order to learn whether a pro- ceeding concerning the Company was still pending before the Na- tional Board. Gooding was informed that the Union had requested a withdrawal of its petition filed with the National Board and that the National Board could not compel the Union to comply with the stipulation for a consent election. Mistakenly assuming therefrom that proceedings were no longer pending before the National Board, 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Commissioner Gooding advised Hook that since the matter before the National Board was closed, a petition could be filed with the Wisconsin Board. Subsequently, as stated above, an employee of the Company filed a petition on October 14, 1939, with the Wisconsin Board; on the same day, the Wisconsin Board sent notices of a hearing to be held on October 18, 1939, to interested parties. Mean- while, on October 16, the National Board issued its order directing an investigation and a hearing on the Union's petition. Also, on October 16, the Union wrote to the National Board's Regional Direc- tor for the Twelfth Region requesting the National Board to dis- regard the Union's previous request for a withdrawal of its petition. On October 18, 1939, the scheduled hearing of the Wisconsin Board was held before Commissioner Gooding. The Union appeared specially and objected to any further proceedings by the Wisconsin Board on the ground that a case involving the same issues was then pending before the National Board. Commissioner Gooding decided to proceed with the hearing, however, on the basis of his understand- ing of the information conveyed to him by the National Board's Regional Director. The Union took no further formal part in the Wisconsin Board proceedings, although on October 20, and October 23, it sent letters to the Wisconsin Board stating that the National Board's Regional Director had denied telling Commissioner Gooding that the National Board proceedings were closed, and calling atten- tion to the National Board's order directing an investigation in the case. On October 30, 1939, the Wisconsin Board ordered that an elec- tion be held within 15 days among the production employees of the Company, excluding foremen, assistant foremen, supervisors, and office help, to determine whether or not they desired to be represented for purposes of collective bargaining by the Union. The election was held on November 3, 1939, and of the valid ballots cast, totaling 232, the Union received 103 ballots, or less than a majority. At the hearing in the present case, Commissioner Gooding testified that in his opinion it is the policy of the Wisconsin Board not to pro- ceed with a case if a case involving the same issues is pending before the National Board, that the Wisconsin Board had proceeded with the case involving the Company because of his impression that the Na- tional Board proceedings in the matter had terminated, and that the Wisconsin Board is "absolutely not" in the position of objecting to the present proceeding before the National Board. Similarly, the Company makes no objection to. the present proceeding or to the di- rection of an election by the National Board, desiring only that the question of representation be settled. We find that a question has arisen concerning representation of employees of the Company. RO'GK RIVER WOOLEN MILLS 833 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 obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT Both the Company and the Union are agreed that the employees represented by the Union under its 1937 exclusive bargaining con- tract, namely, all production and maintenance employees, excluding supervisory and clerical employees, constitute an appropriate unit. We see no reason for departing from this unit. We find that all production and maintenance employees of the Company, excluding supervisory and clerical employees, constitute 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. VI. THE DETERMINATION OF REPRESENTATIVES The Union claims to represent it majority of the employees in the appropriate unit. The record shows that from September 24, 1939, to November 4, 1939, there were about 230 employees in the appropriate unit. In support of its claim, the Union introduced in evidence a list of 158 persons presently employed by the Company who, the Union's secretary-treasurer testified, are members of the Union in good stand- ing. In addition, the Union introduced in evidence an agreement, dated October 14, 1939, signed by 122 persons, 116 of whom were em- ployed by the Company on that date and 117 of whom were employed at the time of the hearing, in which they mutually undertook to con- tinue as members in good standing of the Union for 2 years, and voluntarily to terminate their employment with the Company if they failed to remain members in good standing. The Union or its rep- resentative was expressly granted the right to commence a court action to enjoin violation of the agreement. The Company contests the Union's claim of a majority and introduced in support of its position over 170 cards, 134 of which the Company claims were signed in the early months of 1939 by persons who were then employees and who constituted a majority of all persons then employed by the Com- pany, in which the signers, as stated above, signified their desire to be no longer represented in collective bargaining by the Union. Under 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the circumstances, we find that the evidence presented by the Union does not warrant a certification upon the record.3 We shall accord- ingly direct that an election by secret ballot be held to resolve the question concerning representation. The Union requests that in the event the Board directs an election, the list of eligible voters should, in addition to those on a current pay roll, include nine persons on the Company's seniority list who worked during 1939, and should exclude 10 persons who were hired by the Company in alleged violation of a contract with the Union. The Company apparently desires that all employees on a current pay roll, and only these employees, should vote. The record reveals that from July 1938 to January 1939, the Com- pany installed about 40 new automatic looms in its weaving depart- ment which resulted in the displacement of about 65 to 75 employees. The nine employees on the seniority list whom the Union desires to be eligible to vote were laid off in January, April, or June, 1939, due to the installation