Empire Worsted Mills, Inc.

National Labor Relations Board - Board Decisions

Oct 4, 1945

63 N.L.R.B. 1446 (N.L.R.B. 1945)

In the Matter of EMPIRE WORSTED MILLS, INC. and TEXTILE WORKERS
UNION OF AMERICA, C. I. O.
Case No. 3-R-1007.-Decided October 4, 19.¢5
Messrs. J. Russell Rogerson and Marvin R. Klarquist, of James-
town, N. Y., for the Company.
Isadore Katz, Esq., of New York City, by Mr. Benjamin Wyle; Mr.
Charles Sobol, of Buffalo, N. Y., and Mr. Vincent Tortolano, of James-
town, N. Y., for the C. I. O.
Mr. Charles Connors, of Hudson, N. Y., and Cllr. William A. Hart-
ley, of Jamestown, N. Y., for the A. F. of L.
Mr. A. Swmner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Textile Workers Union of America,
C. I. 0., herein called the C. I. O. alleging that a question affecting
commerce had arisen concerning the representation of employees of
Empire Worsted Mills, Inc., Jamestown, New York, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Eugene von Wellsheim,
Trial Examiner. The hearing was held at Jamestown, New York, on
July 10, 1945. The Company, the C. I. 0., and Department of Woolen
and Worsted Workers of the United Textile Workers of America,
A. F. L., herein called the A. F. L., appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence bearing on the issues,
and to file briefs with the Board. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
The A. F. L.'s request for leave to present oral argument and the mo-
tions of the Company and the A. F. L. to dismiss the proceeding, are
hereby severally denied.
63 N. L. R. B., No. 220
1446
EMPIRE WORSTED MILLS, INC. 1447
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Empire Worsted Mills, Inc., a New York corporation, operates a
plant at Jamestown, New York, where it is engaged in the manufacture
of army serge and shirting under direct contract with the United
States Government. During the period from January 1, 1944, to De-
cember 31, 1944, the Company used at its Jamestown plant raw mate-
rials valued in excess of $500,000, of which 95 percent was obtained
from points outside the State of New York. During the same
period, the Company manufactured at its Jamestown plant finished
products valued in excess of $1,500,000, of which more than 75 percent
was shipped to points outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
Department of Woolen and Worsted Workers of the United Textile
Workers of America, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees
of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about March 9, 1945, the C. I. O. addressed a letter to the
Company claiming majority representation and requesting recognition
as the bargaining agent for certain of its employees. The Company
received the letter but did not reply, admitting at the hearing that it
thereby intended to refuse recognition pending certification of the
C. I. Was bargaining representative of such employees.
The Company and the A. F. L. contend that the present proceeding
is barred by one or more contracts allegedly entered into between the
Company and the A. F. L. prior to the C. I. O.'s notice of its claim to
representation. In short, the Company, whose position is shared by
the A. F. L., contends that either the last of a series of formal agree-
ments between the Company and the A. F. L. was automatically
renewed under the provision contained therein for automatic renewal,
or that such agreement was expressly renewed by act of the parties,
prior'to the receipt by the Company of the C. I. O.'s claim to majority
representation.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the contention that the last formal agreement be-
tween the Company and the A. F. L. was automatically renewed, it
appears that during the year 1944 the Company and the A. F. L.
executed a 1-year formal collective bargaining agreement, the effective
date of which is uncertain; and that this agreement was subject to
automatic renewal in the absence of written notice of a desire to revise
or terminate the agreement given by either party 30 days prior to the
expiration date.' On January 23, 1945, the A. F. L. formally notified
the Company under the terms of the automatic renewal provision, of
its desire to renegotiate wages and other substantive terms of the then
existing agreement. Thereafter, in February 1945, the Company and
the A. F. L. entered into negotiations for substantial modifications of
the agreement as sought by the A. F. L. Pursuant to such negotiations,
the parties executed a memorandum expressly renewing the formal
agreement subject to the determination of issues then in the process
of negotiation.
In support of their contention that the 1944 agreement was auto-
matically renewed, the Company and the' A. F. L. maintain that the
notice given by the A. F. L. for revision of the contract was untimely
under the terms of the automatic renewal provision, inasmuch as it was
tendered the Company less than 30 days prior to January 30, 1945.
Assuming that the expiration date of the contract was January 30,
1945,2 as the Company and the A. F. L. contend, it may be conceded
that the A. F. L.'s notice was untimely and that the contract there-
fore would have been automatically renewed in the absence of any
conduct by the parties subsequent to the automatic renewal date indi-
cating that the automatic renewal provision was not intended to remain
operative. Retroactive waiver of the automatic renewal provision,
however, is clearly indicated by the entrance of the parties into nego-
