Dickson-Jenkins Manufacturing Co.

National Labor Relations Board - Board Decisions

Nov 1, 1939

17 N.L.R.B. 18 (N.L.R.B. 1939)

In the Matter of DICKSON-JENKINS MANUFACTURING Co. and UNITED
GARMENT WORKERS OF AMERICA, LOCAL No. 181
In the Matter of DICKSON-JENKINS MANUFACTURING Co. and
AMALGAMATED CLOTHING WORKERS OF AMERICA, LOCAL No. 303
Cases Nos. C-199 and R-815, respectively.Decided November 1, 1939
Men's Clothing and Ladies ' Wearing Apparel Manufacturing Industries-
Record: reopened subsequent to final decision and order-Complaint : amended ;
additional unfair labor practices alleged-Interference , Restraint , and Coercion:
charges of, dismissed-Discrimination : charges of , dismissed-Order: dismissing
amended complaint in so far as additional unfair labor practices alleged-In-
vestigation of Representatives : controversy concerning representation of em-
ployees ; refusal by employer to recognize petitioning union until certified by
Board-Unit Appropriate for Collective Bargaining : production employees, in-
cluding porters and the size-ticket maker , but excluding the stockman, the
general utility man, mechanics , shipping clerks, and line supervisors-
Election Ordered
Mr. E. P. Davis, for the Board.
Mr. Sidney L. Samuels and Mr. W. S. Winn, of Fort Worth, Tex.,
for the respondent.
Mr. Karl Mueller, of Fort Worth, Tex., and Mr. Herbert S.
Thatcher, of Washington, D. C., for the United.
Mr. Jim Guthrie, of Dallas, Tex., and Mr. John Abt, of Washing-
ton, D. C., for the Amalgamated.
M71r. Walter T. Nolte, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On July 16, 1937, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above -entitled
case to which the United Garment Workers of. America, Local No.
181, herein called the United, is a party.' The Order, based upon
13 N. L. R. B. 59.
17 N. L. R. B., No. 4.
18
DICIiSON-JLNBINS MANUFACTURING COMPANY 19
a stipulation entered into by all parties to the proceeding, provided
that Dickson-Jenkins Manufacturing Company, herein called the re-
spondent, should cease and desist from interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the National Labor Relations Act, 49 Stat. 449, herein
called the Act; from discouraging membership in the United; and
from dominating or interfering with the administration of any labor
organization of its employees or recognizing or dealing with the
Independent Garment Workers of America, herein called the Inde-
pendent, or forming or maintaining any groups or designating any
individuals to act as the representatives of its employees for the pur-
pose of collective bargaining. The Order also provided that the
Independent should cease and desist from acting or attempting to
act as a labor organization on behalf of the employees of the respond-
ent, that the Independent should proceed immediately to complete
and final dissolution, that the respondent should withdraw all recog-
nition from the Independent as the representative of its employees,
that the respondent and the Independent should immediately cancel
and rescind a contract made and entered into by and between them
on June 10, 1937, and that the respondent should inform its em-
ployees of the above provisions by means of notices posted in con-
spicuous places about its plant. On December 28, 1937, the Board,
acting on a motion filed with it by the United, issued an order
reopening the record in the case and granting permission to the
United to file an amended charge.
On January 19, 1938, Amalgamated Clothing Workers of America,
Local 303, herein called the Amalgamated, filed with the Regional
Director for the Sixteenth Region (Fort Worth, Texas), herein called
the Regional Director, a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
the respondent and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the Act. On April 5,
1938, 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 1, as amended, herein called the Rules and Regu-
lations, ordered the Regional Director to conduct an investigation and
provide for an appropriate hearing upon due notice with respect to
the questions raised by the petition for investigation and certification
of representatives. At the same time the Board also ordered that
the Regional Director issue an amended complaint on the amended
charge and, acting pursuant to Article III, Section 10 (c) (2), and
Article II, Section 37 (b), of the Rules and Regulations, ordered that
the cases arising from the petition and the charge of unfair labor
practices, as amended, be consolidated for the purpose of hearing.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon an amended charge duly filed by the United, the Board, by
the Regional Director, issued its amended complaint dated April 28,
1938, against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act. Copies of the amended complaint and
notices of hearings in both the representation and the unfair labor
practices proceedings were duly served upon the respondent, the
Amalgamated, and the United.
