Merrimac Mills Co.

National Labor Relations Board - Board Decisions

Sep 4, 1945

63 N.L.R.B. 781 (N.L.R.B. 1945)

In the Matter Of MERRIMAC MILLS COMPANY and MERRIMAC
EMPLOYEES' MUTUAL BENEFIT ASSOCIATION
Case No. 1 R.-2128.-Decided September 4, 19445
Mr. Walter C. Tomlinson, of Lawrence, Mass., for the Company.
Mr. Paul R. Foisy, of Lowell, Mass., for the Association.
Miss Mary Taccone, of Lawrence, Mass., for the AFL.
Mr. Bernard Goldberg, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF TIIE CASE
Upon a petition duly filed by Merrimac Employees' Mutual Benefit
Association, herein called the Association, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Merrimac Mills Company, Methuen, Massachusetts, herein
called the Company, the National Labor Relations Board provided
for an appropriate hearing upon due notice before Samuel G. Zack,
Trial Examiner. Said hearing was held at Lawrence, Massachusetts,
,on June 25, 1945. The Company, the Association, and Department
of Woolen and Worsted Workers of United Textile Workers of Amer-
ica, AFL,, herein called the AFL, appeared and participated. All
parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues. At the hearing, the AFL moved to dismiss the petition on
the ground that the petition submitted to the Board by the Associa-
tion, as evidencing its prima facie interest among the employees of
the Company, contained the name of one supervisor. For reasons
stated hereinafter, the said motion is hereby denied. The Trial Ex-
aminer'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.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Merrimac Mills Company is a Massachusetts corporation engaged
at Methuen, Massachusetts, in the manufacture, sale, and distribu-
63 N. R. R. B., No. 116.
781
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of woolen and worsted cloth. Annually, the Company uses in
its manufacturing operations raw materials valued at more than
$250,000, of which in excess of 50 percent is received from outside the
Commonwealth of Massachusetts, and manufacturers finished prod-
ucts valued at more than $500,000, of which in excess of 50 percent is
shipped outside the Commonwealth.
We find that the Company is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Merrimac Employees' Mutual Benefit Association, unaffiliated, is a
labor organization admitting to membership employees of the Com-
pany 1
Department of Woolen and Worsted Workers of United Textile
Workers of America, affiliated with the American Federation of
Labor, is a labor organization admitting to membership employees of
the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to recognize the Association as the col-
lective bargaining representative of any of its employees unless and
until it is certified by the Board in an appropriate unit.
Following a consent election, which was won by the AFL, the Com-
pany and the AFL entered into a collective bargaining contract in
September 1942, for the period of,1 year. On the expiration of this
agreement, a second contract was executed on September 27, 1943,
for a term to expire on September 1, 1944. This contract contained a
clause to the effect that the contract would be renewed for another
period of 1 year unless either party served notice in writing of a desire
to change or terminate the agreement at least 30 days prior to the
expiration date. On July 25, 1944, more than 30 days prior to the
termination date of the agreement, the Company served notice in
writing on the AFL of its wish to terminate the agreement as of Sep-
tember 1, 1944. Subsequently, as the result of the inability of the
AFL and the Company to resolve their differences, the dispute was
referred to the Regional War Labor Board which, on September 18,
s In its brief , the AFL alleges that certain persons assisted in the formation of the Asso-
elation to defeat the AFL so that the employees might bargain without outside influence.
The implications of this argument are not clear . In any event , in all unfair labor practice
proceeding involving these parties, the Trial Examiner found in his Intermediate Report
that the Association as a legitimate labor organization and was not company -dominated.
No exceptions to the said Intermediate Report were filed by either the AFL or the Board's
attorney , and under Article II , Section 35 , of our Rules and Regulations the case is
considered closed. See Matte, of Merrimac Mills Company, Case No. 1-C-2448, Inter-
mediate Report issued on Marc] 1 27, 1945.
MERRIMAC MILLS COMPANY 783
1944, issued a directive extending the terms of the expired contract
'until such time as the parties shall have consummated a new agree-
ment, or until the National War Labor Board otherwise directs." 2 The
AFL contends that proceedings before the Regional War Labor Board
which are still pending are a bar to this proceeding. We find no merit
in this contention. Since the consent election, the AFL has enjoyed the
benefit of two contracts for their full terms and, therefore, under well-
established principles of the Board, the subsequent proceedings before
the War Labor Board cannot operate as a bar to the present proceed-
ing.3 Neither can the extension of the terms of the expired contract
by the Regional War Labor Board constitute a bar because such ex-
tension is for an indefinite period.4
The*AFL, in support of its motion to dismiss the petition, alleges
that one of the signers of the Association's petition, Jennie Davy, is
a supervisor. Although this employee was listed as a second hand on
a Form 10 application to the War Labor Board, it appears that she
does,not, in fact, perform the duties of a second hand; nor has she the
power of a supervisor within the Board's customary definition thereof.
Moreover, the AFL has alleged merely that Davy signed the petition;
no claim has been made that she solicited the signatures of other em-
ployees or has otherwise been active in behalf of the Association.
Under such circumstances, the presence of one supervisor in its mem-
bership would not render the Association incompetent to act as bar-
gaining representative for the non supervisory employeess
A statement of the Regional Director, introduced into evidence at
the hearing, indicates that the Association represents a substantial
number of employees in the unit hereinafter found appropriate.6
We find Lhat 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 accordance with the agreement of the parties, that all
production and maintenance employees of the Company ,7 including
shipping and receiving employees, but excluding executives, super-
visors, from the grade l of second hands up, main office clerical em-
2 See Trial Examiner ' s Intermediate Report, supra
3 Matter of The Regina Corporation , 57 N L R B 4.
4 Matter of Corning Glass IVorke. Charleroi Division, 54 N. L R. B 963.
5 Matter of California Packing Co'npany, 59 N. L It. B. 941 ; cf. Matter of The Toledo
Stamping it Manufacturing Company, 5.i N. L R B. 1760.
The Regional Director reported that the Association submitted a petition containing
79 signatures and that there weie 189 employees in the appropriate unit. The AFL relies
on its contract to establish its interest.
7 Including Jennie Davy.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, guards, watchmen and all other 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 bar-
gaining within the meaning of Section 9 (b) of the Act.
V. TIIE DETEItMIN'ATION 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 Election
herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virute 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
Relations Board Rules and Regulations-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 Merrimac Mills.
Company, Methuen; 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 direction and supervision of
the Regional Director for the First 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 Regulations, among the em-
ployees in the unit found appropriate 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 the
said pay-roll period because they were ill or on vacation or tem-
porarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but ex-
cluding those employees who have since quite 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 Merri-
mac Employees' Mutual Benefit Association or by Department of
Woolen and Worsted Workers of United Textile Workers of America,
AFL, for the purposes of collective bargaining, or by neither.