New England Overall Co., Inc.

In the Matter of NEw ENGLAND OVERALL Co., INC. and AMALGAMATED CLOTHING WORKERS OF AMERICA (C. I. 0.) Case No. B-1862.-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. Redesignation of contracting union by majority shortly after designation of rival union, under the circumstances, 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. Contract automatically renewed, despite notice to employer of rival union's claim prior to time for preventing such renewal, no bar to existence of question concerning representation. - Unit Appropriate for Collective Bargaining : prodiiietion employees, including the floor boys, but excluding all supervisory employees, sales employees, clerical employees, maintenance employees, and shipping employees Mr. Edward Schneider, for the Board. Withington, Cross, Proctor cC Park, by Mr. Claude B. Cross, of Boston, Mass., for the respondent and for, the Manufacturers Association. Roewer d Reel, by Mr. George E. Roewer and Mr. Max Wil f and, of Boston, Mass., for the Amalgamated. Donaghue & Donaghue, by Mr. Harold R. Donaghue, of Boston, Mass., for the United. 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 alleging that a question affecting commerce had arisen concerning the representation of employees of New England Overall Co., Inc., 25 N L. R B, No 43 326 NEW ENGLAND OVERALL CO. INC. 327 Boston, 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 April 10, 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, as amended, ordered the Regional Director to conduct an investigation and to provide for an appropri- ate hearing upon due notice. On May 1, 1940, the Regional Director issued a notice of hearing, copies of which were duly served on the Company, on the Amalgamated, on United Garment Workers of America, herein called the United,2 'and on Union-Made Garment Manufacturers Association of America, herein called the Manufac- turers Association. On May 7, 1940, the Regional Director issued a notice of postponement of hearing, copies of which were 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 27 and 28, 1940, in Boston, Massachusetts, before C. W. Whittemore, the Trial Examiner duly designated by the Board. The Board, the Company, the Amal- gamated, 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 rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. At the close of the hearing, the Company submitted to the Trial Examiner a written motion to dismiss the petition; and the United submitted a written motion that it be certified as the sole representative of the Company's production employees for the purposes of collective bargaining and another writ- ten motion to dismiss the petition for want of jurisdiction. 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 Company and the Manufacturers Association filed a joint brief, and the Amalgamated and the United filed separate briefs, all of which the Board has considered. Upon the entire record in the case, the Board makes the following : i The Company was incorrectly designated as New England Overall Co in the formal papers herein At the bearing a motion to correct this designation was granted without objection 2 Service was directed to United Garment Woikers Union. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 3 New England Overall Co., Inc., is, and since February 21, 1930, has been, a Massachusetts corporation, with its office, factory, and prin- cipal place of business in Boston, Massachusetts, where it is engaged in the manufacture, sale, and distribution of overalls, work pants, and slacks. From about 1914 to the afore-mentioned date of incorpora- tion, the business had been carried on under the name of New England Overall Co., as an unincorporated business entity. The raw materials used by the Company in the manufacture of its finished products consist principally of cotton and woolen goods. During the year 1939 the Company used approximately 1,200,000 yards of such goods, 90 per cent of which were received from places located outside the Commonwealth of Massachusetts. During the same year the Company manufactured 26,717 dozen work pants and slacks, and 23,016 dozen overalls, approximately 75 per cent of which, representing approximately $423,000 in value, were shipped to places located outside 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 July 1, 1919, the Company and the United entered into a 1-year closed-shop contract whereby the Company, "in consideration of the use of the Trade Union Label" of the United,4 agreed, among other things, to employ only United members in good standing. The Com- pany continued to operate under a similar arrangement with the United in succeeding years. On April 15, 1938, the Company and the United entered into a new closed-shop contract for 1 year with a provision that it should be "automatically continued beyond said date of expiration unless either party, upon sixty days' notice, elects to, 3 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 22. 