Cluett, Peabody & Co., Inc.

In the Matter of CLUETT. PEABODY & CO., INC. and UNITED GARMENT WORKERS OF AMERICA, LOCAL No. 297, AFFILIATED WITH THE A. F. OF L. Case No. R-92402.-Decided April 30, 1941 Jurisdiction : garment manufacturing industry. Investigation and Certification of Representatives : existence of question: con- flicting claims of rival representatives ; contract entered into after -institution of proceedings with notice of rival union's claim to representation, no bar to ; pay roll preceding interruption of work and signing of the above contract, which provided for preferential hiring, to determine eligibility ; election necessary. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees at one of the Company's plants excluding supervisory and clerical employees. - Mr. Alexander E. Wilson, Jr., for the Board. Sullivan d Cromwell, by Mr. Marshall MacDu ffie, Jr., of New York City, for the Company. Mr. Joseph A. Padway and Mr. Herbert S. Thatcher, of Washington, D. C., and Miss Sallie Clinebell, of Lynchburg, Va., for the United. Mr. John J. A b t, of New York City, and Mr- Bernard Borah, of Atlanta, Ga., for the Amalgamated. Mrs. Augusta Spaulding, of counsel to the Board. DECISION. AND DIRECTION OF ELECTION STATEMENT OF THE CASE, On February 19, 1941, United Garment Workers of America, Local No. 297, herein called the United, filed with the Regional Director for the Tenth Region (Atlanta, Georgia) a petition alleging that a question affecting commerce had arisen concerning representation of employees of Cluett, Peabody & Co., Inc., Atlanta, Georgia, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 4,• 1941, 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 investigation and authorized the Regional 31 N. L It. B., No. 79. 505 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director to conduct it and to provide for an appropriate hearing upon due notice. On March 5, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the United,- and Amalgamated Clothing Workers of America, herein called the Amalgamated, a labor organization claiming to represent 'employees directly affected by, the investigation. Pursuant to the notice, a hearing was held on March 13, 14, and 15, 1941, at Atlanta, Georgia, before Edward Grandison Smith, the Trial Examiner duly designated by the Chief Trial Examiner. All parties were represented by coun- sel and participated in the hearing. The Amalgamated moved to dismiss the petition on the grounds that the unit named in, the peti- tion was not appropriate for the purposes of collective bargaining and that a contract entered into between the Company and the Amal- gamated on February 28, 1941, constituted a bar to this proceeding. The Trial Examiner did not rule upon this motion. For reasons set-- forth below, the motion is hereby denied. 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 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. - On April 1, 1941, a hearing was held before the Board at Washing- ton, D. C., for the purpose of oral argument. The United and the Amalgamated appeared and presented argument. The Company ap- peared, but did not present argument. The Amalgamated filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the-following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Cluett, Peabody & Co., Inc., is a New York corporation engaged in the manufacture, sale, and distribution of shirts, collars, ties, underwear, and handkerchiefs. The Company operates factories at Troy, New York, Corinth, New York, Leominster, Massachusetts, and Atlanta, Georgia. The Company maintains sales offices in other States. At the Atlanta plant, which is the only plant, directly involved in this proceeding, the Company is engaged in the manufacture of men's shirts. The principal raw materials used in the manufacture are CLUETT, PEABODY & COMPANY, INC. 507 cotton cloth , buttons, and thread. The approximate value of such raw materials used during the year 1939 was $1,700,000 , approxi- mately 25 per cent of which were purchased and shipped to the plant from points outside Georgia. During the same year the plant produced approximately 235,000 dozen shirts, valued at approximately $3,500,000, approximately 90 per cent of which were shipped- to points outside Georgia. There was no substantial ,change in the Com- pany's business during the year 1940. The Company admits that it is engaged in interstate commerce. H. THE ORGANIZATIONS INVOLVED United Garment Workers of America, Local No. 297 , is a labor organization affiliated with the American Federation of Labor. It admits to membership production and maintenance employees of the Company. Amalgamated Clothing Workers of America is a labor organiza- tion affiliated with the Congress of Industrial Organizations. It admits to membership production and maintenance employees of the Company. - III. THE