Illinois Knitting Co.Download PDFNational Labor Relations Board - Board DecisionsFeb 7, 193911 N.L.R.B. 48 (N.L.R.B. 1939) Copy Citation In the Matter of ILLINOIS KNITTING COMPANY and FEDERAL LABOR UNION No. 21025, AFFILIATED WITH A. F. OF L. Case No. R-1069.-Decided February 7, 1939 Knitting Industry-Employee Status: furloughed employees and employees who had severed relations with employer-Investigation of Representatives: controversy concerning representatives of employees: controversy concerning appropriate unit; employer and union disagree as to the inclusion of certain employees in unit; employer questions majority status of union-Unit Appro- priate for Collective Bargaining: production employees, including watchmen and the general maintenance man but excluding regular machine fixers and super- visory and clerical employees-Certification of Representatives: upon proof of majority representation-Evidence: Trial Examiner's denial of employer's offer of proof that certain employees desired an election, held proper. Mr. Bernard R. Bralove, for the Board. Mr. J. H. Gilbert and Mr. George G. Gilbert, of Mt. Vernon, Ill., for the Company. Padway, Goldberg d Tarrell, by Mr. A. G. Goldberg, of Mil- waukee, Wis., and Mr. Joe Frank Allen, of Mt. Vernon, Ill., for the Union. Mr. Robert L. Condon, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On March 12, 1938, Federal Labor Union No. 21025, herein called the Union, filed with the Regional Director for the Fourteenth Re- gion (St. Louis, Missouri) a petition alleging that a question affect- ing commerce had arisen concerning the representation of employees of Illinois Knitting Company,' Mt. Vernon, Illinois, herein called the Company, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 17, 1938, the National Labor Relations Board, herein called the Board, I The Company was incorrectly designated in the petition as Illinois Knitting Company, Inc. At the hearing, however , an amendment was allowed correcting the name of the Company wherever it appeared herein. 11 N. L. R. B., No. 12. 48 ILLINOIS KNITTING COMPANY ET AL. 49 acting pursuant to Section 9 (c) of the Act and Article III, Sec- tion 3, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 6, 19381 the Regional Director issued a notice of hearing, copies of which were duly served upon the Company and upon the Union. Pursuant to notice, a hearing was held on October 13, 14, 15, 17, 18, and 19, 1938, at Mt. Vernon, Illinois, before Theo. R. Bland, the Trial Examiner duly designated by the Board. The Board, the Company, and the Union 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. During the course of the hearing the Trial Examiner made several 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. On December 10, 1938, the Board, the Company, and the Union, by and through their respective counsel, entered into written stipulations, one amending the stenographic record so that it shall appear that Respondent's Exhibit No. 1 was duly received in evidence, and the other clarifying the identity of certain persons whose names are con- tained in Petitioner's Exhibit No. 11. Copies of the stipulations were lodged with the Board, and the Board hereby directs the filing instanter of said stipulations as part of the record herein. Oral argument having been waived, the Union and the Company were granted permission to file briefs in support of their respective positions. A brief and a reply brief were filed by the Union and a brief by the Company, all of which have been duly considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is an Illinois corporation engaged in the production and sale of circular knit hosiery. Its principal office and manufac- turing plant are located in Mt. Vernon, Illinois, and it maintains a sales office in New York City. There are approximately 140 employees at the Mt. Vernon plant. During the calendar year 1937 the raw materials which the Company used in the course of production aggregated in value approximately $200,000, of which 80 per cent was brought to its plant from outside the State of Illinois. Its gross sales in the same period were in excess of 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $300,000. Seventy per cent of the total production was shipped by the Company to purchasers located in States other than the State of Illinois. II. THE ORGANIZATION INVOLVED Federal Labor Union No. 21025 is a labor organization affiliated with the American Federation of Labor, admitting to its membership all production employees of the Company, excluding machine fixers and supervisory and clerical employees. III. THE QUESTION CONCERNING REPRESENTATION The Union began to organize the production employees of the Com- pany in June 1937. On August 30, and again on September 15, 1937, the Union requested the Company to bargain collectively with it as the exclusive representative of the production employees. The Union submitted a proposed contract to the Company providing for recog- nition of itself as exclusive representative of all employees "within its jurisdiction," a closed shop, and embodying rates of pay, wages, hours of employment, and other conditions of employment. Thereafter, frequent conferences were had between the parties. The Company refused to sign the proposed contract, or to recognize the Union as exclusive bargaining agent, contending that business conditions would not warrant its taking such action. The Company also denied the Union's claim of a majority within an appropriate unit. On March 13, 1938, the Union filed its petition herein. