Cohn-Goldwater Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 10, 1944

55 N.L.R.B. 1164 (N.L.R.B. 1944)

In the Matter of CORN-GOLDWATER MANUFACTURING CO. and AMAL-
GAMATED CLOTHING WORKERS OF AMERICA, C. I. O.
Case No. 21-R-2084
SUPPLEMENTAL DECISION
AND
DIRECTION
April 10, 1944
On November 15, 1943, the National Labor Relations Board issued a
Decision and Direction of Election in this proceeding,' wherein the
Board found that all production and maintenance employees of Cohn-
Goldwater Manufacturing Co., Los Angeles, California, herein called
the Company, at its 750 East Twelfth Street Branch plant, excluding
truck drivers, foremen, and any other supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constituted an appropriate bargaining unit and directed that
an election be held among them to determine whether they desired to
be represented for the purposes of collective bargaining by Local 125
of United Garment Workers of America, affiliated with the American
Federation of Labor, herein called the United,2 or by Amalgamated
Clothing Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Amalgamated, or by neither.
On November 26,1943, the United filed a motion requesting the Board
to withdraw its Decision, stay the election proceedings, and reopen the
record for further hearing. On November 29,1943, the Board, having
duly considered the matter, ordered that the election directed to be held
among the Company's employees should be held as scheduled by the
Regional Director on November 30, 1943; that the Regional Director
should not open and count the ballots immediately after the election,
but should impound and retain such ballots in his custody pending the
further order of the Board; that the record be reopened; that a further
hearing be held for the purpose of adducing evidence concerning the
industry-wide unit alleged by the United to be appropriate herein ;
1 53 N. L R. B 645.
2 Local 125 , chartered by the United , admits to membership employees of the Company.
55 N. L. R. B., No. 209.
1164
COHN-GOLDWATER MANUFACTURING CO. 1165
and that the case be remanded to the Regional Director for the purposes
of such further hearing.
Pursuant to the order of the Board, a further hearing was held at
Los Angeles, California, on January 28 and 29, 1944, before William
B. Esterman, Trial Examiner. All parties appeared, participated,
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.3
The rulings of the Trial Examiner made at the further hearing are
free from prejudicial error and are hereby affirmed. All parties were
afforded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
At the original hearing in this proceeding, the Amalgamated con-
tended that production and maintenance employees of the Company's
plant at 750 East Twelfth Street, Los Angeles, California, known as
the Uptown Branch, constituted an appropriate unit apart from em-
ployees at other plants of the Company. Neither the Company nor the
United disagreed with this proposed limitation upon the scope of the
unit, and upon the basis of the entire record, the Board found that
such employees constituted an appropriate bargaining unit.
The Company and the United presently take the position that a
unit limited to employees at the Uptown Branch is not an appropriate
unit, alleging that Union-Made Garment Manufacturers' Association
of America, herein called the Association, of which the Company is a
member, has bargained collectively with the United for employees of
the Company on an Association-wide basis and contending that such
negotiations, extending over a long period of years, have established a
history of collective bargaining between the Company and its em-
ployees which renders inappropriate a bargaining unit limited to
employees at one plant of the Company's operations. The Amal-
gamated does not agree.
9 During the course of the further hearing the parties agreed to substitute the original of
a deposition taken in New York for a copy of the same previously identified in the record
and admitted into evidence as "A F of L 's Exhibit 4." (The United is at times in the
record called the A. F. of L , and the Amalgamated is called the C I. 0 ) The original
deposition was not then accompanied by exhibits introduced at the deposition healing and
identified in the deposition. The parties at the further hearing agreed that such exhibits as
were not present in the couitioou: before the close of the further hearing should become
part of the official lecoid in this proceeding as soon as they were received in the Regional
Office.
