Atlas Underwear Co.

In the Matter of ATLAS UNDERWEAR COMPANY and THE ATLAS EMPLOYEES' COUNCIL Case No. B-1621.-Decided March 26, 1941 Jurisdiction : garment manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; election necessary. Unit Appropriate for Collective Bargaining : production employees at one of two plants of the Company, excluding clerical and supervisory employees, main- tenance employees, and the night watchman. Mr. Walter B. Chel f, for the Board. Mr. Paul Y. Davis, of Indianapolis, Ind., for the Company. Mr. Earl Keisker, of Richmond, Ind., for the Council. Mr. Leon H. Despres and Mr. Carl F. Albrecht, of Chicago, Ill., and Cincinnati, Ohio, respectively, for the T. W. U. A. Mr. Edwin L. Swope, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 19, 1939, The Atlas Employees' Council, herein called the Council, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Atlas Underwear Company, Richmond, Indiana, herein called the Company, 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 September 26, 1939, 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, or- dered an investigation and authorized the Regional Director to con- ,duct it and to provide for an appropriate hearing upon due notice. , On October 20, 1939, the Regional Director issued, a notice of hear- ing, copies of which were duly served upon the Company, the Council, 30 N. L. R. B, No 89. 607 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Textile Workers Organizing Committee, Local 111,1 a labor organization claiming to represent employees directly affected by the investigation. On November 2, 1939, the Regional Director issued an order granting the Company's request for a postponement of the hearing and also a notice reassigning the hearing date. On Novem- ber 10, 1939, the T. W. U. A. filed an answer with the Regional Director contending that since the Council was "formed, dominated, and financed by the employer," it should not be entitled to file a petition. On November 10, the T. W. U. A. also filed a motion with the Board that this proceeding be continued sine die pending disposition of charges filed with the Regional Director by the T. W. U. A. alleging that the Company had engaged in unfair labor practices within the meaning of Section 8 (1) and (2) of the Act by sponsoring and dominating the Council.2 This motion was denied by the Board on November 10, 1939. Pursuant to notice, a hearing was held on November 13,,1939, at Richmond, Indiana, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, Company, the Council, and the T. W. U. A. 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 beginning of the hearing the T. W. U. A. moved that the hearing be postponed pending disposition of the charges men- tioned above. The Trial Examiner denied this motion. During the course of the hearing the Trial Examiner made several rulings on other 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 committed. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Atlas Underwear Company, an Ohio corporation with its principal Indiana office and plant in Richmond, Indiana, is engaged in the manufacture, sale, and distribution of underwear, pajamas, sport shorts, and knitted shorts.3 Its raw materials consist of cottons, 'Textile Workers Organizing Committee, Local 111, subsequently changed its name to Textile Workers Union of America , Local 111. The single organization is being referred to as the T W. U. A. 3 The charges referred to above were filed by the T. W U. A. with the Regional Director on October 30, 1939. Thereafter, the Regional Director refused to issue a complaint based on the charges and the T. W. U A requested the Board to review the Regionaal Director's decision . Subsequently , on February 8, 1940, the Board sustained the Regional Director's refusal to issue a complaint. 3 The Company also operates a plant at Piqua, Ohio In view of our findings infra, the operations of'the Company's Piqua plant are not material here. ATLAS UNDERWEAR COMPANY 609 silks, rayons, worsted yarns, and pearl buttons. During the Com- pany's 1937 fiscal year the total cost of these materials amounted to approximately $300,000, while its output of finished products was, valued at approximately $800,000. During that period all the raw materials were shipped to the Richmond plant from places outside the State of Indiana, and 90 per cent of the finished products were shipped to points outside the State. II. THE ORGANIZATIONS INVOLVED The Atlas Employees' Council is an unaffiliated labor organization admitting to its membership employees of the Company at its Rich- mond, Indiana, plant. Textile Workers Union of America, Local 111, formerly known as Textile Workers Organizing Committee, Local 111, is a labor organi- zation affiliated with the Congress of Industrial Organizations, ad- mitting to its membership employees of the Company at its Richmond plant. III. THE QUESTION CONCERNING REPRESENTATION On May 2, 1939, the Company entered into a contract with the T. W. U. A. for its members only at the Richmond plant for the period of 1 year.4 The Council was organized on May 26, 1939, and, in the latter part of May or early part of June, it informed the Company that it represented a majority of the employees at the Richmond plant and requested recognition as the exclusive representative of such employees. The Company refused to grant the Council such recognition on the ground that the T. W. U. A. also claimed to represent its employees. On July 21,1939, they Council and the Company entered into a member- ship contract similar to the May 2 contract between the T. W. U. A. and the Company. 