American Woolen Co.

National Labor Relations Board - Board Decisions

May 22, 1941

32 N.L.R.B. 1 (N.L.R.B. 1941)

In the Matter of AMERICAN WOOLEN COMPANY and UNITED TEXTILE
WoRI its OF AMERICA LOCAL No. 2625, A. F. OF L'.
Case No. R-2471.-Decided May 22, 1941
Jurisdiction : textile manufacturing industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord union recognition until it is certified by the Board ; labor
organization which presented no proof that it represents any employees in the
unit not accorded place on ballot ; election necessary. 11
Unit Appropriate for Collective Bargaining : all production and maintenance
employees at one of the 25 mills of the Company, including clerical employees in
the production and maintenances departments, but excluding executives,
managers, submanagers, superintendents, assistant superintendents, foremen,
overseers, assistant foremen, assistant overseers, second hands, section hands
not regularly engaged in productive processes, office employees, watchmen,
and porters.
Mr. Robert H. Montgomery , of Boston , Mass., for the company.
Ribyat, Walsh d Myers, by Mr. Jolun J. Walsh , of Utica, N. Y., for
the U . T. W. A.
Mr. David Jaffe, of New York City, for-the -T. W. U. A.
Mr. Frederic B. Parkes, 2nd, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 14, 1941, United Textile Workers of America, Local No.
2625, A. F. of L., herein called the U. T. W. A., filed with the Regional
Director for the Third Region (Buffalo, New York) a petition alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of American Woolen Company, Fulton, New
York, 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
April 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 Regula-
tions-Series 2, as amended, ordered an investigation and authorized
32 N. L. R. B., No. 1
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director to conduct it and to provide for an appro-
priate hearing upon due-notice.
On April 5, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the U. T.
W. A. Pursuant to notice a hearing was held on April 10, 1941, at
Fulton, New York, before Edward D. Flaherty, the Trial Examiner
duly designated by the Chief Trial Examiner. At the beginning of
the hearing, Textile Workers Union of America, C. I. 0., herein
called the T. W. U. A. moved to intervene. The Trial Examiner
granted the motion. The Company, the U. T. W. A., and the T. W.
U. A., were represented by counsel or official representatives and par-
ticipated 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 close of the hearing the
U. T. W. A. presented a motion for the exclusion of the T. W. U. A.
from the ballot in any election ordered by the Board on the ground
that the T. W. U. A. had shown no substantial interest entitling it
to be placed on the ballot. The Trial Examiner reserved the ruling
thereon to the Board. The motion is hereby granted for the reason
hereinafter set forth.' 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 i dfiiads that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On April 21, and May 5, 1941, respectively the U. T. W. A. and
the T. W. U. A. filed briefs which the Board has considered. On
May 13, 1941, the T. W. U. A. filed a motion for leave to adduce addi-
tional evidence. The motion ,is hereby denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
American Woolen Company, a Massachusetts corporation, is en-
gaged in the manufacture and sale of woolen fabrics, worsted fabrics,
blankets, knitting yarns, and worsted yarns. The Company owns and
operates 25 mills, located in the States of Rhode Island, Massachusetts,
Connecticut, Maine, New Hampshire, Vermont, New York, and Ken-
tucky. The mill involved in the instant case is at Fulton, New York.
Approximately 100 per cent of the raw materials used by the Fulton
mill are shipped to it from points outside the State of New York.
During the past year the Company at its Fulton, New York, mill,
manufactured finished products valued at more than $2,500,000, of
' See Section VI, info a
AMERICAN WOOLEN COMPANY 3
which approximately 25 per cent were shipped to points outside the
State of New York. The Company employs approximately 1,079
workers in its mill at Fulton, New York.
II. THE ORGANIZATIONS INVOLVED
United Textile Workers of America, Local No. 2625, is a labor
organization affiliated with the American Federation of Labor, admit-
ting employees of the Company to membership.
Textile Workers Union of America is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting
employees of the Company to membership.
III. THE QUESTION CONCERNING REPRESENTATION
On March 26, 19411 the Company refused to recognize the U. T. W. A.
as representative for collective bargaining purposes of the employ-
ees at at the Company's mill in Fulton, New York, until the U. T.
W. A. had been certified by the Board. A statement of the Regional
Director, introduced in evidence at the hearing, shows that the U. T.