With respect to unfair labor practices, the amended complaint
alleged in substance that, in addition to the acts set forth in the
original complaint and, since July 16, 1937, the respondent had (1)
dominated and interfered with the formation of the Amalgamated,
the last of a line of three labor organizations, in that the respondent
had dominated and interfered with the formation and administration
of and contributed financial and other support to each of the three
in the order in which they succeeded one another; namely, the Inde
pendent, the Industrial Garment Workers of America, herein called
the Industrial, and the Amalgamated; (2) encouraged membership in
the Amalgamated and discouraged membership in ' the United ; and
(3) discharged 65 employees during May 1937 and thereafter refused
to reinstate them and afforded irregular and discontinuous employ-
ment to 11 other employees during June 1937 and thereafter because
of their membership in and activity on behalf of the United, and in
order to discourage membership in that organization.
On May 2, 1938, the Amalgamated filed a motion for leave to inter-
vene in the unfair labor practices proceeding. On the same day, the
Regional Director issued an order granting the intervention.
Pursuant to the notices thereof, a hearing upon the petition and
the amended complaint was held at Fort Worth, Texas, from May 5
through 21, 1938, before L. Richard Insirilo, the Trial Examiner duly
designated by the Board. The Board, the respondent, the United,
and the Amalgamated 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. Upon the opening of the hearing, the.
United filed a motion for leave to intervene in the representation
proceeding and a plea that that proceeding abate until after a deci-
sion had been rendered in the unfair labor practices proceeding. The
Trial Examiner granted the motion for leave to intervene but denied
the plea in abatement. His rulings are hereby affirmed. During
the course of the hearing the Trial Examiner made other rulings on
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.
DICKSON-JENKINS MANUFACTURING COMPANY 21
On October 15, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. The
Trial Examiner found that the respondent had engaged in unfair
labor practices affecting commerce within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the Act and recommended
that the respondent cease and desist from such unfair labor practices,
reinstate 56 employees with back pay, and reimburse 11 others for
wages lost as a result of discrimination with respect to hire and ten-
ure of employment. The Trial Examiner also recommended that the
respondent take certain other specified affirmative action to effectuate
the policies of the Act.
Exceptions to the Intermediate Report were duly filed by the
respondent and the Amalgamated and an opportunity to file briefs
and argue orally before the Board was requested. Pursuant to notice
duly served upon all parties, a hearing was held before. the Board in
Washington, D. C., on February 14, 1939, for the purpose of oral
argument. The respondent, the United, and the Amalgamated were
represented by counsel and participated in the argument. The
Board has reviewed the exceptions to the Intermediate Report and
the briefs and arguments in support thereof and, except in so far as
they are inconsistent with the findings, conclusions, and order set
forth below, finds them to be meritorious.
Upon the entire record in the cases, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Dickson-Jenkins Manufacturing Company la is a corporation or-
ganized and existing under the laws of the State of Texas. It main-
tains a principal office and manufacturing plant in Fort Worth,
Texas, where it engages in the manufacture , sale, and distribution
of work clothes, dress and semi-dress clothes, and sportswear. The
respondent's manufacturing plant is divided into the following.de-
partments : ( 1) sportswear, (2) ladies' slacks , ( 3) overalls , (4) work
pants, ( 5) dress and semi-dress pants, and ( 6) shirts.
Prior to 1937, the respondent 's annual sales volume was approxi-
mately $1,000,000. It was stipulated in the record that, while the
total volume of the respondent 's business decreased in 1937 and there-
after, the ratio of interstate business to total business remained the
same. The respondent markets its products in the southern and
southwestern regions of the United States. Approximately one-half
of its sales are made outside of the State of Texas.
11 Incorrectly designated in the complaint and petition as Dickson -Jenkins Manufac-
turing Co.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seventy-five per cent of the respondent's raw-material supply, con-
sisting chiefly of cotton cloth in the bolt, is purchased outside of the
State of Texas.