1940 'For from 15 to 18 years the Company has been a member of the Manufacturers Asso- ciation , 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 ,Manufacturers Association that any member whose employees resign from the United or from whom the United label is withdrawn cannot continue to be a member of the Association NEW ENGLAND OVERALL CO. INC. 329 terminate it"; and the United therein reserved the right to withdraw the use of the United label at any time. In January 1940 a group of employees communicated with the Amalgamated concerning representation by that organization, and on February 12, 1940, a majority of the employees signed cards designat- ing the Amalgamated as their collective bargaining representative and revoking their prior designation of the United. - On the next day the Amalgamated informed the Company that it represented a ma- jority of the employees and asked' to bargain, but the Company deferred the matter pending the return of its general manager from Florida. After, several intervening contacts with other company officials, on March 19 the Amalgamated met the Company's general manager and restated its claim to majority representation and re- quested collective bargaining. The Company refused on the grounds that it had a contract with the United and that it feared economic losses through the withdrawal of the United label in the event that it dealt with another labor organization.5 However, the Company postponed final decision on the Amalgamated's request. The Amal- gamated renewed its request several times thereafter without result. On March 29, 1940, the shop chairman for the Amalgamated, who had served in the same capacity for many years with the United, conducted a vote among the employees in the plant. Seventy-eight employees voted for the Amalgamated and 32 for the United. On April 5, 1940, a majority of the employees redesignated the United as their representative and signed check-off authorizations for that organizations , On April 8, 1940, the Company and the United en- tered into a new closed-shop contract similar to the April 15, 1938, contract, with certain supplementary provisions not here material. The Company, the Manufacturers Association, and the United con- tend that the existing contract of April 8, 1940, between the Company and the United is a bar to the present proceeding. This contention is without merit. The contract was entered into during the pendency of this proceeding after notice of the Amalgamated's claim to majority representation and does not constitute such a bar.7 The Company 5 The United label was ,Nithdrawn from the Company in February 1940 because the em- ployees had transferred their affiliation from the United to the Amalgamated In this con- nection, when Morris Gordon , the Company 's general manager, was asked at the hearing whether he had told any of the employees that the Company would lose half of its business if it ceased using the United label , he first replied , "I think not" and then went on to say that he "didn't tell it to any particular help " U The Company thereafter checked off the monthly dues of such employees twice prior to the hearing 7 Matter of J. Edwards & Co. and United Shoe Workers of America, Local 127, C. I. O , 20 N L R B. 244; Matter-of Stokely Brothers & Company, Inc, and Van Camp's, Inc. and Federal Labor Union, No. 21752, affiliated with A F. of L, etc, 15 N L R B 572-; Matter of Florence Pipe Foundry & Machine Co and Steel Workers Organizing Committee, on behalf of itself and of Lodge 20110, Amalgamated Association of Iron, Steel and Tin Woi k- ers of North America, 15 N. L R B. 250 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD urges, however, that this is not a case where anew contract was made for the first time after a petition' was filed, since the April 8, 1940, contract was merely-substituted for a then existing binding contract between the parties which antedated any claim by the Amalgamated. This position is equally -untenable for several reasons. Contrary to the Company's assertion, the April 8, 1940, contract was a new con- tract and is the only one presently asserted as a bar to this proceeding. But apart from that fact, even if the April 15, 1938, contract had not been superseded by the April 8, 1940, contract it would have offered no bar to the proceeding, since, according to the parties' interpretation of its terms, it was cancellable by the Company upon 60 days' notice before April 15, 1940, the second renewal date, and the Company had notice of the Amalgamated's claim as early as February 13, 1940.8 There is the further contention that a majority of the employees, by redesignating the United and authorizing the check-off on April 5, 1940, eliminated any present question concerning representation. In view of the successive designations of both the Amalgamated and the United in a relatively short period of time, under the circumstances here disclosed, we are not satisfied that the employees have been afforded the free choice of representatives contemplated by the Act and find the contention to be without merit.9 Finally, it is urged that the Board should not proceed with this investigation 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 occa- sion serious business and financial losses to the Company. We have heretofore held, and we hold here that irrespective of the validity of the Company's apprehensions, such considerations cannot impair the employees' exercise of the rights guaranteed by the Act, in this in- stance the rights to a free choice of representatives for collective bargaining.10 8 Matter of Colonic Fibre Company, Inc and Cohoes Knit Goods Worl,ers Union No. 21514, A F 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 829; Matter of J Edwards it Co and United Shoe Workers of America, Local 127, C I 0, 20 N L R B 244 (where the agreement was made by the employer after formal notice of the claim of a rival labor organization to exclusive recognition) 6 Cf Matter of Southern Chemical Cotton Company and Textile Workers Organizing Committee, 3 N. L R B 869 , Matter of American-West African .Line, Inc and National. Marine Engineers' Beneficial Association, 4 N L R B 1086 ; Matter of Pacific Greyhound Lines and Brotheihood of Locomotive Firemen and Engrnemen. 