H & M Knitting Mills, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1960

128 N.L.R.B. 361 (N.L.R.B. 1960)

H & M KNITTING MILLS, . INC. 361
Air Reduction Corporation to engage in a concerted refusal in their course of their
employment to perform services • affecting the Company with an object of forcing or
requiring the Company to assign work to members of Respondent organizations
rather than to its own employees , Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act.
3. The Respondents have not complied with the decision and determination of
dispute previously issued by the Board in this controversy.
4. The implementation of the procedural steps and the chronology thereof taken
with respect to this controversy does not provide a basis for depriving the Board of
its power of jurisdiction to issue an order in this proceeding.
5. Respondent International is responsible for the. picketing , which formed a part
of the unfair labor practices act violative of Section 8(b)(4)(D) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommendations omitted from publication.]
H & M Knitting Mills, Inc., Petitioner and International Ladies
Garment Workers' Union , AFL-CIO. Case No. 2-RM-1042.
July 29, 1960
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued by the
Board on November 19, 1959, an election by secret ballot was con-
ducted on December 11, 1959, under the direction and supervision of
the Regional Director for the Second Region, among the employees
in the appropriate unit. After the election, the parties were furnished
with a tally of ballots which showed that of 111 ballots cast, 33 valid
ballots were cast against the Union and 78 ballots were challenged.
The Regional Director investigated the challenges and on January
29, 1960, issued his report on challenged ballots, in which he recom-
mended that the challenges to the ballots of Laura Brighton and Vera
Clark be sustained, that the challenges to the ballots of Robert
Edwards and Verna Brown be overruled, and as to the remaining 74
challenged ballots involving the eligibility of economic strikers and
their replacements, he made findings of fact but no recommendations.
Thereafter, the Employer filed timely exceptions to the report.
The Board has considered the Regional Director's report on chal-
lenged ballots and the Employer's exceptions thereto, and upon the
entire record in this case, makes the following findings :
The Regional Director found that on March 4, 1959, employees of
the Employer instituted a strike against the Employer to compel it
to. recognize the Union. It also appears that the strike was in prog-
ress at the time of the election on December 11, 1959. Of the 78 bal-
lots challenged at the election, 46 were cast by alleged strikers, 30 by
alleged replacements, and 2 by alleged supervisors.'
i The Regional Director recommended that the challenges to the ballots of Laura
Brighton and Vera Clark be sustained on the ground that they were replacements hired
128 NLRB No. 49
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the strike herein was an economic one.' In our deci-
sion in W. Wilton Wood, Inc., 127 NLRB 1675, we held that in the
amended Section 9 (c) (3) of the Act, Congress provided that economic
strikers who retained their status as such on the eligibility and election
dates-even though replaced-were eligible to vote in any election
conducted within 12 months of the commencement of the strike. We
also held that permanent replacements were eligible voters if em-
ployed on the eligibility and election dates.
The Regional Director's findings herein clearly indicate that 27 of
the challenged voters, listed in Appendix A attached hereto, were
economic strikers on the eligibility and election dates. They also
establish that another 28 of the challenged voters, listed in Appendix
B attached hereto, were hired during the strike either as permanent
replacements or as permanent new employees and were so employed
on the eligibility and election dates. These 55 persons were therefore
eligible voters and the challenges to their ballots are hereby overruled.
Among others, the seven employees listed in Appendix C attached
hereto were challenged by the Employer on the ground that they were
not employed at the time the strike began. The investigation shows
that on various dates before the strike, these employees were laid off
for lack of work with the understanding that they would be recalled
when business improved. Although they had not been recalled prior
to the strike, there is a history in the plant of frequent layoffs for lack
of work and subsequent recall of employees. It appears that shortly
after the strike began these laid-off employees were requested by
Employer to return to work. They failed to do so. In these circum-
stances, we find that they elected to join the strike and are eligible
to vote as economic strikers. Accordingly, we hereby overrule the
challenges to their ballots.
As it appears that striker Frank Sielicki has admittedly obtained
other permanent employment, the challenge to his ballot is hereby
sustained.