QUESTION CONCERNING REPRESENTATION In 1933 the Amalgamated began its organization of the Company's employees at the Troy plant. Before 1940 both the United and the Amalgamated had members among the employees of the Com- pany at its Atlanta plant. Although the Amalgamated had ex- tended its organization to include also employees at the Corinth and Leominster plants, it does not appear that the United extended its membership beyond the Atlanta plant . Each organization con- ferred with the plant manager and other officials of the Company concerning grievances of its members. During the first week of February 1941 representatives of the Amalgamated conferred with representatives of the Company about grievances of its members at the Atlanta plant and discussed the possibilities of a contract for employees at the Atlanta plant with particular reference to grievance machinery . No details of the pro- posed contract were discussed . On February 17 employees in the assembly room of the Atlanta plant stopped work. A member of ,the Amalgamated , who was also a member, of a committee of em- ployees in the assembly room, telephoned a representative of the Amalgamated , requesting his assistance for the committee in negoti- ating with the Company for the settlement of the grievance. The representative of the Amalgamated refused to assist unless the com- 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee voted to let the Amalgamated settle the grievance. The coin- mittee so voted, and the Amalgamated representative immediately conferred with the Atlanta plant manager respecting this grievance. The manager referred the matter to the Troy office by telephone. The Company wished its employees to continue work during the negotiations, for -a settlement of the grievance. 'On February 18, the Amalgamated called a general meeting of all employees at the Atlanta plant. About 400 employees attended this meeting. Employees at the meeting voted to strike and-to demand a contract with adequate provisions -for, the settlement,of grievances. Employees in the laundry department stopped work about this time. On February 19 the Amalgamated placed a picket line around the plant. Some employees, among whom were members of the United, crossed the picket line. The plant functioned on a curtailed basis on February 19 and 20. On February 19 the United filed the petition in this proceeding. On February 20 representatives of the United, claiming • to repre- sent a majority of employees at the Atlanta plant, asked the Com- pany to recognize the United as the bargaining representative of such employees. The Company refused, alleging that the Amal- gamated also claimed to represent a majority of the same employees. The Company and the United agreed to a consent election to be conducted by the Board. On February 20 the Amalgamated caused the cutters at the Troy plant to stop work and production at the Troy and Corinth plants was soon interrupted. The Amalgamated picketed the Leominster plant and interrupted its production. The Atlanta plant closed on February 21. On the same day the Company inserted a notice in - the Atlanta papers, announcing that the Atlanta plant would open on February 24 and requesting that its employees resume work pending the outcome of an election at the Atlanta plant to deter- mine their bargaining representative. The Amalgamated refused to agree to a consent election and continued picketing the Atlanta plant. Representatives of the Com- pany and the Amalgamated conferred during the week of Febru- ary 24. Delegates of employees from all four plants participated in the conferences. The Amalgamated claimed to represent a major- ity of production and maintenance employees in each of the Com- pany's plants. On February 28 the Company and the Amalgamated signed a con- tract covering production and maintenance employees at the four plants of the Company. By the terms of this contract the Company recognized the Amalgamated as sole bargaining agent of all such employees. The contract included, among other features, provisions t CLUETT, PEABODY & COMPANY, INC: 509 for preferential hiring of employees at the Atlanta plant. Notice of the contract appeared in the Atlanta papers with the announce- ment that the Atlanta plant would open on March 4. On March 4, the plant opened and remained open although the United began picketing the plant. The Amalgamated contends that this contract constitutes a bar to this proceeding. The Amalgamated admits that the filing of the petition and the United's claim of substantial membership among the employees at the Atlanta plant were known to both contracting parties before negotiations for the making of the contract began. We find that, under these circumstances, the contract is not a bar to it determination and certification of Tepresentatives for collective bargaining, purposes.' A statement prepared by the Regional Director and introduced into evidence discloses that the "United and the Amalgamated have been designated by a substantial number of employees in the appro- priate unite We find that a question has arisen concerning the representation of employees of the Company at its Atlanta plant. INT. 