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation 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. V. THE APPROPRIATE UNIT In its petition the Union alleged that all production employees, exclusive of supervisory and clerical employees, constituted a unit appropriate for the purposes of collective bargaining. The Company agrees that a unit of production workers, with the exclusions men- tioned, is appropriate, and the Company and the Union stipulated ILLINOIS KNITTING COMPANY ET AL. 51 that there were 100 employees 2 within such unit engaged in the fol- lowing production operations : Ribbing, knitting, top cutting, looping, seaming, mending, rough stock work, dyeing, boarding, top folding, sorting and turning, pairing, stamping, folding, boxing, shipping, winding, inspecting, and clipping. We see no reason to depart from the unit as agreed upon. However, the parties disagree as to whether certain classifications and employees come within this unit. The Company contends that the machine fixers whom it employs are pro- duction workers and within the unit. The Union opposes this con- tention. The Union would include the watchmen and the general maintenance man, whereas the Company insists that they are not production workers. In addition, the Company and the Union were unable to agree whether or not certain individuals, mentioned below, are within classifications admittedly embraced in the unit. We shall examine these opposing contentions of the parties. Machine fixers. The regular machine fixers, five in number,3 are responsible for keeping the machines running. They make all neces- sary repairs ; they install new parts. In addition, they start the machines in operation and are responsible for changing the yarn on the machines from one type to another. It appears, therefore, that their time is divided, being devoted partly to production and partly to maintenance work. The machine fixers are all skilled employees, with a thorough knowledge of knitting, and are among the highest paid employees at the plant. They constitute a well-defined craft of machinists.' They are not eligible for membership in the Union, and the Union has made no attempt to organize them. Furthermore, the Union has acknowledged the jurisdiction of the International Association of Machinists, a labor organization, over .the machine fixers, and 2 Petitioner 's Exhibit No . 1 lists the 100 employees agreed to be within the unit as fol- lows : Laura Akin , Dessle Allen , Maude Allen , Jessie Arnold , Anna Bain, Herman Barker, Myrtle Beard , Elsie Beck, Pauline Bogen, Edna Boswell, Ethel Boswell, Alene Browder, Elizabeth Brown, Orthella Buehling , Jewel Casey , Marlin Caudle , Gertrude Chapman, Deliliah Clark, Lillie Clark, Becle Connoway , Mary Cook , Minnie Corsere , Daisy Dalby, Edward Dalby , Martha Daniels, Marie Davis , Asenath Douglas, Mildred Durkee, Mary Edson, Marie Edwards, Beulah Else , Maude Eller , Allene Eubanks , Bertha Fitts ( Nance), Fred Fitts , Mildred Fitts , Blanch Flannigan , Anna Fleener , Charley Ford , Evelyn Franklin, Jessie Goebel , Emma Gregory , George Groothius , Ida Haney , Helen Harp , Letha Hart, Beitha Hartley , Elsie Iligginson , Alma Hill, Carl House, Irene House, Letta Jones, Mayme Jones, Daisy Kelly , Gertrude Kelly, Nora Lemay, Pearl Long, Iva Marlow , Mildred Mai tin, Belvia Massey, Fay Matthews, Ada Mayner, Don McBride, Emmett McGehee, Mary Mc- Gehee , Beulah Mendenall , Leonard Mendenall , Mary Mendenall, Edith Mick, May Morlan, Katherine Neal , Neva Neal , Ella Nolta , Ganal Page , Grace Page, Helen Page Lillie Pierce, Maude Rainey, Ollie Rainwater, Pearl Reese, Emma Roberts, Florence Robinson, Hattie Shurtz , Wilma Sledge , Minnie Smith , Walter Smith , Caiman Sutten, Laverne Tate, Nola Thompson, W. A. Trout, Rosa Venezia, Anna Wagner, Ada Wallace, Helen Warren, Valeta Weir, Georgia Whisenhunt, Elsie Wilderman, Pearl Williams, Iva Willmore, and John Wimberley. 8 Maynor, Butler , H Payne, Matthews , and Averitt. ' Cf. Matter of Pacific Mills, Cocheco Division and Dover Independent Textile Workers' Union, 10 N L R B. 26. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that organization maintains a local in Mt. Vernon, which the ma- chine fixers may join. There exists, therefore, a labor organization through which the machine fixers may bargain collectively if they so desire.5 We are of the opinion that under these circumstances the five mentioned machine fixers should be excluded from the unit. We believe that the matter of whether or not the machine fixers are chiefly production workers should not determine in this instance the issue of their inclusion or exclusion from the appropriate unit. We shall, however, include within the unit three employees 6 who occasionally work as machine fixers, but who are not regular ma- chine fixers, and who spend the major portion of their time in pro- duction work. Watchmen and the general maintenance man. The Company em- ploys three watchmen 7 and a general maintenance man." Whether or not these employees are technically "production" workers, it is ap- parent from the character of the organizational work carried on by the Union and its assumption of jurisdiction over them that they have been considered by the Union as such workers. We believe that they are so allied with the classification of production workers here involved as to be deemed within that group. The watchmen and general