M. Hoffman & Co.

In the Matter of MAX HOFFMAN DOING BUSINESS UNDER STYLE AND TRADE NAME OF M. HOFFMAN & Co. and AMALGAMATED CLOTHING WORKERS OF AMERICA (C. I. 0.) Case No. R-1867.-Decided July 11, 1940 Jurisdiction : garment manufacturing industry. Investigation and Certification of Representatives : existence of question where employer refuses to accord full recognition to union; election necessary. Contract automatically renewed, despite notice to employer of rival union's claim prior to tune for preventing such renewal, no bar to existence of question concerning representation. Effect on employer's business of recognizing rival union, no bar to exist- ence of question concerning representation. Unit Appropriate for Collective Bargaining : production employees including the floor- boys, but excluding all supervisory employees, sales employees, clerical employees, and shipping employees. Mr. Edward Schneider, for the Board. Mr. Elihu D. Stone, of Boston, Mass., for the Company. Roewver ctr Reel, by Mr. George E. Roewer and Mr. Max Wil f and, of Boston, Mass., for the Amalgamated. Donoghue cC' Donaghue, by Mr. Harold R. Donaghue, of Boston, Mass., for the United. A Withington, Cross, Proctor d Park, by Mr. Claude B. Cross, of. Boston, Mass., for the Manufacturers Association. Mr. Milton E. Harris, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 4, 1940, Amalgamated Clothing Workers of America (C. I. 0.), herein called the Amalgamated, filed with the Regional Director for the First Region (Boston, Massachusetts) a petition, and on April 1, 1940, an amended petition, alleging that a question affect- ing commerce had arisen concerning the representation of employees of Max Hoffman, doing business under the style and trade,name of M. Hoffman & Co., East Boston, Massachusetts, herein called the Company, and "requesting an investigation and certification of repre- 25 N. L. R. B., No. 41. 311 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 10, 1940, the Na- tional Labor Relations Board, herein called the Board, acting pursu- ant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered the Regional Director to conduct an investigation , to provide for an appropriate hearing upon due notice, and to report thereon to the Board. On May 1, 1940, the Regional Director issued a notice of hearing, which was duly served on the Company, on the Amal- gamated, on United Garment Workers of America, herein called the United,1 and on Union-Made Garment Manufacturers Association of America, herein called the Manufacturers Association . On May 7, 1940, the Regional Director issued a notice of postponement of hear- ing, which was duly served on the Company, on the Amalgamated, on the United, and on the Manufacturers Association. Pursuant to notice , a hearing was held on May 28, 1940, in Boston, Massachusetts, before C. W. Whittemore, the Trial Examiner duly designated by the Board. The Board, the Company, the Amalga- mated, the United, and the Manufacturers Association 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 . During the course of the hearing, the Trial Examiner made various rulings on motions and on objections to the admission of evidence . The Board has reviewed these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. At the close of the hearing, the United and the Company moved to dismiss the petition. The Trial Examiner stated that he did not have authority to rule on these motions , and referred them to the ' Board for action. For reasons hereinafter set forth , these motions are hereby denied. Pursuant to leave, the Amalgamated, the United, and the Manu- facturers Association filed briefs, which the Board has considered.2 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY 3 Max Hoffman is, and since on or about August 1, 1920, has been doing business under the style and trade name of M. Hoffman & Co., with a factory in East Boston , Massachusetts, and a place of business 1 Service was directed to United Garment workers Union 2 The Company filed a brief after the time for such filing had expired The Bo, d has therefore not considered this brief. a The findings in this section are based principally on a written stipulation of facts entered into by the Company and the attorney for the Board on May 28, 1940 M. HOFFMAN AND CO. 313 and warehouse in Boston, Massachusetts. The Company is engaged in the manufacture, sale, and distribution of woolen sportswear, woolen breeches, zipper jackets, hunting coats, dress pants, woolen pants, work pants, mackinaws, reefers, overalls, united-ails, and long coats. Prior to August 1, 1920, the business was conducted by a part- nership and was known as the Hoffman & Yavner Co. The raw materials used by the Company in the manufacture of its finished products consist principally of various kinds of cotton and woolen goods. During the year 1939, the Company used raw ma- terials valued at $421,489, about 65 per cent of which were received from places located outside the Commonwealth of Massachusetts, and were shipped' to the Company's factory by common carrier. During the same year, the Company sold finished products valued at about $800,000, approximately 50 per cent of which were shipped by common carrier from the Company's offices to places located out- side