American Pants Manufacturing Co.

National Labor Relations Board - Board Decisions

Sep 8, 1945

63 N.L.R.B. 810 (N.L.R.B. 1945)

In the Matter Of JOSEPH LERNER, INDIVIDUAL, DOING BUSINESS AS
AMERICAN PANTS MANUFACTURING COMPANY and DISTRICT 50,
UNITED MINE WORKERS OF AMERICA
Case No. 14-R-1214.Decided September 8, 1945
Mr. Joseph Lerner, of Carbondale, Ill., for Lerner.
Messrs. Hubert Rushing and Roy E. White, of Herrin, Ill., for Dis-
trict 50.
Mr. Edwin H. Stern, of St. Louis, Mo., for the AFL.
Miss Ruth E. Bliefeld, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon an amended petition duly filed by District 50, United Mine
Workers of Americans herein called District 50, alleging that a ques-
tion affecting commerce had arisen concerning the representation
of employees of Joseph Lerner, Individual, doing business as Amer-
ican Pants Manufacturing Company, Carbondale, Illinois, herein
called Lerner, the National Labor Relations Board provided .for an
appropriate hearing upon due notice before Joseph Lepie, Trial Ex-
aminer. Said hearing was held at Carbondale, Illinois, on June 22,
1945. Lerner, District 50, and United Garment Workers of America,
A. F. of L., Local Union 272, herein called the AFL, appeared and
participated. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues. The Trial Examiner's rulings made at the hear-
ing 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
I. THE BUSINESS OF THE COMPANY
Joseph Lerner, Individual, doing business as American Pants
Manufacturing Company, is engaged in the manufacture, sale, and
3 District 50's name appears in the caption and body of this decision as it was amended
at the hearing.
63 N. L. R. B., No. 123.
810
AMERICAN PANTS MANUFACTURING COMPANY 811
distribution of men's pants at his plant in Carbondale, Illinois. Dur-
ing the calendar year 1944, Lerner purchased raw materials valued in
excess of $25,000, approximately 90 percent of which was shipped to
his plant from points outside the State of Illinois. During the same
period the value of the products finished at his plant exceeded $100,-
000, approximately 90 percent of which was shipped to points out-
side the State.
Lerner admits that he is engaged in commerce within the meaning
of the National Labor Relations Act, and we so find.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, and United Gar-
ment Workers of America, Local Union 272, affiliated with the Amer-
ican Federation of Labor, are labor organizations admitting to mem-
bership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On May 4, 1945, District 50 requested recognition as the exclusive
bargaining representative of certain of Lerner's employees. Lerner
refused this request on the ground that he was under contract with
the AFL.
Lerner has had collective bargaining contracts with the AFL since
1934 covering his production and maintenance employees, the latest
contract having been executed on February 11, 1942. This contract
contains a closed-shop provision, and a termination clause reading
as follows:
This agreement to go into effect on the 11th day of February
1942 and terminate one or two years from said date. It shall
be automatically continued beyond said date of expiration for
one or two years unless either party, upon sixty days' notice, elects
to terminate it... 2
In March 1945, the AFL's members ceased paying dues to that or-
ganization, despite the closed-shop provision in its contract with Ler-
ner. It also appears that at a meeting of the AFL held on April 30,
1945, its members voted unanimously to withdraw from it and affil-
iate with District 50. A short time after the meeting of April 30,
these employees returned their charter to the AFL, notified Lerner of
their action, and obtained a charter from District 50. Thereafter
they started to pay dues to District 50. District 50 has since treated
with Lerner concerning a grievance of the employees.
Although Lerner raises his contract with the AFL as a bar to this
proceeding, we are satisfied that a current determination of represen-
Y The contract was also signed by a representative of the United Garment Workers of
America, the AFL's international.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tatives is warranted . If a petition had been seasonably filed in the
first year of the contract 's existence , the argument could have been
made that the contract was considered as having a 2- and not a 1-year
term. Were a representation proceeding to have been timely insti-
tuted during the second year of the life of the contract , it might have
been contended that the agreement had been viewed as one with an
initial term of 1 year and had been automatically renewed for 2 years
more. And a petition seasonably filed in the third year of the con-
tract's life could have been resisted on the ground that the agreement
had been deemed to be of 2 years ' duration and had been automatically
renewed for a similar period ; apparently that is Lerner's position in
the present case, which was initiated during the early part of the con-
tract's fourth year. It is therefore plain that the contract 's uncertain
duration clause improperly failed to indicate when a representation
proceeding could have been safely brought before the end of a 4-year
period. Thus, Lerner's employees were prejudiced in exercising their
right, if they so desired , to select a new bargaining representative at
an earlier date after the lapse of a reasonable time.3 By reason of
these facts we conclude that a present determination of representatives
is entirely justified 4
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that District 50 represents a substantial number of
employees in the unit hereinafter found appropriate 5
We find that a question affecting commerce has arisen concerning the
representation of Lerner 's employees , within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, in accordance with the stipulation of the parties, that all
Lerner's production and maintenance employees, excluding clerical
employees and all supervisory employees with authority to hire, pro-
mote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act.
3 we note, moreover , that the agreement may be open to the construction that it is at pres-
ent terminable at the will of either contracting party upon 60 days' notice given at any
time So interpreted it could not possibly be a bar.
' The view we have taken above renders it unnecessary to determine the effect upon the
contract as a bar of the AFL's inactivity.
The Field Examiner reported that District 50 submitted 48 membership application
cards ; that the names of 43 persons appearing on the cards were listed on the Company's
pay roll of May 18, 1945 , which contained the names of 59 'employees in the appropriate
unit ; and that 42 cards were dated during April 1945, and 1 card was undated.
The AFL made no showing of membership , relying on its contract with Lerner to estab-
lish its interest in the proceeding.
AMERICAN PANTS MANUFACTURING COMPANY 813
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit•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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, as amended , it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives = for the purposes of collective bargaining with Joseph Lerner,
Individual , doing business as American Pants Manufacturing Com-
pany , Carbondale , Illinois, an election by secret ballot shall be con-
ducted 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 Fourteenth Region, acting in this matter
as agent for the National Labor Relations Board, and subject to Arti-
cle III , Sections 10 and 11, of said Rules and Regulations , 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
the said pay -roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls , but ex-
cluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
election, to determine whether they desire to be represented by District
50, United Mine Workers of America , or by United Garment Workers
of America , A. F. of L., Local Union 272 , for the purposes of collective
bargaining , or by neither.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.