maintenace man are entitled to bargain about their working con- ditions, and they may delegate their bargaining to an agent. The Union, the only labor organization concerned with this question, de- sires their inclusion, and the record discloses that two of the watch- men and the general maintenance man are members of this organiza- tion. Under all these circumstances, we shall include them.9 We find that all production employees of the Company, including watchmen and the general maintenance man, but excluding regular machine fixers and supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining and that' said unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. There are a number of employees with respect to whom the Union and the Company are in sharp disagreement as to whether or not they are to be included within the unit which we have found appro- priate. In some instances the Company claims that certain of these employees are within the unit, whereas the Union opposes their 'Cf. Matter of Century Biscust Company and United Baking Workers L. I. U, No. 36, 9 N. L. R. B. 1257 ° W. Smith, Carlton, and L Fitts v G Nimmo, J. Nimmo, and L Fitts. L Fitts was acting as a watchman at the time of the hearing ; he occasionally works as a machine fixer. ° James ° See Matter of Wtillys Overland Motors, Inc and International Union, United Antonio- bile Workers of America, Local No. 12, 9 N. L. R B. 924; Matter of Pacific Mills, Cocheco Division and Doter Independent Tcatile Workers' Union, 10 N L R B 26 ILLINOIS KNITTING COMPANY ET AL. 53 inclusion.10 With others of these employees, the positions of the parties are the reverse 11 Stewart, Bennett, and Ursery. The Union contends that these employees exercise supervisory power and, consequently, should be excluded from the unit. The Company opposes this contention. The employees are carried on the Company pay roll as "foreladies." The record reveals that they are in charge of groups of employees to whom they assign work and give orders concerning such work. They may excuse an employee from working. Each is considered responsible for the satisfactory functioning of her department. They determine in some instances which employees shall be rehired after a lay-off, as well as who shall be called as extra workers in peak sea- sons. They are considered as foreladies by the employees under them. We are of the opinion, and find, that these employees should be, and hereby are, excluded from the unit. Winder, McGehee, Talbot, Arnold, and Stroud. The Union con- tends that Winder, McGehee, and Talbot should be excluded from the unit and that Arnold and Stroud should be included. The Com- pany takes the opposite position. The issue is whether these indi- viduals are employees of the Company, within the meaning of the Act. All had severed their relations with the Company at the time of the hearing. Winder and McGehee are employed elsewhere. Tal- bot was dismissed because faulty eyesight made her work unsat- isfactory. Arnold quit in order that her son could obtain a job with the Works Progress Administration. Stroud resigned to obtain an old-age pension. None of these employees was laid off or on fur- lough or vacation, nor is there claim that the work of any had ceased as a consequence of or in connection with any current labor dispute or because of any unfair labor practice. While there is some showing that the Company may employ some or all of these persons at some time in the future, we do not feel that the bare prospect of future employment, under the circumstances, is suffi- cient to make them employees within the meaning of the Act. They are hereby excluded from the unit. P. Henry, Q. Payne, L. Bostrand, Wiggington, F. Ford, M. Henry, Ore, King, Moore, Poston, Wielt,, L. Page, Howe, C. Bostrand, and R. Jones. The Company contends that all these employees, except R. Jones , are within the unit; the Union would include R. Jones but exclude the others. The Union urges that all these employees, except R. Jones, were either hired in the summer of 1938 for the sole purpose of preventing the Union from obtaining a majority of em- 10 Petitioner 's Exhibit No. 2 lists 30 persons whom the Company would include within the unit over the Union 's objections. n Petitioner's Exhibit No 3 lists nine persons whom the Union would include , and the Company would exclude. At the hearing , one person , Ruby Borders , was dropped by the stipulation of the parties , so that there are only eight individuals in this category. 104275-39-vol xi-5 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees to designate it as their bargaining representative, or, in other instances, were without employment in 1938 and had only irregular employment in 1937. The record does not substantiate the Union's contention in regard to those of these employees who were hired in the summer of 1938. We find no substantial evidence of an improper motive on the part of the Company. They are production employees and hence come within the unit. We agree that the employees who were not on the pay roll at any time in 1938 should be excluded from the unit. Their employment is so irregular that no mutuality of interest exists between these workers and those regularly employed. What constitutes regular work depends on the facts and circumstances of each case and to a large extent is a matter of degree. The record reveals that within the classification of those irregularly employed are P. Henry, Q. Payne, L. Bostrand, Wiggington, and