tiations for substantial modifications of-the contract and-by the execu-
tion of the express renewal agreement extending the terms of the 1944
contract subject to the adoption of any of the A. F. L.'s proposed
changes. Accordingly, we find that the 1944 contract was not auto-
matically renewed and, consequently, that it constitutes no bar to the
instant proceeding.3
There remains for consideration, however, the question of the suffi-
ciency of the express renewal agreement as a bar to the petition in the
present instance. Although the Company and the A. F. L. contend
I The agreement opens with the statement that it was "entered into this 30th day of
January 1944 " However, the last paragraph , which provides for the automatic renewal
thereof , indicates that the agreement was executed not on January 30, 1944, but on April
10, 1944
2If it is assumed that the expiration date of the 1944 agreement was April 10, 1945, it
is clear that insofar as such agreement is concerned , the C . I. 0. was timely in presenting
its claim to representation to the Company on March 9, 1945
, See Matter of Swvft & Company , 58 N. L. R. B. 1258; Matter of Iroquoss Gas Corpo-
ration , 61 N. L. It. B 302.
EMPIRE WORSTED MILLS, INC. 1449
that the renewal agreement was executed prior to the C. I. O.'s claim
to representation, the evidence does not definitely establish the date
upon which the renewal agreement was executed. The Company's
general manager testified that he though that all the signatories to the
agreement, other than the A. F. L. international representative, ex-
ecuted the agreement about 1 week after February 2, 1945, the date
of the Company's reply to the A. F. L.'s notice requesting negotiations.
The same witness further stated that the agreement was executed by
all such signatories prior to April 12, 1945, when the parties met for a
conference with a Field Examiner of the Board concerning the C. I.
O.'s claim to representation.4 The president of the A. F. L. local,
however, testified that the renewal agreement was executed sometime
during the latter part of March 1945. There is nothing in the record
to indicate when the requisite signature of the A. F. L. international
representative was added to the renewal agreement as previously
signed by the Company and the representatives of the A. F. L. local.
Upon the record as a whole, we' are not convinced that the parties
raising the renewal agreement as a bar have established that such
agreement was executed prior to the C. I. O.'s request for recognition
as the bargaining representative. Accordingly, we find that the
renewal agreement does not prevent a present determination of repre-
sentatives.
The statement of a Board agent, introduced into evidence at the
hearing, indicates that the C. I. O. represents a ,substantial number of
employees in the unit hereinafter found appropriate.5
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
V. THE APPROPRIATE UNIT
We find, in substantial accord with the agreement of the parties, that
all production and maintenance employees of the Company, including
the assistant in the Burling Department, but excluding office and
'The witness who attended the conference could not recall, however , that anyone had
produced the agreement or raised it as an objection to the C. I. 0 's claim to representation.
The Board agent reported that the C . I. O. had submitted 155 authorization cards, of
which 110 checked with the Company 's pay roll of June 2, 1945 , containing 442 names
within the claimed appropriate unit. The 110 cards checked consisted of 12 card,, dated
1944 , 2 cards undated , and the remainder dated between January 1945 , and May 1945.
The A . F. L submitted no cards but relied upon its contracts with the Company as evidence
of its interest in the proceeding.
The A F. L. contends that the showing made by the C. I. O. is insufficient to maintain
the present petition While it appears that the C I O's showing is only approximately
24 percent of the employees in the claimed appropriate unit , we are of the opinion that
the showing of the C I 0 is sufficient since the last formal agreement between the
Company and the A F L provides for maintenance of membership in the A F L as the
basis of continued employment by the Company See Matter of Aluminum Company of
America , et W, 61 N L R B 245
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clerical employees, subforemen, and all other supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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 Relations
Act, and pursuant to Article III, Section 9, of National Labor,Rela-
tions Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Empire Worsted
Mills, Inc., Jamestown, New York, 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 Director for the Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject, to
Article III, Sections 10 and 11, of, said Rules and Regulations, among
the employees in the appropriate unit who were employed during
the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States
who present themselves in person at the polls, but excluding any who
have since quit or been discharged for cause and have not been re-
hired or reinstated prior to the date of the election, to determine
whether they desire to be represented by Textile Workers Union
of America, C. I. 0., or by Department of Woolen and Worsted
Workers of the United Textile Workers of America, A. F. L., for
the purposes of collective bargaining, or by neither.