W. A. represents a substantial number of employees in the unit found
below to be appropriate.2 The T. W. U. A. although claiming mem-
bership, did not offer any membership cards or formal proof of mem-
bership among the employees of the Company's mill at Fulton, New
York, for the reasons discussed' in Section VI, infra.
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
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 U. T. W. A. contends that the production and maintenance
employees in the Company's mill at Fulton, New York, including
clerical employees in the production and maintenance departments,
but excluding executives, managers, submanagers, superintendents,
2 The U. T W A. filed 905 application cards with the Regional Director who found 894
to bear genuine original signatures . There are approximately 1.000 employees in the
appropriate unit.
448692-42-vol 32--2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistant superintendents, foremen, overseers, assistant foremen, as-
sistant overseers, second hands, and section hands not regularly en-
gaged in productive processes, office employees, watchmen, and porters,
constitute a unit appropriate for the purposes of collective bargain-
ing. The T. W. U. A. claims that the appropriate unit consists of
all production and maintenance employees of the Company through-
out its entire system of 25 mills. The Company takes no position
as to the appropriate unit. There are about 30,000 employees in all
the mills of the Company.
Wool for use in all the mills of the Company is scoured, cleaned,
and prepared for the manufacturing process at the Wood and Ayer
plants since the other mills do not have the equipment necessary to
prepare such "top wool." Otherwise, it appears that the mills of
the chain are all independent of each other in their management and
operations. Each mill receives the "top wool" prepared at the Wood
or Ayer plants and carries the product through to its finished state.
On occasions, however, and under unusual circumstances or at peak
periods the Company finds it necessary to have some products par-
tially processed at a mill other than the one where the processing
originated.
In support of its claim to a unit confined to the employees of the
Fulton, New York, mill, the U. T. W. A. contends that it has con-
fined its organizational activities to this mill and that the employees
therein desire to be represented by the U. T. W. A.
On March 6, 1941, at Boston, Massachusetts, the Company and the
T. W. U. A. negotiated seven exclusive bargaining contracts, which
were subsequently signed by them, covering production and mainte-
nance employees respectively at seven of the Company's mills. An
eighth contract has been negotiated for still another mill and will be
signed shortly. The provisions of the eight contracts are identical,
and the Company has extended throughout its entire system of 25
mills certain provisions of the contracts relating to wages, hours of
work, rates of pay, and holidays. However, the contract provisions
for arbitration are limited to the eight mills.
There are approximately 20,000 workers in the eight mills where
the T. W. U. A. has exclusive bargaining contracts. In support of its
contention for a single system-wide unit, the T. W. U. A. points to
the fact that approximately two-thirds of the Company's employees
are employed in the eight plants where it has exclusive bargaining
contracts, and argues that therefore the T. W. U. A. represents a
majority of the Company's employees. The T. W. U. A., however,
acquired the right to represent the workers in the eight plants by
virtue of elections held in each plant, and it is conceded by the
T. W. U. A. that not all the workers in the eight plants have indicated
AMERICAN WOOLEN COMPANY 5
their desire to be represented by the T. W. U. A. Therefore, it cannot
be said that the T. W. U. A. actually represents a majority of the
30,000 workers employed in all 25 plants. Moreover, it does not appear
that the T. W. U. A. has extended its organizational activities to the
remaining plants of the chain. The bargaining practice of the Com-
pany and the T. W. U. A. in the past has definitely recognized the
individiual status of the separate mills. In view of all the circum-
stances, we are unable to conclude that the employees of the 25 mills
should be included within a single bargaining unit at the present
time.3 We are of the opinion that the employees at the Fulton, New
York, mill constitute an appropriate bargaining unit.
The U. T. W. A. would include in the unit those clerical employees
whose work is connected with the production and maintenance opera-
tions, such as timekeepers and production-record clerks. The Com-
pany takes no position as to these employees. We shall include them
in the unit 4
We find that all production and maintenance employees in the
Company's mill at Fulton, New York, including clerical employees in
the production and maintenance departments, but excluding execu-
tives, managers, submanagers, superintendents, assistant superin-
tendents, foremen, overseers, assistant foremen, assistant overseers,
second hands, section hands not regularly engaged in productive proc-
esses, office employees, watchmen, and porters, constitute a unit appro-
priate 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-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning representa-
tion can best be resolved by, " and we shall accordingly direct, an
election by secret ballot.
