American Hair & Felt Co.

In the Matter of AMERICAN HAIR & FELT COMPANY and JUTE, HAIR & FELT WORKERS LOCAL #163 (IJNITED FURNITURE WORKERS OF AMERICA, C. I. 0.) Case No. R-1702.-Decided March 13, 1940 Felt Manufacturing Industry-Investigation of Representatives: controversy concerning representation of employees. claim of majority by petitioning union after certification by Board of rival union ; prior certification of rival union and unexpired contract between employer and rival union no bar to existence of question concerning representation : 21 months had elapsed since certification of rival union, 19 months since date of original contract with rival union, and more than a year since execution of extension agreement to expire July 31, 1940; petitioning union introduced proof of designation by majority of employees in appropriate unit-Unit Appropriate for Collective Bargaining: petitioning union and employer agreed to unit consisting of all inside and production employees, including teamsters' helpers, chauffeurs ' helpers, and subforemen and working foremen who do not have supervisory capacity, but excluding company officers, clerical employees, supervisory foremen, teamsters, chauffeurs, and watchmen; requested unit identical with unit found appropriate in previous proceedings, except for exclusion of watchmen ; watchmen did not join either union, and were excluded from coverage of contracts between employer and rival union ; watchmen excluded from unit-Representatives : certification on evidence in record not requested; eligibility to participate in choice: employees on "tem- porary lay-off" list eligible to vote : laid off after acquiring seniority by work- ing at least 6 months and entitled for 3 or 6 months to preference in filling of vacancies during lay-off; "temporary" employees eligible to vote : regular employees who have not worked 6 months and hence not entitled to seniority rights-Election Ordered: rival union which did not participate in hearing may withdraw name from ballot if request made within 5 days from receipt of Direc- tion of Election ; request by employer for postponement of election until expira- tion of contract with rival union, denied. Mr. Richard J. Hickey, for the Board. Pitney, Hardin & Skinner, by Mr. William J. Brennan, Jr., of Newark, N. J., for the Company. Isserman, Isserman cC Kapelsohn, by Mr. Sol D. Kapelsohn, of Newark, N. J., for the C. I. 0. Local. Mr. J. H. Krug, of counsel to the Board. 21 N. L. R. B., No 54. 570 AMERICAN HAIR & FELT COMPANY DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE 571 On November 16, 1939, Jute, Hair & Felt Workers Local #163, United Furniture Workers of America, affiliated with the Congress of Industrial Organizations,' herein 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 con- cerning the representation of employees of American Hair & Felt Company, Newark, New Jersey, herein called the Company, and re- questing 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 December 16, 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 Rela- tions Board Rules and Regulations-Series 2, ordered an investiga- tion and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On December 22, 1939, the Regional Director issued a notice of! hearing; on December 27, 1939, a notice of postponement of the hear- ing; and on December 28, 1939, a notice of continuance of the hearing. On December 29, 1939, the C. I. O. Local refiled its petition. On January 11, 1940, the Regional Director issued a notice of postpone- ment of the hearing, and on January 13, 1940, an amended notice of hearing. Copies of the afore-mentioned notices were duly served upon the Company, upon the C. I. O. Local, and upon Hair, Felt and 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 notices, a hearing was held on January 25, 1940, at Newark, New Jersey, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. The Board, the Company, and the C. I. O. Local were represented by counsel and participated 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 par- i The record shows that this is the correct name of the labor organization , which is designated in the petition as "Jute, Hair & Felt Workers Local #163 ( United Furniture Workers of America, C I 0 ) " Formerly , Upholsterers , Furniture, Carpet, Linoleum and Awning Workers National Union of North America . Copies of the notices were also served upon Upholsterers Inter- national Union of North America, affiliated with the American Federation of Labor. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties. At the close of the hearing the Company moved in the alterna- tive for a dismissal of the proceeding or, in the event that an election should be directed, for postponement of such election until July 31, 1940. The Trial Examiner reserved ruling on the motion. For the reasons stated below the motion is hereby denied. During the course of the hearing the Trial Examiner made several rulings on other motions,and on 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. Briefs were filed by the Company and the C. I. O. Local, and both parties participated in oral argument before the Board on February 16, 1940. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Hair & Felt Company is a Delaware corporation with its principal offices in Chicago, Illinois. It operates two plants in Newark, New Jersey, which are the plants involved in this proceeding, and plants in California, Delaware, Illinois, Kentucky, Massachusetts, Pennsylvania, and Wisconsin. At its Newark plants the Company manufactures Ozite carpet cushions, 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 out- side the State of New Jersey. In 1939 total expenditures of the Company for raw materials amounted to approximately $1,300,000. Sales of the finished products of the Company during the same year amounted to approximately $3,000,000, more than 93 per cent of which were shipped to points outside the State of New Jersey. The Company stipulated that it is engaged in interstate commerce within the meaning of the Act, and consented to the jurisdiction of the Board in this proceeding. II. THE ORGANIZATIONS INVOLVED Jute, Hair & Felt Workers Local #163 is a labor organization, a sub- sidiary of United Furniture Workers of America, affiliated with the Congress of Industrial Organizations. It admits to membership all the employees of the Newark plants of the Company, excluding execu- tives, clerical employees, supervisory foremen, and teamsters. 3 These findings are based on a stipulation of facts. AMERICAN HAIR & FELT COMPANY 573 Hair, Felt and Jute Workers Local #163 is a labor organization, a subsidiary of Upholsterers International Union of North America, affiliated with the American Federation of Labor. It admits to mem- bership all the employees of the Newark plants of the Company, ex- cluding executives, clerical employees, supervisory foremen, and teamsters. III. THE QUESTION CONCERNING REPRESENTATION On May 26, 1938, after a hearing and an election upon the peti- tion 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.' Thereafter, under date of July 29, 1938, the Company and the A. F. of L. Local entered into a written contract, dealing with hours of employment, overtime, vacations, seniority, and grievance procedure, and providing that the parties would negotiate a supplemental agreement with respect to wages. By its terms the contract continued in force until July 31, 1939, and from year to year thereafter, unless either party gave the-other notice of a con- templated change 30 days prior to the end of any 1-year period. On September 12, 1938, the parties entered into a supplemental written contract dealing with wages.. Subsequently, under date of January 25, 1939, the parties entered into a further written contract whereby the existing wage rate was continued until December 31, 1939, and the provisions of the July 1938 contract were extended to July 31, 1940, and thereafter from year to year subject to termination on July 31, 1940, and on any annual date thereafter, by notice given 30 days in advance. In the meantime, between January, 14, 1939, and sometime in Feb- ruary, the C. I. O. Local had circulated a petition among the em- ployees which stated, among other things, that "we do not want our local to be our bargaining agent any more because it has not repre- sented us," and requested the National Labor Relations Board to conduct an election to determine the collective bargaining representa- tive. On March 6, 1939, the C. I. O. Local filed its petition for in- vestigation and certification, and a hearing was held thereon. There- after, on September 22, 1939, the Board issued its Decision and Order dismissing the petition of the C. I. O. Local, without prejudice to its right to renew the petition at a reasonable time before the 4 Matter of Amev lean Hair & Felt Company and Jute, Hair d Felt Workers, Local No. 163, 6 N. L. R. B 648; 7 N. L. R. B. 479. The A. F. of L. Local polled 191 votes to 161 for the 'C. I O. Local. 5 The supplemental wage agreement of September 12, 1938, had increased wages in a few cases, decreased them in others , and, in effect, allowed the Company a net saving of 8 per cent. On December 5, 1938, the Company had increased wages 5 per cent. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expiration of the wage agreement on December 31, 1939." There- upon, the C. I. O. Local sent a letter to the Company, dated Septem- ber 26, 1939, in which it claimed majority representation, and stated its intention of seeking certification prior to December 31, 1939. As stated above, the petition of the C. I. O. Local for investigation and certification was filed on November 16 and refiled on December 29,1939. Under date of December 18, 1939, the Company, with notice of the petition theretofore filed by the C. I. O. Local, entered into a supple- mental agreement with the A. F. of L. Local, providing for a wage in- crease of approximately 5 per cent, effective until July 31, 1940,7 sub- ject, however, to the condition that the specified wage rates should not remain in force in the event the Board should certify a labor organi- zation other than the A. F. of L. Local prior to July 31, 1940. As we have stated above, the C. I. O.'Local under date of September 26, 1939, notified the Company that it claimed majority representation and would seek certification in accordance with the Decision and Order issued on September 22, 1939. Between September 30 and October 27, 1939, the C. I. O. Local circulated among the Company's employees a statement which declared that the signers designated the C. I. O. Local as their bargaining agent and desired that the Board certify the C. 1. 