On February 11, 1944, the Regional Director transmitted to the Board at Washington
documents marked respectively as "A. F of L.'s Exhibits 1 , 2, 3, 4, 5 , and 6," identified
as exhibits connected with, and constituting a part of, the New York deposition, noted
above, with a stipulation signed by all parties that all such documents should be con-
sidered part of the official record hemcin In accordance with the stipulation of the parties,
the exhibits noted above , as numbe : ed and identified , are hereby made , and are, part of the
official record in this proceeding.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 1903 a group of competing garment manufacturers, all of
which used the trade union label of the United, formed an employers'
organization called Union-Made Garment Manufacturers' Association
of America, to which reference is made above, for the purpose of
regulating conditions governing the use of the trade union label of
the United by employers in the garment industry. Between 1903 and
1908, the Association and the United, as organizations, negotiated
orally with respect to wage conditions in factories of members of the
Association which were imposed by the United as a condition for the
use of its trade union label by those employers. During this period
the Association and the United entered into many wage agreements
concerning the minimum wage rates for piece-work operations per-
formed by employees in the garment factories of Association mem-
bers. In 1908 "with the object of removing, so far as possible, all
cause for misunderstanding and friction and of promoting to the
greatest degree the mutual helpfulness of the two organizations," the
Association and the United entered into a formal written agreement
relating to the general use of the trade union label by members of
the Association. This trade-union-label agreement, in substance, pro-
vided that a joint committee, made up of representatives of the two
organizations, be appointed for fixing minimum wage rates for new
work operations in garment factories; that the termination date of
contracts between the employer members of the Association and the
United should be uniform ; that the United would not permit its trade
union label to be used by non-members of the Association on terms
more favorable than those granted to members of the Association;
and that the United should give to the Association 1 week's notice of
intention to withdraw its trade union label from a member of the
Association, and thereafter allow a 15-day period to the Association
for the adjustment of differences between its member and the United
before the threatened withdrawal of the trade union label should
become effective. Written extensions of this agreement were executed
until 1913. Oral extensions then followed. On December 14, 1943,
after the issuance of our Decision and Direction herein, the parties
entered into a new written extension for a 2-year period. In 1941,
and again in 1942, the Association and the United agreed in writing
to percentage increases in the minimum wage rates fixed by the joint
committee. On June 23, 1943, the same parties entered into an agree-
ment for a further increase, if and when such increases should be
approved by the National War Labor Board and a proportional
increase in the selling price of garments made under these conditions
should be allowed by the Office of Price Administration'
4 At the further hearing, the United contended that the agreement of June 23, 1943, con-
stituted a bar to a determination of representatives pursuant to the petition of the
Amalgamated , filed herein on July 27, 1943 . We do not agree . The contract is of
COHN-GOLDWATER MANUFACTURING CO. 1167
Individual members of the Association, as employers, as well as
other employers who use the trade union label, enter into uniform
agreements with the United, whereby, in consideration of its use of the
trade union label of the United, the employer in substance agrees that
its employees shall be members of the United in good standing and
that "union" wages, hours, and conditions shall be maintained at its
plants, and the United, inter alia, agrees to do all in its province as a
labor organization to advertise the goods and otherwise benefit the
business of the employer. These agreements extend for a term of
1 or 2 years and contain provisions for renewal, subject to termina-
tion on 60-day notice. They contain no mention of the 1908 contract
between the Association and the United; they make no reference to
the employer party thereto as a member of the Association; nor
do they even mention the Association. Association membership is
not a condition for the use of the trade union label and it may be
revoked at any time. Employer members of the Association do not
expressly bind themselves to accept and adopt in their factories the
minimum wage rates agreed upon from time to time by the joint com-
mittee of the Association and the United, although so far as the record
discloses no employer member of the Association has repudiated the
minimum wage rates agreed upon by the joint committee, which the
Association and the United have contracted shall constitute the lowest
rates upon which permission to use the trade union label may be
granted to any employer.
The Company became a member of the Association in its infancy,
and representatives of, the Company have been active in Association
affairs. Prior to 1939, the Company entered into trade-union-label
agreements, described above, covering employees at its plants. In
1939, after the Company opened its Uptown Branch, it entered into a
trade-union-label agreement with Local 125, which the parties in-
tended, and presently agree, covers employees of the Company at its
Uptown Branch, although the contract, by its terms, is not expressly
limited to any specific group of the Company's employees.5 This
agreement by its terms provides for a 1-year term, and is renewable
thereafter indefinitely, subject to termination on 60 days' written
notice.6
indefinite duration and wholly contingent No petition for the increase was filed with the
National War Labor Board with a view to rendering the agreement operative until on or after
October 6, 1943 Moreover, the contract, like the 1908 agreement and its renewals, does not
define the scope of the bargaining unit of employees affected thereby, nor does it purport
to be consummated between an employer and the exclusive bargaining representative of
any employees. Under these circumstances we find that the contract of June 23, 1943, is
not a bar to a determination of representatives at this time.
5 The Company manufactures other than cotton garments at this plant and not the type
of work clothes made at its other plants.
6 Since this agreement has been in operation more than 1 year and since it is presently
subject to revocation on 60 days' notice by either party thereto, we found in our original
Decision, contrary to the contention of the Company and the United, that the agreement of
1939 constitutes no bar to a present determination of representatives
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, negotiations between the Association and the United for a
period covering about 40 years have set up a method of determining
certain minimum piece-work rates which, by agreement between the
Association and the United, have constituted minimum wage rates
in factories of all employers in the garment industry who use the trade
union label of the United. Actual wages paid to employees in the
same work categories by the several Association members who use the
trade union label are, however, not uniform. They admittedly vary
and have been the subject of separate negotiations between the indi-
vidual employers and local unions affiliated with United. Only in the
sense that each member of the Association has, in a separate con-
tract, agreed to establish "union" conditions at its plant in consider-
ation of the use of the trade union label, do the minimum wage scales
established by the joint committee of the Association and the United
constitute a "master contract" to which individual contracts between
members of the Association and locals of the United are respectively
subject.
