La Follette Shirt Co.

National Labor Relations Board - Board Decisions

Feb 9, 1946

65 N.L.R.B. 952 (N.L.R.B. 1946)

In the Matter of LA FOLLETTE S]lu;T COMPANY and UNITED CONSTRUC-
TION WORKERS, U. M. W. A.
Case No. 10-I?-1645.-Decided February 9, 19.4.6
Mr. Donald Cooper, of La Follette, Tenn., for the Company.
Messrs. Lee R. Asbury and Silous Huddleston, of Caryville, Tenn.,
for the U. M. W. I
Mr. David M. Schlossberg, of New York City, and Mr. Carl F.
Albrecht, of Nashville, Tenn., for the Amalgamated.
Miss Helen Hart, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TILE CASE
Upon an amended petition duly filed by United Construction Work-
ers, U. M. W. A., herein called the U. M. W., alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of La Follette Shirt Company, La Follette, Tennessee, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Dan M. Byrd, Jr.,
Trial Examiner. The hearing was held at Knoxville, Tennessee, on
December 17, 1945. At the commencement of the hearing, the Trial
Examiner granted a motion to intervene made by Amalgamated
Clothing Workers of America, CIO, herein called the Amalgamated,
appearing on its own behalf and on behalf of its Local 95. The Com-
pany, the U. M. W., and the Amalgamated appeared, participated, and
were afforded full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues;
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board. The request for oral
argument made by the Amalgamated is hereby denied.
Upon the entire record in the case, the Board makes the following:
FixmNcs or FACT
1. THE BUSINESS OF THE COMPANY
La Follette Shirt Company, a partnership located at La Follette,
Tennessee, is engaged in the manufacture of shirts on a contractual
65 N. L R. B, No. 167.
952
LA •FOLLETTE SHIRT COMPANY 953
basis for Fordham- Shirt Company, New. York City. The raw mate-
rials needed in this enterprise are furnished by Fordham Shirt Com-
pany. During 1945, the raw materials so furnished to the Company
Were valued in excess of $10,000, 90 percent of which was shipped from
points outside the State of Tennessee. During the same period, the
Company manufactured goods valued in excess of $500,000, 90 percent
of which was transported to points outside the State of Tennessee.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
United Construction Workers, affiliated with the United Mine
Workers of America, is a labor organization admitting to membership
employees of the Company.
Amalgamated Clothing Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admit-
I in'g to membership employees of the Company.
III. THE QIIIiSTION CONCERNING REPRESENTATION
Since the Company was organized in 1941, it has been bargaining
with the Amalgamated as the representative of its employees under
written collective contracts. On February 22, 1943, the Amalgamated
and its Local 95 entered into a contract with the Company which
provided "that the agreement between the Shirt Institute and the
Amalgamated Clothing Workers of America, dated June 1941, and
any subsequent or modified agreement which may be entered into
between [them] shall constitute the agreement between the La Follette
Shirt Company and the Amalgamated Clothing Workers of America
and its branch, Local 95." 1 The parties further agreed that the con-
tract between the Shirt Institute and the Amalgamated, "in its present
terms, or as subsequently drafted or modified, shall continue in full
force and effect as the agreement between the parties hereto until
September 1, 1943, and may be automatically renewed thereafter in
accordance with the renewal terms of said agreement." 2 Apparently
this 1941 Shirt Institute contract, which was automatically renewable
for annual periods, was renewed on September 1, 1943, and again on
September 1, 1944.
On April 3, 1945, the Shirt Institute and the Amalgamated signed
a new contract, effective until September 1, 1946, and automatically
I The Shirt Institute is an association of employers in the shirt manufacturing industry.
3
We are Interpreting this statement to mean that the Company and the Amalgamated
bound themselves in their 1943 contract to observe the same termination provision appear-
ing In the 1941 Shirt Institute contract , as subsequently drafted or modified.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewable from year to year thereafter.3 The Company, although a
member of the Shirt Institute, never signed the 1941 or 1945 contracts.