the Commonwealth of Massachusetts. II. THE ORGANIZATIONS INVOLVED Amalgamated Clothing Workers of America (C. I. 0.) is a labor organization affiliated with the Congress of Industrial Organizations, and United Garment Workers of America is a labor organization affiliated with the American Federation of Labor. Both organiza- tions admit to membership the Company's production employees. III. THE QUESTION CONCERNING REPRESENTATION On March 29, 1920, the Company 4 and the United entered into a one-year closed-shop contract whereby the Company, "in consideration of the use of the Trade Union Label" of the United,5 agreed, among other things, to employ only United members in good standing. The Company continued to operate under a similar arrangement with the United in succeeding years. On April 16, 1938, the Company and the United entered into a new closed-shop contract for one year, with a provision that it should be "automatically continued beyond said date of expiration unless either party, upon sixty days' notice, elects to terminate it"; and the United therein reserved the right to with- draw the use of the United label at any time. In February 1940 a group of employees communicated with the Amalgamated concerning representation by that organization, and on ' The Company was then known as the Hoffman & Yavner Co 5 For about 20 years the Company has been a member of the Manufacturers Association, which has an agreement with the United for the purpose of "promoting to the greatest degree the mutual helpfulness of the two organizations " It is the practice of the Manu- facturers Association that any member whose employees resign from the United, or from whom the United label is withdrawn, cannot continue to lie a member of the Association. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 12, 1940, a majority of the employees signed cards desig- nating the Amalgamated as their collective bargaining representative and revoking their prior designation of the United. A day or two later, the Amalgamated informed the Company that it represented a majority of the employees and asked to bargain, but the Company refused on the grounds that it had a contract with the United ancE that it feared economic losses through the withdrawal of the United label in the event that it dealt with another labor organization. However, the Company postponed final decision on the Amalga- mated's request. The Amalgamated renewed its request several times thereafter, without result. The Company, the United, and the Manufacturers Association argued that the contract of April 16, 1938, which they claimed had not terminated on April 16, 1939, but had been "automatically con- tinued beyond said date of expiration" because the required sixty clays' notice had not been given, is a bar to the present proceeding. This contention is without merit, since, according to the parties' interpretation of the contract's term's, it was cancellable by the Com- pany upon 60 days' notice before April 16, 1940, the second renewal date, and the Company had notice of the Amalgamated' s claim as early as February 14, 1940.6 It is also urged that the Board should not proceed with this inves- tigation and certification of representatives because the certification of a representative of the employees, other than the United, would result in the withdrawal of the Company's privilege of using the United label, which would occasion serious business and financial losses to the Company. But whether or not these apprehensions are well-founded, such considerations cannot impair the employees' exer- cise of the rights guaranteed by the Act, in this instance the right of a free choice of the representatives for collective bargaining. We find that a question has arisen concerning the representation of the Company's employees. 6 Matter of Colonic Fibre Company, Inc and Cohoes Knit Goods Workers Union No. 21514, A P of L , 9 N. L. R. B 658 , 660; Matter of Showers Brothers Company, Inc and National Furniture Workers Local No 1, of the Upholsterers International Union of North America, affiliated with the American Federation of Labor, 13 N. L R B S29;- .Matter of J Edwards & Co and United Shoe Workers of America, Local 127, C I 0 , 20 N L R B. 244 7 See Matter of Star Publishing Co and Seattle Newspaper Guild, Local No. 82, 4 N. L. R. B 498 , 505, enf' d National Labor Relations Board v Star Publishing Co , 97 F (2d) 465 (C C A 9) ; Matter of Simmons Co and Steel Workers Organizing Committee, 6 N L R B. 208, 211-212 ; Matter of Arcade Sunshine Company, Inc and Laundry Workers, Cleaners and Dyers Union, 12 N L R. B 259 , 264-265; Matter of Electric Vacuum Cleaner Company, Inc and United Electrical it Radio Workers of America, Local 720, 18 N. L. R B. 591; Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No 3, International Woodworkers of America , 20 N L R B 1; Matter of New England Overall Co, Inc and Amalgamated Clothing Workers of America ( C I O.), de- cided this day, 25 N L R B, No 326 M. HOFFMAN AND CO. 315 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 .parties stipulated that the appropriate unit should consist of the production employees at the factory," including the floor boys, but excluding all supervisory employees, sales employees, clerical