Botany Worsted Mills

i In the Matter of BOTANY WORSTED MILLS and TEXTILE WORKERS UNION OF AMERICA Case No. R-205.-Decided October 7, 1940 Jurisdiction : textile manufacturing industry. Investigation and Certification of Representatives : existence of question: dis- pute as to appropriate unit; laid-oft employees eligible, to vote; election necessary. Unit Appropriate for Collective Bargaining : wool sorters and trappers includ ing overlookers. Putney, Twonably d Hall, by Mr. Frederic B. Sanborn, of New York City, for the Company. -Mr. Alfred Udo ff, of New York City, for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 8 and June 25, 1940, respectively, Textile Workers Union of America, herein called the Union, filed with the Regional Director for the Second Region (New York City) a petition and an amended petition alleging that a question affecting commerce had arisen con- cerning the representation of employees of Botany Worsted Mills, Passaic, New Jersey, 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 May 28, 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 an investiga- tion and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On July 17, 1940, the Board issued an order rescinding its order directing an investiga- tion and hearing. On July 17, 1940, the Board issued a new order directing an investigation and authorizing the Regional Director to 27 N. L. R. B., No. 129. 1 - 687 688 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD conduct it and to provide for an appropriate hearing upon due notice. On July 19, 1940, the Regional Director issued a notice of hearing, copies of which were duly served" upon the Company and the Union. Pursuant to the notice, a hearing was held on August ,9, 1940, at Pas- saic, New Jersey , and on August 15 and September 3, 1940, at New York City, before Shad Polier, the Trial Examiner duly designated by the Board. 'The Company and the Union 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 parties . At the commencement of the hearing and at the close of the hearing counsel for the Company moved to dismiss the petition on the ground that the Company is not' engaged in interstate commerce . The Trial Examiner reserved rifling thereon. The motions are hereby denied. At the same time counsel for the Company moved to dismiss the petition on the ground that the sections of the Act herein involved were unconstitutional. The Trial Examiner reserved ' ruling thereon. The motions are hereby denied. At the_ close of the hearing counsel for the Company moved to dismiss the petition or, in the alternative , for a new hearing before a different Trial Examiner , because ofalleged prejudicial conduct on the part of the Trial Examiner . The Trial Examiner reserved ruling, on the motion . The motion is hereby denied. At the close of the. hearing counsel for the Company moved to dismiss the petition on the ground that the evidence introduced at the hearing shows that the employees do not possess the right of self-organization guaranteed to them by the Act. Also at this time counsel for the Company moved to dismiss the petition on the ground that none of the employees of the Company testified that they sought the unit contended for by the Union. The Trial Examiner reserved ruling on these motions. The' motions are hereby denied . During the course of " the hearing the Trial Examiner made several rulings on 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' com- mitted. The rulings are hereby affirmed. . On September 16 and 17, 1940, respectively, the Company and the Union filed briefs. Pursuant to notice duly served upon the parties, a hearing for the purpose of oral argument was held ,before the Board on.'September 17, 1940, in,Washington, D. C. The Union and the Company appeared by counsel and participated in the argument. On September 24, 1940, ,the Union and the Company ' filed reply briefs. Upon the entire record in the case, the Board makes the following : I BOTANY WORSTED MILLS FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY 689 Botany Worsted Mills is a New Jersey corporation with its prin- cipal office and plant at Passaic, New Jersey, where it is engaged in the processing, manufacture, and sale of woolen and worsted fabrics. During the first 6 months of 1940 the Company purchased approxi- mately 5,000,000 pounds of raw wool and wool tops, approximately all of which were shipped to it from points outside the State of New Jersey. During this same period the Company sold over 1,500,000 pounds of finished products, approximately 95 per cent of which were shipped f. o. b. Passaic, New Jersey, by the Company to points out- side the State of New Jersey. The Company employs approximately 5,000 employees. II. THE ORGANIZATION INVOLVED Textile Workers Union of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to member- ship employees of the Company. ' III. THE QUESTION CONCERNING REPRESENTATION On February 3, 1940, the Union wrote to the Company claming to represent a majority of the employees in the unit which it alleged to be appropriate and asked for a conference. On February 23, 1940, the Company replied, stating that it doubted the Union's claim to a ma- jority and contested the unit alleged by the Union,to be appropriate. A statement of the Regional Director introduced at'the hearing shows that the