F. Ford.12 They were not on the pay roll of the Company in 1938, and none of them has been employed by the Company since August 1937. We conclude that P. Henry, Q. Payne, L. Bostrand, Wiggington, and F. Ford should be excluded, but that M. Henry, Ore, King, Moore,' Poston, Wielt, L. Page, Howe, C. Bostrand, and R. Jones should be included. White and G. Wallace. The Union would include G. Wallace and exclude White. The Company takes the opposite position. White is the coordinator between the knitting and the dyeing departments and transports the goods between the two departments. He does some clerical work but the major portion of his work is manual. Wallace is the packer and shipping clerk. He packs the finished goods and prepares them for shipment. He, too, does a certain amount of clerical work. White is Wallace's superior, but apparently exercises little supervisory control. We are of the opinion that the work of these employees is sufficiently similar to those whom we have included in the unit as to warrant their inclusion. They will, therefore, be included. Mannen. Mannen prepares samples of merchandise for the use of salesmen. She is the only employee engaged in this type of work. We find the Union's contention that she is a supervisory employee to be without merit, and we will include her within the unit. Dement.. Dement is an employee who has been furloughed be- cause of pregnancy. It appears that such persons are still regarded as employees by the Company. The Union contends that she is within the unit. We agree with this position. VI. THE DETERMINATION OF REPRESENTATIVES The Company and the Union agreed, and we accordingly find, that certain named persons, 100 in number,18 are within the unit we have 12 F. Ford does not appear on the pay rolls for 1938 which are in evidence. Apparently, however, she was hired during the hearing. 13 These 100 employees are named in footnote 2, supra. ILLINOIS KNITTING COMPANY ET AL. 55 found to be appropriate. In addition, we determined that the unit also included the three employees who acted as part-time machine fixers, the general maintenance man, and the two watchmen . 14 We also decided that 14 other employees whose inclusion within the unit was the subject of dispute by the Union and the Company should be included. It appears, therefore, that there are 120 persons within the unit we have found to be appropriate. At the hearing, the Union introduced into evidence a certain peti- tion signed March 24, 1938, containing the signatures of 75 sub- scribers, 67 of which are the signatures of employees within the unit we have found to be appropriate. This petition authorized the Union to act as bargaining representative of the respective subscribers for a period of a year unless a 30-day written notice of termination was given. There is no showing that any notice of termination was ever given by any signer. At the hearing, the secretary for the Union pro- duced the records of the Union, which established that the Union had 67. members within the unit, consisting of 60 employees who signed, and 7 employees who did not sign the authorization petition of March 24, 1938. It appears, therefore, that 74 employees have designated and selected the Union as their bargaining agent either by joining it,15 or by signing the authorization petition, or by both. The records showed also that 22 persons within the unit other than those 67 shown to be members had formerly been members of the Union but had either withdrawn or been removed from the membership roll. The company does not contend that the records of the Union are inaccurate or that the signatures on the authorization petition are not genuine, but insists as of relevance that many of the 67 employees claimed as members by the Union have not paid dues and conse- quently are not members in good standing. The Act, however, says nothing about members in good standing. The test is whether or not these employees have designated the Union to act as their representa- tive for the purposes of collective bargaining, and, in the absence of a showing, implied or express, of the withdrawal of such designa- tion, those who have authorized the Union to represent them either by becoming members of the Union or by signing the petition shall be deemed to have continued that authorization." The Company introduced into evidence a petition signed on March 7, 1938, by 68 persons, 51 of whom are employees within the unit "There are three watchmen , but L. Fitts comes under the category of a pat t-time machine fixer and hence has been included. 15 Matter of Trenton -Philadelphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America , 6 N L. It . B. 112. it Matter of Clifford M. DeKay, doing business under the trade name and style of D. d H. Motor Freight Company and International Brotherhood of Teamsters , Chauffeurs , Stable- men and Helpers of America, Local No. 6119, 2 N. L. R B. 231; Matter of Zenite Metal Corporation and United Automobile Workers of America, Local No. 442, 5 N. L R B. 509; Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. It. B. 621. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we have found to be appropriate, requesting the Company not to recognize any union as sole bargaining agent 17 An examination of the names of these 51 employees indicates that 15 of these persons are included in the above 74 which the Union claims to represent. However, 8 of these 15 subsequently signed the authorization petition of March 24, 1938, requesting the Union to represent them, and so must be considered as having revoked their previous request that the Company refuse to recognize any union. We are of the opinion that the other seven have revoked their designation of the Union as their bargaining agent,"' and so they shall not be counted for the Union in determining whether or not it has a majority. It also appears that two persons who signed the union authorization petition of March 24, 1938, were union members who later withdrew from the Union 19 They will not be counted for the Union. At the hearing, the Company offered in evidence a statement dated October 11, 1938, signed by 22 individuals, 21 of whom are employees in the unit we have found to be appropriate, purporting to tender their resignation from the Union. It is shown by the testimony of the union secretary, however, that 15 of these 21 employees are in- cluded among the 22 persons above-mentioned as having been re- moved from the union membership roll, that the other six are con- sidered members in good standing. The Trial Examiner excluded this signed statement. Without passing upon this ruling we shall consider the statement as if it had been admitted. Five of these six persons we have already determined as not being represented by the Union, inasmuch as they have been included among the seven em- ployees above-mentioned who signed the March 7 petition and failed to sign the subsequent authorization petition of March 24, 1938.20 In addition, we shall not count the sixth as having designated the Union.21 His signature to the October 11 statement clearly indicates that he does not wish the Union to represent him. It therefore ap- pears that 64 employees within the appropriate unit of 120 have designated the Union as their agent for the purposes of collective bargaining. The Union, therefore, has been chosen by a majority, and we will so find. At the hearing the Company offered in evidence a petition signed by a number of employees stating that they were of the opinion that organized labor at the plant was unnecessary.22 The intent or purport of this expression is unclear, nor does its relevance 17 Respondent's Exhibit No. 1. "The names of these seven are : Elsie Beck , Elsie Iigginson, Irene House, Mildred Martin, Pearl Reese, Walter Smith, and Laverne Tate. 19 John Wimberley and Florence Robinson. ° Elsie Beck , Elsie Higginson , Mildred Martin, Pearl Reese, and Walter Smith. 21 Charles Ford. 29 Respondent ' s Exhibit No . 4, marked "rejected." ILLINOIS KNITTING COMPANY ET AL. 57 appear. This petition is undated and none of the circumstances surrounding its signing was shown. We believe that the Trial Examiner properly excluded it. At the hearing, the Company, by its attorney, proposed to call as witnesses 113 persons, within the unit for which it contended, who it asserted would testify to the effect that they desired that the question of majority representation be determined by an election. The Trial Examiner refused to allow this testimony, whereupon the Company made an offer of proof as to what these witnesses would testify. This offer was denied. We believe that this ruling was proper since the offer did not refute in any way the Union's proof of a majority but only addressed itself to the manner in which the majority might be ascertained. We have often held that where a union, as in this proceeding, has demon- strated its designation as bargaining representative by a majority of employees within an appropriate unit, an election is unnecessary.28 Moreover, the Union, either by its petition or otherwise, has not lim- ited the investigation of representatives herein to an election, nor have any of the employees whom it represents intervened to urge such limitation. It is not for the Company to propose such matter. Consequently, the offer of proof is immaterial. We find that the Union has been designated and selected by a majority of the employees in the appropriate unit as their repre- sentative for the purposes of collective bargaining. It is, therefore, the exclusive representive of all employees in such unit for the pur- poses of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Illinois Knitting Company, Mt. Vernon, Illinois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production employees, including watchmen and the general maintenance man, but excluding regular machine fixers and super- visory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Federal Labor Union No. 21025 is the exclusive representative of all employees in such unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the National Labor Relations Act. fatter of Richfield Oil Corporation and Marine Engineers Beneficial Association No. 79, 7 N L R. B. 639. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CERTIFICATION OF REPRESENTATIVES 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 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Federal Labor Union No. 21025 has been designated and selected by a majority of the production em- ployees of Illinois Knitting Company, Mt. Vernon, Illinois, including watchmen and the general maintenance man, but excluding regular machine fixers and supervisory and clerical employees, as their repre- sentative for the purposes of collective bargaining and that, pursuant to the provisions of Section 9 (a) of the Act, Federal Labor Union No. 21025 is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. Copy with citationCopy as parenthetical citation