Lincoln Mills of Alabama

National Labor Relations Board - Board Decisions

May 26, 1939

12 N.L.R.B. 1285 (N.L.R.B. 1939)

In the Matter of LINCOLN MILLS OF ALABAMA and TEXTILE WORKERS
ORGANIZING COMMITTEE
Case No. R-1034
SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
May 26, 1939
On November 10, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election 1 in the
above-entitled proceeding. The Direction of Election provided for an
election by secret ballot to be conducted within fifteen (15) days
from the date of the Direction among all the production and mainte-
nance employees, including utility maintenance men, watchmen, and
second hands, who were employed by the Lincoln Mills of Alabama,
Huntsville, Alabama, herein called the Company, during the pay-roll
period ending September 24, 1938, but excluding supervisory employ-
ees having the power to hire and discharge, and those who had since
voluntarily quit or been discharged for cause, to determine whether
they desired to be represented by Textile Workers Organizing Com-
mittee, affiliated with the Committee for Industrial Organization,
herein called the T. W. O. C., by the American Federation, of Labor,
herein called the A. F. of L., or by the Progressive Workers of Amer-
ica, herein called the • Progressive, for the purposes of collective
bargaining, or by none of these labor organizations.
Pursuant to the Direction, an election by secret ballot was con-
ducted under the direction and supervision of the Regional Director
for the Tenth Region (Atlanta, Georgia) on November 23, 1938. On
November 28, 1938, the Regional Director, acting pursuant to Article
III, Section 9, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, issued and duly served upon the parties
his Intermediate Report on the ballot. On January 4, 1939, the
Regional Director issued and duly served upon the parties an
Amended Intermediate Report on the ballot, passing on certain
challenged ballots.
19 N. L R. B 778.
12 N. L. R. B., No. 124.
1285
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the balloting and its results, the Regional Director reported
as follows :
Total number eligible---------------------------------------- 836
Total ballots cast------------------------------------------- 764
Total number of ballots cast for Textile Workers Organizing
Committee, affiliated with Committee for Industrial Organiza-
tion------------------------------------------------------ 342
Total number of ballots cast for American Federation of Labor- 52
Total number of ballots cast for Progressive Workers of Amer-
ica ----------------------------------------------,--------- 342
Total number of ballots cast for none of these labor organiza-
tions ----------------------------------------------------- 27
Total number of challenged ballots-------------------------- 0
Total number of void ballots--------------------------------- 1
Total number of blank ballots------------------------------- 0
On December 20, 1938, the T. W. O. C. duly filed with the Re-
gional Director its objections to the Intermediate Report, contending
that the pay-roll date of January 1, 1938, rather than that of Sep-
tember 24, 1938, should have been used to determine the eligibility of
employees to participate in the election. The Regional Director's
Amended Intermediate Report, referred to above, did not cover the
subject matter of these objections.
On January 18, 1939, the Board issued an order reopening the
record, remanding the proceedings to the Regional Director, and
authorizing a hearing for the introduction of further evidence with
respect to the proper eligibility date.
Pursuant to notice duly served on all the parties, a hearing was held
on February 16, 1939, at Huntsville, Alabama, before William Seagle,
the Trial Examiner duly -designated by the Board. The Board, the
Company, the T. W. O. C., and the Progressive were represented by
counsel. All participated in the hearing and were afforded full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing on the issues. The A. F. of L., although
served with notice of the hearing, did not appear. During the course
of the hearing the Trial Examiner made several rulings on motions
and objections to the admission of evidence. The Board has reviewed
these rulings and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. Subsequent to the hearing the Company
and the T. W. O. C. submitted briefs which the Board has considered.
Upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL FINDINGS OF FACT
In view of the results of the November 1938 election set forth above,
it is apparent that another election will be necessary to resolve the
question concerning representation. There is no issue as to the appro-
LINCOLN MILLS OF ALABAMA 1287
priate unit before us at the present time. We shall accordingly adopt
the unit found appropriate in our original Decision and Direction of
Election, consisting of all production and maintenance employees of
the Company, including utility maintenance men, watchmen, and sec-
ond hands, but excluding supervisory employees having the power to
hire and discharge. The controversy here concerns the eligibility date
for an election. At the hearing the Company and the Progressive
took the position that the employees eligible to vote should be limited
to those whose names appear on the February 11, 1939, pay-roll list of
the Company. The T. W. O. C. contended that the January 1, 1938,
pay roll should be used. None of the parties advocated the Septem-
ber 1938 pay roll which was used in the first election. Because of this,
and since, as appears below, the staff at the plant has increased very
substantially since September 1938, we deem it appropriate to reopen
the question of the appropriate pay roll.
The testimony shows that on January 1, 1938, the mill was shut
down because of business conditions. At that time the Company had
in its employ approximately 1,550 workers. In March 1938, the mill
reopened for the purpose of completing certain work left in the ma-
chinery when the mill closed down on January 1, 1938. The mill at
this time was in operation for a period of 6 weeks, employing approxi-
mately 1,500 employees drawn from the January 1 pay roll. There-
after the mill again shut down on account of business conditions and
remained closed until August 8, 1938, when it resumed operations.
On July 28, 1938, prior to the reopening of the mill, the Company
wrote to the Alabama State Employment Service requesting it to
refer workers to the Company for employment. In the course of this
letter the Company stated : "In referring persons for employment in
this instance, please refer them in order of their length of former