We are of the opinion that, while the negotiations between the Asso-
ciation and the United constitute, in a literal sense, "collective" bar-
gaining, they differ both in purpose and in scope from the process
termed collective bargaining which is the concern of the Act and which
we often regard as determinative of appropriate units. Whether or
not the Association has the capacity to act as an employer within the
meaning of the Act, and whether or not the relations between the
United and the Association have given rise to binding contracts, it is
clear that the negotiations between the two bodies have not preempted
the field of collective bargaining. Not only have the resulting agree-
ments been silent with respect to rates of pay, hours of work, settlement
of grievances, and other conditions of employment of employees of
Association members, but the United has never undertaken to negotiate
written contracts covering such employees in any defined unit for a
fixed term of years covering specific substantive conditions of employ-
ment at their several plants.7 The written agreement executed in
1908, which has been the basis of negotiations between the Association
and the United, concerned only the use of the trade union label by Asso-
ciation members. No written extension of the 1908 agreement was, so
far as the record discloses, executed between 1913 and the date of the
original hearing in this proceeding.8 Neither the 1908 contract be-
tween the Association and the United nor any of the three subsequent
contracts for increases in the wage scale determined by their joint
committee purports to define the scope of the bargaining unit of em-
ployees affected thereby, nor does the United purport to be the exclu-
7 Cf. Matter of Corn Products Refining Company , 52 N. L. It. B. 1324.
8 We have not attributed to oral agreements aloiae the full significance of the term "col-
lective bargaining." Matter of The Yale and Towne Manufacturing Company, 44 N L It. B.
1259, 1262; Matter of Eicor, Inc ., 46 N. L. It. B. 1035, and cases cited therein.
COHN-GOLDWATER MANUFACTURING CO. 1169
sive bargaining representative of any group of employees described
therein. The United moreover, has never made any claim to represent
a majority of employees in an Association-wide unit although it has
negotiated with the Association concerning their minimum wage scales
since 1903 s Each member of the Association has entered into one or
more separate contracts with the United or its locals covering employees
of one or more plants and, as an individual employer, has dealt directly
with that organization concerning employees immediately affected by
such contracts 10 The Company has admittedly contracted with the
United for the employees in the unit herein claimed appropriate by the
Amalgamated. Under these circumstances ww-e find that the negotiations
between the Association and the United have not established a past
history of collective bargaining for employees of the Company on any
broad substantial basis which would render bargaining on an indi-
vidual plant basis at this time inappropriate for the Company's em-
ployees at the Uptown Branch.
We regard this case as clearly distinguishable from the New Bedford
Cotton Manufacturers' Association case," wherein we came to an oppo-
site conclusion. In the cited case we found that by virtue of written
agreements negotiated between an employers' association and a council
of craft unions, uniform base rates for the employees of all member
employers had been fixed; grievance machinery had been established;
provision for the settlement and final arbitration of disputes, including
those affecting member mills individually, through the offices of the
employer association and the union council had been made; and uni-
form seniority rules and other uniform conditions of employment affect-
ing employees in all mills owned by members of the association had
been established. In consideration of this substantial bargaining on an
association-wide basis, we held that appropriate association-wide bar-
gaining unit bad been established, despite the fact that, due to varia-
tions in the fabric used and in the efficiency of machinery installed in
the several mills, specific piece rates and work assignments were deter-
mined in the first instance by negotiations between the employers indi-
vidually and the craft unions involved.12 In the instant case, we cannot
similarly predicate upon the provisions of the written agreement of
1908 between the Association and the United concerning the use of the
trade union label, and their subsequent oral understandings relative
Cf Matter of Endicott Forging if 11anufaetai ing Co, 29 N L R B. 218, 221.
10 Alen; England Overall Co , Lac, is a member of the Association Cf "fatter of New
England OLerall Co , Inc , 25 N L R B 326
Matter of New Bedford Cotton Mann foctures 5' Association, 47 N L R B 1345
12 In Matter of Central Founds! Company, 48 N L R B 5 9, we sumlarly appraised the
significance of an individual plant contract against a background of multiple-employer
negotiations, holding "irbere substantial and sutnrficant matters of coliectrse bargaining
are treated on a multiple -employer basis, the esietence of a single unit comprising the
employees of such employeis is not affected by the fact that ceitaiu matters not covered by
the association-wide agreement are the subject of negotiation in the individual plants
(Italics supplied )
578129-44-vol. 55-75
1170 DECISIONS OF NATIONAL LABOR RELi TIONS BOARD
to its extension between 1913 and the date of the hearing, a conclusion
that substantive conditions of employment for the employees of the
Association members have been established by comprehensive collect lye
bargaining on an Association-wide basis and that negotiations upon an
individual employer basis have been merely incidental thereto.
Since neither the United nor any other labor organization, so far
as the record discloses, at present claims to represent a majority of em-
ployees in an Association-wide unit, it is unnecessary for its to deter-
mine whether under other circumstances the Comparey-s employees
might be appropriately included in an Association-wide bargaming
unit. In 1939, Local 125 and the Conlpamy entered into a contract
which they agree covers employees at the Uptown Branch.
For reasons noted above, this contract constitutes no bar to a de-
termination of representatives at this time. The Anualg