Gastonia Combed Yarn Corp.

National Labor Relations Board - Board Decisions

Apr 3, 1947

73 N.L.R.B. 169 (N.L.R.B. 1947)

In the Matter of GASTONIA COMBED YARN CORPORATION, GASTONIA
PROCESSING COMPANY, AND GASTONIA THREAD CORPORATION, E,I-
PLOYER and UNITED TEXTILE WORKERS OF AMERICA, LOCAL 12, A. F.
OF L., PETITIONER
Case No. 5-R-2513.-Decided April 3, 194F7
Brooks, JlcLendon, Brim c6 Holdeiness, by Mr. L. P. McLendon, of
Greensboro, N. C., and fir. Bernard Seff, of Baltimore, Md.,,for the
Employer.
Messrs. John W. Pollard and Roy P. Seymour, of Gastonia, N. C.,
for the Petitioner.
Mr. William Smith, of Charlotte, N. C., for the Intervenor.
Miss Irene R. Shriber, of counsel to the Board.
DECISION
AND
DIRECTION
Upon a petition duly filed, the National Labor Relations Board on
August 27, 1946, conducted a prehearing election among the employees
in the alleged appropriate unit to determine whether they desired to
be represented by the Petitioner or the Intervenor for the purposes
of collective bargaining or by neither.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally reveals that of the approximately 1119 eligible
voters, 731 cast ballots, of which 330 were for the Petitioner, 134 for
the Intervenor, 228 for neither union, and 39 were challenged. Ten
ballots were void.
Thereafter, a hearing was held at Gastonia, North Carolina, on
October 11, 1946, before Earle K. Shawe, hearing officer. The hearing
officer's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. At the hearing, the Employer moved to dis-
miss the petition on the ground that the Petitioner's request for a
run-off election, which was based on the inconclusiveness of the ballot-
ing, was not made within 10 days after the date of the election as
required by Section 203.56 of the Board's Rules and Regulations-
Series 4. For the reasons stated hereinafter, the motion is hereby
denied.
73 N L R B., No 29.
169
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer has requested oral argument. This request is hereby
denied inasmuch as the record, in our opinion, adequately presents the
issues and positions of the parties.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Gastonia Combed Yarn Corporation is a North Carolina corporation
engaged in the manufacture and sale of combed, carded, and mer-
cerized.yarns in Gastonia, North Carolina. The operations of this
corporation are conducted in three buildings, individually known as
the Armstrong, Dunn, and Clara Mills. Annually, this corporation
uses approximately $1,000,000 worth of raw materials, of which about
80 percent is shipped to it from points outside the State of North Caro-
lina. Finished products annually manufactured by this corporation
have a value of approximately $4,500,000, of which about 70 percent
is sold to out-of-State purchasers.
Gastonia Processing Company, a North Carolina corporation, is
engaged in the manufacture and sale of dyed and dyed-mercerized
yarns. Its operations are conducted in the basement of the afore-
mentioned Clara Mill of the Gastonia Combed Yarn Corporation.
During the past year, this corporation purchased raw materials having
a value of approximately $1,000,000, of which about 40 percent was
obtained outside the State of North Carolina. During the same
period, the sales of finished products of this corporation exceeded
$1,000,000, of which 95 percent represented shipments to out-of-State
destinations.
Gastonia Thread Corporation, a North Carolina corporation whose
operations are also conducted in the basement of the Clara Mill, is
engaged in the manufacture and sale of cotton thread. During the
past year, this corporation purchased over $1,000,000 worth of cotton
yarn, of which approximately 10 percent was obtained outside the
State of North Carolina. During the same period, this corporation
sold more than $1,000,000 worth of finished products to out-of-State
purchasers.
The three afore-mentioned corporations operate as an integrated
enterprise and with identical officers. Their employees together con-
stitute a unified group subject to common and integrated control. The
three corporations admit, and we find, that they constitute together a
single Employer of all these employees.
GASTONIA COMBED YARN CORPORATION 171
We find that the Employer Auld each of the three corporation mem-
bers thereof are engaged in commerce within the meaning of the
National Labor helatlons Act.
11. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, clalmmnig to represent employees of the Employer.
