Atlas Underwear Co.

National Labor Relations Board - Board Decisions

Mar 26, 1941

30 N.L.R.B. 607 (N.L.R.B. 1941)

In the Matter of ATLAS UNDERWEAR COMPANY and THE ATLAS
EMPLOYEES ' COUNCIL
Case No. B-1621.-Decided March 26, 1941
Jurisdiction : garment manufacturing industry.
Investigation and Certification of Representatives : existence of question: con-
flicting claims of rival representatives ; election necessary.
Unit Appropriate for Collective Bargaining : production employees at one of two
plants of the Company, excluding clerical and supervisory employees, main-
tenance employees, and the night watchman.
Mr. Walter B. Chel f, for the Board.
Mr. Paul Y. Davis, of Indianapolis, Ind., for the Company.
Mr. Earl Keisker, of Richmond, Ind., for the Council.
Mr. Leon H. Despres and Mr. Carl F. Albrecht, of Chicago, Ill., and
Cincinnati, Ohio, respectively, for the T. W. U. A.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 19, 1939, The Atlas Employees' Council, herein called the
Council, filed with the Regional Director for the Eleventh Region
(Indianapolis, Indiana) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Atlas Underwear Company, Richmond, Indiana, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On September 26, 1939, 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, or-
dered an investigation and authorized the Regional Director to con-
,duct it and to provide for an appropriate hearing upon due notice. ,
On October 20, 1939, the Regional Director issued, a notice of hear-
ing, copies of which were duly served upon the Company, the Council,
30 N. L. R. B, No 89.
607
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Textile Workers Organizing Committee, Local 111,1 a labor
organization claiming to represent employees directly affected by
the investigation. On November 2, 1939, the Regional Director issued
an order granting the Company's request for a postponement of the
hearing and also a notice reassigning the hearing date. On Novem-
ber 10, 1939, the T. W. U. A. filed an answer with the Regional
Director contending that since the Council was "formed, dominated,
and financed by the employer," it should not be entitled to file a
petition. On November 10, the T. W. U. A. also filed a motion
with the Board that this proceeding be continued sine die pending
disposition of charges filed with the Regional Director by the T. W.
U. A. alleging that the Company had engaged in unfair labor
practices within the meaning of Section 8 (1) and (2) of the Act
by sponsoring and dominating the Council.2 This motion was denied
by the Board on November 10, 1939.
Pursuant to notice, a hearing was held on November 13,,1939, at
Richmond, Indiana, before Earl S. Bellman, the Trial Examiner duly
designated by the Board. The Board, Company, the Council, and the
T. W. U. A. were represented by counsel and participated 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 beginning of the hearing the T. W. U. A. moved
that the hearing be postponed pending disposition of the charges men-
tioned above. The Trial Examiner denied this motion. 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Atlas Underwear Company, an Ohio corporation with its
principal Indiana office and plant in Richmond, Indiana, is engaged
in the manufacture, sale, and distribution of underwear, pajamas,
sport shorts, and knitted shorts.3 Its raw materials consist of cottons,
'Textile Workers Organizing Committee, Local 111, subsequently changed its name to
Textile Workers Union of America , Local 111. The single organization is being referred
to as the T W. U. A.
3 The charges referred to above were filed by the T. W U. A. with the Regional Director
on October 30, 1939. Thereafter , the Regional Director refused to issue a complaint based
on the charges and the T. W . U A requested the Board to review the Regionaal Director's
decision . Subsequently , on February 8, 1940, the Board sustained the Regional Director's
refusal to issue a complaint.
3 The Company also operates a plant at Piqua, Ohio In view of our findings infra, the
operations of'the Company 's Piqua plant are not material here.
ATLAS UNDERWEAR COMPANY 609
silks, rayons, worsted yarns, and pearl buttons. During the Com-
pany's 1937 fiscal year the total cost of these materials amounted to
approximately $300,000, while its output of finished products was,
valued at approximately $800,000. During that period all the raw
materials were shipped to the Richmond plant from places outside
the State of Indiana, and 90 per cent of the finished products were
shipped to points outside the State.
II. THE ORGANIZATIONS INVOLVED
The Atlas Employees' Council is an unaffiliated labor organization
admitting to its membership employees of the Company at its Rich-
mond, Indiana, plant.
Textile Workers Union of America, Local 111, formerly known as
Textile Workers Organizing Committee, Local 111, is a labor organi-
zation affiliated with the Congress of Industrial Organizations, ad-
mitting to its membership employees of the Company at its Richmond
plant.
