American Enka Corp.

National Labor Relations Board - Board Decisions

Dec 10, 1940

28 N.L.R.B. 423 (N.L.R.B. 1940)

In the Matter of AMERICAN ENKA CORPORATION and TE%TII.E
WORKERS UNION No. 22129, AMERICAN FEDERATION OF LABOR
Case No. R-g315?-Decided December 10, 1940
Jurisdiction : viscose rayon yarn manufacturing industry.
Investigation and Certification of Representatives : existence of question: refusal
to accord 'recognition to union ; employee selected for military service eligible
to vote; current pay roll directed to be used although one of union's represen
tatives requested pay roll not later than date of the hearing ; company-,
dominated union and a union which was still in its formative stage excluded
from ballot ; election necessary.
Unit Appropriate for Collective Bargaining : all hourly paid employees in the
chemical, spool and pot spinning, vacuum wash and cake bleach, twisting,'
reeling, bleach, waste bleach, skein drying and spool cleaning, coning and
spool winding, sorting and skein packing, cone inspection and packing, spin-
nerette, sewing and filter candle, pump testing, textile laboratory, pilot
plant, salvage, shipping, work shops, electricians, carpenters, painters and
builders, glass blowers, instrument makers, spool lacquering, yard, power
and air conditioning, village, cafeteria and cloak rooms, and storehouse,
departments, including one salaried janitor, but excluding clerical and su-
pervisory employees, such as foremen, leading men, and assistant foremen,
inspectors, red bands and green bands, checker bands and timekeepers, and
excluding all salaried employees such as office workers, plant protection em-
ployees, chemists, engineers, technical employees, and police or watchmen.
Practice and Procedure
A union at the time of the hearing which was still in its formative
stage held not to have such a substantial interest in the proceedings as
to entitle it to intervene or to a place on the ballot in the election directed.,
Mr. Charles Y. Latimer, for the Board.
Larkin, Rathbone d Perry, by Mr. Nicholas Kelley and Mr. T. R.
Iserman, of New York City; Mr. W. A. Egerton, of Enka, N. C.;;
and Mr. S. G. Bernard, of Asheville, N. C., for the Company.
Mr. Gordon L. Chastain, of Spartanburg, S. C., Mr. James F. Bar-
rett, of Atlanta, Ga., and Mr. Herbert Thatcher, of Washington,
D. C., for the Union.
Mr., Anthony Redmond and Mr. George A. Shuford, of Asheville,
N. C., for the Independent.
Mr. Harry Cooper, of counsel to the Board.
28 N. L R.,B., No. 71.
423
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 14 and October 5, 1940, respectively, Textile Workers
Union No. 22129, American Federation of Labor, herein called the
Union, filed with the Regional Director for the Fifth Region (Balti-
more, Maryland) a petition and an amended petition, alleging, that
a question affecting commerce had arisen concerning the representa-
tion of employees of American Enka Corporation, Enka, North
Carolina, herein called the Company, and requesting an investiga-
tion and certification of representatives' pursuant to Section 9 (c)-
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On November 8, 1940, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9' (c) of the Act,
and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 2, as amended, ordered an investi-
gation and authorized the Regional Director to conduct it and to
provide for an appropriate hearing upon due notice. On November
9, 1940, the Regional Director issued a notice of hearing and an
amended notice of hearing, copies of both of -which were duly
served upon the Company and the Union.
Pursuant to notice, a hearing was held on November 15, 1940, at
Asheville, North Carolina, before Mortimer Riemer, the Trial Ex-
aminer duly designated by the Board. During the course of the
hearing, Independent TextileWorkers Association, herein called the
Independent, claiming to represent employees directly affected by
the investigation, moved for leave to intervene in this proceeding
and requested that it be named on-any ballot submitted to said em-
ployees in connection with such investigation. The Trial Examiner,
reserved ruling on this motion but permitted the Independent to
participate in the hearing. For, reasons indicated in Section III,
infra, the Independent's motion and request are hereby denied. The
Board, the Company, the Union, and the Independent were repre-
sented by counsel and participated in the hearing. Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence bearing upon the' issues was afforded all parties
and the Independent. During the course of the hearing, the Union
moved to amend its amended petition so as to define with more par-
ticularity the employees claimed by it to be within the unit appro-
priate for the purposes of collective bargaining. The Trial Exam-
iner granted this motion, without objection on the part of the Com-
AMERICAN ENKA CORPORATION 425
pany. During the course of the hearing the Trial Examiner made
other rulings on motions and on objections to the admission of evi-
dent e. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. - The ,rulings
are hereby affirmed.
Pursuant to notice duly served upon the parties and the Independ-
ent, a hearing for the purpose of oral argument was held before the
