Bush Woolen Mills, Inc.

National Labor Relations Board - Board Decisions

Mar 5, 1948

76 N.L.R.B. 618 (N.L.R.B. 1948)

In the Matter of BUSH WOOLEN MILLS, INC., EMPLOYER and TEXTILE
WORKERS UNION OF AMERICA, C. I. 0., PETITIONER
Case No. 8-RC-12.-Decided March 5, 1948
Messrs. J. E. Bush, Jr., and H. G. Wilkinson, of Dresden, Ohio, for
the Employer.
Mr. William H. Walters, of Zanesville, Ohio, for the Petitioner.
Mr. Harold Moon, of Columbus, Ohio, for the Mine Workers.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Dresden,
Ohio, on December 10, 1947, before John A. Hull, Jr., hearing officer.
At the hearing, the Mine Workers requested leave to intervene in
this case in view of its existing contract with the Employer. Although
the Petitioner objected to the intervention on the ground that the
Mine Workers had not complied with the registration and filing re-
quirements of Section 9 (f), (g), and (h) of the Act, as amended, the
hearing officer granted the request. As the Mine Workers showed a
current contractual interest in this matter,' we shall affirm the hearing
officer's ruling in this regard.2 The Mine Workers thereafter moved
to dismiss the Petition herein, on the ground that it was prematurely
filed. Ruling on the motion was reserved for the Board. For reasons
set forth in Section III, infra, the motion is denied. The hearing
officer's other rulings made at the hearing are free from prejudicial
error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board 3 makes the following :
' Cf. Matter of Schneider Transportation Company, 75 N L R B 870 Matter of Con-
solidated Steamship Company, et al, 75 N L R B 1254
2 The ruling of the hearing officer, limiting the Mine workers' intervention to prove that
their contract barred this proceeding, is reversed Intervention when granted, is for all
purposes Matter of American Chain cC Cable Company, Inc., Case 4-R-2752, decided
February 17, 1948 However, no party herein appears to have been prejudiced, as the
record indicates that, in fact, the Mine workers was permitted to participate in all phases
of the hearing
3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers In connection with this case to a three-man panel consisting of the undersigned
Board Members [Chairman Herzog and Members Murdock and Gray]
76 N. L R B , No 94.
618
BUSH WOOLEN MILLS, INC.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
619
Bush Woolen Mills, Inc., an Ohio corporation, is engaged at Dres-
den, Ohio, in the manufacture and sale of woolen piece goods for
sportswear, bathrobes, and the shirting trades. During the fiscal
year ended March 31, 1947, the Employer purchased more than
$500,000 worth of raw materials, of which over 90 percent represented
shipments to its plant from sources outside the State of Ohio. Dur-
ing the same period, the Employer sold more than $1,000,000 worth
of finished products, of which over 90 percent represented shipments
to points outside the State.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
District 50, United Mine Workers of America, herein called the Mine
Workers, is a labor organization claiming to represent employees of
the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On October 21, 1947, the Petitioner notified the Employer in writing
that it claimed to have been designated by a majority of the Employer's
production and maintenance employees and intended to file a rep-
resentation petition with the Board. On the same day, the Petitioner
filed its petition herein. The Employer did not reply to the Petitioner's
representation claim.
As a result of its success in a consent election ,4 the Mine Workers,
on January 23, 1945, executed a collective bargaining agreement with
the Employer, for the term of 1 year. On January 23, 1946, a second
agreement was executed by the parties for a period of 2 years.
At the hearing the Mine Workers moved to dismiss the petition,
contending that the Board's acceptance of the petition before the
expiration of its contract was premature. The Mine Workers urges
that the acceptance of the petition, the investigation of the case, and
the holding of a hearing, have "affected" its certification within tho
meaning of Section 103 of the amended Act, and have impeded the
4 Held on October 5, 1944. Case No. 8-R-1000.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to strike guaranteed by Section 13 of the amended Act .5 We
find no merit in these contentions. The contract executed by the Em-
ployer and the Mine Workers expired on January 23, 1948. The mere
fact that the petition herein was filed 3 months before its expiration
did not, in our opinion, "affect" the Mine Workers' certification or
-contract, even if we assume that Section 103 of the Act is applicable
thereto, something which we need not pass upon. The contention with
respect to Section 13 has no foundation in fact or in law.
Under all the circumstances of the case, we find that a question
affecting commerce exists concerning the representation of employees
of the Employer, within the meaning of Section 9 (c) (1) and Section
2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are in general agreement as to the composition of a unit
of production and maintenance employees at the Employer's Dresden,
Ohio, plant. They disagree, however, as to the Employer's watchmen,
whom both Unions seek to include, but whom the Employer would ex-
clude. The record reveals that the Employer normally employs two or
three watchmen whose duties include checking fire hazards, guarding
the Employer's property from theft or destruction, and preventing
entry by unauthorized persons. The watchmen are neither armed,
deputized, nor uniformed. However, as the record reveals that the
watchmen perform plant-protection duties, we shall exclude them.6
We find, substantially in accord with the agreement of the parties,
and on the basis of our determination above, that all production and
maintenance employees at the Employer's Dresden, Ohio, plant, ex-
cluding office, clerical, and sales personnel, and all watchmen and
guards, professional employees, and supervisors, as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION"
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Bush Woolen Mills, Inc., Dres-
6 The Mine workers also asserts that the Petitioner has been guilty of unfair labor prac-
tices in the manner in which it has conducted its organizational campaign . However,
no charge relating to such matters has been filed , and evidence of unfair labor practices is
inadmissible in representation proceedings
6 Matter of C. V. Hall f Company, Inc., 76 N L . R. B. 158.
' This category covers assistant foremen, foremen, and managerial personnel, all of
whom are specifically excluded from the contract unit, and any other supervisors employed
by the Employer
8 As the Mine workers has not complied with the registration and filing requirements
of Section 9 (f) and ( h) of the amended Act, we shall not place its name on the ballot
herein.
BUSH WOOLEN MILLS, INC. 621
.den, Ohio, 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 Di-
rector for the Eighth Region, and subject to Sections 203.61 and
203.62 of National Labor Relations Board Rules and Regulations-
Series 5, 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 said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, but excluding those employees who have
since quit oi been discharged for cause and have not been rehired or re-
instated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
,or not they desire to be represented by Textile Workers Union of
America, C. I. O., for the purposes of collective bargaining.