Bon Ton Curtain Co.

.In the Matter of BON TON CURTAIN COMPANY and AMERICAN FEDERATION OF LABOR, FEDERAL UNION Case No. R-1675.Decided February 16, 1940 Curtain Manufacturing Indastrg Investigation of Representatives: petition for, dismissed without prejudice where contract granting exclusive recognition to one labor organization as collective bargaining representative was validly entered into before the petitioning labor organization made any claim to rep- resentation and only two weeks prior to the filing of the petition ; no contro- versy concerning representation-Contract: effect of postdated-Unit Appro- priate for Collective Bargaining: as covered by contract found appropriate under circumstances of case ; finding will not preclude reexamination by Board in future in proper proceeding of matter. Mr. Edward Schneider, for the Board. Mr. Samatel M. Lewis, of Boston, Mass., for the Company. Mr. John J. Murphy and Mr. Aaron Vellenaan, of Boston, Mass., for the Federal Union. Mr. George E. Roewer, of Boston, Mass. , for the Amalgamated. Mr. Arnold R. Cutler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On November 2, 1939, Curtain Workers Federal Labor Union No. 22211, herein called the Federal Union , filed with the Regional Di- rector for the First Region (Boston, Massachusetts ) a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of Bon Ton Curtain Company, Jamaica Plains,. Massachusetts , herein called the Company , and requesting an investigation and certification of representatives pursuant to Sec- tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 5, 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 2, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 20 N. L. R. B., No. 48. 462 B'ON TON CURTAIN COMPANY 463 On December 20, 1939, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, upon the Federal Union, and upon Amalgamated Clothing Workers of America, herein called the Amalgamated, a labor organization claim- ing to represent employees directly affected by the investigation. Pursuant to the notice, and notice of postponement duly served upon the parties, a hearing was held on January 4, 5, and 6, 1940, at Boston, Massachusetts, before Peter F. Ward, the Trial Examiner duly desig- nated by the Board. The Board, the Company, the Federal Union, and the Amalgamated were represented by counsel or their represent- atives and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence 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 evidence. On Jan- nary 11, 1940, the Federal Union submitted a brief in support of its position: On February 5, 1940, the Amalgamated similarly sub- mitted a brief. 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 FAUr 1. THE BUSINESS OF THE COMPANY The Company is a Massachusetts corporation with its principal place of business and manufacturing plant located at Jamaica Plains, Massachusetts. It is engaged in the manufacture, sale, and distribu- tion of curtains and draperies. The raw materials used by the Com- pany in the regular course of manufacture at the plant are cotton and rayon cloth. It purchases annually approximately $600,000 worth of such raw materials, of which about 90 per cent are shipped to its plant from points outside the Commonwealth of Massachusetts. It manufactures annually approximately $750,000 worth of finished products, of which about 80 per cent are shipped from the plant to points outside the Commonwealth of Massachusetts. II. THE ORGANIZATIONS INVOLVED Curtain Workers Federal Labor Union No. 22211 is a labor organi- zation affiliated with the American Federation of Labor, admitting to its membership all production and maintenance employees of the Company, including shippers, packers, and cutters, but excluding managerial and office employees. Amalgamated Clothing Workers of America is a labor organiza- tion affiliated with the Congress of Industrial Organizations, admit 464 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD ting to its membership all employees of the Company exclusive of supervisors, office and clerical employees, salesmen, shippers, packers, male cutters, and maintenance employees. III. TIIE QUESTION CONCERNING REPRESENTATION On October 18, 1939, the Company and the Amalgamated executed a collective agreement extending recognition to the Amalgamated as the exclusive bargaining representative of all the Company's employees, excluding supervisors, office and clerical employees, sales- men, shippers, packers, male cutters, and maintenance employees, and providing for wages, hours of service, and other working con- ditions of employees within this unit. The agreement provided that it should remain in force and effect until December 1, 1940, and from year to year thereafter unless either party gave the other certain written notice 30 days prior to the expiration date. The agreement was dated November 2, 1939, for various business reasons, and the extrinsic proof shows that it was the intent of the parties that the substantive terms of the contract be not effective until that day. The unit covered by the contract, as hereinafter found, was appro- priate for purposes of collective bargaining, and at the time the contract was executed a majority of the employees in such unit had selected and designated the Amalgamated as their bargaining representative.' On October 30 and November 1, 1939, after the agreement was executed, a number of the employees within the unit who previously had designated the Amalgamated as their collective bargaining rep- resentative, and others who had not done so, signed cards authorizing the Federal Union to act as