American Enka Corp.

In the Matter of AMERICAN ENKA CORPORATION and TE%TII.E WORKERS UNION No. 22129, AMERICAN FEDERATION OF LABOR Case No. R-g315?-Decided December 10, 1940 Jurisdiction : viscose rayon yarn manufacturing industry. Investigation and Certification of Representatives : existence of question: refusal to accord 'recognition to union ; employee selected for military service eligible to vote; current pay roll directed to be used although one of union's represen tatives requested pay roll not later than date of the hearing ; company-, dominated union and a union which was still in its formative stage excluded from ballot ; election necessary. Unit Appropriate for Collective Bargaining : all hourly paid employees in the chemical, spool and pot spinning, vacuum wash and cake bleach, twisting,' reeling, bleach, waste bleach, skein drying and spool cleaning, coning and spool winding, sorting and skein packing, cone inspection and packing, spin- nerette, sewing and filter candle, pump testing, textile laboratory, pilot plant, salvage, shipping, work shops, electricians, carpenters, painters and builders, glass blowers, instrument makers, spool lacquering, yard, power and air conditioning, village, cafeteria and cloak rooms, and storehouse, departments, including one salaried janitor, but excluding clerical and su- pervisory employees, such as foremen, leading men, and assistant foremen, inspectors, red bands and green bands, checker bands and timekeepers, and excluding all salaried employees such as office workers, plant protection em- ployees, chemists, engineers, technical employees, and police or watchmen. Practice and Procedure A union at the time of the hearing which was still in its formative stage held not to have such a substantial interest in the proceedings as to entitle it to intervene or to a place on the ballot in the election directed., Mr. Charles Y. Latimer, for the Board. Larkin, Rathbone d Perry, by Mr. Nicholas Kelley and Mr. T. R. Iserman, of New York City; Mr. W. A. Egerton, of Enka, N. C.;; and Mr. S. G. Bernard, of Asheville, N. C., for the Company. Mr. Gordon L. Chastain, of Spartanburg, S. C., Mr. James F. Bar- rett, of Atlanta, Ga., and Mr. Herbert Thatcher, of Washington, D. C., for the Union. Mr., Anthony Redmond and Mr. George A. Shuford, of Asheville, N. C., for the Independent. Mr. Harry Cooper, of counsel to the Board. 28 N. L R.,B., No. 71. 423 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 14 and October 5, 1940, respectively, Textile Workers Union No. 22129, American Federation of Labor, herein called the Union, filed with the Regional Director for the Fifth Region (Balti- more, Maryland) a petition and an amended petition, alleging, that a question affecting commerce had arisen concerning the representa- tion of employees of American Enka Corporation, Enka, North Carolina, herein called the Company, and requesting an investiga- tion and certification of representatives' pursuant to Section 9 (c)- of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 8, 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 investi- gation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On November 9, 1940, the Regional Director issued a notice of hearing and an amended notice of hearing, copies of both of -which were duly served upon the Company and the Union. Pursuant to notice, a hearing was held on November 15, 1940, at Asheville, North Carolina, before Mortimer Riemer, the Trial Ex- aminer duly designated by the Board. During the course of the hearing, Independent TextileWorkers Association, herein called the Independent, claiming to represent employees directly affected by the investigation, moved for leave to intervene in this proceeding and requested that it be named on-any ballot submitted to said em- ployees in connection with such investigation. The Trial Examiner, reserved ruling on this motion but permitted the Independent to participate in the hearing. For, reasons indicated in Section III, infra, the Independent's motion and request are hereby denied. The Board, the Company, the Union, and the Independent were repre- sented by counsel and participated in the hearing. Full opportu- nity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing upon the' issues was afforded all parties and the Independent. During the course of the hearing, the Union moved to amend its amended petition so as to define with more par- ticularity the employees claimed by it to be within the unit appro- priate for the purposes of collective bargaining. The Trial Exam- iner granted this motion, without objection on the part of the Com- AMERICAN ENKA CORPORATION 425 pany. During the course of the hearing the Trial Examiner made other rulings on motions and on objections to the admission of evi- dent e. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. - The ,rulings are hereby affirmed. Pursuant to notice duly served upon the parties and the Independ- ent, a hearing for the purpose of oral argument was held before the Board on November 28, 1940, at Washilgton, D. C. The Company and the Union were represented by counsel and participated in the argument. On December 2, 1940, the Company filed a brief with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Enka Corporation, a Delaware corporation, having. its plant and main office located at Enka, North Carolina, is engaged principally in the manufacture, of, viscose rayon yarn. Most of the raw materials used by the Company, amounting to approximately 50,000 tons per year and having an approximate value of $3,500,000 each year, originate in Canada and in States other than the State of North Carolina. About 50 per cent of the Company's finished prod- ucts, having a total, approximate value of $12,500,000 annually, are shipped to points outside the State of North Carolina. The Company employs about 3,000 employees. II. THE ORGANIZATIONS INVOLVED Textile Workers Union No. 22129, American Federation of Labor_ is a labor organization admitting to membership production and maintenance' employees of the Company, except clerical and super- visory employees, chemists, and technical employees. Independent Textile Workers Association admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On two occasions since its organization on September 1, 1939, the Union has sought recognition from the Company as the collective bargaining agency of the Company's employees. On the first occa- sion, in November 1939, the Company refused to recognize the Union' as such agency -until the Union proved its status as the majority representative. At the same time the Company refused to agree to^ the holding of an election. On the second occasion, on November 7,1 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1940, the Company agreed to the holding of ali election but raised a question as to the form of the ballot. At the time of the hearing, no final 'agreement on the form of the ballot appears to have been reached between the parties." At the hearing there was introduced in evidence a statement of, an agent of the Board showing that the Union represents a substantial number of the Company's employees.2 The Independent was organized on November 8, 1940. At its first and only meeting, five employees were present and three officers were elected. At the time of the hearing, on November 15, the Independent had eight members who had paid entrance fees to the organization. In addition several witnesses testified that about 200 employees had been interviewed'by them and had expressed a desire to join the Inde- pendent. It appears that at the time of the hearing the organization was still in its formative stage. Under these circumstances, we find that the Independent does not have such a substantial interest In this proceeding as to entitle it to intervene therein or to a place on the bal- lot in the election directed below. 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 substantial relation to,trade, traffic, and commerce among the several States and with foreign countries, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. . , V. THE APPROPRIATE UNIT The parties are not in disagreement concerning the appropriate unit. The Union claims and we find that all hourly paid employees of the Company, in the chemical, spool and pot spinning, vacuum wash and, ' The disagreement appears to have been over whether or not a labor organization known as the "Factory Workers Committees" should be on the ballot. In Matter of American Enka Corporation and Textile Workers Union No. 22129, American Federation of Labor, 27 N. L It. B. 1057, the Board found that the Company had dominated, interfered with, and contributed financial and other support to this labor organization in violation of Section 8 (2) of the Act , and ordered its disestablishment as a bargaining representative. 2 According to the agent 's statement, the Union submitted to her 1520 application cards for membership in the Union , all of which were dated between January 1939 and November 1940, except 115 which were undated ; and 1424 of which appeared to bear genuine, original signatures. About 200 additional cards, dated between July and November 1940, and appearing to bear genuine , original signatures, were produced at the hearing. There. are about 2400 employees in the unit found below to be appropriate for the purposes of collective bargaining. AMERICAN ENKA CORPORATION' 427 cake'rbleach, twisting, reeling, bleach, waste bleach, skein 'drying and spool cleaning, coning and spool winding, sorting and skein packing; cone inspection and packing, spinnerette; sewing and filter candle, pump testing, textile laboratory, pilot plant, salvage, shipping, work shops, 'electricians, carpenters, painters and builders, glass blowers, instrument makers, 'spool lacquering, yard, power and air condi- .tioning, village, cafeteria and cloak rooms, and storehouse depart- ments, including one salaried jariitor,3 but excluding clerical and supervisory employees, such as. foremen, leading men, and assistant foremen, inspectors, red bands and green bands,4 checker bands,5 and timekeepers, and excluding all salaried employees such as office workers, plant protection employees, chemists, engineers, technical employees, and police or watchmen, constitute a unit appropriate for the purposes of collective bargaining. We further find 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 We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. As