American Finishing Co.

National Labor Relations Board - Board Decisions

Feb 1, 1944

54 N.L.R.B. 996 (N.L.R.B. 1944)

In the Matter of AMERICAN FINISHING COMPANY and TEXTILE WORKERS
UNION OF AMERICA, CIO J
Case No. 15-R-1032.Decided February 1, 1944
Mr. J. E. McCadden , of Memphis, Tenn., for the Company.
Mr. Benjamin Wyle, of New York City , for the CIO.
Mr. Joseph Jacobs, of Atlanta, Ga. '
Messrs. H. A. Gereg and Cornelius Maiden, of Memphis, Tenn., Mr.
R. 0. Ross, of Knoxville , Tenn., and Mr . Elmer Estes , of Elizabeth-
town, Tenn., for the AFL.
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Textile Workers Union of America,
CIO, herein called the CIO, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Amer-
ican Finishing Company, Memphis, Tennessee, herein called the Com-
pany, the National Labor Relations Board provided for an appropriate
hearing upon. due notice before Horace A. Ruckel, Trial Examiner.
Said hearing was held at Memphis, Tennessee, on December 16, 1943.
The Company, the CIO, and United Textile Workers of America, AFL,
herein called the AFL, appeared, participated, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner re-
served ruling on several motions made at the hearing by the AFL. For
reasons stated hereinafter, said inotions_ are, hereby denied. On De-
cember 31, 1943, the AFL filed a request for oral argument before the
Board. Said request is hereby denied. On January 17,,1944, the AFL
filed a motion to dismiss the petition on the ground that no question
concerning representation has arisen, and a motion to reopen the
record in order to take evidence regarding the eligibility of certain
employees to vote. For reasons hereinafter set forth, said motions are
hereby denied. The Trial Examiner's, rulings made at the hearing
54 N. L R. B., No. 147.
996
AMERICAN FINISHING COMPANY 997
are free from prejudicial error and are hereby affirmed. All parties
were afforded opportunity to file briefs 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 Finishing Company is a Tennessee corporation. The Com-
pany is engaged in processing and finishing cotton piece goods owned
by others at its plant in Memphis, Tennessee. Practically all such
piece goods owned by others are brought to the Company's plant in
Memphis, Tennessee, from points outside the State of Tennessee by
interstate commerce carriers. Practically all of the cotton piece goods
processed by the Company are shipped to points outside the State of
Tennessee by interstate commerce carriers. Practically all of the raw
materials used by the Company in processing cotton piece goods are
shipped to its plant in Memphis, Tennessee, from points outside the
State of Tennessee. The Company concedes, and we find, that it is
engaged in commerce within the meaning of the National Labor
Relations Act.
IT. THE ORGANIZATIONS 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.
United Textile Workers of America is a labor organization affili-
ated with the American Federation of Labor, admitting to member-
ship employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
In a letter to the Company dated October 19, 1943, the CIO, en-
closing a copy of the petition filed in the instant case, claimed to rep-
resent a majority of the production and maintenance employees and
requested the Company to refrain from entering into a contract with
the AFL prior to a certification by the Board of the exclusive bar-
gaining agent of said employees . The Company made no reply.
The AFL has been representing employees of the Company, under
written collective bargaining agreements , uninterruptedly since 1937.
The most recent agreement was executed on March 7, 1942, and pro-
vided for a term expiring January 1, 1944 , with automatic renewal
from year to year thereafter in the absence of a notice of intention to
terminate at least six ( 6) months prior to the end of any term. On
April 6 , 1943, the AFL, exercising its privilege under the automatic
renewal clause, served notice on the Company that it was terminating
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the current contract on December 31, 1943.1 The AFL and the Com-
pany reached no new agreement prior to October 19, 1943, when the
CIO, having filed the petition herein, made known to the Company
its claim to represent a majority of the production and maintenance
employees.
It appears that the AFL and the Company have been unable to
reach a new agreement and that, in December 1943, a dispute over a
wage raise was certified to the National War Labor Board. At the
present date, no decision in this matter has been issued by the Na-
tional War Labor Board.
The AFL moved for a dismissal.of the petition herein, contending
that this Board is without jurisdiction because of the pendency of
the wage dispute before the National War Labor Board. We have
heretofore denied said motion, for we find no merit in this conten-
tion. The mere pendency of a dispute before the National War Labor
Board does not operate to divest this Board of jurisdiction in a rep-
resentation proceeding. In those cases where the Board has declined
to order an election in the presence of a dispute before the National
War Labor Board, other facts were present which do not exist in the
instant case. Since, on April 6. 1943, the AFL exercised the option
to terminate its contract on December 31, 1943, and since the CIO act-
ing in accordance with our finding in the previous representation pro-
ceeding involving the same parties ,3 filed the petition herein on Oc-
tober 19, 1943, a reasonable time before the expiration of the March
1942 agreement, we find that the pendency of the wage dispute before
the National War Labor Board constitutes no bar to an election at this
time.