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 I Cf. Matter of Colonic Fibre Company, Inc and Cohoes Knit Goods Workers Union No. 21514, A F. of L, 9 N. L. R. B. 658 , Matter of The Peoples Gas Light and Coke Company and Chicago By-Product Coke Company and United Mine Workers of America, District 50, affiliated with the Congress of Industrial Organizations ; 15 N L R. B. 1024; Matter of Silvray Lighting, Inc. and International Brotherhood of Electrical Workers Local Union No 3, 18 N. L R. B 719; Matter of Elk Tanning Company and Inteinational Fur and Leather Workers' Union, affiliated with the C. I. O , 26 N L R B , No 79. 2 The United submitted to the Regional Director , in support of its claim to represent a majority of employees in the appropriate unit , 164 applications for membership , of which 161 are dated between March 1 , 1940, and June 30, 1940 , and 3 are undated ; 218 authori- zation cards, of which 185 are dated between February 1, 1941 , and February 28, 1941, 40 between March 1, 1941 , and March 13, 1941 , and 3 are undated . Of the 362 cards, all of which appear to bear genuine signatures , 312 bear names of employees on the Company's pay roll of February 15 The United claims that there is an error in this check and that 340 cards bear names of employees on such pay roll. The Amalgamated submitted to the Regional Attorney Cl0 applications for membership in Textile Workers Organizing Committee dated 1937 ; 459 applications for membership in Amalgamated Clothing Workers of America , of which 2 are dated 1937, 29 dated 1938, 141 dated 1939, 176 dated ' 1940, 107 dated between January 1 and March 11, 1941, and 4 undated. ' Of these 519 cards , 459 bear names on the pay roll of February 15, 1941. The Amalgamated also submitted 364 affirmations of membership , in which the signer states that he is a member of the Amalgamated and has never signed a card in the United 'In addition to the above, the Amalgamated submitted in evidence at the hearing 43 with- drawals from the United and affirmations of membership in the Amalgamated , many of which are undated All the affirmations of membership and withdrawals from the United were signed subsequent to February 28, 1941. There are duplications among the cards of the United and the Amalgamated . The evidence of substantial representation submitted by the United and the Amalgamated was confined to the Atlanta plant There are about 800 emalovees at the Atlanta plant 510 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD described 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 agree that the appropriate unit should include pro- duction and maintenance employees, excluding supervisory and cleri- cal employees. The United contends that the unit should include such employees of the Company at the Atlanta plant. The Amalgam- ated contends that the unit should include such employees at the Troy, Corinth, Leominster, and Atlanta plants. The Company considers that it became committed to the 4-plant unit when it signed the contract discussed in Section III above , but submits the issue of the appropriate unit to the Board. The Company's main offices, the office of its production manager, and its research and engineering departments are at Troy. Pur- chases of raw materials are made at Troy and work is allocated among the several plants. ' Although Troy is the assembly point for products of all four factories , such products are often sent directly from the several plants to purchasers or other distributing points. Although the transfer of semi-manufactured material from one plant to another is not economical and is not a general practice, such transfer has occurred. During a stoppage of work in the laundry department at the Atlanta plant shirts cut and sewed at the Atlanta plant were sent to the Troy plant for finishing . Wages and hours of work are determined at the main office at Troy and hours of work at all plants are uniform. Rates of pay, however, are adjusted to the living conditions in the several cities where the plants are located. Piece-work rates are further adjusted to the kind of cloth and the size of the order. Although the plant man- ager may make minor settlements in adjusting grievances for plant employees; such settlements are reviewed at Troy. All grievances involving changes in hours and the expenditure of money must be referred to the main office for settlement. The several plants differ in size, in product, and in their proximity to the main office. At the Troy plant there are about 3,300 pro- duction and