their bargaining representative .2 oil 1 Between July 15 and October 18, 1939, both inclusive , the Company employed a total of 150 to 181 employees as follows : 128 to 153 production employees , 6 to 7 shippers, 4 to 5 packers , 2 maintenance employees, 7 to 9 clerical employees , 1 to 2 salesmen , and 2 to 3 supervisors. At the hearing it was stipulated by and between the Federal Union , the Amalgamated, the Company , and counsel for the Board that on July 24, 1939, 94 persons employed by the Company as production workers during the pay-roll week of July 29, 1939, had signed cards, in the possession of the Amalgamated , designating the Amalgamated as their col- lective bargaining •. representativ.Q; that ' tbe Amalgamated had the same 94 cards in its possession at the time that the contract was executed on October 18, 1939 ; and that the 94 persons who signed the cards were still employed by the Company at the time of the hearing. 2 As of November 1, 1939 , the Company employed a total of approximately 161 employees as follows : 139 production employees, 5 shippers , 4 packers, 2 maintenance employees, 7 clerical employees, 2 salesmen, and 2 supervisors. At the hearing it was stipulated by and between'the parties that the Federal Union had in Its possession 104 cards dated either October 30 or November 1, 1939 , signed by persons employed by the Company as production employees , maintenance employees , packers, and shippers , authorizing that Union to act as bargaining representative of the signers. It was further stipulated that of the. 104 persons who signed the cards , 25 were newly= employed during a strike called by the Amalgamated on August 1, 1939 , and terminated by it on September 15, 1939 . At the time of the hearing only 10 of the 25 persons were still employed' by:,tbe Company. BON TON CURTAIN COMPANY. 465 November 1, 1939, the organizer of the Federal Union telephoned the Company, stated that the Federal Union represented a majority of the Company's employees for purposes of collective bargaining, and requested the Company not to execute a collective contract with the kmalgamated. The organizer was uncertain whether any such contract had been signed. The Company, through its president, replied that the contract with the Amalgamated had already been executed and refused to meet with the Federal Union as the bar- gaining representative of its employees. As noted above, on Novem- ber 2, 1939, the Federal Union filed its petition herein.. The contract granting exclusive recognition to the Amalgamated as collective bargaining representative was validly entered into before the Federal Union made any claim to representation and only two weeks prior to the filing of the petition herein. In view of the brief period intervening between the making of the contract and the filing of the petition, and the consequent short duration of labor relations under the contract, we are of the opinion that as a matter of policy under the Act, the Board should not proceed at this time with an investigation and certification of representatives, and accord- ingly the petition for investigation and certification of representa- tives should be dismissed without prejudice. The fact that the con- tract was postdated is of no relevance to the question of dismissal here raised. IV. THE APPROPRIATE UNIT The Amalgamated contends that the bargaining unit covered by the contract dated November 2, 1939, is an appropriate unit for col- lective bargaining. The Federal Union contends that such unit is inappropriate, for failure to include shippers, packers, male cutters, and maintenance employees. The employees within the unit covered by the contract numbered 139 at the time of the hearing. The em- ployees whom the Federal Union claims were improperly excluded numbered 15 at that time. Under varying circumstances each of the units contended for by the labor organizations might be appropriate. Under the circumstances of this case, the Company and the Amalgamated may reasonably have assumed, at the time they contracted, that a unit consisting of the employees specified in the contract was appropriate. Under these circumstances we find that the unit covered by the contract was ap- propriate.3 However, our finding in this regard shall not preclude a reexamination by the Board in the future in a proper proceeding of the matter of the appropriate bargaining unit. Cf. Matter of Oppenheimer Casintl Company, a Corporation and United Packinghouse Workers of America, Local No. 75, Through Packinghouse Workers Organizing Committee, Affiliated with the Congress of Industrial Organizations, 13 N. L. R. B. 500. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We, therefore, find that at the time the contract of November 2, 1939, was executed, and at the present, all the employees of the Company, excluding supervisors, office and clerical employees, salesmen, shippers, packers, male cutters, and maintenance employees, constituted and constitute a unit appropriate for the purposes of collective bargaining and that said unit insured and insures to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. Upon the basis of 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 of Bon Ton Curtain Company, Jamaica Plains, Massachusetts, now exists, within the meaning of Section 9 (c) of the National Labor Relations Act. ORDER Upon the basis of the above findings of fact and upon the entire law, the National Labor Relations Board hereby dismisses the peti- tion for investigation and certification of representatives filed herein by Curtain Workers Federal Labor Union No. 22211, without prejudice.