III. THE QUESTION CONCERNING REPRESENTATION
On May 2, 1939, the Company entered into a contract with the
T. W. U. A. for its members only at the Richmond plant for the period
of 1 year.4 The Council was organized on May 26, 1939, and, in the
latter part of May or early part of June, it informed the Company that
it represented a majority of the employees at the Richmond plant and
requested recognition as the exclusive representative of such employees.
The Company refused to grant the Council such recognition on the
ground that the T. W. U. A. also claimed to represent its employees.
On July 21,1939, they Council and the Company entered into a member-
ship contract similar to the May 2 contract between the T. W. U. A.
and the Company.
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 rela-
tion 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.
* The prior history of collective bargaining between the Company and the T. W. U. A. Is
considered in Section V infra.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE APPROPRIATE UNIT
The Council contends that the production and maintenance em-
ployees at the Company's Richmond plant, excluding clerical and
.supervisory employees, constitute a unit appropriate for the purposes
of collective bargaining. The T. W. U. A. contends that the produc-
tion employees, excluding clerical, supervisory, and maintenance em-
ployees at both the Company's Richmond plant and its Piqua plant,
constitute a single appropriate bargaining unit. At the hearing
the Company made no contentions with respect to the unit.
The Richmond and Piqua plants are located about 48 miles apart,
and each functions independently of the other. Both plants are en-
gaged in the manufacture of the same products, but a higher quality
product is manufactured and completely processed at the Richmond
plant.5 The Richmond plant has its own manager, its own supervisory
staff, its own clerical, bookkeeping, shipping, and maintenance de-
-partments, and there is no interchange of employees between it and
the Piqua plant.°
So far as the record discloses both the business operations and the
labor relations' of each plant are handled separately. Past bargain-
ing has been conducted on an individual plant basis. In October
1936 the T. W. U. A. first attempted to obtain a bargaining contract
at the Piqua plant, and when it failed a strike resulted which closed
down that plant for 6 weeks, although the Richmond plant continued
to operate during that period. The strike at the Piqua plant was
unsuccessful and the T. W. U. A. has never been able to obtain a bar-
gaining contract for that plant. In June 1937, however, the T. W.
U. A. negotiated an exclusive bargaining contract at the Richmond
plant which expired in August 1938. Upon its expiration the Com-
pany refused to renew it, and the T. W. U. A. called a strike at the
Richmond plant early in 1939 which lasted 7 weeks," and was finally
'settled in May when the parties entered into a contract for one year
covering the T. W. U. A.'s members only at the Richmond plant. In
July 1939 the Company also entered into a contract with the Council
5 "Spring needle goods" are knitted at the Richmond plant while "latch needle goods" are
knitted at the Piqua plant The products of the Piqua plant are completely processed at
,that plant except for bleaching and dyeing . The Piqua plant does not have facilities for
that pug pose and therefore about 80 percent of its goods are bleached and dyed at the Rich-
mond plant and the remainder at another company located in Piqua.
0 There are about 320 employees at the Richmond plant and approximately , 420 employees
at the Piqua plant.
' The field representative of the T. W. U. A testified that the Company has the same
"labor representative " for both plants but the record indicates that at the Richmond plant,
at least, the T. W. U. A. and the Council have dealt with the manager of the plant.
The record also shows that in 1937 the T. W. U. A . called a strike at the Richmond
plant which lasted 2 or 3 days and that in 1938 it called a strike at the Piqua plant which
lasted•a day and a half The reasons for these strikes do not appear in the record. Each
of these strikes was confined to the employees of the individual plant involved.
ATLAS UNDERWEAR COMPANY 611
covering its members only at the Richmond plant.9 Thus all the bar-
gaining contracts have covered the Richmond plant alone, and the
Company has never entered into a bargaining contract covering both
its plants or the Piqua plant.
In support of its contention for a single bargaining unit covering
both the plants the T. W. U. A. claims that such a unit would best
insure to the employees of both plants the full benefits of collective
bargaining. It points out that there is no substantial difference in
rates of pay, hours, or working conditions between the two plants;
that the degree of skill required of the workers in both plants is com-
parable; and that the employees in most of the corresponding depart-
ments of both plants are "transferable".10 It also states that the ne-
cessity for collective bargaining on a single unit basis is shown by
the fact that in the latter part of 1937 or early part of 1938, the mana-
ger of the Richmond plant warned representatives of the T. W. U. A.