service with the Company, as shown by your records, providing they
are available, and possess the necessary classifications as hereinabove
described." In the letter the Company asked for 700 workers and in-
dicated its expectation of increasing employment to full capacity
before winter.
The record shows that in accordance with its arrangements with the
State Employment Service, the Company gradually increased its work-
ing force during the fall of 1938. On the September 24 pay roll, the
Company employed 837 persons within the unit. On November 23,
1938, the Company employed approximately 1,050 employees within
the unit. The Company's pay roll of February 11, 1939, contained
the names of approximately 1,250 employees within the unit. During
the hearing a witness for the Company testified that all of these em-
ployees had a previous employment history with the Company and
appeared on the January 1, 1938, pay roll.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P. W. Peeler, general superintendent of the mill, testified that in
each of the 4 years, 1934 to 1937, the peak of employment in the mill
ranged from 1,640 to 1,700 employees and that the low point of em-
ployment ranged from 1,380 to 1,700 employees. The Company also
introduced evidence indicating that the manufacturing activity of
the mill had reached a maximum capacity in February 1939, and that
it did not contemplate any increase in its present working force.
While the above facts lend some color to the T. W. 0. C.'s con-
tention for an eligibility date of January 1, 1938, we feel that a pay
roll of that date is too remote for use in an election at this time.
However, under the circumstances, we desire to extend the privilege
of voting to the largest number of employees possible, consistent with
a recent pay-roll date. Thus, we believe that in addition to those
employees on the February 11, 1939, pay roll, employees hired since
that time, and those laid off since that time merely because of any
seasonal slack in business, should be permitted to vote. We shall ac-
cordingly direct that those eligible to vote in the election will be
all the production and maintenance employees, including utility
maintenance men, watchmen, and second hands, who were employed
by the Company during the pay-roll period ending February 11,
1939, including employees who did not work during such pay-roll
period because they were ill or on vacation, plus persons employed
from February 11, 1939, to the date of the election, plus employees
laid off because of any seasonal slack in business between February
11, 1939, and the date of the election, but excluding supervisory em-
ployees having the power to hire and discharge and those who since
February 11, 1939, have quit or been discharged 'for cause. Since
we are changing the eligibility provisions in this manner, the elec-
tion of November 1938 is hereby vacated.
As noted above, the A. F. of L. received the lowest number of
votes in the November 1938 election. If we were directing an
ordinary run-off election, using the same pay roll as used in the first
election, we would, in accordance with our recently announced prac-
tice,2 eliminate from the ballot the name of the organization receiv-
ing the least votes. However, since we are vacating the previous
election and ordering a new election based on a much larger pay roll,
we shall place all three organizations on the ballot. The T. W. 0. C.
stated in its brief that should the Board order a new election based
on a pay-roll date other than January 1, 1938, it wished to withdraw
its petition for an investigation and certification of representatives.
2 See Matter of Aluminum Company of America and Aluminum Employees Association;
Matter of Aluminum Company of America and its wholly owned subsidiary Carolina
Aluminum Company and International Union, Aluminum Workers of America, 12
N. L. R. B. 237.
LINCOLN MILLS OF ALABAMA 1289
Since two other labor organizations are parties, we feel that permit-
ting the withdrawal of the petition would be improper at this stage
of the proceedings. The request of the T. W. O. C. is accordingly
denied. However, if within 5 days after the issuance of the Direc-
tion of Election, the T. W. O. C. informs the Board that it desires
that its name be taken off the ballot, the Direction of Election will
be amended accordingly.
Upon the basis of the above supplemental findings of fact and
upon the entire record in the case, the Board makes the following :
SUPPLEMENTAL CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Lincoln Mills of Alabama , Huntsville,
Alabama, within the meaning of Section 9 (c) and Section 2 (6)
and (7 ) of the National Labor Relations Act.
2. All the production and maintenance employees of the Company,
including utility maintenance men, watchmen , and second hands, but
excluding supervisory employees having the power to hire and dis-
charge, constitute a unit appropriate for the purposes of collective
bargaining , within the meaning of Section 9 (b) of the National
Labor Relations Act.
SECOND 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, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, it is hereby
DIRECTED that, as part of the investigation authorized by the
Board to ascertain representatives for the purposes of collective
bargaining with Lincoln Mills of Alabama, Huntsville, Alabama,
an election by secret ballot shall be conducted within fifteen (15)
days from the date of this Direction, under the' direction and super-
vision of the Regional Director for the Tenth Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article III, Section 9, of said Rules and Regulations, among all
the production and maintenance employees, including utility mainte-
nance men, watchmen, and second hands, who were employed by
Lincoln Mills of Alabama, Huntsville, Alabama, during the pay-roll
period ending February 11, 1939, including employees who did not
work during such pay-roll period because they were ill or on vaca-
tion, plus persons employed from February 11, 1939, to the date of
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the election, plus employees laid off because of any seasonal slack in
business from February 11, 1939, to the date of the election, but ex-
cluding supervisory employees having the power to hire and discharge
and those who have since voluntarily quit or been discharged for
cause, to determine whether they desire to be represented for the
purposes of collective bargaining by Textile Workers Organizing
Committee, affiliated with the Committee for Industrial Organization,
by the American Federation of Labor, or by the Progressive Workers
of America, or by none of these labor organizations.