II. THE ORGANIZATIONS INVOLVED
United Garment Workers of America, Local No. 181, is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to its membership operating and production employees of
the respondent.
Amalgamated Clothing Workers of America, Local 303, is a labor
organization affiliated with the Committee for Industrial Organiza-
tion ,2. admitting to its membership all employees of the respondent,
except the office force and those having power to hire and discharge.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
In March 1937 the United, having had some members among the
respondent's employees since 1928 or 1929, began a membership drive
in an effort to enlist the support of a majority. As a result of this
drive, the United succeeded in enrolling as members 208 of the ap-
proximately 512 employees then on the respondent's pay roll. Early
in May 1937, the respondent began inserting into the pay envelopes
of its employees a series of notices on the subject of the employer and
employee relationship. Two of the notices purported to be interpre-
tations and explanations of the Act, emphasizing the freedom of
employees to join or refrain from joining any union or to organize
a union of their own in preference to any existing organization.
These notices also emphasized the right of an employee to deal di-
rectly and individually with his employer if he chose to do so. The
third in the series of notices contained a statement to the effect that
the future policy of the respondent would be that of the open shop
and assured the employees at the same time that they would be hired
without discrimination, solely on the basis of their qualifications for
the respondent's work. At about the same time, five of the respond-
ent's employees, a presser, a floorlady, and three machine operators,
began the organization of what they termed a "company union."
They retained a local attorney, W. Sproesser Winn, and on the morn-
ing of May 13 caused to be distributed, on the respondent's time and
at its expense, a printed notice of a meeting to be held in the plant
at 11:30 a. m. that day., The notice, signed by the committee of five,
stated that the meeting was being called for the purpose of forming
a union composed of the respondent's employees and outlined the
2 Now the Congress of Industrial Organizations.
DICIiSON-:IENKINS MANUFACTURING COMPANY 23
advantages to be gained from such an organization. Work was
stopped at the appointed time upon a signal from one of the members
of the committee and the meeting was held without objection from the
respondent. The meeting resulted in a determination to carry out
the proposed plan, and several of the employees spent considerable
time during the remainder of the day.securing.signatures to petitions
in support of the proposed organization. On June 4, 1937, the Inde-
pendent was incorporated as a non-stock corporation pursuant to
the laws of the State of Texas. At that time, it claimed a member-
ship of 275.
During the time when the Independent was being organized, the
respondent's plant was being shut down by means of a gradual laying
off of employees. The first of such lay-offs came on May 13, the day
of the first organization meeting. They culminated on May 22, with
a virtual cessation of operations. It is established in the record that
this shutting-down process was decided upon at a management con-
ference on May 1.0 after a comprehensive review of the respondent's
current business situation led the respondent's officers to conclude
that curtailment of production was necessary.
On June 10, 1937, while the plant was still shut down, the re-
spondent entered into a written contract with the Independent.
Under the'ternis of the contract the respondent recognized the Inde-
pendent as the collective bargaining agent for its members and for
others authorizing it to represent them; agreed to return the members
of the Independent to work, commencing June 14, 1937, and to
complete the return to work of all members of the Independent
within 3 weeks thereafter; and agreed to employ only members of
the Independent in the cutters, pressers, shipping, timeworkers, piece
work, inspectors, shirt, overalls, pocket and sergers, and line workers'
departments, provided however that non-members might be hired
and kept on the pay roll for a period. not exceeding 4 weeks. The
latter provision of the contract was conditioned upon an amendment
to the bylaws of the Independent to provide for an investigation by
the executive committee of the Independent of all applicants for
membership voted down at the membership meeting at which their
names were first voted upon. The contract also provided that, should
the bylaws be amended and the above provision become operative,
termination of employment of applicants would be suspended during
the period of investigation by the executive committee.