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 rela- tion 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. * The prior history of collective bargaining between the Company and the T. W. U. A. Is considered in Section V infra. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE APPROPRIATE UNIT The Council contends that the production and maintenance em- ployees at the Company's Richmond plant, excluding clerical and .supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. The T. W. U. A. contends that the produc- tion employees, excluding clerical, supervisory, and maintenance em- ployees at both the Company's Richmond plant and its Piqua plant, constitute a single appropriate bargaining unit. At the hearing the Company made no contentions with respect to the unit. The Richmond and Piqua plants are located about 48 miles apart, and each functions independently of the other. Both plants are en- gaged in the manufacture of the same products, but a higher quality product is manufactured and completely processed at the Richmond plant.5 The Richmond plant has its own manager, its own supervisory staff, its own clerical, bookkeeping, shipping, and maintenance de- -partments, and there is no interchange of employees between it and the Piqua plant.° So far as the record discloses both the business operations and the labor relations' of each plant are handled separately. Past bargain- ing has been conducted on an individual plant basis. In October 1936 the T. W. U. A. first attempted to obtain a bargaining contract at the Piqua plant, and when it failed a strike resulted which closed down that plant for 6 weeks, although the Richmond plant continued to operate during that period. The strike at the Piqua plant was unsuccessful and the T. W. U. A. has never been able to obtain a bar- gaining contract for that plant. In June 1937, however, the T. W. U. A. negotiated an exclusive bargaining contract at the Richmond plant which expired in August 1938. Upon its expiration the Com- pany refused to renew it, and the T. W. U. A. called a strike at the Richmond plant early in 1939 which lasted 7 weeks," and was finally 'settled in May when the parties entered into a contract for one year covering the T. W. U. A.'s members only at the Richmond plant. In July 1939 the Company also entered into a contract with the Council 5 "Spring needle goods" are knitted at the Richmond plant while "latch needle goods" are knitted at the Piqua plant The products of the Piqua plant are completely processed at ,that plant except for bleaching and dyeing. The Piqua plant does not have facilities for that pug pose and therefore about 80 percent of its goods are bleached and dyed at the Rich- mond plant and the remainder at another company located in Piqua. 0 There are about 320 employees at the Richmond plant and approximately , 420 employees at the Piqua plant. ' The field representative of the T. W. U. A testified that the Company has the same "labor representative " for both plants but the record indicates that at the Richmond plant, at least, the T. W. U. A. and the Council have dealt with the manager of the plant. The record also shows that in 1937 the T. W. U. A . called a strike at the Richmond plant which lasted 2 or 3 days and that in 1938 it called a strike at the Piqua plant which lasted•a day and a half The reasons for these strikes do not appear in the record. Each of these strikes was confined to the employees of the individual plant involved. ATLAS UNDERWEAR COMPANY 611 covering its members only at the Richmond plant.9 Thus all the bar- gaining contracts have covered the Richmond plant alone, and the Company has never entered into a bargaining contract covering both its plants or the Piqua plant. In support of its contention for a single bargaining unit covering both the plants the T. W. U. A. claims that such a unit would best insure to the employees of both plants the full benefits of collective bargaining. It points out that there is no substantial difference in rates of pay, hours, or working conditions between the two plants; that the degree of skill required of the workers in both plants is com- parable; and that the employees in most of the corresponding depart- ments of both plants are "transferable".10 It also states that the ne- cessity for collective bargaining on a single unit basis is shown by the fact that in the latter part of 1937 or early part of 1938, the mana- ger of the Richmond plant warned representatives of the T. W. U. A. -,that if operating costs were increased at the Richmond plant it would probably lose orders to the Piqua plant because of lower operating costs