4 N L R B 520, 532. 10 See Mattel of Star Publishing Company and Seattle Newspaper Guild, Local No 82, 4 N L R B 408, 505, enf'd, N L R B 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 R 208, 211-212 ; Matter of Arcade-Sunshine Company, Inc and Laundry Workers, Cleaners and Dyers Union, 12 N L R B. 259, 264-265; Mattei of Electric Vacuum Cleaner Company, Inc and United Electrical if Radio Womlers 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 Max Ho$- NEW ENGLAND OVERALL CO. INC. 331 We find that a question has arisen concerning the representation 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 Amalgamated and the United stipulated, without objection by the Company, that the appropriate unit should consist of the production employees," including the floor boys, but excluding all supervisory employees, sales employees, clerical employees, mainte- nance employees, • and shipping employees. We find that the production employees, including the floor boys, but excluding all supervisory employees, sales employees, clerical em= ployees, maintenance 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 otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing, a written statement by the Regional Director was introduced in evidence, reporting that the Amalgamated had sub- mitted 99 cards dated between January 12 and February 14, 1940, revoking the authority of the United to represent the signer for col- lective bargaining and applying for membership in and designating the Amalgamated; that the signatures on the 99 cards appeared to be genuine original signatures; and that 91 of the signatures were names appearing on 'the Company's 'pay roll of April 29, 1940. Another written statement by the Regional Director was introduced in evi- dence, reporting that the United had submitted 122 forms, 109 of man doenq business under style and trade name of If . 11ofnzan & Co and Amalgamated Clothing Workers of America ( C I 0 ), decided this day, 25 N L R B 311 "All the employees at the Company 's factory aie considered as production employees except one man, who is a maintenance employee and does odd jobs and drives a truck, and one girl , who is in charge of the time cards The rest of the Company 's employees, con- sisting of salesmen and office workers , are located at the Company's office a short distance away. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which were dated April 5, 1940, and the remaining 13 of which were undated, applying for membership in Local No. 163 of the United and requesting that the monthly dues of the Local be deducted from the signers' wages and be paid directly to the United until notice was given in writing to the contrary; that the signatures on, the 122 forms appeared to be genuine original signatures; and that 110 of the signatures were names appearing on the Company's pay roll of April 29, 1940. The Company and the attorney for the Board stipulated that the number of production employees varied from 140 to 146 between February 1 and May 1, 1940.12 It thus appears that the Amalgamated and the United have both been designated by a majority of the em- ployees in the appropriate unit during the present calendar year. In view of this duplication of signatures, we find that the question con- cerning representation which has arisen can best be resolved by a secret- ballot election.' 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 did not oppose this position. While the Amalgamated requested a pay-roll date between February 17 and April 27, 1940, it offered no reason why the more recent pay roll -requested by the United 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 employment 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 an 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 New England Overall Co., Inc., Boston, Massachusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 13 These figures included an undisclosed number of shipping employees , who were ex- cluded from the appropriate unit 13 In Matter of The Cudahy Packing Company and United Packinghouse 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 con- testing labor organizations has proved substantial adherence among the employees 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 NEW ENGLAND OVERALL 00. INC. 333 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, including floor boys, but excluding all supervisory employees, sales employees, cleri- cal employees, maintenance employees, and shipping employees, con- stitute 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 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 ascertain representatives for collective bargaining with New England Overall Co., Inc., 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 Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among the production employees of New England Over- all Co., Inc., 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, maintenance employees, shipping em- ployees, 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 American Federation of Labor, or by neither. MR. WILLIAM M. LEISEISON took no part in the consideration of the above Decision and Direction of Election.