Bon Ton Curtain Co.

National Labor Relations Board - Board Decisions

Feb 16, 1940

20 N.L.R.B. 462 (N.L.R.B. 1940)

.In the Matter of BON TON CURTAIN COMPANY and AMERICAN
FEDERATION OF LABOR, FEDERAL UNION
Case No. R-1675.Decided February 16, 1940
Curtain Manufacturing Indastrg Investigation of Representatives: petition
for, dismissed without prejudice where contract granting exclusive recognition
to one labor organization as collective bargaining representative was validly
entered into before the petitioning labor organization made any claim to rep-
resentation and only two weeks prior to the filing of the petition ; no contro-
versy concerning representation-Contract: effect of postdated-Unit Appro-
priate for Collective Bargaining: as covered by contract found appropriate under
circumstances of case ; finding will not preclude reexamination by Board in
future in proper proceeding of matter.
Mr. Edward Schneider, for the Board.
Mr. Samatel M. Lewis, of Boston, Mass ., for the Company.
Mr. John J. Murphy and Mr. Aaron Vellenaan , of Boston, Mass.,
for the Federal Union.
Mr. George E. Roewer, of Boston, Mass. , for the Amalgamated.
Mr. Arnold R. Cutler, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On November 2, 1939, Curtain Workers Federal Labor Union No.
22211 , herein called the Federal Union , filed with the Regional Di-
rector for the First Region (Boston, Massachusetts ) a petition alleg-
ing that a question affecting commerce had arisen concerning the
representation of employees of Bon Ton Curtain Company, Jamaica
Plains,. Massachusetts , herein called the Company , and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 ( c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On December 5, 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, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice.
20 N. L . R. B., No. 48.
462
B'ON TON CURTAIN COMPANY 463
On December 20, 1939, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, upon
the Federal Union, and upon Amalgamated Clothing Workers of
America, herein called the Amalgamated, a labor organization claim-
ing to represent employees directly affected by the investigation.
Pursuant to the notice, and notice of postponement duly served upon
the parties, a hearing was held on January 4, 5, and 6, 1940, at Boston,
Massachusetts, before Peter F. Ward, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, the Federal Union,
and the Amalgamated were represented by counsel or their represent-
atives and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues was afforded all parties. During the
course of the hearing the Trial Examiner made several rulings on
motions and on objections to the admission of evidence. On Jan-
nary 11, 1940, the Federal Union submitted a brief in support of its
position: On February 5, 1940, the Amalgamated similarly sub-
mitted a brief. 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 FAUr
1. THE BUSINESS OF THE COMPANY
The Company is a Massachusetts corporation with its principal
place of business and manufacturing plant located at Jamaica Plains,
Massachusetts. It is engaged in the manufacture, sale, and distribu-
tion of curtains and draperies. The raw materials used by the Com-
pany in the regular course of manufacture at the plant are cotton
and rayon cloth. It purchases annually approximately $600,000
worth of such raw materials, of which about 90 per cent are shipped
to its plant from points outside the Commonwealth of Massachusetts.
It manufactures annually approximately $750,000 worth of finished
products, of which about 80 per cent are shipped from the plant to
points outside the Commonwealth of Massachusetts.
II. THE ORGANIZATIONS INVOLVED
Curtain Workers Federal Labor Union No. 22211 is a labor organi-
zation affiliated with the American Federation of Labor, admitting to
its membership all production and maintenance employees of the
Company, including shippers, packers, and cutters, but excluding
managerial and office employees.
Amalgamated Clothing Workers of America is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, admit
464 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
ting to its membership all employees of the Company exclusive of
supervisors, office and clerical employees, salesmen, shippers, packers,
male cutters, and maintenance employees.
III. TIIE QUESTION CONCERNING REPRESENTATION
On October 18, 1939, the Company and the Amalgamated executed
a collective agreement extending recognition to the Amalgamated
as the exclusive bargaining representative of all the Company's
employees, excluding supervisors, office and clerical employees, sales-
men, shippers, packers, male cutters, and maintenance employees,
and providing for wages, hours of service, and other working con-
ditions of employees within this unit. The agreement provided that
it should remain in force and effect until December 1, 1940, and from
year to year thereafter unless either party gave the other certain
written notice 30 days prior to the expiration date. The agreement
was dated November 2, 1939, for various business reasons, and the
extrinsic proof shows that it was the intent of the parties that the
substantive terms of the contract be not effective until that day.
The unit covered by the contract, as hereinafter found, was appro-
priate for purposes of collective bargaining, and at the time the
contract was executed a majority of the employees in such unit had
selected and designated the Amalgamated as their bargaining
representative.'
On October 30 and November 1, 1939, after the agreement was
executed, a number of the employees within the unit who previously
had designated the Amalgamated as their collective bargaining rep-
