American Bemberg Corp.

In the Matter of AMERICAN BEMBERG CORPORATION, NORTH AMERICAN RAYON CORPORATION and TEXTILE WORKERS UNION No. 21999, AFFHd- ATED WITH THE A. F. OF L. Case ?Vo. R-1714-Decided May 7,1940 Rayon Manufacturing Industry-Investigation of Representatives : controversy concerning representation of employees : rival organizations ; refusal by com- panies to recognize petitioning union pending Board's certification , because of contract with competing union ; designation of petitioning union by approximately 35 per cent of employees of each company ; "certification" of competing union by United States Conciliation Service and contract of indefinite duration , both in operation for more than a year, no bar to investigation of representatives ; amend- ment to contract made after petition filed, no bar to investigation-Unit Appro- priate for Collective Bargaining : all hourly paid, non-supervisory employees of two companies ; separate units for employees of each company found inappro- priate ; close interrelationship between companies in ownership, management, and operation ; joint departments and facilities ; joint employees ; interchange of employees ; history of collective bargaining-Election Ordered Mr. Warren Woods and Mr. Bernard L. Alpert, for the Board. Mr. Charles Wolff, III, of Elizabethton, Tenn., for the Companies. Mr. Gordon L. Chastain, of Spartanburg, S. C., Mr. John W. Pollard, of Elizabethton, Tenn., and Mr. Herbert S. Thatcher, of Washington, D. C., for Local 21999. Mr. Isadore Katz, of New York City, for the T. W. U. A. Miss Edna Loeb, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 13, 1939, Textile Workers Union No. 21999, affiliated with the American Federation of Labor, herein called Local 21999, 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 North American Rayon Corporation, Elizabethton, Tennessee, herein called North American, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On December 9, 1939, the 23 N. L. R. B., No. 51. 623 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board, herein called the Board, acting pur- suant 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 conduct it and to provide for'an appropriate hearing upon due notice. On January 24, 1940, the Regional Director issued a notice of hear- ing, copies of which were duly served upon North American; American Bemberg Corporation, Elizabethton, Tennessee, herein called Bem- berg; Local 21999; and Textile Workers Union of America, herein called the T. W. U. A., and Local Union No. 100, T. W. U. A., labor organizations claiming to represent employees directly affected by the investigation. North American and Bemberg are jointly referred to herein as the Companies. Pursuant to the notice, a hearing was held on February 5, 1940, at Johnson City, Tennessee, before Joseph L. Maguire, the Trial Examiner duly designated by the Board. At the beginning of the hearing, Bemberg and the T. W. U. A. filed motions to intervene which were granted by the Trial Examiner. The Board and the T. W. U. A. were represented by counsel, the Companies and Local 21999 by representatives, and all 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 close of the hearing, counsel for the T. W. U. A. moved to dismiss the petition. The Trial Examiner reserved ruling on the motion. It is hereby overruled. The Board has reviewed the rulings made by the Trial Examiner during the course of the hearing on motions and on objections to the admission of evidence and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On February 16, 1940, Local 21999 filed with the Board a supple- mentary statement regarding the issues of the case, and on the same date the Companies filed a brief, both of which the Board has duly considered. Pursuant to notice duly served on all the parties, a hearing for the purpose of oral argument was held on February 20, 1940, before the Board in Washington, D. C. The Companies appeared by a repre- sentative, Local 21999 and the T. W. U. A. by counsel, and all par- ticipated in the argument. During the course of the hearing, Local 21999 moved to amend its petition to allege that a question affecting commerce had arisen regarding the representation of employees of both Companies as a single unit. The Board, acting pursuant to Article III, Section 10 (a), of Na- tional Labor Relations Board Rules and Regulations-Series 2, as amended, issued an order on February 23, 1940, granting Local 21999 AMERICAN BEMBERG CORPORATION 625 leave to file with the Board an amended petition, and on March 1 and 25, 1940, Local 21999 filed its amended petition. On March 7, 1940, the T. W. U. A. filed objections to the amended petition. On April 5, 1940, the Board issued an order amending the caption of the case to include the names of both Companies, reopening the record, and directing the holding of a further hearing, and also issued a notice of hearing, copies of which were duly served on all the parties. Pursuant to the notice, a hearing was held on April 12, 1940, in Wash- ington, D. C., before Frank Bloom, the Trial Examiner duly desig- nated by the Board. The Board, Local 