0. Local as such, with or without an election. The statement, signed by 172 of the 310 employees in the unit we find below to be appropriate for the purposes of collective bargaining,8 was introduced at the hearing. The A. F. of L. Local did not participate in the hearing, but appeared specially to urge that the petition be dismissed on the ground that the continuation of the proceedings would promote discord and endanger its contracts. We find no merit in this contention, nor in the argument advanced by the Company that the existence of a question concerning representation should be held to be precluded by the unexpired con- tract dated January 25, 1939. It is now 21 months since our certifica- tion, 19 months since the signing of the original A. F. of L. Local con- tract, and more than a year since the date of the extension agreement of January 25, 1939.9 In addition, as stated above, the C. I. O. Local 6Matter of American Haw' & Felt Company and Jute, Hair & Felt Workers Local x$168 (United Furniture Workers of America, CIO), 15 N L. R B 572 7 The agreement recites that the Company has been informed by the Regional Director of the filing of the petition by the C I 0. Local 8 The figure of 310 employees is based upon the Company 's pay roll of January 20, 1940, which was introduced in evidence . The Company did not challenge the authenticity of the signatures to the statement Of the 172 signatures , 159 were identified by individuals who witnessed them ; 3 were the signatures of employees who witnessed and identified other signatures ; and 10 were signatures which were witnessed by an individual who died prior to the hearing 9 The wage agreement of December 18, 1939 , does not affect the existence of a question concerning representation , since it was entered into after the Company had received notice of the claim of the C. I . 0 Local to majority representation and of the filing of the petition AMERICAN HAIR & FELT COMPANY 575 introduced unchallenged documentary evidence that a majority of the employees within the appropriate unit wish to be represented by the C. I. 0. Local for the purposes of collective bargaining. Under all the circumstances, we find that a question exists concerning the repre- sentation of the Company's employees. 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 The C. I. 0. Local and the Company stipulated that the appropriate unit should consist of all inside and production workers employed at the Newark plants of the Company, including teamsters' and chauf- feurs' helpers, and subforemen and working foremen who do not have supervisory capacity, but excluding Company officers, clerical employees, supervisory foremen, teamsters and chauffeurs, and watch- men. Except for the exclusion of the watchmen, the requested unit is identical 10 with the unit we found appropriate in the two previous cases involving the Newark plants of the Company.'1 The Company employs four watchmen at the Newark plants. In the first case before the Board involving the Newark plants the watch- men were included in the bargaining unit over the objection of the Company, primarily because both the C. I. 0. Local and the A. F. of L. Local desired their inclusion. In the second case they were in- cluded by stipulation of all parties. As we have stated above both the Company and the C. I. 0. Local now desire the exclusion of the watchmen. The record supports their request. It appears that none of the watchmen became members of either the A. F. of L. Local or the C. I. 0. Local; and they were specifically excluded from the coverage of the various contracts entered into between the Company and the A. F. of L. Local. Under these circumstances we shall exclude the watchmen from the appropriate unit. We find that all inside and production employees of the Company at its Newark plants, including teamsters' helpers, chauffeurs' helpers, 16 The record shows that this was the intention of the parties although the phraseology differs somewhat from that in the previous cases. 12 See footnotes 4 and 6, supra 5576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and subforemen and working foremen who do not have supervisory capacity, but excluding Company officers, clerical employees, super- visory foremen, teamsters and chauffeurs, and watchmen, 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 other- wise effectuate the policies of the Act .1-2 VI. THE DETERMINATION OF REPRESENTATIVES Under the circumstances set forth in Section III above, we find that the question concerning representation which has arisen can best be resolved by holding an election by secret ballot." The C. I. O. Local and the Company stipulated that employees on the "temporary lay-off" list should be eligible to vote. When an em- ployee who has acquired seniority status by working for at least- 6 months, is laid off, he is placed on the "temporary lay-off" list for a period of 3 months, and if he applies for work during this period, he is retained on the list,for an additional 3 months' period. An employee whose name is on the list is entitled to preference in the filling of any vacancy in his department or category of work. We find that employees on the "temporary lay-off" list should be eligible to vote in the election which we are directing. The C. I. O. Local and the Company further stipulated that so- called "temporary" employees 14 should be ineligible to vote. These are regular employees and are distinguished from other employees only by the fact that they have worked less than 6 months and there- fore have not acquired seniority status by the terms of the Company's contracts with the A. F. of L. Local. Indeed, except in respect of seniority rights these "temporary" employees appear to be dealt with in such contracts on the same basis as other employees. Moreover, the statement circulated by the C. I. O. Local in September and October 1939 includes the signatures of 19 of the 39 employees whose names appear on the Company's pay roll of January 20, 1940, as "temporary" employees.- We are of the opinion, upon these facts, that the "tem- "The unit as thus defined includes "temporary" employees as well as employees on the "temporary lay-off" list. See Section VI and footnote 16, infra. ' The C. I. O. Local does not ask for certification on the basis of the evidence which it introduced at the hearing. 