Striker Donald Young was challenged by the Employer on the
ground that during the strike, he was convicted of assault on the picket
line. However, subsequent to his conviction and prior to the election,
the Employer took no affirmative action to discharge him, but on the
contrary invited him to return to work which he failed to do. In
these circumstances we find, under our holding in Union Manufactur-
ing Company (101 NLRB 1028) which was reaffirmed in W. Wilton
TVood, that he is an eligible striker and overrule the challenge to his
ballot.
after the eligibility date and that the challenges to the ballots of Robert Edwards and
Verna Brown be overruled on the ground that they were not supervisors as alleged As no
exceptions were filed to these recommendations, they are adopted pro forma
2 See Bright Foods , 126 NLRB 553.
H & M KNITTING MILLS, INC. 363
The Employer challenged Frank Fuller on the ground that he
had quit his employment. The investigation shows that although he
was working on the day of the strike (March 4), about 2 weeks previ-
ously he had told the Employer that he intended to quit his job shortly
in order to open a gasoline station. He went out on strike and 11
days later signed a 9-month lease on a gasoline station. At that time,
he expected to continue the business indefinitely if it proved success-
ful. It did not and he gave up the business on November 20. He'
now desires to return to work for the Employer upon settlement of
the strike. For the purposes of the amended Section 9(c) (3), the
Board has decided that self-employment during an economic strike,
standing alone, does not establish that the striker has abandoned his
job with the struck employer. However, in the circumstances of this
case, we are satisfied that Fuller's self-employment during the strike
constituted an abandonment of his employment with the Employer.
Accordingly, we sustain the challenge to his ballot.3
As we have overruled the challenges to 65 ballots, we shall direct
that they be opened and counted. There remains unresolved the chal-
lenged ballots of the nine persons listed in Appendix D, which we
will later consider only in the event that they are sufficient in number
to affect the results of the election.
[The Board directed that the Regional Director for the Second
Region shall, within 10 days from the date of this Direction, open
and count the ballots of Robert Edwards, Verna Brown, and the
employees listed in Appendixes A, B, and C; and serve upon the
parties a revised tally of ballots.]
3 Member Jenkins disagrees with the conclusion that Fuller ' s self-employment during
the strike constituted an abandonment of his employment with the Employer Fuller
continued to work until he went out on strike That he stated 2 weeks before the strike
that he intended to quit does no alter the undenied. fact that lie was employed on the date
the strike commenced and joined in the strike . Thereafter , he was self -employed, having
leased a gasoline station on a short-term lease. But the Employer wrote him three letters
during the interim requesting that he return to work and it is clear from the investigation
he desires to return to work for the Employer when the strike is settled In these cir-
cumstances , Member Jenkins is of the opinion that the facts fail to establish such a clear
and unequivocable intent on the part of Fuller to abandon his job so as to deprive him of
the right to vote. He would therefore overrule the challenge to his ballot and find him
eligible
APPENDIX A
Lena Alger Lyda Belle Hicks Eleanor Taggart
Doris Barletto Winifred Roa Robert Fell
Amos Belcher Wilhelmena Toussaint Leo Brozdowski
Dorothy Brown Ella Van Gordon Anne Belcher
Vera Buddenhagen Herma Wrage Agnes Britt
Helen Case Genevieve Eagan Rosalina Fine
Thomas Chant Lorena O'Neill Edith Hoffman
Helen Costic Annabel Yale Edward Nieman
Earl Doty Freda Lertora Elda Schleer
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Alicia Bonano June Shanks Deanna Sexton
Peggy Snyder Rose Reinwald Elsie Merker
Harold Collette Ruth Riley Andrew Witkowski
Catherine Demarco Jeniva E. Conklin George R. Mallinson
Marie Rosa Jeniva I. Conklin Carol Baisley
Gladys Roeder Beverly Horton Douglas Martin
Walter Acton Myrtle Laub8cher Russell D. Corwin
Helen O'Fee Wilda Valentine Dorothy Merker
Philip Gould Lee Biccum William Dicks
Kenneth Mallinson
APPENDIX C
Lena Kent George Schembry Harold Chichester
Maude Rooney Anna Arbutowich Helen Oliver
John Pedlock
APPENDIX D
Elva Porter Iveta Kelly Idella Hornbeck
George Denes Martha Kent Helen De Groat
Ursula Kraft Helene Uhlig Maude C. Higby
Atlanta Biltmore Hotel Corporation and Hotel & Restaurant
Employees and Bartenders International Union , AFL-CIO.
Case No. 10-CA-4222. July 29, 1960
DECISION AND ORDER
On April 1, 1960, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Leedom and
Members Bean and Fanning].
128 NLRB No. 50.