Textile Workers Union of America, herein called the Intervenor,
is a labor organization affiliated with the Congress of Industrial Organ-
izations, claiming to represent employees of the Employer.
111. THE QUESTION CONCERNING REPRESENTATION
Following a Board-directed election 1 and the subsequent certifica-
tion of the Petitioner as the exclusive bargaining representative of the
Employer's production and maintenance employees, the Employer and
the Petitioner entered into a collective bargaining agreement dated
April 3, 1944. The contract was for 1 year; on its termination, the
Petitioner requested the Employer to negotiate a new contract. The
Employer refused the request until the Petitioner is again certified by
the Board
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
With the exception of the section hands, fixers, overhaulers, and
the timekeeper, all of whom the Employer desires to include and the
Petitioner and Intervenor desire to exclude, the parties are agreed that
the appropriate unit should be composed of all production and main-
tenance employees , including the chemist, the watchman, the packing
clerk, but excluding the electrician, master mechanic, head shipping
clerk, armed guards, all clerical employees, overseers, and all other
supervisory employees. The unit claimed by the Petitioner and the
Intervenor is substantially similar to the unit found by the Board in
the previous proceeding and covered by the afore-mentioned collective
bargaining agreement between the Petitioner and the Employer. The
section hands were specifically excluded from the unit in the earlier
proceeding and from the contract unit as well. The fixers, overhaulers,
and the timekeeper, however, were not mentioned either in the earlier
proceeding or in the contract unit.
The section hands: ' In the earlier proceedings, the Board followed
the agreement of the parties to exclude these employees from the unit.
I ,Itatter of Gastonia Combed I 'm it Corporation, 56 N L R B 1883
1 The classifications section hand and section men are the same
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties thereafter excluded these employees from the contract unit.
Since the earlier unit determination, there has been no change in the
duties of the section men. While the record does not show that the
section men have duties which would necessarily exclude them from
the unit in this case, in the absence of compelling circumstances war-
ranting a departure therefrom, we shall adhere to our usual practice
and not disturb the prior unit determination or the contract unit
established as a result of collective bargaining between the Employer
and the Petitioner.3 Accordingly, we shall exclude the section men.
The fixers and overhaulers: These two categories of employees are
mechanics who are responsible for the maintenance and repair of ma-
chines, the difference between them being that the fixers do the minor
repair jobs while the overhaulers do the major repair jobs. Neither
the fixers nor the overhaulers were excluded from the unit in the earlier
proceeding nor from the collective bargaining history predicated
thereon. In view of the foregoing and the evidence showing that
neither of these two groups of employees has supervisory duties, we
shall include them in the unit.
The timekeeper: This employee works in the mercerized and winding
department of the Clara plant under the supervision of the plant super-
intendent. She devotes her full time to copying the time records of
production employees on certain forms which are forwarded to the
pay-roll department. The original time records are prepared by the
overseer, a supervisory employee. The timekeeper was not specifically
excluded from the unit established in the earlier case nor from the
subsequent contract unit. • Under all the circumstances, we shall include
the timekeeper.'
the find that all production and maintenance employees of the Em-
ployer, including the chemist, the watchman, the packing clerk, the
timekeeper, fixers and overhaulers, but excluding the electrician, mas<
ter mechanic, head shipping clerk, armed guards, all clerical employees,
the section hands, the overseers, 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 collective bar-
gaining within the meaning of Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
Of the 39 challenges at the time of the election, 17 were interposed
by the Petitioner and 22 by the Board representative conducting the
election.
3 lfattei of Petersen and Lytle, 60 N L. R B 1070; Matter of American Cyonamut
t Chemical Corporation, 62
N T, R B 470
N L. R B 925 ; Matter of Chicago Bridges and Iron Go, 69
a Jfatter of Noi thicest fngineei ing Company, 73 N L R B 40
GASTONIA COMBED YARN CORPORATION 173
A. The 17 ballots challenged by the Petitioner
Rachel Bess: The Petitioner challenged the ballot of this employee
on the ground that she was a clerical worker. The evidence discloses
that she is a packing clerk who, in addition to her packing duties, wraps
and inspects combs in the Mercerizing plant. At the hearing, the
Petitioner withdrew its challenge to Bess' ballot and agreed with the
Employer and the Intervenor that she was an eligible voter. Accord-
ingly, we shall direct that the ballot of Rachel Bess be opened and
counted.