14 At the hearing counsel for the Company stated that on the dates of the hearings in the two previous proceedings there were no "temporary" employees on the pay roll. 11 As of January 20, 1940, 25 of the 39 had been employed by the Company for 3 months or more AMERICAN HAIR & FELT COMPANY 577 porary" employees should be eligible to vote in the election which we shall direct.1e The Company urges that no election be held until July 31, 1940, the earliest date upon which the A. F. of L. Local contract dealing with hours of employment, overtime, vacations, seniority, and grievance procedure, may, by its terms, be terminated. In support of its view, the Company suggests that a change in the collective bargaining agent prior to that date may result in demands upon the Company for modi- fication of the existing contract, and that the denial of such demands may precipitate a strike. Without passing upon the status of the contract in the event of a change of bargaining representative, we do not believe that the choice of representatives should be deferred upon such speculation. The C. I. 0. Local does not object to the inclusion of the A. F. of L. Local on the ballot and the Company urges that the A. F. of L. Local be included in the ballot unless it should hereafter ask that its name be excluded. We shall order the inclusion of the A. F. of L. Local on the ballot in view of the prior certification and the existence of its contract with the Company. We shall, however, permit the A. F. of L. Local to withdraw its name from the ballot by written request made to the Regional Director within 5 days from the receipt of the Direction of Election. The C. I. 0. Local requests that eligibility to vote be determined by the Company's pay roll next preceding the date of the Board's Direction of Election. The Company has agreed to furnish a copy of such pay roll, although not conceding the propriety of holding an elec- tion at the present time. In accordance with our usual practice, we shall direct that eligibility to vote shall be determined with reference to the pay-roll period last preceding the date of our Direction of Election. 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 American Hair & Felt Company, Newark, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The inside and production employees of the Company at its Newark plants, including "temporary" employees, employees on the 19 Earlier in the hearing the C. I. 0 Local and the Company stated that they wished to exclude "temporary" employees "from the unit " The record indicates that this phrase- ology was inadvertent, and that the parties were concerned only aaith the issue of eligibility to vote In any event, for the reasons stated in the text with reference to eligibility, we would find that the "temporary" employees should be included in the appropriate unit. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "temporary lay-off" list, teamsters' helpers, chauffeurs' helpers, and subforemen and working foremen who do not have supervisory ca- pacity, but excluding Company officers , clerical employees , supervisory foremen, teamsters and chauffeurs, and watchmen, constitute a unit appropriate 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 Re- lations Act, 49 Stat. 449 , and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with American Hair & Felt Company, Newark, New Jersey, an elec- tion by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction of Elec- tion, under the direction and supervision of the Regional Director for the Second 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 the inside and production employees of American Hair & Felt Company at its Newark plants , who were employed by the Company during the pay-roll period last preceding the date of this Direction, including employees who did not work during such pay-roll period because they were ill or on vacation or who were then or have since been temporarily laid off , "temporary" employees, employees on the "temporary lay-off " list, teamsters' help- ers, chauffeurs' helpers, and subforemen and working foremen who do not have supervisory capacity, but excluding Company officers, clerical employees, supervisory foremen, teamsters and chauffeurs, watchmen, and any employees who between such pay-roll date and the date of the election have quit or been discharged for cause, to determine whether they desire to be represented by Jute, Hair & Felt Workers Local #163 , United Furniture Workers of America, affili- ated with the Congress of Industrial Organizations , or by Hair, Felt and Jute Workers Local #163, Upholsterers International Union of North America, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. AMERICAN HAIR & FELT COMPANY [SADME TITLE AMENDMENT TO DIRECTION OF ELECTION March 21, 1940 579 On March 13, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding, the election to be held as early as possible, but not later than thirty (30) days from the date of the Direction. The Board, having been advised by Hair, Felt and Jute Workers Local #163, Upholsterers International Union of North America, affiliated with the American Federation of Labor, that it does not desire to participate in the election, hereby amends its Direction of Election by striking therefrom the words "whether they desire to be represented by Jute, Hair & Felt Workers Local #163, United Fur- niture Workers of America, affiliated with the Congress of Industrial Organizations, or by Hair, Felt and Jute Workers Local #163, Up- holsterers International Union of North America, affiliated with the American Federation of Labor, for the purposes of collective bar- gaining, or by neither," and substituting therefor the words "whether or not they desire to be represented by Jute, Hair & Felt Workers Local #163, United Furniture Workers of America, affiliated with the Congress of Industrial Organizations, for the purposes of col- lective bargaining." 21 N. L. R. B., No. 54a.