there; and that later when the T. W. U. A. was attempting in June 1938 to negotiate a renewal of its 1937 Richmond plant contract, a • representative of the Company remarked that the Company was ,considering moving the Richmond plant to Piqua because of the lower operating costs at Piqua. In further support of its contention for a single bargaining unit the T. W. U. A. points to the fact that its bargaining committee dur- ing the above-mentioned bargaining conference in 1938 was composed of representatives of both plants who sought to secure a joint agree- ment covering both plants; and that the 1939 strike at the Richmond plant was not only caused by the Company's failure to renew the 1937 contract, but also because-of the Company's refusal to bargain on a single unit basis. The record shows, however, that after the Company objected to bargaining on the single unit basis during the 1938 con- ference the subsequent negotiations were confined to the Richmond plant contract; and that when the 1939 strike was settled in May of that year the parties entered into a contract which covered only the Richmond plant. We are of the opinion that both the Company's plants should ,not at this time be included in a single bargaining unit. While the T. W. U. A. attempted to bargain on an employer-wide basis at the 1938 bargaining conference, the actual bargaining practice has not been on such basis. On the contrary, such practice in the past has recognized the individual status of the separate plants. Further- more, while working conditions, hours, rates of pay, and the degree 9 The Council claims no membership among the employees at the Piqua plant . There is no shoeing concerning the extent of the T. W. U. A's membership in either plant "The record shows, however , that employees are not interchanged between the plants. 440135-42-Vol. 30--40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of skill required of the workers at both plants are about the same, the operations of the plants are not interrelated to any extent and the plants are operated as separate units. In view of all the evidence we conclude that the employees of the Company's plants should not be embraced within a single bargaining unit at this time, and that the Company's Richmond plant constitutes a separate appropriate bargaining unit.h1 The T. W. U. A. contends that the maintenance employees at the Richmond plant should be excluded from the unit while the Council desires their inclusion. They have been excluded from the bargain- ing unit under the terms of all the Company's bargaining contracts and were originally excluded at the Company's insistence over the T. W. U. A.'s protest when the first bargaining contract between them was executed in June 1937. Prior to that time they had been eligible for membership in the T. W. U. A. and some had joined that organization. However, after the execution of the 1937 contract the T. W. U. A. excluded them from its membership and required those who had joined to resign. The T. W. U. A. contends that as result of their past exclusion this group is unsympathetic toward organization and in addition that "some maintenance people" should be excluded because they are "very close to [the] management," but does not specify to which employees it refers. Although the maintenance employees are excluded by the terms of the contract executed by the Council and the Company in July 1939, they are eligible for membership in the Council. The Council agrees, however, to the exclusion of the night watchman, the janitors, and one Harry McBride, who is described as being "an old employee of the Company who is qualified to more or less do anything in the factory, and is frequently called upon by the management to do gen- eral repair work and so forth, and is at this time in charge of the boiler room." As described above, the maintenance employees have not been cov- ered by past collective bargaining contracts. We are of the opinion that the maintenance employees should be excluded from the unit. Since McBride performs some supervisory duties, we will exclude him along with the other supervisory employees.12 The night watch- man will also be excluded because both unions desire his exclusion 11 See Matter of Hood Rubber Company, Inc and Rubber Workers' Federal Labor Union No. 2i91' (A F. L Matter of B. F Goodrich Company and United Rubber TVorl,erc of America, 20 N L R B 485 , Matter of Consolidated Paper Company and Local Indus- trial Union , Locals 1001 and 1006 (0 1 0 ), 21 N I. R B 116, Matter of United States Rubber Company ( Providence Plant ) et at and Rubber Workers Federal Labor Union. Local #2201y, affiliated with the American Fedeiation of Lobo., et at, 20 N L I: B 473 1' See Matter of Keystone Manufacturinq Company and United Toy and Novelty if oikeis Local Industrial Union No. 588 of the C. 1 0 , 7 N L R B 172 ATLAS UNDERWEAR COMPANY 613 and because of the peculiar nature of his duties.13 We see no reason for excluding the janitors from the type of unit sought and they will be included.14 , Accordingly, we find that all production employees of the Com- pany at the Richmond