Mary L. Long: This employee's ballot was challenged on the ground
that she was a clerical employee. Long is the timekeeper whom we
have included in the unit hereinbefore found appropriate. We shall,
therefore, direct that the ballot of Mary L. Long be opened and counted.
Charlie Ballard, Rule Cathy, Roy Hooker, C. C. Wortman: The
ballots of these four employees were challenged on the ground that
they were section men. Inasmuch as we have excluded section men
from the bargaining unit, we shall sustain the challenges to the ballots
of Charlie Ballard, Rufe Cathy, Roy Hooker, and C. C. Wortman.
Dale Broyles, Edward Outlaw, F. R. Peeler, Thomas W. Smith:
The Petitioner challenged the ballots of these four employees on the
ground that they were overhaulers. In our unit determination, we
have found that overhaulers should be included. Accordingly, we
shall direct that the ballots of Dale Broyles, Edward Outlaw, F. R.
Peeler, and Thomas W. Smith be opened and counted.
John M. Blalock, Fanzy Leatherwood, Henry Parker, James R.
Robertson: The ballots of these four employees were challenged on the
ground that they were section amen. The record, however, shows that
all four men are production workers. Blalock, Leatherwood, and
Robertson are doffers while Parker is a yarn boy. The Petitioner
has withdrawn its challenges to the ballots of these employees. We
shall, therefore, direct that the ballots of John M. Blalock, Fanzy
Leatherwood, Henry Parker, and James R. Robertson be opened and
counted.
J. O. Carpenter, Charlie Jenkins: Carpenter's ballot was challenged
on the ground that he was a section man and Jenkins' ballot on the
ground that he was a fixer. Both employees, however, are fixers, a
category of employees we have included in the bargaining unit. We
shall, therefore, direct that the ballots of J. O. Carpenter and Charlie
Jenkins be opened and counted.
John Autrey: This employee's ballot was challenged on the ground
that he was an overseer. At the hearing, it was revealed that Autrey
is a production employee working as a card hand in the Armstrong
6 A doffer removes bobbins of yarn from the twister' s spindles.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant and that the challenge to his ballot was withdrawn. We shall,
therefore, direct that Autrey's ballot be opened and counted.
B. The w0 ballots challenged by the Board representative
Lela Brocle and Susie Chapman: The ballots of these employees
were challenged because their navies did not appear oil the eligible
voting list. These employees are production workers, wllo, because of
illness, were absent from work during the hay-roll period ending
August 11, 1946, the date designated for determining eligibility.
Brock left the plant on June 25, 1946, but returned to work September
2, 1946, while Chapman left on July 18, 1946, and returned on August
25, 1946. Since their return, both employees have been working it
their regular jobs. At the hearing, all parties agreed that those two
employees were eligible voters and that their ballots should be opened
and counted. We shall, therefore, direct that the ballots of Lela
Brock and Susie Chapman be opened and counted.
Veneda Gross, Alice Porter, Ruth Tart: The ballots of these em-
ployees were challenged because their names did not appear on the list
of eligible voters. All three employees are production workers who
had been absent from the plant because of illness on the eligibility
date. Cross had been absent from June 9 to August 20, 1946, and
after working 5 clays again absented herself until September 22,
1946. Since that date, she has been continuously employed. Porter
remained away fi-om the plant from June 4 to August 20, 1946, and
Tart from August 4 to August 27, 1946. Both Porter and Tart were
back at work at the time of the election and are still in the Employer's
employ. At the hearing, the Employer alleged that during their
absences these three employees had been marked "quit" on its pay roll
m accordance with the procedure established under its contract with
the Petitioner whereby the Employer could discharge employees who
had been absent for 5 days or more without permission. The record,
however, shows that the Employer did not in practice automatically
drop employees after a 5-day absence. In fact, Porter was not marked
"quit" on the pay roll until August 11 ,6 or until after she had been
absent for over 2 months. Furthermore, the record shows that the
Employer usually reinstated employees who had been absent for illness
without regard for the length of their nonattendance, as in fact it
did in the case of these three workers. In view of the foregoing, we
find that Cross, Porter, and 'hart were employees of the Employer
temporarily absent because of sickness on the eligibility date.7 We
shall, therefore, direct that their ballots be opened and counted.
