Monticello Charm Tred Mills, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1948

80 N.L.R.B. 378 (N.L.R.B. 1948)

In the Matter of MONTICELLO CHARM TRED MILLS, INCORPORATED,
EMPLOYER and UNITED TEXTILE WORKERS OF AMERICA, AFL, PETI-
TIONER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER
Case Nos. 15 RC-41 and 15-RC-52.-Decided November 18, 19.48
DECISION
AND
DIRECTION OF ELECTION
Upon petitions duly filed,' a consolidated hearing was held before
a hearing officer of the National Labor Relations Board. The hear-
ing officer's rulings made at the hearing are free from prejudicial
error and are hereby affirmed.2
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-man panel consisting of the undersigned Board
Members.*
Upon the entire record in these cases the Board finds :
1. The Employer is engaged in commerce within the meaning of
National Labor Relations Act.
2. The labor organizations named below claim to represent em-
ployees of the Employer.
I The petitions and other formal papers were amended at the hearing to show the cor-
rected name of the Employer.
% At the hearing , United Textile Workers of America , AFL, herein called the AFL, moved
(1) that the hearing officer disqualify himself on the ground that he was the Field Examiner
who had made a preliminary investigation of the petitions herein ; ( 2) that the hearing
officer take the stand and testify as to his participation in the preliminary investigations ;
and (3 ) that the hearing be adjourned pending a ruling on its request for a subpoena for
the hearing officer. The hearing officer refused to testify at the hearing or to grant an
adjournment and submitted the substantive issues to the Board.
We find no merit in the AFL's position , as it is well established that representation pro-
ceedings are purely investigatory and that the only function of the hearing officer is to pro-
duce a full presentation of the factual material so that the Board will be in a position to
decide all issues upon an adequate record. The Board 's preliminary investigation , includ-
ing its requirement of a preliminary showing of interest , is administrative in character and
does not constitute a part of the official record . Thus, we find that the hearing officer was
qualified to preside at the hearing and that he properly refused to take the stand or to
grant a continuance . The request for a subpoena is denied . Matter o f Lindley Box c&
Paper Company, 67 N. L. R. B. 1231.
Inasmuch as the record and briefs filed adequately set forth the contentions and positions
of the parties in these cases , the AFL's request for oral argument is denied.
'Chairman Herzog and Members Houston and Gray.
80 N. L. It. B., No. 83.
378
MONTICELLO CHARM TRED MILLS, INCORPORATED 379
3. The Employer and United Textile Workers of America, AFL,
herein called the AFL, contend that no question exists concerning
the representation of employees of the Employer under the following
circumstances :
On February 2, 1948, the AFL filed its petition in Case No. 15-RC-
41. Thereafter, on February 21, 1948, Textile Workers Union of
America, CIO, herein called the CIO, wired the Regional Director
requesting intervention. The CIO also sent a letter to the Regional
Director stating that its proof of interest was being forwarded.
On February 23, 1948, the AFL and the Employer, following nego-
tiations, entered into a stipulation reciting that an agreement with
respect to wages, hours, and other working conditions had been
reached, subject to proof that the AFL represented a majority of the
Employer's employees. It was also agreed that a cross-check of the
AFL's authorization cards would be made by a third party to deter-
mine the question of majority.
On February 24, 1948, in order to secure the return of its authori-
zation cards, the AFL requested withdrawal of its petition as well
as the cards. Believing that the CIO's proof of interest had not been
received, the Regional Director granted the AFL's request. How-
ever, it later developed that the CIO's proof of interest had been
received earlier that day in the Regional Office.
On February 25, 1948, the CIO telegraphed the Employer demand-
ing recognition. This telegram was delivered to the Employer in
the morning of February 26, 1948.
Later on February 26, 1948, the Employer notified the AFL that, as
the independent cross-check indicated that the AFL represented a
majority, the Employer recognized it as bargaining representative.
On February 27, 1948, the CIO filed its petition in Case No.
15-RC-52.
On February 28, 1948, the Employer and the AFL entered into a
substantive agreement, effective as of February 25, 1948.
On March 9, 1948, the Regional Director notified all parties that
the petition filed by the AFL in Case No. 15-RC-41 had been with-
drawn. Thereafter, however, on May 28, 1948, the Regional Director,
having learned that the CIO had in fact timely filed its proof of in-
terest in the matter, notified the parties that his permission for with-
drawal of the petition in Case No. 15-RC-41 had been rescinded.
On June 22, 1948, the Regional Director ordered a consolidation of
the cases.
The Employer and the AFL contend (1) that the action of the Re-
gional Director in reinstating the AFL's petition in Case No. 15-
RC-41 was arbitrary and capricious; and (2) that the agreement of
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 28, 1948, following the stipulation of February 23, consti-
tutes, under these circumstances, a bar to a present determination
of representatives.
We disagree with these contentions. As to (1) the Regional Director
consented to the withdrawal of the petition in Case No. 15-RC-41
upon the mistaken belief that the CIO had not submitted its proof of
interest, and therefore had not acquired any rights as an Intervenor.
Since, however, prior to the withdrawal of the petition, the CIO had
established its right to intervene, we find that the action of the Re-
gional Director in rescinding his approval of the withdrawal of the
petition in Case No. 15-RC-41 was appropriate under the circum-
stances.' As to (2), the stipulation between the Employer and the
AFL was at best an expression of intent to enter into an agreement
on condition that an independent cross-check of authorization cards
indicated an AFL majority. The Employer and the AFL did not
actually enter into a substantive agreement until February 28, 1948,
which, as noted above, was after the petition of the CIO had been
filed. An agreement to enter into a contract on agreed terms does
not operate as a bar.4 The temporary withdrawal of the AFL's
petition has no effect on this issue. Accordingly, we find that no bar
exists to a present determination of representation.
We find that a question affecting commerce exists concerning the
representation of certain employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act :
All production and maintenance employees regularly employed at
the Employer's Monticello, Arkansas, rug manufacturing plant, ex-
cluding executives, office and clerical employees, professional em-
ployees, guards, and all supervisors.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National
Cf. Matter of Higgins, Inc., 73 N. L. R B 543.
+Matter of Casteel Distributing Company, et at , 76 N . L. R. B. 149 ; Matter of Rereut
Richards Packing Company, et al., 61 N. L. R. B. 133.
MONTICELLO CHARM TRED MILLS, INCORPORATED 381
Labor Relations Board Rules and Regulations-Series 5, as amended,
among the employees described in paragraph numbered 4, above,
who were employed during the pay-roll period immediately pre-
ceding the date of this 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, 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 , and also ex-
cluding employees on strike who are not entitled to reinstatement,
to determine whether they desire to be represented, for purposes of
collective bargaining, by United Textile Workers of America, AFL, or
by Textile Workers Union of America, CIO, or by neither.