Union represents a substantial number of employees in the unit which it claims to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company.. - - 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 substajItial 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. IThe Regional Director's statement shows that 45 employees in the proposed unit have signed membership application cards in the Union There were approximately 48 em- plo.Nees in such unit on December 9, 1939, and 31 employees in such unit on July 6, 1940 1 323428-42-vol. 27-46 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The Union asserts that the wool sorters- or trappers of the Com- pany, including the overlookers, constitute an appropriate unit. The Company contends that the wool sorters or trappers work in merely one department of the entire Company and, for this reason, cannot properly be set apart from the rest of the employees as a separate,unit for the purposes of collective bargaining. The record indicates that the sorters or trappers work in a depart- ment separated from the other department's of the plant and are en- gaged in the preparation of wool for subsequent operations by other Employees of the Company. They have been organized by the Union. Wherever, possible, it is obviously desirable that, in a determination of the appropriate unit, we render collective bargaining of the Com- pany's employees an immediate possibility. There is no evidence that- the majority of the other employees of- the Company belong to any union whatsoever; nor has any other labor organization, petitioned the Board for certification as representative of the Company's em- ployees on a plant-wide basis. Consequently, even if, under other circumstances, the wool sorters or trappers would not constitute the most effective bargaining unit, nevertheless, in the existing circum- stances, unless they are recognized as a separate unit, there will be no collective.bargaining agent whatsoever for these workers. At the present time, and in view of the existing state of labor organ- ization among the employees of the Company, in order to insure to the sorters or trappers the full benefit of their right to self-organiza- tion and collective bargaining and otherwise to effectuate the policies of the Act, we find that the wool sorters or trappers of the Company,- including the overlookers, constitute a unit appropriate for the pur-, poses of collective bargaining with respect to, rates of pay, wages; hours of employment, and other conditions of employment. VI. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the Company can best be resolved by an election by secret ballot. We will direct that an election by secret ballot be held. The Union urges that a December 1939 pay roll of the Company` be used to determine eligibility to vote in the election. There were approximately 48 sorters or trappers employed by the Company in December 1939. The Company contends that, due to a gradual change in method of operation, its normal complement of sorters or trappers is now composed of 8 to 10 sorters or trappers, with a maximum of 16 at any one time. It further contends that a maximum of 16 sorters 'BOTANY WORSTED MILLS 691 or trappers should vote in the election. Evidence introduced at the hearing shows that the Company' employed 42 trappers in June 1940 and 31 trappers on July 6, 1940. Twelve of the sorters or trappers employed in December 1939 have been given jobs in other departments of the Company. All of the sorters or trappers employed'on July 6, 1940, were also employed by the Company during December 1939, and the Company stated that whenever it increases its sorting or trapping operations it recalls the sorters or trappers who were em- ployed by it during December 1939. Under these circumstances, we find that those eligible to vote in the election shall be those persons who were employed in the appropriate unit and whose names appear on the July 6, 1940, pay roll, and persons employed in the appro- priate unit since that time, excluding, however, any such persons who have regular jobs in other departments of the Company's plant or regular jobs with other employers. On 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 Botany Worsted Mills, Passaic, New Jersey, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the wool sorters or trappers of the Company, including over- lookers, constitute a unit appropriate for the purposes of collective bargaining, 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of they investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Botany Worsted Mills, Passaic, New Jersey, 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 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 all wool sorters or trappers, including overlookers, of the Company whose names appear on the Company's pay roll of July 6, 1940, and wool sorters or trappers and overlookers employed since that time, but 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding wool sorters or,trappers and overlookers who have regular employment in other departments of the Company's plant or regular jobs with other employers, to determine, whether or not they desire to be represented by Textile Workers Union of America, affiliated with the Congress of Industrial Organizations , for the purposes of collective bargaining.