em- ployees, and shipping employees. We find that the production employees at the factory, including the floor boys, but excluding all supervisory employees, sales em- ployees, clerical employees, and shipping 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 will other- wise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES The Company and the attorney for the Board stipulated that the number of production employees varied from 189 to 196 between January 6 and May 4, 1940. At the hearing, a written statement by the Regional Director was introduced in evidence, reporting that the Amalgamated had submitted 131 cards dated between February 11 and 17, 1940, and 30 undated cards, revoking the authority of the United to represent the signer for collective bargaining and applying for membership in the Amalgamated; that the signatures on the 161 cards appeared to be genuine original signatures; and that 152 of the signatures were names appearing on the Company's pay roll of April 26, 1940. No proof was introduced with respect to the current membership in the United, but that organization has had a closed- shop contract with the Company, 'as heretofore mentioned. In view of the doubt and uncertainty regarding which of the two unions the employees desire to represent them, we find that the question con- 8 All the employees at the Company's factory, including two or three floor boys, are con- sidered by the Company as production employees The rest of the Company's employees, consisting of salesmen, office workers, shipping employees and executives, are located at the Company's executive office and warehouse some distance away in Boston. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cerning representation which has arisen can best be resolved by a secret-ballot election .9 The United stated at the hearing that, if an election was to be held, the eligibility to vote should be determined by the pay roll of May 31, 1940, and the Company agreed with this position. While the Amalgamated requested the pay-roll date of February 17 or 24, 1940, and in any event no later than April 27, 1940, it offered no reason why the more recent pay roll requested by the United and agreed to by the Company would be improper. The Company agreed to furnish any pay roll selected by the Board for an election. Because of the comparative stability of the Company's employ- ment figures in recent months, we are satisfied that the pay roll of May 31, 1940, is an accurate reflection of the employment situation in the appropriate unit, and should determine the eligibility to vote. We shall accordingly direct that the election be held among such employees. 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 Max Hoffman, doing business under the style and trade name of M. Hoffman & Co., Boston and East Boston, Massachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. Amalgamated Clothing Workers of America (C. I. 0.) and United Garment Workers of America are labor organizations, within the meaning of Section 2 (5) of the Act. 3. All the production employees of the Company at the factory in East Boston, Massachusetts, including the floor boys, but excluding all supervisory employees, sales employees, clerical employees, and shipping employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. B,In Matter of The Cudahy Packing Company and United Paektinghouse Workers of Amer- ica, Local No. 21, of the Packinghouse Workers Organizing Committee, affiliated with the Congress of Industrial Organizations , 13 N. L. R. B. 526, the Board said at page 531 : Our determination of representatives looks to the initiation of collective bargain- ing between the Company and its employees We believe that since each of two contesting labor organizations has proved substantial adherence among the em- ployees the bargaining relations which result will be more satisfactory from the beginning if the doubt and disagreement of the parties regarding the wishes of the employees is, as far as possible, eliminated. Furthermore, in its brief, the Amalgamated requested an election M. HOFFMAN AND CO. DIRECTION OF ELECTION 317 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, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to asoertain representatives for 'collective bargaining with Max Hoffman, doing business under the style and trade name of M. Hoff- man & Co., Boston and East Boston, Massachusetts , 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 First 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 production employees of Max Hoffman, doing business under the style and trade name of M. Hoffman & Co., at the factory in East Boston, Massachusetts, whose names appear on the pay roll of May 31, 1940, including floor boys and also employees whose names do not appear on said pay roll because they were ill, on leave, or temporarily laid off, but excluding supervisory employees, sales employees, clerical employees , shipping employees, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented for the purposes of collective bargaining by Amalgamated Clothing Workers of America (C. I. 0.), affiliated with the Congress of Industrial Organizations, or by United Garment Workers of America, affiliated with the Amer- ican Federation of Labor, or by neither.