Louisville Sanitary Wiper Co., Inc.

National Labor Relations Board - Board Decisions

Dec 29, 1945

65 N.L.R.B. 88 (N.L.R.B. 1945)

In the Matter of LOUISVILLE SANITARY WIPER COMPANY, INC. and
GERTRUDE STIVERS, EMPLOYEE
Case No. 9-R-1843.-Decided December 09, 1945
Messrs. S. L. Greenbawin and Marvin Gold, of Louisville, Ky., for
the Company.
Mr. J. D. Raines, of Louisville, Ky., for the Petitioner.
Mr. Earl T. Gregory, of Chicago, Ill., and Mrs. Lillian Yadon, of
Louisville, Ky., for the Union.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Gertrude Stivers, Employee, herein
called the Petitioner, alleging that a question affecting commerce
had arisen concerning the representation of employees of Louisville
Sanitary Wiper Company, Inc., Louisville, Kentucky, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Herbert J. Nester, Trial
Examiner. The hearing was held at Louisville, Kentucky, on August
1, 1945. The Company, the Petitioner, and Textile Workers Union
of America, C. I. 0., Local 370, herein called the Union, appeared
and participated. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. The Union moved to dismiss the peti-
tion on the ground that the contract between it and the Company con-
stitutes a bar to a present determination of representatives. The
Trial Examiner reserved ruling on this motion for the Board. For
the reasons discussed in Section III, infra, the motion is denied. The
Trial Examiner's rulings made at the hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an op-
portunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
65 N. L. R. B., No. 21. / -
88
LOUISVILLE SANITARY WIPER COMPANY, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
89
Louisville Sanitary Wiper Company, Inc., a Kentucky corporation
having its principal place of business in Louisville, Kentucky, man-
ufactures and processes wiper cloths and rags. During the calendar
year 1944 the Company purchased raw materials valued in excess of
$150,000, over 60 percent of which -was shipped from points outside
the Commonwealth. During the same period the Company manu-
factured finished products valued in excess of $200,000, over 50 per-
cent of which was shipped to points outside the Commonwealth.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
Textile Workers Union of America, Local No. 370, affiliated with
the Congress of Industrial Organizations, is a labor organization
admitting to membership employees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
On or about May 24, 1945, the Petitioner requested recognition from
the Company as the exclusive bargaining representative of its pro-
duction employees. The Company refused to accord such recognition
until the petitioner had been certified by the Board in an appropriate
unit. The Union contends that its contract with the Company exe-
cuted on March 10, 1943, constitutes a bar to this proceeding.
On March 10, 1941, after winning an election among the Com-
pany's production employees conducted under the auspices of the
Department of Industrial Relations, Commonwealth of Kentucky,
the Union entered into a closed-shop contract with the Company cov-
ering these employees. This contract was replaced by an identical
contract dated March 10, 1943. With respect to its duration, the
March 10, 1943, contract contained the following provision :
Article X. This contract shall be in full force and effect until
the 10th day of March 1944, and shall automatically renew itself
unless either party notifies the other in writing 30 days in advance
of the expiration date of their desire to negotiate changes or
discontinue the contract.
The Union contends that the contract is by its terms automatically
renewable from year to year, and that because neither contracting
' The Petitioner is a "representative" under Section 2 (4) of the Act. Accordingly,
despite the Union's contrary contention, the Petitioner may function as collective bargain-
ing representative of the employees involved herein, if designated as such representative
in the election hereinafter diiected
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
party gave timely notice in 1944 or 1945 of a desire to negotiate changes
in, or to discontinue the contract, and because the Petitioner failed
to give notice of her representation claim before the effective date of
the automatic renewal clause in 1945, the contract is now extended to
March 10, 1946, and bars a current determination of representatives.
The Petitioner, on the other hand, maintains that the contract pro-
vides for only one automatic renewal, and that the contract termi-
nated on March 10, 1945, the expiration date of such automatic re-
newal period.
We are unable to agree with the Union's position. An examination
of Article X of the contract makes it apparent that the contract is
for an initial term of 1 year subject to only one automatic renewal for
a like period. We note, in this connection, that the parties by their
conduct, seemingly gave a similar construction to the contract of
March 10, 1941, which had an identical duration clause. Thus, when
that contract reached the close of the first automatic renewal period,
the parties replaced it with the instant contract which is identical in
every respect. We are therefore of the opinion, under all the cir-
cumstances of the case, that the March 10, 1943, contract expired on
March 10, 1945, and we find that no bar exists to a present determi-
nation of representatives.
A statement of a-Field Examiner for the Board, introduced into
evidence at the hearing, indicates that the Petitioner represents a
substantial number of employees in the unit hereinafter found appro-
priate?
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
The parties are in substantial agreement that all production em-
ployees of the Company, excluding clerical employees, engineers, and
supervisors, constitute an appropriate unit. They are, however, in
disagreement with respect to the inclusion of the maintenance man in
the unit, the Petitioner desiring to include and the Union to exclude
this employee, while the Company takes no position in the matter.
The maintenance man is a utility man and carpenter, employed by
the Company to do the minor repair work in the plant. Inasmuch
as the parties agree that the unit be confined to production employees,
and because the other maintenance employees of the Company are to
2 The Field Examiner reported that the Petitioner submitted a petition dated May 1945,
containing 13 names of persons appearing on the Company's pay roll for June 28, 1945,
and that there were 26 employees in the unit sought by the Petitioner.
The Union relies upon its 1943 agreement with the Company to establish its interest.
LOUISVILLE SANITARY WIPER COMPANY, INC. 91
be excluded from the unit, we shall exclude this employee who does
maintenance work, from the unit hereinafter found appropriate.
We find in accordance with the agreement of the parties and our
foregoing determination, that all production employees, excluding
the maintenance man, engineers, clerical employees, supervisory-em-
ployees, and all or any other supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
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 herein, subject to the limitations and additions set forth in the
Direction.
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 Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represen-
tives for the purposes of collective bargaining with Louisville Sani-
tary Wiper Company, Inc., Louisville, Kentucky, an election by secret
ballot shall be conducted as early as possible, but not later than sixty
(60) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Ninth Region , 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 Regula-
tions, among the employees in the unit found appropriate in Section
IV, above,, who were employed during the pay-roll period immedi-
ately preceding the date of this Direction, including employees who
did not work during the said pay-roll period because they were in 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 any 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
Gertrude Stivers, Employee, or by Amalgamated Clothing Workers
of America, C. I. 0., Local 370, for the purposes of collective bargain-
ing, or by neither.