At the hearing, the T. W. U. A. requested that its name appear on
the ballot if the Board should find that the production and maintenance
employees in the Company's mill at Fulton, New York, constitute
3 See Matter of U. S. Rubber Co. (Providence Plant ) and Rubber Workers Federal Labor
Union, Local No 22014, AFL, 20 N. L. R. B 578; Matter of Hood Rubber Co and 'Rubber
Workers Federal Union, No. 21914 (AFL), 20 N. L R B 485; Matter of Belmont Iron
Works and International Association of Bridge, Structural and Ornamental Iron Workers,
9 N. L. R . B. 1202; Matter of American Tobacco Co. Inc. Richmond Smoking Branch and
Committee for Industrial Organization , Local No. 472, 9 N. L. R B. 579.
4 See Matter of Aluminum Co. of America and International Union, Aluminum Workers
of America, 8 N. L. R . B. 164; Matter of Willys Overland Motors Inc. and International
Union, United Automobile Workers of America, Local No. 12 , 9 N. L. R. B 924 ; Matter of
Western Tablet and Stationery Company and International Brotherhood of Bookbinders,
Local 179, AFL, 31 N L. R. B 597.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an appropriate unit and should order an election. As indicated
above, 5 however, the T. W. U. A. presented no proof to the Regional
Director that it represents any employees at the Fulton, New York,
mill. At the hearing the T. W. U. A. contended (1) that it failed to
present proof of membership to the Regional Director because it had
promised its members that their names would not be publicized and
(2) that its organization of the employees at this mill has been im-
peded by threats and violence directed by U. T. W. A. organizers and
adherents against employees who expressed their preference for the
T. W. U. A. There is no showing, however, that the Company or any
of its representatives engaged in the alleged campaign to discourage
membership in the T. W. U. A. nor-are we satisfied either that its
solicitation of members has been unlawfully impeded or that its
failure to afford the Regional Director adequate proof of membership
has been justified. Under all the circumstances, we shall not permit
the T. W. U. A. to participate in the election. 6
The U. T. W. A. urged that the pay roll of April 5, 1941, be used
as a basis of determining eligibility to vote. We find, however, no
reason to depart from our usual practice. Accordingly, we shall
direct that the employees in the Company's mill at Fulton, New York,
eligible to vote in the election shall be those in the appropriate unit
who were employed during the pay-roll period immediately preceding
the date of the Direction herein, subject to such limitations and addi-
tions as are set forth in the Direction.
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 American Woolen Company, Fulton, New
York, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
2. All production and maintenance employees in the Company's
mill at Fulton, New York, including clerical employees in the produc-
tion and maintenance departments, but excluding executives, man-
agers, submanagers, superintendents, assistant superintendents, fore-
men, overseers, assistant foremen, assistant overseers, second hands,
section hands not regularly engaged in productive processes, office
employees, watchmen, and porters, constitute a unit appropriate for
6 See Section III, supra
O See Matter of Federal Shipbuilding and Dry Dock Company and Industrial Union of
Marine and Shipbuilding Workers of America, Local No 16, 19 N L. R. B. 313; Matter of
The Ingalls Shipbuilding Corporation and Metal Trades Department, affiliated with the
A F of L., 21 N L. R B 789
AMERICAN WOOLEN COMPANY 7
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, 49 Stat. 449, 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 purpose of collective bargaining
with American Woolen Company, Fulton, New York, 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 supervision of the Regional Director for the Third
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Section 9, of said Rules and
Regulations, among all production and maintenance employees of
the Company, at its mill in Fulton, New York, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including clerical, employees in the production and main-
tenance departments and employees who did not work during such
pay-roll period because they were ill or on vacation or in the active
military service or training of the United States, or temporarily laid
off, but excluding executives, managers, submanagers, superintend-
ents, assistant superintendents, foremen, overseers, assistant foremen,
assistant overseers, second hands, section hand not regularly engaged
in productive processes, office employees, watchmen, and porters, and
employees who have since quit or been discharged for cause, to de-
termine whether or not they desire to be represented by United Textile
Workers of America, Local 2625, affiliated with the American Federa-
tion of Labor, for the purposes of collective bargaining.
MR. EDWIN S. SMITH, dissenting :
I dissent from the decision that a system-wide bargaining unit is
inappropriate in this case.