Its agreement in 1943 with the Amalgamated and Local 95, however,
evidently bound it to the terms established in both the 1941 and 1945
contracts between the Shirt Institute and the Amalgamated; the
record indicates that the Company, the Amalgamated, and Local 95
acted in accordance with these ternis. On June 25, 1945, the Company
and the Amalgamated executed a supplemental agreement establish-
ing an employee insurance fund; this June 1945 agreement refers to the
February 22, 1943, contract of the Company, the Amalgamated and
Local 95 as "now in full force and effect."
On June 27, 1945, the Company wrote the business agent of Local 95
that it wished "to negotiate a new contract between La Follette Shirt
Company and Amalgamated Clothing Workers of America, Local 95."
Subsequently, negotiations concerning the new contract were entered
into between the Company, the business agent of Local 95, and a
representative from the New York office of the Amalgamated. Accord
ing to the testinlony of Donald Cooper, one of the Corrlpany's partners,
the business agent of Local 95 had informed the Company, upon re-
ceipt of its letter, that a "New York representative would have to
handle the matter." Cooper also testified that he had informed the
New York representative of the Amalgamated upon his arrival in
La Follette that the Company "wanted to draw up a contract par-
ticularly suited for La Follette Shirt Company" and that the repre-
sentative ind icatecl that he had nno objections to that plan. These nego-
tiations continued through the snnnner of 1945; as Cooper testified,
an oral understanding was reached on certain provisions, and notations
of this understanding were made on one of the "contract forms."' On
September 27, 1945, on the request of the New York representative
of the Amalgamated, the Company and Local 95 executed an exclu-
sive recognition agreement which provided for a closed shop; this
agreement, however, did not contain any substantive terms concern-
ing conditions of employment -and was to be "in effect until the con-
clusion of negotiations for a new agreement." On October 5, 1945,
the U. M. W. requested recognition of the Company and the Company
informed the U. M. W. that it had an existing contract with the
Amalgamated.
The 1945 Shirt Institute termination provision reads
'This agreement shall go into effect on the date hereof and shall terminate on the
1st day of September, 1946, on which date said agreement shall be automatically
renewed until the first day of September of the following year and from year to year
thereafter, unless sixty (60) days prior to the expiration date of this agreement or of
any anniveisary date thereof, notice shall have been given in writing by either party
to the other to the effect that it desires to terminate this agreement.
4 The witness was evidently referring to one of the Shirt Institute contracts
LA FOLLETTE SHIRT COMPANY 955
It is patent that, if the agreement of September 27, 1945, supplanted
the contract of February 22, 1943, entered into between the Company,
the Amalgamated and Local 95, there is no bar to a current determina-
tion of representatives. For the agreement of September 27, 1945,
failed to embody substantive terms concerning conditions of employ-
ment and, moreover, was of indefinite duration.'
But the Amalgamated contends that the contract of September 27,
1945, was not ratified by the membership of Local 95, and was not
authorized or signed by the Amalgamated.`' It argues, therefore,
that this agreement was not binding upon it or Local 95.
Although the factual matter emphasized by the Amalgamated, if
accepted by us as datum, would tend to cast doubt upon the binding
effect of the September 27, 1945, agreement insofar as the Amalgam-
ated and Local 95 are concerned, we are not satisfied that the evidence
warrants a finding that this contract is a nullity as to these parties.
Certainly, the fact that a representative from the. Amalgamated's
office in New York participated in the negotiations leading to the exe-
cution of the September 27, 1945, agreement, having requested that
it be executed, and the further circumstance that Local 95, as an affiliate
of the Amalgamated, signed the contract, are some indication that
the Amalgamated may be bound by the agreement. And the execution
of the contract by Local 95's agent attests that it may be legally obli-
gated as a principal.
Even assuming that the agreement of September 27, 1945, did not
actually supersede the 1943 contract, the facts related above describing
the negotiations between the Colilpany, the Amalgamated's represen-
tative, and Local 95's agent cloud the contention of the Amalgamated
that the 1943 agreement is still in existence. These dealings afford a
basis for a possible finding that the 1943 contract was mutually
rescinded.