A statement of the Regional Director, introduced in evidence at the
hearing, indicates that the CIO represents a substantial number of
employees in the unit hereinafter found appropriate.4
1A finding to this effect was made by the Board in Matter of American Finishing Com-
pany, 50 N. L R. B. 313, decided on June 9, 1943, involving the same parties now before
the Board in the instant proceeding. In dismissing the petition in that case, the Board
found that the AFL's contract of March 1942 "constitutes a bar to a determination of
representatives at this time." It stated, however, that the dismissal "should not prejudice
the right of the CIO, upon proper showing, to file a new petition at a reasonable time before
the present expiration date of the contract " a
2 See Matter of Allis Chalmers Mfg. Co., 50 N. L. R. B. 306 and Matter of Kennecott
Copper Corp, Nevada Mines Division, 51 N. L. R. B. 1140. In these cases, the Board
was faced with a recognized or certified representative which had had no real opportunity
to enjoy the benefits of exclusive representation, inasmuch as the initial bargaining efforts,
following recognition or certification, had resulted in resort to the processes of the National
War Labor Board. See also Matter of MacClatchie Manufacturing Company, 53 N. L R. B.
.1268; Matter of Ft. Dodge Creamery Company, 53 N. L. R. B. 928; Matter of Columbia
Protektosite Co, Inc, 53 N. L. R. B 560; Matter of Americus C Leonard, et at, 51
N. L. R. B. 1424
8 See footnote 1.
4The Regional Director stated that the CIO submitted 1096 membership cards, of which
511 bore the apparently genuine, original signatures of employees whose names appeared
on the Company's pay roll of November 10, 1943,,which bore the names of 1450 employees
AMERICAN . FINISHING COMPANY 999
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the agreement of the CIO and the
Company, to which the AFL offered no objection, that all employees
of the Company, excluding watchmen, main office clerical and office
workers, persons in executive positions with final authority to hire
or discharge, and, in accordance with our usual policy, excluding
also all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.5
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot.
The AFL moved to reopen the hearing in order to take evidence
regarding the eligibility to vote of certain employees alleged to have
been recently laid off or discharged. We have heretofore denied
said motion , since in the Direction of Election hereinafter, the
eligibility to vote of laid-off and discharged employees is defined.
If, at the election, there is any disagreement with respect to the
eligibility to vote of any of such employees, the parties are free to
challenge the ballots.
in the unit hereinafter found appropriate. Of the 511 cards, 196 were dated in March
1943; 45 in Aptil 1943 ; 19 in May 1943 ; 4 in June 1943 ; 17 in August 1943; 19 in
September 1943 ; 66 in October 1943 ; 143 in November 1943 ; and 2 were undated. At the
hearing , the CIO submitted 147 additional cards, of which 2 were dated in October 1943;
113 in November 1943, and 27 in December 1943.
The AFL moved for dismissal of the petition on the ground that the CIO failed to
make a showing of present substantial representation , and that therefore no question
exists concerning the representation of employees of the Company. In support of this
motion , the AFL contends that the cards are too few in number , do not bear recent dates
and were not made available for examination by the AFL. We find no merit in this con-
tention. As we have frequently stated, authorization or membership cards are required,
not as proof of the number of employees who desire to be represented by a labor organiza-
tion, or as a basis for determining the appropriate representative , but simply to provide
a reasonable safeguard against the indiscriminate institution of representation proceedings
by labor organizations which might have little or no membership in the alleged appro-
priate unit . The examination and evaluation of these cards is an administrative matter,
wholly within the discretion of the Board , and for this reason is not subject to attack
by parties to the proceeding . For these reasons , we have heretofore denied said motion.
See Matter of Frigidaire Division, General Motors Corp, 54 N. L . R. B. 55; Matter of II. G.
Will Stores, Inc, Warehouse, 39 N. L R B. 874
i This is substantially the same unit provided for in the AFL contract with the Com-
pany . At the hearing , the CIO was permitted to amend its petition with respect to -unit
to conform to the language of said contract.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we shall direct that those eligible to vote in the elec-
tion shall be all employees of the Company in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
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 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
,DIREOTrD that, as part of the investigation to.ascertain representa-
tives for the purposes of collective bargaining with American Fin-
ishing Company, Memphis, Tennessee, 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 super-
vision of the Regional Director for the Fifteenth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did not
work during said pay-roll period because they were ill or on,vacation
or temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding any who have since quit or been discharged for,cause
and have not been rehired or reinstated prior to the date of the elec-
tion, to determine whether they desire to be represented by Textile
Workers Union of America, CIO, or by United Textile Workers of
America, AFL, for the purposes of collective bargaining, or by neither.