As indicated in the majority opinion, the T. W. U. A. has been
recognized as the exclusive bargaining representative in each of 8
of the Company's mills. These mills employ some 20,000 of a total
of 30,000 employees of the Company. It is thus apparent that the
T. W. U. A. represents a substantial number of all the Company's
employees. Although separate contracts were signed for the indi-
vidual mills, the contracts contain identical provisions and were, with
but one exception, negotiated at a single collective bargaining con-
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference. Moreover, the basic terms of these contracts-those relating
to rates of pay and hours of work-have been extended by the Com-
pany to cover employees at all 25 mills.
The foregoing factors, I believe, plainly demonstrate the appropri-
ateness of a single employer-wide unit. No labor organization other
than the T. W. U. A. has established contractual relations with the
Company at any of the mills, and except for the Fulton mill no other
labor organization has organized employees at any of the mills.
I am firmly of the opinion that in the exercise of its duty under the
Act, the Board should, in determining the appropriate unit for collec-
tive bargaining in each case, be guided by the stated objective of the
Act : the establishment of equality of bargaining power between
employer and employees and the encouragement of the practice and
procedure of collective bargaining. Under this consideration, I be-
lieve that when one union, claiming to represent a majority of the
employees, seeks to represent all the employees throughout the em-
ployer's organization, a company-wide unit will best afford the em-
ployees equal bargaining strength and the full benefits of collective
bargaining.
For the foregoing reasons I would find as appropriate a unit con-
sisting of the production and maintenance employees of all 25 mills
of the Company.?
[SAME TITLE]
SUPPLEMENTAL DECISION
AND
AMENDMENT TO DIRECTION OF ELECTION
May 28, 1941
On May 22, 1941, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Election in the
above-entitled proceeding, directing that an election be conducted to
determine whether or not certain employees of American Woolen
Company, herein called the Company, desire- to be represented for
the purposes of collective bargaining by United Textile Workers
of America, Local No. 2625, affiliated with the American Federation
7 Cf. Matter of Pittsburgh Plate Class Company and Federation of Flat Glass Workers
of America, affiliated with C. I. 0., 10 N L R. B. 1111, affirmed , Pittsburgh Plate Glass
Company v . National Labor Relations Board, - U. S. -, decided April 28, 1941. See also
my dissents in Matter of United States Rubber Company and Rubber Workers Federal
Union, Local #22014, affiliated with the American Federation of Labor, 20 N L R. B 473;
Matter of Hood Rubber Company , Inc and Rubber Workers Federal Labor Union No. 219L^
(A F. L ), 20 N. L. R B 485.
AMERICAN WOOLEN COMPANY 9
of Labor, herein called the U.T.W.A. In its Decision and Direction of
Election the Board refused to permit Textile Workers Union of
America, herein called the T.W.U.A. to participate in the election for
the reason that said labor organization had failed to afford any proof
either to the Regional Director prior to the hearing or to the Trial
Examiner at the hearing that it represented any employees in the
appropriate bargaining unit.
On May 24, 1941 , the T.W.U.A. filed with the Board a motion "for
an order staying proceedings and an order modifying the Decision
and Direction of Election . . . and for an order reopening the
record to adduce additional evidence ." Copies of said motion were
served upon the Company and the U.T.W.A. No objections to the
motion have been filed by any of the parties.
In its motion the T.W.U.A. offered to present to the Regional
Director proof that it represents a substantial number of employees
in the appropriate unit and therefore that it is entitled to participate
in the election . Pursuant to instructions from the Board, the
T.W.U.A. submitted to the Regional Director proof of such representa-
tion. The Regional Director has advised the Board that the T.W.U.A.
represents a substantial number of employees in the appropriate bar-
gaining unit . Under the circumstances we shall amend our Direction
of Election and provide that the T.W.U.A. be designated on the
ballot.
Expeditious investigation and certification of representatives is
essential to the proper administration of the Act. Sound administra-
tive policy requires , therefore , that parties claiming the right of
representation submit prima facie proof upon which they rely either
to the Regional Director prior to the hearing or to the Trial Ex-
aminer at the time of the hearing. Hereafter in all proceedings not
now pending before the Board where full opportunity has been
afforded for the timely presentation of such prima facie proof, we
shall reject offers of proof of representation made after the close of
hearings.
AMENDMENT TO DIRECTION OF ELECTION
The Board hereby amends its Direction of Election by striking
therefrom the words "or not" contained therein and adding the
words "or by Textile Workers Union of America, affiliated with the
Congress of Industrial Organizations, or by neither."
32 N. L. R. B., No. 1a.