American White Cross Laboratories, Inc.

National Labor Relations Board - Board Decisions

Mar 9, 1945

60 N.L.R.B. 1148 (N.L.R.B. 1945)

In the Matter of AMERICAN WHITE CROSS LABORATORIES, INC. and
-UNITED RETAIL, WHOLESALE & DEPARTMENT STORE EMPLOYEES OF
AMERICA, C. I. 0.
Case No. 2-R-5209.-Decided March 9, 1945
Mr. Isador Tow, of New Rochelle, N. Y., for the Company.
Mr. Charles R. Katz, of New York City, for the CIO.
Buitenkant c€ Cohen, by Mr. Jaques Buitenkant, of New York City,
for the AFL.
Miss Frances Lopinsky, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Retail, Wholesale & Depart-
ment Store Employees of America, C. I. 0., herein called the CIO,
alleging that a question affecting commerce had arisen concerning the
representation of employees of American White Cross Laboratories,
Inc., herein called the Company, the National Labor Relations Board
provided for an appropriate hearing- upon due notice before Jack
Davis, Trial Examiner. Said, hearing was held at New York City
on January 15, 1945. The Company, the CIO, and Federal Labor
Union, Local 22806,1 herein called the AFL, appeared and partici-
pated. All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. The Company and the AFL moved the dismissal
of the petition on the ground that this proceeding is barred by a con-
tract currently in effect. For reasons stated in Section III, infra, the
motion is hereby denied. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
1 At the hearing, the Motion to Intervene , which was signed by Cosmetic Soap & Per-'
fumery workers Union Local #20646, AFL , was amended to designate the intervenor as
above. It appears that Locals 22806 and 20646 are merged but that the designation Local
22806 is retained for certain purposes , one being identification of the local here involved.
Since both Locals are in reality one and the same organization, we reject the CIO's conten-
tion that Local 22806 is defunct and cannot participate in this proceeding. -
60 N. L. R. B., No. 194.
1148
AMERICAN WHITE CROSS LABORATORIES, INC . 1149
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American White Cross Laboratories, Inc., a New York corporation,
is engaged, at its plant in New Rochelle, New York, in the manufacture
of surgical dressings. During the year 1944, the Company used ap-
proximately $1,000,000 in value of raw materials, consisting of cotton
cloth and rubber, 25 percent of which was shipped to the New Rochelle
plant from points outside the State of New York. During the same
year, the Company sold and delivered finished products, consisting
mainly of absorbent cotton, gauze bandages, adhesive plaster, and
medicated plaster, of a value in excess of $1,000,000, approximately
75 percent of which was shipped to points outside the State of .New
York.
The Company admits that it is engaged in commerce-within the-
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Retail, Wholesale & Department Store Employees of Amer-
ica, affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the Company?
Federal Labor Union, Local 22806, affiliated with the American Fed-
eration of Labor, is a labor organization admitting to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and the AFL entered into a closed-shop contract
dated September 23, 1942, to expire, according to its terms, on Decem-
ber 31, 1943. By subsequent agreement, the term of this contract was
extended until "the National War Labor Board renders a decision in
the matter before it concerning a new Agreement." On October 12,
1944, the Company and the AFL executed a closed-shop contract dated
January 1. 1944, effective retroactively, which, according to its terms,
was to expire December 31, 1944. The contract contained no provision
for automatic renewal. Also on October 12, 1944, these parties agreed
upon the terms of a new contract, and on November 22, 1944, they
signed the said agreement, which provided for a term extending to
ing The AFL contends that the CIO has no standing as a labor organization in this proceed-
alleging that no local has been created to which employees of the Company have been
allocated and that no such local can be created because the jurisdiction of the CIO
does not include employees engaged in the manufacture of surgical dressings We
find no merit in the contention . See Pueblo Gas & Fuel Co . V. N. L. R. B , 118 F. (2d)
304 (C C A . 10), enforcing 23 N L . R. B. 1028 ; Matter of Brewster Ideal Chocolate
Company, 49 N L. R B. 366.
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 31, 1945. The terms of the two contracts executed in 1944
differ only as to dates and provision for wage increases, the former
incorporating increases theretofore approved by the National War
Labor Board, the latter providing for negotiations leading to a pos-
sible increase in wages after January 1, 1945, contingent upon a rise
in the cost of living and War Labor Board approval. On November
30, 1944, the CIO filed its petition herein.
The Company and-the AFL contend that, inasmuch as the contract
of November 22 was signed prior to the CIO's demand for recognition,3