It cannot be gainsaid that there is considerable uncertainty as to the
present existence of the 1943 agreement. We are of the opinion, there-
fore, that the Company's employees should not now be denied the right
to select a collective bargaining agent of their own choosing.' We find
that no bar exists to a present determination of representatives.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the U. M. W. represents a substantial number of
employees in the unit hereinafter found appropriate.$
Matter of Corn Products Company of Indiana, 52 N L. R B. 1324, Matter of Ball
Brothers Company , 54 N L R B 1512
° The Amalgamated asserts that the representative from its New York Office who, with
the Company' s representative and the business agent of Local 95, participated in the series
of contract conferences , was merely a tone-study man not authorized to negotiate a new
contract with the Company
7 We note that the Amalgamated has served as their representative for a period of
approximately 5 years
8 The Field Examiner reported 1 ha t the U Al w submitted 271 membership cards and
that the names of 194 persons appearing on the cards were listed on the Company's pay
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
IV. THE APPROPRIATE' UNIT
We find, in substantial accordance with the agreement of the parties,
that all employees of the Company, excluding clerical employees and
all 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 bargaining within the meaning of Section
9 (b). of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Amalgamated alleges that breaches of the peace and various acts
of violence have occurred in La Follette which are attributable to the
U. M. W.'s agents. It contends that a union which engages in such
conduct is not entitled to certification by the Board, and that, as a
result of such acts, a free election cannot be conducted at this time.9
Assuming that there is some merit in the Amalgamated's allega-
tions, the Board has never held that misconduct of labor organiza-
tions, involving violations of general civil or commercial precepts, can
operate to deprive a union or employees who desire them, of t ie'rights
established by Section 9 (c) of the Act, for no specific authority is
therein granted to regulate the practices of such organizations10
However, in view of the evidence in the record that disturbances have
occurred in the town of La Follette, we are persuaded that there may
be some merit in the Aialgamated's second contention that it is not
possible to conduct a fair election at this time. Therefore, Ave shall
depart from our usual policy of requiring an election to be conducted
within thirty days of the date of the Direction of Election, and we
shall order, instead, that an election be held as early as possible but not
roll of October 10, 194.5 . The Company stated at the hearing that there were approxi-
mately 393 employees in the alleged appropriate unit Apparently, the Amalgamated
relies on its contract as evidence of its interest in this proceeding.
The Amalgamated alleges that the cards submitted by the U M W . were obtained from
employees by coercion and duress and that cards so procured should not be used as a basis
for determining whether a petitioner ' s showing is sufficient to warrant an election. As sse
have repeatedly held , however , the requirement of showing is merely an administrative
expedient adopted to enable us to determine generally Whether or not further steps in a
representation proceeding are justified See Matter of Buffalo Arms Corporation, 57
N. L. R. B. 1560. This device is used by us to approximate, not to ascertain precisely, the
petitioning union ' s representation . Insofar as the Amalgamated 's contention is directed
to the question of the U M. W's showing, it is rejected ( see Section V, however)
9 The Amalgamated suggests that if an election is held at this time balloting should
be conducted by mail . We find no reason to accept the Amalgamated ' s suggestion for mail
balloting , inasmuch as we have provided for the holding of an election in an atmosphere
conducive to a fiee expression of choice.
10 See Matter of Mtiehle Printing Press and Manufacturing Co , 58 N . L R. B 11.3,4.
LA FOLLETTE SHIRT COMPANY 957
until the Regional Director shall determine that all violence has ceased
and that a free and fair choice is possible.
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, subject to the limitations and additions set forth in the Direc-
tion "
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 Regulationsr-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 La Follette Shirt
Company, La Follette, Tennessee, an election by secret ballot shall
be conducted as early as possible, but not until the Regional Director
for the Tenth Region shall determine that all violence has ceased and
that a free and fair choice is possible, under his direction and super-
vision, 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 unit found appropriate in
Section IV, above, who were employed during the pay-roll period
immediately preceding the date of the Direction of Election, 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 those employees who have since quit
or been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether they desire to
be represented by United Construction Workers, U. M. W. A., or by
Amalgamated Clothing Workers of America, CIO, for the purposes
of collective bargaining, or by neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
11The unions agreed that the last pay roll in , September 1945 should be used to deter-
mine employees eligible to vote We shall not adopt this agreement'in view of the num-
ber of months which have elapsed and may elapse before an election is conducted.