Kendall Co.

National Labor Relations Board - Board Decisions

Apr 28, 1948

77 N.L.R.B. 385 (N.L.R.B. 1948)

In the Matter of KENDALL MILLS-FINISHING DIVISION OF THE KENDALL
COMPANY, EMPLOYER and INTERNATIONAL BROTHERHOOD OF FIRE-
MEN AND OILERS, POWERHOUSE EMPLOYEES, OPERATORS AND MAIN--
TENANCE MEN, LOCAL 47, AFL. PETITIONER
Case No. 1-R---3884.-Decided April 98, 19.18
Mr. Plununaer Smith, of Walpole, Mass., for the Employer.
Mr. Patrick J. Moynihan, of Brockton, Mass., for the Petitioner.
Mr. Hugh Brown, of Boston, Mass., for the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon an amended petition duly filed, hearing in this case was held
at Boston, Massachusetts, on December 16, 1947, before Leo J. Hal-
loran, hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board 1 makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Kendall Mills Company is engaged in the manufacture of surgical
gauze, cotton, and allied products. It operates various plants through-
out the United States including a plant at Walpole, Massachusetts,
known as the Kendall Mills-Finishing Division of The Kendall Com-
pany, which is alone involved in this proceeding. The Employer
customarily purchases for each 6-month period for use at this plant
raw materials valued in excess of $250,000, of which more than 90 per-
cent represents shipments from points outside the Commonwealth of
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
National Labor Relations Board has delegated its powers in connection with this case to a
three-man panel, consisting of the undersigned Board Members [Chaiiman Herzog and
Members Reynolds and Houston]
77 N L R. B. No 62
385
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Massachusetts. During a similar period, the Employer manufactures
products at this plant valued in excess of $5,000,000, of which more
than 95 percent represents shipments to points outside the Common-
wealth of Massachusetts.
,jhe Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is- a labor organization claiming to represent em-
ployees of the Employer.
Textile Workers Union of America, herein called the Intervenor, is
a labor organization affiliated with the Congress of Industrial Organi-
zations, claiming to represent employees of the Employer.
111. THE QUESTION CONCERNING REPRESENTATION
On August 1, 1946, the Employer and the Intervenor entered into
a collective bargaining contract for 1 year, covering a plant-wide unit
which included the employees sought herein. The contract was renew-
able thereafter from year to year, unless notice was given of a desire
to terminate the agreement by either party 30 clays prior to the yearly
expiration date. On May 29, 1947, the Intervenor notified the Em-
ployer that, in conformity with the provisions thereof, it desired to
terminate the agreement and negotiate a new contract. Thereafter,
negotiations resulted in a written agreement, executed in September
1947. Before that date, on July 31, 1947, the Petitioner filed its peti-
tion in this proceeding. Both the Intervenor and the Employer urge
their contract as a bar to the petition.
In view of the foregoing, we are of the opinion that the Intervenor's
notice of a desire to terminate the original agreement stayed the
operation of the automatic renewal clause and effected a termination
of the agreement as of August 1, 1947. We find, therefore, that the
agreement is not a bar to this proceeding. Nor can it be claimed that
the 1947 agreement bars an election because the petition was filed before
its execution.'
' The Employer and the Intervenor entered into an interim stipulation on July 31, 1947,
extending the contract until such time as negotiations were completed and a new contract
executed It is urged that the interim stipulation constitutes a bar to the instant proceed-
ing. Inasmuch as the interim stipulation is of indefinite duration , we find that it does not
bar a present determination of representatives . See Matter of Hytron Radio t Electronics
Corp , 66 N. L . R B. 267 ; see also Matter of Swift d Company, 71 N L R B 727.
KENDALL MILLS 387
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
1Y. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Petitioner seeks a unit consisting of all powerhouse`employees
of the Employer, including third-class engineers, first-class engineers,
second-class firemen, and coal passers,s but excluding executives and
supervisors as defined by the Act. The Intervenor contends that the
group sought to be represented by the Petitioner should not be sep-
arated from the established plant-wide unit. The Employer takes
no position on the question.
The powerhouse employees devote their full time exclusively to
firing the boilers in the Employer's boilerhouse except for one fireman
who spends only one-fifth of his time in these duties. Excluding the
part-time fireman, there is no interchange of employees between the
group involved and other departments of the Employer's plant.
We are of the opinion that the employees in the powerhouse plant
constitute a homogeneous group, such as the Board has, in the past,
established as a separate unit, notwithstanding a bargaining history
on a more inclusive basis 4 Under these circumstances, we believe that
the powerhouse employees may, if they so desire, constitute a separate
unit. However, we shall make no unit determination pending the
outcome of the election hereinafter directed. If the employees par-
ticipating in this election select the Petitioner, they will be taken to
have indicated their desire to constitute a separate unit.
At the hearing, a question was raised with respect to the voting
eligibility of one first-class fireman I who devotes only one-fifth of
his time to the powerhouse group, and the remaining four-fifths of his
time to the maintenance department. It is clear that this employee
spends more than 50 percent of his time in the performance of main-
tenance work. We find, therefore, that he is ineligible to vote c in the
election hereinafter directed for powerhouse employees.
We shall direct that an election by secret ballot be held among all
the Employer's powerhouse employees, excluding supervisors as de- -
fined by the Act, subject to the limitations and additions set forth in
the Direction of Election.
" Because of a recent conversion fiom coal to oil in the powerhouse , the unit as originally
sought has been reduced to one third -class engineer and four first-class firemen.
' See Matter of E W Bliss Company , Toledo Works , 76 N. L R. B 475 , Matter of Fire-
stone Tire and Rubber Conipany, 76 N L R B 226
Lesley Barros
c See Matter of Johnson City Foundry t Machine Woks, 75 N . L R B 475.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTION , OF ELECTION'
As part of the investigation to ascertain respresentatives for the
purposes of collective bargaining with Kendall Mills-Finishing Di-
vision of The Kendall Company, Walpole, Massachusetts , 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 di-
rection and supervision of the Regional Director for the First Region,
and subject to Sections 203.61 and 203.62, of National Labor Re-
lations Board Rules and Regulations-Series 5, among the employees
in the voting group set forth in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction , including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date of
this election , and also excluding employees on strike who are not en-
titled to reinstatement , to determine whether they desire to be repre-
sented by International Brotherhood of Firemen and Oilers , Power-
house Employees , Operators and Maintenance Men, Local 47, AFL,
or by Textile Workers Union of America , C. I. 0., for the purposes
of collective bargaining , or by neither.
7 Any participant in the election directed herein may , upon its prompt request to, and
approval thereof by , the Regional Director , have its name removed from the ballot.