The respondent reopened its plant on June 14, 1937, on a limited
basis, rehiring a small group of its former employees, some of whom
were not members of the Independent at the time. A copy of the
contract with the Independent was posted upon the bulletin board,
however, and non-member employees were informed that they must
247384-40-vol. 17--3
24 DECISIONS: OF NATIONAL .LABOR. RELATIONS BOARD
join the Independent if they wished to keep their jobs. Althougl}
some of the non-member employees did not respond promptly- to
this pressure, no action was taken. against any of them pendii g.
the expiration of the 4-week period of employment allowed to each
under the terms of the contract. - .
There were no further developments in the situation prior to. the
opening of the Board's hearing on June 21, 1937, upon a .charge- of.
unfair labor practices filed by the. United. That hearing was con-
cluded on June 24, 1937, and settled by the stipulation and agree-
ment of all parties which formed the basis for the Decision and Order.
of the Board referred to above. In conformity with the terms of
the stipulated settlement of the case, the Independent held a meet-
ing on June 24 and voted complete dissolution. Hubert Holland,
secretary and treasurer of the respondent, appeared before this meet-
ing of the Independent, advised the group to, affiliate with the United.,
and assured them that they could do so without objection from the
respondent. Sherman, au international representative of the United,
also appeared before the members of the Independent on this- occa
sion. He invited them to a meeting of the United to be held the
following evening, June 25, and promised that they would be taken
in as members and permitted to, vote in a scheduled election. of
local officers. -
Although most of the-members of the Independent attended the
meeting of the United on June 25, they were not afforded an op-
portunity to become members. They were invited to return to a
meeting of the United to-be held on the following Friday and were
assured that their admission to membership would be accomplished
at that time. Few of them accepted the invitation; however, for in
the meantime they had met and decided to establish a new organi-
zation of their own. Their decision to do so was prompted by
dissatisfaction with Sherman and the United following the meeting
of June 25.
The new organization took the form of an unincorporated associa-
tion and adopted the name Industrial Garment Workers of America.
Its leadership and membership .were practically the same as that
of the Independent and the books, records, and funds with which it
began business were taken over from the Independent. It was, how-
ever, counseled by an attorney, Joe Spurlock, who had had no con-
nection with the Independent. Furthermore it held no meetings
on the respondent's time or property, received no support or assist-
ance from the respondent, and entered into no contractual agreement
with the respondent. The Industrial, in point of fact, failed in an
attempt to win recognition from the respondent. The respondent
refused its request for recognition as an exclusive collective bargain-
DICIiSON-JENKINS MANUFACTURING COMPANY 25
ing agent of the' employees, insistiiig' upon certification by the Board
as a prerequisite.
Thereafter the attorney for the Industrial advised its members
that-affiliation with an international union would be preferable to
a long' drawn out and-expensive attempt to obtain recognition on
their own account. The members' of the Industrial thereupon in-
structed their attorney to reopen negotiations with the United. Sev-
eral conferences were had with Sherman in an attempt to secure
a separate United charter for the Industrial group. Although Sher-
man opposed the request for a separate charter, he was. invited to
appear before a meeting of the Industrial for the purpose of reach-
ing an understanding with respect to affiliation. On' this occasion,
Sherman failed to win over the members of the Industrial. Opposi-
tion to him was in fact 'increased to such' an extent that the meeting
was marked by speeches from the floor in opposition and open
defiance. In the meantime, the attorney for the Industrial had on
his' own initiative opened negotiations with the Committee for In-
dustrial Organization. Within a short time, the Industrial was put
in contact with representatives of the Amalgamated. Thereafter,
'representatives of, the Amalgamated attended several meetings of
the Industrial. .On September 25, 1937, the members of the In-
dustrial voted to dissolve their organization and to affiliate with the
Anialgam tited. Following this vote, Amalgamated membership ap-
jplications were distributed and signed by approximately 186 in-
dividuals. The officers of the Industrial were continued in office
as temporary officers of the Amalgamated until such time as a charter
could be formally installed and an election of officers held. The
financial secretary-treasurer transferred the funds of, the Industrial
to the account of the Amalgamated., Thereafter the Amalgamated
asked' the respondent , for recognition as an exclusive representative
of the employees but was told' that the respondent intended to.with-
hold such .recognition from any labor organization until it obtained
certification from the Board. The respondent had not granted
recognition to the Amalgamated up to date of the hearing.