resentative, and others who had not done so, signed cards authorizing
the Federal Union to act as their bargaining representative .2 oil
1 Between July 15 and October 18, 1939, both inclusive , the Company employed a total
of 150 to 181 employees as follows : 128 to 153 production employees , 6 to 7 shippers, 4 to
5 packers , 2 maintenance employees, 7 to 9 clerical employees , 1 to 2 salesmen , and 2 to 3
supervisors.
At the hearing it was stipulated by and between the Federal Union , the Amalgamated,
the Company , and counsel for the Board that on July 24, 1939, 94 persons employed by the
Company as production workers during the pay-roll week of July 29, 1939, had signed
cards , in the possession of the Amalgamated , designating the Amalgamated as their col-
lective bargaining •. representativ.Q; that ' tbe Amalgamated had the same 94 cards in its
possession at the time that the contract was executed on October 18, 1939 ; and that the 94
persons who signed the cards were still employed by the Company at the time of the
hearing.
2 As of November 1, 1939 , the Company employed a total of approximately 161 employees
as follows : 139 production employees, 5 shippers , 4 packers , 2 maintenance employees, 7
clerical employees , 2 salesmen, and 2 supervisors.
At the hearing it was stipulated by and between'the parties that the Federal Union had
in Its possession 104 cards dated either October 30 or November 1, 1939 , signed by persons
employed by the Company as production employees , maintenance employees , packers, and
shippers , authorizing that Union to act as bargaining representative of the signers. It
was further stipulated that of the. 104 persons who signed the cards , 25 were newly=
employed during a strike called by the Amalgamated on August 1, 1939 , and terminated by
it on September 15, 1939 . At the time of the hearing only 10 of the 25 persons were still
employed ' by:,tbe Company.
BON TON CURTAIN COMPANY. 465
November 1, 1939, the organizer of the Federal Union telephoned
the Company, stated that the Federal Union represented a majority
of the Company's employees for purposes of collective bargaining,
and requested the Company not to execute a collective contract with
the kmalgamated. The organizer was uncertain whether any such
contract had been signed. The Company, through its president,
replied that the contract with the Amalgamated had already been
executed and refused to meet with the Federal Union as the bar-
gaining representative of its employees. As noted above, on Novem-
ber 2, 1939, the Federal Union filed its petition herein..
The contract granting exclusive recognition to the Amalgamated
as collective bargaining representative was validly entered into before
the Federal Union made any claim to representation and only two
weeks prior to the filing of the petition herein. In view of the
brief period intervening between the making of the contract and
the filing of the petition, and the consequent short duration of labor
relations under the contract, we are of the opinion that as a matter
of policy under the Act, the Board should not proceed at this time
with an investigation and certification of representatives, and accord-
ingly the petition for investigation and certification of representa-
tives should be dismissed without prejudice. The fact that the con-
tract was postdated is of no relevance to the question of dismissal
here raised.
IV. THE APPROPRIATE UNIT
The Amalgamated contends that the bargaining unit covered by
the contract dated November 2, 1939, is an appropriate unit for col-
lective bargaining. The Federal Union contends that such unit is
inappropriate, for failure to include shippers, packers, male cutters,
and maintenance employees. The employees within the unit covered
by the contract numbered 139 at the time of the hearing. The em-
ployees whom the Federal Union claims were improperly excluded
numbered 15 at that time.
Under varying circumstances each of the units contended for by the
labor organizations might be appropriate. Under the circumstances
of this case, the Company and the Amalgamated may reasonably have
assumed, at the time they contracted, that a unit consisting of the
employees specified in the contract was appropriate. Under these
circumstances we find that the unit covered by the contract was ap-
propriate.3 However, our finding in this regard shall not preclude
a reexamination by the Board in the future in a proper proceeding
of the matter of the appropriate bargaining unit.
Cf. Matter of Oppenheimer Casintl Company , a Corporation and United Packinghouse
Workers of America, Local No. 75, Through Packinghouse Workers Organizing Committee,
Affiliated with the Congress of Industrial Organizations , 13 N. L . R. B. 500.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We, therefore, find that at the time the contract of November 2, 1939,
was executed, and at the present, all the employees of the Company,
excluding supervisors, office and clerical employees, salesmen, shippers,
packers, male cutters, and maintenance employees, constituted and
constitute a unit appropriate for the purposes of collective bargaining
and that said unit insured and insures to employees of the Company
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning the representation of employees of Bon Ton
Curtain Company, Jamaica Plains, Massachusetts, now exists, within
the meaning of Section 9 (c) of the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact and upon the entire
law, the National Labor Relations Board hereby dismisses the peti-
tion for investigation and certification of representatives filed herein
by Curtain Workers Federal Labor Union No. 22211, without
prejudice.