indicated above, the Independent will not appear on the ballot.e The Union requests that the Board determine whether employees of the Company selected for military service are eligible to vote by absentee ballot. Such employees will be permitted so to vote. At the hearing one representative of the Union indicated that, any date selected to determine eligibility to vote was satisfactory. Another representative of the Union, however, indicated that he would not agree to any date later than the date of the hearing, for fear that -the Company might hire new employees between the date of the hearing and the election.' Counsel for the Company stated that there was no substantial difference in the number of employees on the pay roll from time to time and suggested that the most recent pay roll be selected to determine eligibility. We shall follow our usual procedure and direct that those eligible to participate in the election shall be the employees in the appropriate unit who were ! The Janitors are in the cafeteria department , and apparently all except one are hourly paid employees. 'The leading men, red bands, and green bands are supervisory employees . See Matter of American Enka_ Corporation and Textile Workers Union No. 22129, American Federation of Labor, 27 N: L. R. B. 1057. The checker bands are clerical employees who work in the plant. e The "Factory Workers Committees," likewise, will not appear on the ballot. See supra footnote 1, and N. L. R. B. v. Falk Corporation, 308 U. S. 453, rev'g 196 F. (2d> 454 (C. C. A 7),-and enf'g Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R. B. 654. '428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed by the Company during the pay-roll period immediately preceding our Direction of Election , including employees who did not work during such pay-roll period because they were ill , on vacation, or absent because selected for military service, and employees who were then or have since been temporarily laid off, but excluding those who have since quit or been discharged for cause. 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 American Enka Corporation, Enka, North Carolina, within the meaning of Section 9 (c) and Section 2 (6) .and (7) of the Act. 2. All hourly paid employees of the. Company, in the chemical, spool and pot spinning, vacuum wash and cake bleach, twisting, reel- ing, bleach , waste bleach , skein drying and spool cleaning, coning and spool winding, sorting and skein packing, cone inspection and pack- ing, spinnerette, sewing and filter candle, pump testing, textile labora- tory, pilot plant, salvage , shipping, work shops, electricians , carpen- ters, painters and builders , glass blowers, instrument makers, spool lacquering, yard, power and air conditioning, village, cafeteria and cloak rooms, and storehouse departments , including one salaried janitor, but excluding clerical and supervisory employees, such as foremen , leading men, and assistant foremen, inspectors, red bands and green bands, checker bands and timekeepers, and excluding all salaried employees such as office workers, plant protection employees, -chemists, engineers, technical employees, and police or watchmen, 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 Relations 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 ordered by the Board to ascertain representatives for the purposes of collective bargaining with American Enka Corporation,' Enka, North Carolina, 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 I Fifth i AMERICAN ENKA CORPORATION 429 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 hourly paid employees of American Enka Corporation, Enka, North Carolina, in the chemical, spool and pot spinning, vacuuin' wash and cake bleach, twisting, reeling, bleach, waste bleach, skein drying and spool cleaning, coning and spool wind- ing, sorting and skein packing, cone inspection and packing, spin- nerette, sewing and filter candle, pump testing, textile laboratory, pilot' plant, salvage, shipping, work shops, electricians, carpenters, painters and builders, glass blowers, instrument makers, spool lac- quering, yard, power and air conditioning, village, cafeteria and cloak rooms, and storehouse departments, who were employed by the 'Company during the pay-roll period immediately preceding the date of this Direction, including one salaried janitor, employees who did not work during such pay-roll period because they were ill, on vacation, or absent because selected for military service, and em- ployees who were then or have since been temporarily laid off, but excluding clerical and supervisory employees, such as foremen, leading men and assistant foremen, inspectors, red bands and green bands, checker bands and-timekeepers, and excluding all salaried employees such as office workers, plant protection employees, chemists, engineers, technical employees, and police or watchmen, and employees who have since quit or been discharged for cause, to determine whether or not they desire to be represented by Textile Workers Union No. 22129, American Federation of Labor, for the purposes of collective bargaining. CHAIRMAN HARRY A. MILLIS took no part in the consideration of the above Decision and Direction of Election.