21999, and the T. W. U. A. were represented by counsel, the Companies by a representative, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. The Board has reviewed the ruling made by the Trial Examiner during the course of the hear- ing on an objection to the admission of evidence and finds that no prejudicial error was committed. The ruling is hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES North American Rayon Corporation and American Bemberg Cor- poration are Delaware corporations with their principal executive offices in New York City. The Companies are closely associated in ownership, management, and operation. They have a number of common officers and directors; their common stock is controlled by substantially the same persons; and they operate under common man- agement their respective manufacturing plants, which are located on adjoining property near Elizabethton, Tennessee. North American is engaged in the manufacture of viscose type rayon, and Bemberg in the manufacture of cuprammonium type rayon. The principal raw and other materials used by the Companies in their manufacturing operations at Elizabethton are chemicals and acids, wood pulp and cotton linters, machinery and supplies. The Companies secure more than 80 per cent of these materials from sources outside Tennessee, and ship more than 80 per cent of their manufac- tured products from Elizabethton to points outside Tennessee. North American employs approximately 2500 hourly paid, non-supervisory employees, Bemberg, approximately 1300, and the Companies employ jointly approximately 170 such workers. The Companies admit that they are engaged in commerce within the meaning of the Act. 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE ORGANIZATIONS INVOLVED Textile Workers Union No. 21999 is a labor organization affiliated with United Textile Workers of America, a labor organization which is in turn affiliated with the American Federation of Labor. Local 21999 admits to its membership employees of the Companies. Textile Workers Union of America, formerly known as Textile Workers Organizing Committee, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to its membership employees of the Companies. III. THE QUESTION CONCERNING REPRESENTATION On Julie 5, 1937, the Companies entered into a contract with the T. W. U. A.,1 in which they recognized the T. W. U. A. as collective bargaining agency for its members and agreed not to make any agree- ment with any other labor organization "for the purpose of under- mining" the T. W. U. A. This contract was executed subject to a subsequent determination by the Textile Division of the United States Conciliation Service that the T. W. U. A. represented a majority of the employees. By letter dated June 29, 1937, the Conciliation Service "certified" that upon the basis of a check of T. W. U. A. membership cards against pay rolls of the Companies, the T. W. U. A. represented a majority on June 5, 1937. On April 30, 1938, the Companies and the T. W. U. A. executed an amendment to the contract providing that it should continue in force indefinitely until terminated under specified conditions. In October 1939 and thereafter, representatives of Local 21999 met with Charles Wolff, III, joint plant manager for the Companies, and requested recognition as exclusive bargaining agency for employees of North American. Wolff refused to grant this request on the grounds that he was unable to determine what labor organization represented a majority of the employees, and that the Companies had an outstanding contract with the T. W. U. A., based upon the "certification" of the Conciliation Service. On October 13, 1939, Local 21999 filed with the Board its petition for investigation and certification of representa- tives. On November 22, 1939, the Companies and the T. W. U. A. executed another amendment to their original contract, providing for wage increases and agreeing that there would be no demand for further increases before August 1, 1940. At the hearing held on April 12, 1940, the Companies took the position that in view of their existing contract with the T. W. U. A. I I 'The organization was then known as Textile Workers Organizing Committee. AMERICAN BEMBERG CORPORATION 627 they would not recognize Local 21999 as exclusive bargaining agent of their employees pending its certification by the Board. The Regional Director compared the signed membership applica- tion cards of Local 21999 with current pay-roll lists of the Companies and his sworn statements regarding the results of such comparisons were introduced into evidence. Counsel for the Board made a check of some additional cards in like fashion during the course of the hearing and read the results thereof into evidence. Upon the basis of these comparisons, Local 21999 appears to have been designated by approximately 35 per cent of the hourly paid, non-supervisory employees of each of the Companies. Neither the "certification" of the T. W. U. A. by the Conciliation Service nor the contract between the T. W. U. A. and the Companies constitutes a bar to the present proceeding because, among other reasons, both have been in operation for more than a year, the contract is of indefinite duration, and the November amendment thereto was executed after Local 21999 filed its petition.2 We find that a question has arisen concerning the representation of employees of the Companies. 