Although the record sufficiently establishes that the Independent
was' the recipient of support and assistance from the respondent, it is
barren of any evidence that the respondent in any manner dominated
or interfered with or supported or assisted either the Industrial or
the Amalgamated. There was in fact only one occasion after the
Independent ceased to function when the' respondent aided any labor
organization. That was on June. 24, when it advised the former
members of the Independent to join the United. Furthermore, the
respondent evidenced 'impartiality toward both the Industrial and
the Amalgamated by refusing their requests for exclusive 'recogni-
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.3 The fact that the leaders and members of the three organiza-
tions were essentially the same and funds and record books were
transferred from organization to organization is not alone sufficient,
in our opinion, to establish that the respondent's interference with,
domination and support of, and assistance to the Independent carried
over to the Industrial and in turn to the Amalgamated 4
We find that the respondent has not, by encouraging membership
in or dominating 'or interfering with the formation or administra-
tion of the Amalgamated or by contributing financial or other sup-
port to that organization, interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed to them in Section
7 of the Act. We will, therefore, dismiss the allegations of the
amended complaint in this respect.
B. The alleged discriminations with regard to hire and tenure of
employment
The names of 9 of the 65 individuals alleged to have been dis-
charged and refused reinstatement because of their affiliation with the
United were withdrawn from the amended complaint during the
course of the-hearing on motion of counsel for the Board. In so far
as the amended complaint alleged that discriminations were practiced
against the 56 remaining employees by reason of discharges during
May of 1937, it was founded upon the theory that the shut-down of
the plant at that time was for the express purpose of executing a
closed-shop contract with the Independent. As we have stated above,
however, the record establishes that the shut-down was determined
upon on May 10, prior to the organization of the Independent.
Furthermore, the record supports the contention of the respondent
that the shut-down was caused by adverse business conditions. We
conclude, therefore, that the allegations that the 56 employees were
discriminatorily discharged during May of 1937 are not substan-
tiated by the evidence.
The remaining allegation of the amended complaint with respect
to the 56 employees is that they were refused reinstatement. In that
respect they fall into the same general category as 11 employees al-
leged to have been given occasional, irregular, and temporary employ-
ment because of their membership in the United. The issue as to the
67 employees is - whether discriminatory treatment was accorded to
any of them subsequent to the reopening of the plant on June 14,
1937.
S Cf. Matter of Mohawk Carpet Mills, Inc. and Textile Workers' Organizing Committee,
12 N. L. R. B. 1265.
4 Cf. Matter of Wisconsin Telephone Company and Telephone Operators Union, Locale
175 A, 165 A, 205 A, and 201 A, International Brotherhood of Electrical Workers, 12 N. L.
R. B. 375; Matter of Mohawk Carpet Mills, Inc. and Textile Workers' Organizing Com-
,nittee, supra.
DICKSON-JENKINS MANUFACTURING CO_IIPANY 27
Each one of the 56 employees alleged to have been refused rein-
statement testified for the record, either orally or by deposition. The
essence of the testimony of each is that she joined the United prior
to May 1937, that she was laid off during that month, and that she
was not reemployed subsequent to the reopening of the plant on
June 14, 1937. None of these witnesses testified that the security of
her position had been threatened by the respondent because of her
membership in the United. - None established affirmatively that the
respondent knew of her membership in the United, although it may
be reasonably inferred from the whole record that the respondent
knew of the United membership of at least some of these employees.
Most of the 56 never returned to the plant after the May shut-down
to inquire for work because they had been told they would be called
when needed. Those who did apply for employment were told that
nothing was available and were assured that they would be called
when work became available.
All of the 11 employees alleged to have been given occasional, ir-
regular, and temporary employment after June 1937, were rehired
while still members of the United on various dates in the period from
June 14 to September 14, 1937. The testimony of each of the 11 is
essentially the same as that of the 56, except that in addition each
recounted the nature and extent of her employment with the re-
spondent subsequent to June 14, 1937. Eight of the 11 were continued
upon the pay roll until November or December 1937, when they were
laid off along with other employees in the course of a. customary be-
tween-season shut-down. They were not reemployed when operations
were resumed early in 1938. The situations of each of the three remain-
ing employees are separate and distinct. One, Nora Bennett, was re-
hired about July 1, 1937. She was put to work on a production line
for about 2 weeks and then was told that she was too slow for line work.