maintenance employees , at the Corinth plant 250, at the Leominster plant 680, and at the Atlanta plant 800 such employees. At the Troy plant shirts, handkerchiefs, underwear, and neck wear are manufactured . Because of its size, fancy shirts, sport shirts, seasonal work, and short orders are handled at the Troy plant. The CLUETT, PEABODY & COMPANY, INC. 511 Corinth plant has no cutting department and shirts cut at Troy are sewed at Corinth. Shirts are manufactured at the Leominster and Atlanta plants. Corinth is about 45 miles from Troy, Leominster, 125 miles, and Atlanta more than 500 miles. There is no interchange of production and maintenance employees among the several plants. The Atlanta plant is intended to operate as an independent plant. It receives the cloth for its products in bolts or webs from independ- ent mills or from the Company's Waterford Bleachery, a part of its Troy plant. Products completed at the Atlanta plant are shipped to the Company's warehouses or direct to its customers. The At- lanta plant uses the uniflow method of manufacture while the other plants use the bundle system. Like other plants of the Company, the Atlanta plant has its own pay roll. Seniority at the plant determines lay,-offs. In 1935 the Amalgamated called a conference of shirt manufac- turers, with some of _ whom it had bargaining, contracts, to discuss a wage policy. Representatives of the Company attended the con- ference. After this, conference the Company modified a reduction in wages which it had announced. In 1936 or 1937 representatives of the Amalgamated and the Company conferred and subsequently the Company announced a wage increase. At these times the Amalgamated had some members at the Company's Troy plant, but the record does not disclose the extent of such membership. From time to time representatives of the Amalgamated conferred with representatives of the Company concerning the grievances of its members at the several plants, but the Amalgamated did not claim to represent a majority of employees at any plant until Feb- ruary 1941. Likewise in 1940 and up to the time of the hearing the United conferred with representatives of the Company concerning the grievances of its members at the Atlanta plant, but did not claim to represent a majority of employees at the Atlanta plant until February 1941., The United has not extended its membership beyond the Atlanta plant. Although the Amalgamated, claims to represent a majority of the Company's employees at each of its four plants, it refused upon request to offer any,proof of such claim except with respect to the Atlanta plant. Upon the entire record, we find that'all production and main- tenance employees of the Company at its Atlanta plant, excluding clerical and supervisory 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- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organization and to collective bargaining and otherwise effectuate the policies of the Act.3, The Amalgamated and the United checked the Company's Atlanta plant pay roll of February 15, -1941, and listed the names of super- visory and clerical employees who they agreed were properly ex- cluded from the unit proposed by the United. In respect to the classification of two employees, R. B. Stewart and Leon Dean, they. disagreed. Stewart, president of the United, is a shader and a highly skilled employee. He works under the foreman of the cutting room. He directs the work of one employee whom he is training to become a cloth matcher., He receives invoices and keeps stock records. He does not hire, discharge, or discipline employees. Dean, vice presi- dent of the Amalgamated, is a shipping clerk. He keeps a record of stock in the warehouses of the Atlanta plant. One-half of his duties are clerical. He moves stock. Both men are hourly paid. We find that their work falls within the categories which the United and the Amalgamated have agreed to include in the appropriate unit. 'VI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation of employees of the Company-at the Atlanta plant tali best be resolved by, and we shall- accordingly direct, an election by secret ballot. The contract of February 28, 1941, which we have found in Section III above is not a bar to this proceeding, became immediately effective and provided for preferential hiring at the Atlanta plant. The pay roll of February 15, 1941; lists employees who were employed in the pay-roll period which immediately preceded the interruption of work and the signing of the contract. This pay roll was introduced in evidence at the hear- ing. The parties checked against this pay roll the names of em- ployees who they agreed were supervisory or clerical employees and hence to be excluded from the unit proposed by the United. Under the circumstances disclosed, we find that the pay roll of February 15, 1941, is suitable to determine