Utica Knitting Co.

In the Matter of UTICA KNITTING COMPANY and TEXTILE WORKERS FEDERAL , LABOR UNION #21500, A. F. OF L. Case No. R-1716.-Decided April V, 1940 Knitwear Manufacturing Industry-Investigation of Representatives: contro- versy concerning representation of employees : on September 24, 1938, T. W. U. A. certified by Board as exclusive representative of the employees after an election in which T. W. U. A. and Local 21500 appeared on ballot ; on November 2, 1938, Company and T. W. U. A. entered into an exclusive preferential-hiring contract to remain in effect until December 1, 11)30, and thereafter from year to year unless notice of desire to change or terminate given by either contracting party 60 days prior to the yearly expiration pariod; contract provided for discipline by Company of members of T. W U. A for failure to pay dues or other obliga- tions ; during August or September 1939 Local 21500 informed Company orally that it claimed to represent a majority; September 30, 1939, last day on which, requisite notice to prevent automatic renewal of contract could be given ; no, notice given by either party ; on October 24, 1939, Local 21500 wrote Company 'Maiming a majority and asking that the contract not be renewed ; on November 1, 1939, Local 21500 filed the petition herein; Local 21500 showed that between July and October 1939, 125 employees had signed "negative" cards protesting being represented by T. W. U. A., 77 employees had signed "negative" cards ancc applications for membership in Local 21500, 13 employees had signed applications, for membership in Local 21500, and 15 employees, although members of Local) 21500, could see no need for signing either type of card; T. W. U. A. claimed 262 dues-paying members in January 1940 of the 450 employees in twit-Contract: no bar to investigation: divergent views of Board members: (1) (Smith) al- though in general has grave doubt as to wisdom of relying on such evidence as "negative" cards in absence of adequate explanation accounting for the use of such a device, those cards plus the further showing of affirmative designa- tion of Local 21500 by a substantial number of employees are suf -Rent to warrant a new determination of representatives in view of the fact that under the contract members of T. W. U. A. were subject to discipline by the Company for failure to pay dues or obligations to T W U. A, all newly hired employees were required to become members of T. W. U. A., and more than a year had, elapsed since the certification of T. W. U. A. by the Board; (2) (Leiserson, con- curring) real dispute as to representation exists on the facts of case; (3) (Ma& den, dissenting) In the interest of the stability of collective bargaining agreements the Board should not at this time make a new determination of representatives where as here, (1) only an oral claim of majority had been presented to the Com- pany by Local 21500 prior to the renewal date of the contract; (2) it was not until: after the contract had been renewed that Local 21500 filed its petition; and (3) the showing of representation by Local 21500 does not create a substantial) doubt concerning T. W. U. A's majority at the time contract was renewed- Unit Appropriate for Collective Bargaining: production and maintenance em' ployees, excluding clerical and supervisory employees; stipulation as to-Electioas Ordered 23 N L. R B. No. 4. 55 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Albert P. Wheatley and Mr. John C. McRee, for the Board. Mr. R. E. Jones, of Anniston, Ala., for the Company. Mr. S. E. Roper, of Birmingham, Ala., Mr. C. M. Fox, and Mr. Her- bert Thatcher, of Washington, D. C., for Local 21500. Mr. R. H. Brazzell, of Nashville, Tenn., and Mr. Isadore Katz, of New York City, for the T. W. U. A. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 1, 1939, Textile Workers Federal Labor Union _#21500, herein called Local 21500, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Utica Knitting Company, Anniston, Alabama, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 22, 1940, 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 authorized the Regional Director to con- duct it and to provide for an appropriate hearing upon due notice. On January 28, 1940, Local 21500 filed an amended petition with the Regional Director. On January 29, 1940, the Regional Director issued,a notice of hear- ing, copies of which were duly served upon the Company, Local 21500, and upon Textile Workers Union of America, herein called the T. W. U. A., a labor organization claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hear- ing was held on February 8, 1940, at Anniston, Alabama, before Albert L. Lohm, the Trial Examiner duly designated by the Board. The Board, the Company, Local 21500, and the T. W. U. A. were repre- sented 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 parties. At the commencement of the hearing, the T. W. U. A. filed a motion to intervene in the proceedings, and Local 21500 moved to amend its amended petition. The motions were granted. At the commencement of and during the hearing, counsel for the T. W. U. A. moved to dis- miss the amended petition. The Trial Examiner reserved ruling UTICA KNITTING COMPANY 57 thereon. The motions are hereby denied . At the hearing the Trial Examiner excluded membership cards and other evidence as to rep- resentation offered by Local 21500 . The Board finds that this ruling was erroneous . The ruling is hereby reversed and Rejected Peti- tioner's Exhibits Nos. 1-A 1 to 1-A 94 and 1-B are hereby incorpo- rated into and made part of the record . 