"We note that Tart also was maiked "quit" on the August 11 pay roll which was the
pav ioll determinative of eligibility The record does not show when Cross was marked
quit
' ,11attea of Alsdo7 f and Pa under, 72 N. L R B 236.
GASTONIA COMBED YARN CORPORATION 175
Ila Beheler, Thomas Beheler, Mary Costner, Carl Fincher, Thomas
W. Gibson, George Hall, Boyd Lackey, Violet Lackey, Leonard Lowe,
J. M. Lucas, William A. Marton, Aubrey Scott, Troy Turner, J. C.
Ward, Paul Ward, W. H. Worley, Mrs. W. H. Worley: The ballots of
these employees were challenged because their names were not on the
eligible voting list. These 17 individuals had been discharged ap-
proximately 5 months before the election and are included along with
32 other persons in an unfair labor practice charge which is pending
against the Employers At the hearing, a request was made by the
17 voters, in which the Petitioner joined, that their respective ballots
be withdrawn and that no ruling be made on the challenges to their
ballots. The Petitioner further requested that in the event the Board
denies the afore-mentioned request of the voters, that the Petitioner
be permitted to withdraw the pending unfair labor practice charges
without prejudice. We shall deny the request of both the Petitioner
and the 17 individuals here involved.9 However, we shall defer pass-
ing on the validity of these 17 challenged ballots, if it becomes necessary
to do so,1o until final disposition of the unfair labor practice charges.
On September 10, 1946, the Petitioner filed a request for a run-off
election. The Employer contends that this request was not filed
within the time prescribed by Section 203.56 of the Board's Rules and
Regulations-Series 4, which provides that when the results in an
election are inconclusive, a run-off election shall be conducted provided
that a request is submitted therefor within 10 days after the date of,
the election. We do not agree with the Employer's contention.
Whether or not an election is inconclusive cannot be determined until
all valid votes have been opened and counted. The counting of ballots,
challenges to which we have overruled, is part of the election. Con-
sequently, we believe that a realistic interpretation of the rule in
question calls for the conclusion that the 10-day period begins to run
when, upon the counting of all valid votes cast in the election, it appears
that the result is inconclusive. We shall however, defer ruling on
the Petitioner's request until the issuance of the Supplemental Tally
of Ballots, hereinafter directed to be made, on the basis of which we
shall be able to determine whether a run-off is in order.
DIRECTION
IT IS HEREBY DIRECTED that the Regional Director for the Fifth
Region open and count the ballots of Rachel Bess, Dale Broyles,
Edward Outlaw, F. R. Peeler, Thomas W. Smith, John M. Blalock,
"Case No 5-C-2161 which was filed in the Regional Office on August 7, 1946.
'Hatter of Troy Refining Corporation, 70 N. L R B. 11 91
10 In this connection we note that these 17 ballots may affect the election results only in
the event that at least 17 of the 18 ballots directed to be opened were cast for the Petitioner.
739926-47-vol 73-13
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fanzy Leatherwood, Henry Parker, James R. Robertson, J. 0. Car-
penter, Charles Jenkins, John Autrey, Lela Brock, Susie Chapman,
Veneda Cross, Alice Porter, Mary L. Long, and Ruth Tart, and there-
after prepare and serve on the parties in this proceeding a Supple-
mental Tally of Ballots together with a Report embodying therein
his findings and his recommendations.
IT IS FURTHER DIRECTED, that the Regional Director shall continue to
impound and not open the ballots of Ila Beheler, Thomas Beheler,
Mary Costner, Carl Fincher, Thomas W. Gibson, George Hall, Boyd
Lackey, Violet Lackey, Leonard Lowe, J. M. Lucas, William A.
Marton, Aubrey Scott, Troy Turner, J. C. Ward, Paul Ward, W. H.
Worley, and Mrs. W. H. Worley.
CHAIRMAN HERZOC took no part in the consideration of the above
Decision and Direction.