it is a bar to this proceeding. We find no merit in the contention.
Although the contract executed November 22 on its face would ap-
pear to have been effective when signed, it is apparent, from the fact
that its terms were agreed upon on the same day that the 1944 agree-
ment was executed, that it was meant to succeed, not supersede, the
1944 contract,4 and that it was not intended to take effect until January
1, 1945, at the expiration of the 1944 contract. We have held, where
such a succeeding contract comes into being as the result of negotia-
tions, rather than pursuant to the operation of an automatic renewal
clause, that the effective date of the succeeding contract, rather than
the date of execution, is decisive in determining whether or not a de-
mand for recognition has been timely made.5 To hold otherwise
would be to impose upon a contending union the burden of keeping
in close touch with the negotiations and possible negotiations between
the contracting parties, and of being ever ready to assert a claim of
majority representation whenever execution of a new agreement
seemed imminent.' At the same time, unless a new agreement were
signed during the contract year, the contender would be precluded
from asserting its claim until a reasonable time prior to the termina-
tion, or automatic renewal date of the contract. We find, therefore,
that the agreement signed November 22, 1944, is no bar to a present
8 The CIO contends that prior to November 22, 1944, the Company had knowledge of
loss of majority by the AFL, and of CIO activity in the plant. The testimony relied
upon by the CIO to support this contention established at most that the Company recog-
nized that a certain amount of labor unrest existed among its employees, but this knowledge
in itself was insufficient to preclude the creation of a bar to a subsequent representation
proceeding by the signing of an effective contract, since the evidence fails to establish that
the Company was on notice that a majority of its employees desired to change
representatives.
4 A witness for the Company testified that on October 12, 1944, "We settled the thing
for two years, the year it was running and the new year."
' See Matter of Foster-Grant Co , Inc, 54 N. L. R. B. 802; Matter of Kimberly-Clark
Corporation, 55 N. L. R. B. 521, and Matter of Lycoming Division, The Aviation Corpora-
tion, 56 N. L. R. B 803.
9 Even if the contract were construed as effective on the date of execution , the same
principle would apply. See Matter of Wichita Union Stockyards, Inc., 40 N. L. R. B.
369; Matter of Memphis Furniture Manufacturing Company, 51 N L. R. B. 1447. Matter
of American Hair t Felt Company, 15 N. L. R. B , 572, cited by the AFL to support a
contrary finding was decided prior to Matter of Mill B., Inc., 40 N. L. R. B. 346, and has,
in effect, been overruled by that case and the cases above cited.
AMERICAN WHITE CROSS LABORATORIES, INC. 1151
determination of representatives inasmuch as the petition-was filed
by the CIO prior to the effective date of said contract.7 -
A statement of a Board agent, introduced into evidence at the hear=
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate s
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 Act.
IV. THE APPROPRIATE UNIT
In accordance with the agreement of the parties, we find that all
production and maintenance employees of the Company at its New
Rochelle plant, including watchmen - and firemen, print shop em-
ployees, shipping and receiving department employees, and chauffeurs,
but excluding all office employees, foremen, foreladies, managers, and
all or any other 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.
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 Relations
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 American White
Cross Laboratories, Inc., New Rochelle, New York, an election by
secret ballot shall be conducted as early as possible, but not later than
sixty (60) days from the date of this Direction, under the direction
7 The contract signed October 12, 1944, expired December 31, 1944, and is, of course
no bar to this proceeding.
8 The Field Examiner reported that the CIO submitted 57 application authorization
cards, 50 of which bore signatures of persons listed on the Compony's pay roll of December
14, 1944, -ehich contained the names of 74 employees in the appropriate unit; and that
the cards were all dated in November 1944. The AFL relied upon its contract to prove
its interest in the proceeding.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supervision of the Regional Director for the Second 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 the said pay-roll period because they were ill or on vaca-
tion 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 those employees who have since quit or been dis-
charged 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 United Retail, Wholesale & Department Store Employees of Amer-
ica, CIO, or by Federal Labor Union, Local #22806, AFL, for,the
purposes of collective bargaining, or by neither.