She was thereupon given piece work but quit, according to her own
statement, because she found that she could not make expenses on
that basis. She received her final pay check on July 17, 1937. An-
other, Cecil Rotten, was rehired on July 2 and discharged on July 23,
1937, under an accusation of insubordination. The charge of insub-
ordination does not appear ill-founded on the basis of the record. The
third, Mary Butler, was still on the pay roll at the time of the hearing.
She had worked as a line supervisor and was paid on a weekly salary
basis prior to the shut-down in May 1937. She was laid off for only
3 days during that shut-down and was rehired at,her former salary.
In view of the fact that the department which she had previously
supervised was not then in operation, she spent most of her time subse-
quent to her reemployment operating a machine. On June 27, 1937,
she was reduced to the status of an hourly paid employee. On July
24, 1937, she was restored to her former weekly salary basis, although
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she continued to spend most of her time operating a machine and.
had only two or three employees under her supervision. Her employ-
ment was continued on this basis until the between-season shut-down
in December 1937. She was reemployed on February 21, 1938, again
on an hourly basis. She was told at that time that the fact that there
was only one other employee working with her would necessitate
placing. her on an hourly basis again but that when employment in
the department increased she would be returned to her former status.
On April 27, 1938, she was returned to a weekly salary basis.
Her contention is that her earnings were reduced during the period,
totaling 3 months, when she was employed as an hourly paid employee.
It is apparent from the foregoing that, if discriminations based upon
membership in the United were practiced by the respondent, they can
be -determined only on a general, relative basis rather than an indi-
vidual basis. We are of the opinion, however, that the record fails
to establish discriminations on that basis. It is clear from the evi-
dence that employment continued at a considerably slackened pace
from the date of the reopening of the plant on June 14, 1937, to the
date of the hearing. As compared with a pay roll of approximately
512 prior to the May 1937'shut-down, there were approximately 308
on the pay roll at the date of the hearing. The respondent had hired
no new employees up to that time. It had not confined its rehiring to
former employees who were not members of the United. In fact,
the record affirmatively establishes that the rehiring of members of
the United approached the proportion which members of the United
bore to the total number of employees prior to the May 1937 shut-
down. Since the United failed to put its membership list in evidence,
no accurate comparison is available. However, the oral testimony
of Mina Boone, business agent for the United until July 7, 1937, indi-
cates that the respondent had approximately 208 members of the
United on its pay roll in May 1937, when it was employing approxi-
mately 512 employees, and that 98 of the original 208 were on the pay
roll of March 17, 1938, when the respondent was employing approxi-
mately 308 employees. The record establishes similar ratios in two
departments of the plant, with regard to which there is evidence in
the record. Of a United membership of 19 in the sports goods de-
partment, employing 26 people in May 1937, 8 had not been called
back at the time of the hearing. Of 34 employees working on a pro-
duction line known as Line 1 in May 1937, 25 were members of the
United. Thirteen of the 25 had not been called back to work at the
time of the hearing.
The respondent established that it eliminated some departments fol-
lowing the May 1937 shut-down, - that it revamped the production
method in the remaining departments in an effort to cut down the cost
of production, and that it rehired employees on the basis of the
DICIiSON-JENKINS MANUFACTURING COMPANY 29
changed situation, having in mind .not only: the curtailed. operations
but also the rearrangement of the facilities of production. It also es-
tablished that it had not in the past and did not then follow any
system of seniority in rehiring and that such employees as were rehired
were not returned necessarily to their former positions. The record
does not disprove the respondent's contention that it followed a policy
in rehiring whereby employees were returned to work on the basis of
their ability and suitability to the needs of the respondent's curtailed
and revised production system.