the eligibility of voters. The parties agreed that employees on leave should be eligible to vote if the Board ordered an election., Those eligible to vote, in the election 3 Cf. Matter of Buckley Hemlock Mills, Inc, Buckley Logging Company and International Woodworkers of America, Local No. 5 2,' 15 N L. R B. 498 ; Matter of Industrial Rayon Corporation, a Delaware Corporation and Textile Workers Organizing Committee; Matter of Industrial Rayon Corporation, a Delawa r e Corporation, and Industrial Corporation of Virginia, a Virginia Corporation and Textile Workers Organizing Committee, 7 N. L. R. B. 878; Matter of Libbey-Owens-Ford Glass Company and Federation of Glass, Ceramic and Silica Sand Workers of America; Matter of Libbey-Owens -Ford Glass Company and Na- tional,Flat Glass Workers of the American Federation of Labor, 31-1N . L R. B., No. 38, and cases cited therein. CLUETT, PEABODY & COMPANY, INC. 513 shall be employees in the appropriate unit whose names appear on . the pay roll of February 15, 1941, subject to such limitations and additions as are set, forth in the Direction of Election. 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 Cluett, Peabody & Co., Inc., Atlanta, Georgia, at its Atlanta plant within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. - 2. All production and maintenance employees of Cluett, Peabody & Co.; Inc., Atlanta, Georgia, at its Atlanta plant, excluding super- visory and clerical employees, constitute 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 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, Cluett, Peabody & Co., Inc., Atlanta, Georgia, 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 Tenth 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'and maintenance employees of Cluett, Peabody & Co., Inc., Atlanta, Georgia, at its Atlanta plant, whose names appear on the Atlanta plant pay roll of February 15, 1941, including employees who did not work during that pay-roll period because they were on leave or ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding super- visory and clerical employees and employees who have since quit or been discharged for cause, to determine whether said employees desire to be represented by the United Garment Workers of America, Local No. 297, or by Amalgamated Clothing Workers of America, for the purposes of collective bargaining, or by neither. I 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MR. EDWIN S . SMITH,, dissenting: All four plants of the Company are subject to a 'highly centralized and unitary control by management. The grievance machinery of the Company requires that any but the most trivial matters be re- ferred to its central office. The Company can shift and has shifted production from one plant to another and has thereby weakened the employees' bargaining power. Employees at all four plants have engaged in strike activity as a unit. In view of these facts and for the reasons stated in my dissenting opinion in Matter of Libbey- Owens-Ford Glass Company,' I am of the opinion that the 4-plant unit is appropriate and that the Atlanta plant does not constitute an appropriate unit. As I pointed out in that opinion Beginning with the Chrysler case 5 the Board's decisions have evidenced a tendency, exemplified in the present decision, to per- mit the scope of industrial units to be determined by the desires of the employees,in the smallest industrial grouping for which a contention is made.6 This seems to me unfortunate. It weak- ens the bargaining power of employees in dealing with a unified management, multiplies the problems of management in dealing with employees, and aggravates existing divisions in the ranks, of organized labor. It undermines the bargaining process at a time when considerations of national welfare render of para- mount importance the effectuation of the policy of the Act : ' ... to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining . . .7 I would dismiss the petition. 4 Matter of Libbey-Owens-Ford Glass Company and Federation of Glass, Ceramic and Silica Sand Workers of America ; Matter of Libbey-Oivens-Ford Glass Co and National Flat Glass Workers of the American Federation of Labor , 31 N L. R. B., No 38. S "Matter of Chrysler Corpoiation and United Automobile Workers of America, Local 371, Affiliated with the C. I 0 , 13 N. L R B. 1303 " ° "See, for example , Matter of Briggs Manufacturing Company and Briggs Indiana Cor- poration and International Union, United Automobile Workers of America , affiliated with the C. 1. 0 , 13 N L. R. B . 1326; Matter of Hood Rubber Company, Inc and Rubber Workers Federal Labor Union No. 21914 (AFL), 20 N . L. R 13, No 51 , Matter of United States Rubber Company ( Providence Plant ) and Rubber Workers Federal Labor Union, Local #22014, affiliated with the American Federation of Labor, 20 N L R B 473 i "Section 1." -