-,that if operating costs were increased at the Richmond plant it would
probably lose orders to the Piqua plant because of lower operating
costs there; and that later when the T. W. U. A. was attempting in
June 1938 to negotiate a renewal of its 1937 Richmond plant contract, a
• representative of the Company remarked that the Company was
,considering moving the Richmond plant to Piqua because of the
lower operating costs at Piqua.
In further support of its contention for a single bargaining unit
the T. W. U. A. points to the fact that its bargaining committee dur-
ing the above-mentioned bargaining conference in 1938 was composed
of representatives of both plants who sought to secure a joint agree-
ment covering both plants; and that the 1939 strike at the Richmond
plant was not only caused by the Company's failure to renew the 1937
contract, but also because-of the Company's refusal to bargain on a
single unit basis. The record shows, however, that after the Company
objected to bargaining on the single unit basis during the 1938 con-
ference the subsequent negotiations were confined to the Richmond
plant contract; and that when the 1939 strike was settled in May of
that year the parties entered into a contract which covered only the
Richmond plant.
We are of the opinion that both the Company's plants should
,not at this time be included in a single bargaining unit. While the
T. W. U. A. attempted to bargain on an employer-wide basis at the
1938 bargaining conference, the actual bargaining practice has not
been on such basis. On the contrary, such practice in the past has
recognized the individual status of the separate plants. Further-
more, while working conditions, hours, rates of pay, and the degree
9 The Council claims no membership among the employees at the Piqua plant . There is
no shoeing concerning the extent of the T. W. U. A's membership in either plant
"The record shows, however , that employees are not interchanged between the plants.
440135-42-Vol. 30--40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of skill required of the workers at both plants are about the same,
the operations of the plants are not interrelated to any extent and the
plants are operated as separate units. In view of all the evidence
we conclude that the employees of the Company's plants should not
be embraced within a single bargaining unit at this time, and that
the Company's Richmond plant constitutes a separate appropriate
bargaining unit.h1
The T. W. U. A. contends that the maintenance employees at the
Richmond plant should be excluded from the unit while the Council
desires their inclusion. They have been excluded from the bargain-
ing unit under the terms of all the Company's bargaining contracts
and were originally excluded at the Company's insistence over the
T. W. U. A.'s protest when the first bargaining contract between
them was executed in June 1937. Prior to that time they had been
eligible for membership in the T. W. U. A. and some had joined
that organization. However, after the execution of the 1937 contract
the T. W. U. A. excluded them from its membership and required
those who had joined to resign. The T. W. U. A. contends that as
result of their past exclusion this group is unsympathetic toward
organization and in addition that "some maintenance people" should
be excluded because they are "very close to [the] management," but
does not specify to which employees it refers.
Although the maintenance employees are excluded by the terms
of the contract executed by the Council and the Company in July
1939, they are eligible for membership in the Council. The Council
agrees, however, to the exclusion of the night watchman, the janitors,
and one Harry McBride, who is described as being "an old employee
of the Company who is qualified to more or less do anything in the
factory, and is frequently called upon by the management to do gen-
eral repair work and so forth, and is at this time in charge of the
boiler room."
As described above, the maintenance employees have not been cov-
ered by past collective bargaining contracts. We are of the opinion
that the maintenance employees should be excluded from the unit.
Since McBride performs some supervisory duties, we will exclude
him along with the other supervisory employees.12 The night watch-
man will also be excluded because both unions desire his exclusion
11 See Matter of Hood Rubber Company, Inc and Rubber Workers' Federal Labor Union
No. 2i91' (A F. L Matter of B. F Goodrich Company and United Rubber TVorl,erc of
America, 20 N L R B 485 , Matter of Consolidated Paper Company and Local Indus-
trial Union , Locals 1001 and 1006 (0 1 0 ), 21 N I. R B 116, Matter of United States
Rubber Company ( Providence Plant ) et at and Rubber Workers Federal Labor Union. Local
#2201y , affiliated with the American Fedeiation of Lobo., et at, 20 N L I: B 473
1' See Matter of Keystone Manufacturinq Company and United Toy and Novelty if oikeis
Local Industrial Union No. 588 of the C. 1 0 , 7 N L R B 172
ATLAS UNDERWEAR COMPANY 613
and because of the peculiar nature of his duties.13 We see no reason
for excluding the janitors from the type of unit sought and they will
be included.14 ,
Accordingly, we find that all production employees of the Com-
pany at the Richmond plant, excluding clerical and supervisory em-
ployees, maintenance employees, and the night watchman, constitute
a unit appropriate for the purposes of collective bargaining, and
that such unit will insure to employees of the Company the full
benefit of their right to self-organization and collective bargaining
and otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
At the hearing neither the Council nor the T. W. U. A. offered
any documentary proof of membership. However, the Council's
secretary-treasurer claimed that 182 of the 320 employees at the
Company's Richmond plant had authorized the Council to represent
them for purposes of collective bargaining. Although the T. W.