We are of the opinion, therefore, that the record fails to substantiate
the allegations of the complaint to the effect that the respondent refused
reinstatement after the May 1937 shut-down of its plant to 56 employees
and, after June 1937, gave occasional, irregular, and temporary em-
ployment to 11 others because of their affiliation with the United and
in order to discourage membership in that labor organization.
We find that the respondent has not discriminated against its em-
ployees in regard to their hire or tenure of employment or the terms
or conditions of their employment, thereby discouraging membership
in the United. We will, therefore, dismiss the allegations of the
amended complaint in this respect.
Since none of the allegations of unfair labor practices which the
amended complaint added to those included within the original com-
plaint and determined by the Board's Decision and Order of July
16; 1937,5 has been found to be supported by the record, the amended
complaint will be dismissed in so far as it contains such additional
allegations.
. IV. THE QUESTION CONCERNING REPRESENTATION
The petition filed by the Amalgamated alleges that the respondent
refused to recognize that organization as a collective bargaining repre-
sentative of its employees. The record establishes that the respondent
refused to recognize the Amalgamated as an exclusive representative,
upon request. Moreover, it is clear that the respondent will continue
to refuse to recognize any organization which has not been certified by
the Board.
We find that a question has arisen concerning the representation of
employees of the respondent.
V. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
ON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
" Cited in footnote 1, supra.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described in Section I above, has a close, intimate, and substantial re-
lation 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.
VI. THE APPROPRIATE UNIT
In its petition, the Amalgamated described the appropriate unit
for collective bargaining as including all employees except those em-
ployed exclusively in the office, those with complete authority to hire
and discharge, and salesmen. At the hearing it specified that such a
unit would include, in addition to machine operators, employees classi-
fied'as shipping clerks, porters, mechanics, cutters, and pressers. The
United contended that the appropriate unit should be confined to
machine operators. or production employees.
In conformance with its general position with respect to the ap-
propriate unit, the Amalgamated contended that line supervisors, who
have no power to hire or discharge, should be included within the
unit. The United objected to the inclusion of line supervisors for
the purpose of ,in election on the ground that, according to its custom,
such employees are eligible to membership but not to voting privileges.
During the course of the hearing, the two labor organizations agreed
to recommend to the Board that in any election conducted among the
employees line supervisors should not be permitted to vote. They did
not, however, reach any agreement on the question of whether or not
line supervisors should be included within the appropriate collective
bargaining unit.
The problem of determining an appropriate unit therefore resolves
itself into a question of whether porters, a size-ticket maker, mechanics,
shipping clerks, a stockman, a general utility man, and line supervisors
should or should not be a part of the appropriate unit.
In a recent case involving a similar industry and in which affiliates
of the same parent labor organizations made similarly divergent
claims with respect to the composition of the appropriate unit, we
excluded from the unit employees whose duties were the equivalent
of those of the stockman, the general utility man, the mechanics, and
the shipping clerks on the ground that their work was not directly
related to production activities in the plant. In the same case, we
included within the appropriate unit employees whose duties cor-
respond with those here designated as porters and the size-ticket
maker for the reason that they were engaged in activity directly
related to production. Since the considerations which we found
controlling in that case are equally persuasive here, we will make
similar inclusions and exclusions from the appropriate unit.
"Matter of The Hawk and Buck Co., Inc . and United Garment Workers of America, Locat
No. 22,9, 12 N. L . R. B. 230.
DICKSON-J]NKINS MANUFACTURING COMPANY 31
We will also exclude line supervisors from the unit. Employees
within this classification exercise extensive powers of supervision over
machine operators . Although line supervisors have no power to hire
or discharge, they direct the work of groups of employees number-
ing in some cases 30 or more. Practically all of their time is taken
up with supervision and they do not regularly devote any portion
of their time to the operation of a machine for the purpose of pro-
duction.. The above factors, together with the agreement of the two
labor organizations here involved that line supervisors should not be
eligible voters in an employee election, have prompted us to our deci-
sion excluding employees within that classification from the appro-
priate collective bargaining unit.