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 Companies 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 All the parties agreed that all hourly paid, non-supervisory- employees of the Companies, excluding clerical and supervisory employees, but including head spinners and including relief foremen whose supervisory duties consume less than 50 per cent of their total working hours, constitute a unit appropriate for the purposes of collective bargaining. As we have noted above, the Companies are closely interrelated through stock ownership, corporate officers, and directors, and their- adjoining plants at Elizabethton are operated under common man- agement. The Companies have joint personnel, clerical, and book- 2 Matter of Columbia Broadcastinq System , Inc and Amer. Communications Assn, 8 N. L. R B 508: Matter of Seiss Manufacturing Company and Committee for Industrial Organization , 7 N L R B 481 ; Matter of Unit Cast Coiporation and Steel Workeis- Organianq Committee, 7 N L R B 129 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD keeping facilities, and they maintain a number of other joint facilities and departments for the use of both plants. A great many departments of the plants are identical, some very similar, and a majority of the production employees at each perform substantially the same work. The Companies have a number of joint employees and frequently interchange other employees between their plants. Local 21999 and the T. W. U. A. have organized employees of both Companies. The record shows that for 10 years the Companies have dealt with their employees as a single unit. From 1930 to June 1937, this was done through a joint council plan of employee repre- sentation. In June 1937 the Companies entered into the above-men- tioned contract with the T. W. U. A., which covers the employees of both plants without distinction. Under the circumstances disclosed by this record, we find that the employees should not be segregated into separate units merely by virtue of their employment in North American or Bemberg. We find that all hourly paid, non-supervisory employees of the Companies, excluding clerical and supervisory employees, but in- cluding head spinners and including relief foremen whose super- visory duties consume less than 50 per cent of their total working hours, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Companies the full benefit of their right to collective bargaining, and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. In ac- cordance with the agreement of the parties, all employees within the appropriate unit, who are employed during the pay-roll period im- mediately preceding the date of the conduct of the election, including employees who do not work during such pay-roll period because they are ill, on vacation, or temporarily laid off, but excluding employees who between the said pay-roll period and the date of the election quit or are discharged for cause, shall be eligible to vote in the 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 the Companies, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. AMERICAN BEMBERG CORPORATION 629 2. All hourly paid, non-supervisory employees of the Companies, excluding clerical and supervisory employees, but including head spin- ners and including relief foremen whose supervisory duties consume less than 50 per cent of their total working hours, constitute a unit appropriate for the purposes of collective bargaining, within the mean- ing 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 Relations Act, and pursuant to Article III, Sections 8 and 9, 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 Bemberg Corporation and North American Rayon Corporation, Elizabethton, Tennessee, 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 direction and supervision of the Regional Director for the Tenth 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 hourly paid, non-supervisory employees of the Companies who are employed by the Companies during the pay-roll period immediately preceding the date of the conduct of the election, including head spin- ners, including relief foremen whose supervisory duties consume less than 50 per cent of their total working hours, and including employees who do not work during said pay-roll period because they are ill, on vacation, or temporarily laid off, but excluding clerical and supervisory employees, and excluding employees who between the said pay-roll period and the date of the election quit or are discharged for cause, to determine whether they desire to be represented by Textile Workers Union No. 21999, affiliated with United Textile Workers of America, American Federation of Labor, or by Textile Workers Union of Amer- ica, affiliated with the Congress of Industrial Organizations, for the purposes of collective bargaining, or by neither. 283034-41-vol. 23-41