plant, excluding clerical and supervisory em- ployees, maintenance employees, and the night watchman, constitute a unit appropriate for the purposes of collective bargaining, and that such unit will insure to employees of the Company the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES At the hearing neither the Council nor the T. W. U. A. offered any documentary proof of membership. However, the Council's secretary-treasurer claimed that 182 of the 320 employees at the Company's Richmond plant had authorized the Council to represent them for purposes of collective bargaining. Although the T. W. U. A. offered no proof as to the extent of its membership at the Richmond plant, it is clear from the contractual relations it has had with the Company that it represents a substantial number of the employees at that plant. We find that the question which has arisen concerning the representation of employees can best be resolved by the holding of an election by secret ballot. The Company and the Council request that the pay roll as of the date of the hearing, November 13, 1939, be used to determine eligibil- ity to, participate in the election. The Company states that all its permanent employees were working on that date but that there is usually a slack period in the Company's business from December until May during which about 15 per cent of the employees are laid off. The T. W. U. A. urges that if the Board orders an election, the pay roll current at the time of the Board's Direction of Election should be used. In view of the lapse of time since the hearing, we shall direct that those persons eligible to vote shall be the employees in the appropriate unit who were employed by the Company during the pay-roll period next preceding the date of this Direction, includ- ing employees who did not work during such pay-roll period because they were ill or on vacation, temporarily laid off, or absent because of military service, but excluding those who have since quit or been discharged for cause. '$See Matter of Yates-American Machine Company and Inte,national Association of Machinists, Local 1139 (A. F. L ), 10 N L. R. B 786 ; Matter of Woodside Cotton Mall Company and Textile Workers Organizing Committee, 7 N. L. R B. 960. 24 See Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No . 520, 6 N. L. R. B . 171; Matter of Richardson Company and Local Union No. 442, U. A. W. A , 4 N. L. R. B. 835. -614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 rep- resentation of employees of Atlas Underwear Company, Richmond, Indiana, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All the production employees of the Company's Richmond, In- diana, plant, excluding clerical and supervisory employees, mainte- nance employees, and the night watchman, 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 La- bor Relations Board by Section 9 (c) of the National Labor Rela- tions 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 authorized by the 'Board to ascertain representatives for -the purposes of collective bargaining with Atlas Underwear Company, Richmond, Indiana, 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 Di- rector for the Eleventh 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 production em- ployees who were employed by the Company at its Richmond plant during the pay-roll period next preceding the date of this Direction, including employees who did not work during such ,pay-roll period because they were ill or on vacation or absent because of military service and employees who were ,then or have since been temporarily laid off, but excluding clerical and supervisory employees , mainte- nance employees, the night watchman, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented 'by The Atlas Employees Council , by Textile Workers Union of America, Local 111 , affiliated with the C. 'I. 0., for the purposes of collective bargaining , or by'neither. MR. EDWIN S . SMITH, dissenting : I dissent from the decision that the single plant unit is appropriate in this case. Although past bargaining history with the Company ATLAS UNDERWEAR" COMPANY 615 has been conducted on an individual plant basis, the T. W. U. A. has endeavored, since 1938, to secure a joint collective bargaining con- tract covering both plants. This extension of bargaining relations was forestalled ,; however, by the Company's refusal to bargain on a single unit basis. Under these circumstances , I do not believe that a history of collective bargaining limited, by employer resistance, to separate plant units affords a rational basis for the determination of an appropriate bargaining unit. For the reasons expressed in my dissent in Matter, of, United States Rubber Company'15 I would find the appropriate unit to consist of the employees of both the Piqua and Richmond plants. m Matter of United States Rubber Company (Providence Plant ) and Rubber Workers Fed- eral Labor Union, Local #22014, affiliated with the American Federation of Labor, 20 X. L. R. B. 473; see also Matter of Chrysler Corporation and United Automobile Work- ers of America, Local 371, affiliated with 0. I. 0., 13 N. L. R. B. 1303.