We find that the production employees of the respondent, includ-
ing porters and the size-ticket maker, but excluding the stockman,,
the general utility man, mechanics, shipping clerks, and line super-
visors, constitute a unit appropriate for the purposes of collective
bargaining and that said unit will insure to employees of the re-
spondent the full benefit of their right to self-organization and to
collective bargaining and otherwise effectuate the policies of the Act.
VII. THE DETERMINATION OF REPRESENTATIVES
As we have stated above, the United claims that its membership
list included 208 of the respondent's employees in May 1937. It also
claims that 98 of its May 1937 members were on the respondent's
pay roll as of March 17, 1938. According to testimony in the record,
approximately 186 of the respondent's employees signed applications
for membership in the Amalgamated at the meeting of September
24, 1937, after dissolution of the Industrial and affiliation with the
Amalgamated was voted. The Amalgamated also introduced at the
hearing an unauthenticated membership list containing 322 names.
While both labor organizations thus laid claim to substantial mem-
bership among the respondent 's employees , neither offered docu-
mentary proof. They joined in requesting the Board to hold an
election to determine the question concerning the choice of represent-
atives. We find that the question concerning representation which
has arisen can best be resolved by holding an election by secret
ballot.
No specification was made by any party at the hearing as to the
pay-roll date to be used in determining eligibility to vote in an elec-
tion conducted by the Board. We are of the opinion that a current
pay roll is most suitable under the circumstances of this case and
will best serve to effectuate the policies of the Act. We shall, there-
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore, direct an election by secret ballot among employees of the
respondent during the pay-roll period last preceding the date of this,
Direction of Election, to determine whether they desire to be repre-.
sented by the United, the Amalgamated, or neither.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following : .
CONCLUSIONS OF LAW
1. The operations of the respondent, Dickson-Jenkins Manufac-
turing Company, occur in commerce, within the meaning of Section,
2 (6) of the Act.
2. United Garment Workers of America, Local No. 181, and
Amalgamated Clothing Workers of America, Local 303, are labor
organizations, within the meaning of Section-'2 (5) of the Act.
3. The respondent, by those acts alleged in the amended com-
plaint but not included within the original complaint, has not en-
gaged in unfair labor practices, within the meaning of Section 8
(1) and (3) of the Act.
4. A question affecting commerce has arisen concerning the rep-,
resentation of employees of Dickson-Jenkins Manufacturing Com-
pany, Fort Worth, Texas, within the meaning of Section 9 (c) and
Section 2 (6) and (7) of the Act.
5. The production employees of Dickson-Jenkins Manufacturing
Company, including porters and the size-ticket maker, but exclud-
ing the stockman, the general utility man, mechanics, shipping
clerks, and line supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the amended complaint against the respondent, Dickson-Jenkins
Manufacturing Company, Fort Worth, Texas, be, and the same
hereby is, dismissed, in so far as it alleges unfair labor practices in
addition to those alleged in the original complaint and determined
in the Board's Decision and Order dated July 16, 1937.
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
Cited in footnote 1, supra.
DICKSON-JENKINS MANUFACTURING COMPANY 33
National Labor Relations Board Rules and Regulations-Series 2,
it is hereby
DIRECTED 'that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining,
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
Director for the Sixteenth Region (Fort Worth, Texas), acting in
the matter as agent for the National Labor Relations Board, subject
to Article III, Section 9, of said Rules and Regulations, among the
production employees, including porters and the size-ticket maker,
but excluding the stockman, the general utility Rnan, mechanics,
shipping clerks, and line supervisors, employed by Dickson-Jenkins
Manufacturing Company, Fort Worth, Texas, during the pay-roll
period last preceding the date of this Direction of Election, includ-
ing employees who did not work during such pay-roll period be-
cause they were ill or on vacation and employees who were then or
have since been temporarily. laid off, but excluding employees who.
quit or are discharged for cause between the pay-roll period and the
date of the election, to determine whether they desire to be repre-
sented by United Garment Workers of America, Local No. 181, affili-
ated with the American Federation of Labor, or by Amalgamated
Clothing Workers of America, Local 303, affiliated with the Com-
mittee for Industrial Organization, for the purposes of collective
bargaining, or by neither. '
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision, Order, and Direction of Election.