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 re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. On February 13, 1940, the T. W. U. A. requested oral argument before the Board. On February 23, 1940, the T. W. U. A. filed a brief. Pursuant to notice duly served upon all the parties , a hearing for the purpose of oral argument was held before the Board on Febru- ary 29, 1940, at Washington , D. C. The T. W. U. A. and Local 21500 were represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Utica Knitting Company is a New York corporation operating nine mills; eight located in the State of New York and the ninth at Annis- ton, Alabama. The plants are engaged in the manufacture, sale, and distribution of knit underwear and knit outerwear, such as sweaters and bathing suits. In 1939 the Company produced 4 per cent of all the knitwear goods produced in the United States. This proceeding is concerned solely with the employees of the Anniston mill. It normally employs about 500 workers. In 1939 it produced approximately 215,000 dozen garments of the value oii ap- proximately $650,000. These operations involved the use of approxi- mately 1,300 000 pounds of yarn, 75 per cent of which came from outside the State of Alabama. Ninety-five per cent of the goods pro- duced in the Anniston plant are sold and distributed outside the State of Alabama. II. THE ORGANIZATIONS INVOLVED Textile Workers Federal Labor Union #21500 is a labor organiza- tion affiliated with the American Federation of Labor. It admits to membership the employees of the Company at its Anniston mill, excluding clerical and supervisory employees. Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations. It admits to mem- bership employees of the Company at its Anniston mill, excluding clerical and supervisory employees. Z8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTION CONCERNING REPRESENTATION On October 1, 1937, the Company and the T. W. U. A. executed a collective agreement for a period of one year. By the terms of the contract the Company recognized the T. W. U. A. as exclusive representative of the employees at the Anniston mill. On September 24, 1938, the Board certified the T. W. U. A. as ex- clusive representative of these employees after an election in which the T. W. U. A. and Local 21500 appeared on the ballot. The T. W. U. A. polled 249 votes to 199 votes for Local 21500.1 On November 2, 1938, the Company and the T. W. U. A. entered into a further collective agreement. By its terms, the Company agreed to recognize the T. W. U. A. as exclusive representative of the Anniston mill employees, prefer members of the T. W. U. A. in hiring, and discipline members of the T. W. U. A. for failure to pay dues or other obligations. The contract was to remain in effect until December 1, 1939, and thereafter from year to year unless either party thereto by 60 days' notice prior to the expiration of any year period advised the other of a desire to change or terminate it. During August or September 1939 Local 21500 informed the Com- pany orally that it claimed a majority. September 30, 1939, was the last day on which the Company or the T. W. U. A. could give the other the requisite notice for prevent- ing the automatic renewal of their contract. Neither party gave the required notice. On October 24, 1939, Local 21500 wrote to the Company, claiming to represent a majority and requesting that the existing contract be not extended pending a decision by the Board on a petition to be filed by Local 21500. The Company informed Local 21500 that the contract had renewed itself automatically on October 1, 1939, to last until December 1940. It likewise so informed its employees. The T. W. U. A. takes the view that there can be no question con- cerning representation during the life of the renewed contract. Local 21500 insists that the contract is no bar to an immediate election because there is a substantial doubt as to whether the T. W. U. A. represented a majority of the employees at the time of the renewal ,of the agreement. For reasons hereinafter stated in the separate opinions of Mr. Smith and Mr. Leiserson, a majority of the Board finds that a ques- tion concerning representation of employees of the Company has arisen. ' Matter of Utica Knitting Company and American Federation of Labor, Local 21500, 8 N L. R. B. 783 UTICA KNITTING COMPANY 59 IV. THE EFFECT OF 7HE 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 Company, Local 21500, and the T. W. U. A. agreed at the hearing that the appropriate unit should consist of all production and maintenance employees at the Company's Anniston plant, excluding supervisory and clerical employees. We see no reason for departing from such unit. We find that all the production and maintenance employees at the Company's Anniston plant, excluding supervisory and clerical em- ployees, 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 There are approximately 450 employees in the appropriate unit. Local 21500 showed that between July and October 1939, (1) 125 employees had signed so-called "negative" cards protesting being represented by the T. W. U. A.; (2) 77 employees had signed "nega- tive" cards and applications for membership in Local 21500; (3) 13 employees had signed applications for membership in Local 21500; and (4) 15 employees, although members of Local 21500, could see no need for signing either type of card. The treasurer of the T. W. U. A. testified from the books of the T. W. U. A. that it had 262 dues-paying members in January 1940. We find that the question concerning representation can be best re- solved by means of an election by secret ballot. Those eligible to vote in the election shall be employees in the appropriate unit who were employed by the Company during the pay-roll period 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 employees who were then or have since been temporarily laid off, but excluding those employees who have since quit or been discharged for cause. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Utica Knitting Company, at its Anniston, Alabama, plant, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production and maintenance employees at the Com- pany's Anniston plant, excluding supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the National Labor Relations 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, 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 Utica Knitting Company, at its Anniston, Alabama, plant, 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, under the direction and supervision of the Regional Director for the Tenth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all production and maintenance employees at the Company's Anniston plant, who were employed during the pay- roll period next preceding the date of this Direction, 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 they desire to be represented by Textile Workers Federal Labor Union #21500, affiliated with the American Federation of Labor, or by Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, for the pur- poses of collective bargaining, or by neither. MR. EDWIN S. SMITH, concurring : I have grave doubts as to the significance of the so-called "nega- tive" cards and question seriously the wisdom of relying upon them UTICA KNITTING' COMPANY 61 as affording sufficient ground for making a new determination of representatives, in the absence of factors which adequately account for workers expressing their desires in this negative way. To give unqualified sanction to such a departure from the normal and cus- tomary practice of unions in securing designations carries implica- tions at variance with the policies of the Act, for it would tend to encourage a rival union to seek to destroy the majority representa- tion of an established bargaining representative, without itself being designated as such representative, thereby possibly severing the col- lective bargaining process altogether.2 I am of the opinion, however, that with the further showing made by Local 21500 that it had been designated as bargaining representa- tive by 105 employees, there is sufficient to warrant our making a new determination of representatives under the circumstances of this case, in view of the fact that under both the original and the renewed agreement members of the T. W. U. A. were subject to discipline by the Company for failure to pay dues or other obligations and all newly hired employees were required to become members of the T. W. U. A. The automatic renewal of the agreement on September 30, 1939, should not bar a determination of representatives at this time, even though the T. W. U. A. may have had a majority when the contract was renewed. The T. W. U. A. has functioned as ex- clusive bargaining representative for more than a. year and I believe the purposes of the Act will best be effectuated by now giving the employees a chance to change representatives if they so desire.-' 2 In a previous case presenting a comparable situation, I held in a dissenting opinion that cards of a similar character were sufficient to create a doubt as to the majority repre- sentation of the contracting union at the time the contract in that case was extended. Matter of Ameican Hair & Felt Company and Jute, Hair, and Felt Workers Local #163 (United Furniture Workers of America , C. 1 0 ), 15 N L R. B 572 Further considera- tion of the matter, however , has led me to modify the view there expressed It may be noted that at the oral argument counsel for Local 21500 , while contendin g that the "nega- tive" cards were sufficient in the instant case, expressed doubt concerning the device of "negate--e' cards as mans of obtaining a new determination of representatives 3 See my dissenting opinions in Matter of Aineiican Hair if Felt Company and Jute, Hair, and Felt Work ers, Local #163 (United Furniture Workers of America, C 1 0 ), 15 N L. R. B 572, and Matter of The National' Sugar Refining Company of New Jersey, L I City Refinery and Local 1 ;,6, Sugar Refinery Workers, International Longshoremen's Ass'n, 10'N L R B. 1410. As to the effect of selection by the employees of a new statutory representative on an outstandin g collective agreement , I said in Matter of Pacific Greyhound Lines and Brother- hood of Railroad Trainmen, 22 N. L. R B 111. I am of the opinion that the selection by employees of a new statutory representa- tive and the certification of that representative in proceedings under Section 9 (c) result merely in the termination by operation of law of the outstanding collective con- tract or its terms where they conflict with action by the certified representative as representative , and not in a termination of all substantive terms of the contract other- wise valid. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. WILLIAM M. LEISERSON , concurring: It is clear that there is a real dispute as to representation here, and I am of the opinion that it is the duty of the Board to direct an election so that the dispute may be settled in accordance with the provisions of the Act. CHAIRMAN MADDEN, dissenting : Although Local 21500 appears to have been cognizant of the renewal clause in the contract, the only step taken by it prior to September 30 was to make to the Company an oral claim to represent a majority of the employees.' It was not until after the contract had been renewed that Local 21500 on October 24 informed the Company that it intended to file a petition and requested the Company not to renew the contract. On November 1 the petition was filed. In view of the fact that prior to the renewal date of the contract only an oral claim of majority, without more, had been presented to the Company by Local 21500, that it was not until after the contract had been re- newed that a petition was filed, and that the showing of representa- tion made by Local 21500 does not create a substantial doubt con- cerning the T. W. U. A.'s majority at the time the contract was renewed, I am of the opinion that as a matter of policy under the Act and in the interest of the stability of collective bargaining agreements the Board should not, in the circumstances here presented, make a new determination of representatives at this time 5 * Cf Matter of Colonial Fibre Company, Inc. and Cohoes Knit Goods Workers Union No. 2151 1j, A F. of L, 0 N. L R B 658. r, Matter of Bon Ton Curtain Company and American Federation of Labor, Federal Union, 20 N . L B B 462, Matter of American Hair it Felt Company and Jute, Hair, and Felt Workers Local #163 ( United Furniture Workers of America, C 1. 0.), 15 N L. R. B 572 ; Matter of The Nat .onal Sugar Refining Company of New Jersey , L. I. City Re- finery and Local 1)76, Sugar Refinery Wor/,e,s, International Longshoremen's Ass'n., 10 N. L R. B. 1410.