U. A. offered no proof as to the extent of its membership at the
Richmond plant, it is clear from the contractual relations it has had
with the Company that it represents a substantial number of the
employees at that plant. We find that the question which has arisen
concerning the representation of employees can best be resolved by
the holding of an election by secret ballot.
The Company and the Council request that the pay roll as of the
date of the hearing, November 13, 1939, be used to determine eligibil-
ity to, participate in the election. The Company states that all its
permanent employees were working on that date but that there is
usually a slack period in the Company's business from December
until May during which about 15 per cent of the employees are laid
off. The T. W. U. A. urges that if the Board orders an election, the
pay roll current at the time of the Board's Direction of Election
should be used. In view of the lapse of time since the hearing, we
shall direct that those persons eligible to vote shall be the employees
in the appropriate unit who were employed by the Company during
the pay-roll period next preceding the date of this Direction, includ-
ing employees who did not work during such pay-roll period because
they were ill or on vacation, temporarily laid off, or absent because
of military service, but excluding those who have since quit or been
discharged for cause.
'$See Matter of Yates -American Machine Company and Inte,national Association of
Machinists , Local 1139 (A. F. L ), 10 N L. R. B 786 ; Matter of Woodside Cotton Mall
Company and Textile Workers Organizing Committee , 7 N. L. R B. 960.
24 See Matter of Stackpole Carbon Company and United Electrical & Radio Workers of
America , Local No . 520, 6 N. L. R. B . 171; Matter of Richardson Company and Local Union
No. 442, U. A. W. A , 4 N. L. R. B. 835.
-614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Atlas Underwear Company, Richmond,
Indiana, within the meaning of Section 9 (c) and Section 2 (6) and
(7) of the National Labor Relations Act.
2. All the production employees of the Company's Richmond, In-
diana, plant, excluding clerical and supervisory employees, mainte-
nance employees, and the night watchman, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the National Labor Relations Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National La-
bor 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 -the purposes of collective
bargaining with Atlas Underwear Company, Richmond, Indiana, 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 Di-
rector for the Eleventh 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 em-
ployees who were employed by the Company at its Richmond plant
during the pay-roll period next preceding the date of this Direction,
including employees who did not work during such , pay-roll period
because they were ill or on vacation or absent because of military
service and employees who were , then or have since been temporarily
laid off, but excluding clerical and supervisory employees , mainte-
nance employees , the night watchman, and employees who have since
quit or been discharged for cause , to determine whether they desire
to be represented ' by The Atlas Employees Council , by Textile
Workers Union of America, Local 111 , affiliated with the C. 'I. 0.,
for the purposes of collective bargaining , or by'neither.
MR. EDWIN S . SMITH , dissenting :
I dissent from the decision that the single plant unit is appropriate
in this case . Although past bargaining history with the Company
ATLAS UNDERWEAR" COMPANY 615
has been conducted on an individual plant basis , the T. W. U. A. has
endeavored , since 1938, to secure a joint collective bargaining con-
tract covering both plants. This extension of bargaining relations
was forestalled ,; however , by the Company's refusal to bargain on a
single unit basis. Under these circumstances , I do not believe that
a history of collective bargaining limited, by employer resistance, to
separate plant units affords a rational basis for the determination of
an appropriate bargaining unit. For the reasons expressed in my
dissent in Matter, of, United States Rubber Company'15 I would find
the appropriate unit to consist of the employees of both the Piqua
and Richmond plants.
m Matter of United States Rubber Company ( Providence Plant ) and Rubber Workers Fed-
eral Labor Union, Local #22014, affiliated with the American Federation of Labor, 20
X. L. R. B. 473; see also Matter of Chrysler Corporation and United Automobile Work-
ers of America, Local 371, affiliated with 0. I. 0., 13 N. L. R. B. 1303.