of new looms, and at the time of the hearing had not been reemployed. Although admitting that these persons would be called back in accordance with their position on the seniority list if work became available, officers of the Company testified that the possibility of their return to work for the Company was quite remote in view of the fact that the Company is operating, with less looms than it previously had, at the peak of its present capacity of production, and that the purchase of additional machinery and consequent expansion in employment could not occur in less than 1 to 2 years. Under the circumstances, we are of the opinion that the nine persons on the seniority list, who worked for the Company during 1939 but who were laid off due to the installation of new machinery, should not be eligible to vote. There is conflicting evidence in the record as to the existence of an oral agreement in 1938 and thereafter between the Company and the Union by which the Company is alleged to have undertaken to give preference in the hiring of any production and maintenance em- ployees to those persons on the seniority list who had been laid off from the weaving department due to the introduction of new machin- ery. In August 1939, the Company hired 10 persons who were not on the seniority list for laborer's work in the finishing department. This action led to a controversy between the Company and the Union which resulted in September 1939 in an agreement, subsequently ad- hered to, that thereafter the Company give preference in all new openings to persons on the seniority list. At the October 6, 1939, con- ference between the Company and union representatives, described above, the Company agreed, without admitting that it had breached 3 See Matter of Armour t Company and United Packinghouse Workers, etc., 13 N. L. R. B. 567. ROOK RIVER WOOLEN MILLS 835 any agreement in hiring the 10 "outside" men, that these men would be discharged and would not be eligible to vote in the proposed con- sent election. Final agreement on the consent election not having been consummated, the 10 "outside" men were not discharged and were still employed by the Company at the time of the hearing. We do not deem it necessary to resolve the contractual dispute here pre- sented. Since these 10 men are in fact presently employed, they will be eligible to vote. We shall therefore direct that those eligible to vote in the election will be the employees in the appropriate unit whose names appear on the pay roll of the Company immediately preceding the date of our Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation, and em- ployees who have since the date of the hearing been temporarily laid off, but excluding employees who have since the aforesaid pay-roll period quit or been discharged for cause. VII. CONDUCT OF THE ELECTION The Union requests that if an election is directed it should be de- layed for from 4 to 6 months in order that the atmosphere unfavor- able to the Union allegedly created by the Wisconsin Board's election and by certain acts of the Company may first be dissipated. No charges of unfair labor practices on the part of the Company are at present pending before the Board. We consequently see no reason for postponing the election. In view of its request for postponement, the Union will be permitted, if it so desires, to file with the Board within 15 days of the date of this Direction of Election a written re- quest that the election not be held. If such request is made, we shall order that the Union's petition for investigation and certification of representatives be dismissed. At the hearing, counsel for the Company stated that in the event that an election was directed the Company had no objection to posting a notice, prior to the election, similar in substance to' the notice to which it agreed at the October 6, 1939, conference with the Union and which it was ordered to post prior to the Wisconsin Board's election. In this notice the Company denied the truth of rumors that it would close its plant if the Union won an election.4 We are of the opinion 4 The terms of the notice , to which the Company agreed at the October 6, 1939, con- ference read as follows : To OUR EMPLOYaSS: Officers of the Company are informed that rumors have been circulated among our employees that the company intends to shut down the plant if the Textile Workers Union of America will win an election held by the National Labor Relations Board. We assure our employees that any such rumors are entirely false and without any foundation whatsoever. We further assure our employees that in the event 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the posting of this notice before the holding of an election in this proceeding would be desirable. CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Rock River Woolen Mills, Janesville, Wis- consin, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All production and maintenance employees of the Company, excluding supervisory and clerical employees, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the 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 Rela- tions Act, 49 Stat. 449, 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 the purposes of collective bargaining with Rock River Woolen Mills, Janesville, Wisconsin, an election by secret ballot shall be conducted after fifteen (15) days, but not later than thirty (30) days, from the date of this Direction of Election, under the direction and supervision of the Regional Director for the Twelfth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees of the Company who were employed during the pay-roll period last pre- ceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation, and employees who have since November 10, 1939, been temporarily laid off, but excluding supervisory and clerical employees, and em- ployees who have since the aforesaid pay-roll period quit or been dis- charged for cause, to determine whether or not they desire to be represented by Local 207, Textile Workers Union of America, affiliated with C. I. 0., for the purposes of collective bargaining. the union wins the election , we will in all respects cooperate in accordance with the Wagner Act. We further assure our employees that the choice of a union to represent them is entirely a matter of their own judgment, and that belonging to a union will in no way injure their present or future standing with the company. ROCK RIVER WOOLEN MILLS. By: _________________________