Board on November 28, 1940, at Washilgton, D. C. The Company
and the Union were represented by counsel and participated in the
argument.
On December 2, 1940, the Company filed a brief with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Enka Corporation, a Delaware corporation, having. its
plant and main office located at Enka, North Carolina, is engaged
principally in the manufacture, of, viscose rayon yarn. Most of the
raw materials used by the Company, amounting to approximately
50,000 tons per year and having an approximate value of $3,500,000
each year, originate in Canada and in States other than the State of
North Carolina. About 50 per cent of the Company's finished prod-
ucts, having a total, approximate value of $12,500,000 annually, are
shipped to points outside the State of North Carolina.
The Company employs about 3,000 employees.
II. THE ORGANIZATIONS INVOLVED
Textile Workers Union No. 22129, American Federation of Labor_
is a labor organization admitting to membership production and
maintenance' employees of the Company, except clerical and super-
visory employees, chemists, and technical employees.
Independent Textile Workers Association admits to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On two occasions since its organization on September 1, 1939, the
Union has sought recognition from the Company as the collective
bargaining agency of the Company's employees. On the first occa-
sion, in November 1939, the Company refused to recognize the Union'
as such agency -until the Union proved its status as the majority
representative. At the same time the Company refused to agree to^
the holding of an election. On the second occasion, on November 7,1
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1940, the Company agreed to the holding of ali election but raised a
question as to the form of the ballot. At the time of the hearing, no
final 'agreement on the form of the ballot appears to have been reached
between the parties."
At the hearing there was introduced in evidence a statement of,
an agent of the Board showing that the Union represents a substantial
number of the Company's employees.2
The Independent was organized on November 8, 1940. At its first
and only meeting, five employees were present and three officers were
elected. At the time of the hearing, on November 15, the Independent
had eight members who had paid entrance fees to the organization.
In addition several witnesses testified that about 200 employees had
been interviewed'by them and had expressed a desire to join the Inde-
pendent. It appears that at the time of the hearing the organization
was still in its formative stage. Under these circumstances, we find
that the Independent does not have such a substantial interest In this
proceeding as to entitle it to intervene therein or to a place on the bal-
lot in the election directed below.
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company .
described in Section I above, has a close, intimate, and substantial
relation to,trade, traffic, and commerce among the several States and
with foreign countries, and tends to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce. . ,
V. THE APPROPRIATE UNIT
The parties are not in disagreement concerning the appropriate unit.
The Union claims and we find that all hourly paid employees of the
Company, in the chemical, spool and pot spinning, vacuum wash and,
' The disagreement appears to have been over whether or not a labor organization known
as the "Factory Workers Committees" should be on the ballot . In Matter of American
Enka Corporation and Textile Workers Union No. 22129, American Federation of Labor,
27 N. L It. B. 1057, the Board found that the Company had dominated, interfered
with, and contributed financial and other support to this labor organization in violation
of Section 8 (2) of the Act , and ordered its disestablishment as a bargaining representative.
2 According to the agent 's statement , the Union submitted to her 1520 application cards
for membership in the Union , all of which were dated between January 1939 and November
1940, except 115 which were undated ; and 1424 of which appeared to bear genuine,
original signatures . About 200 additional cards, dated between July and November 1940,
and appearing to bear genuine , original signatures , were produced at the hearing . There.
are about 2400 employees in the unit found below to be appropriate for the purposes of
collective bargaining.
AMERICAN ENKA CORPORATION' 427
cake'rbleach, twisting, reeling, bleach, waste bleach, skein 'drying and
spool cleaning, coning and spool winding, sorting and skein packing;
cone inspection and packing, spinnerette; sewing and filter candle,
pump testing, textile laboratory, pilot plant, salvage, shipping, work
shops, 'electricians, carpenters, painters and builders, glass blowers,
instrument makers, 'spool lacquering, yard, power and air condi-
.tioning, village, cafeteria and cloak rooms, and storehouse depart-
ments, including one salaried jariitor,3 but excluding clerical and
supervisory employees, such as. foremen, leading men, and assistant
foremen, inspectors, red bands and green bands,4 checker bands,5 and
timekeepers, and excluding all salaried employees such as office
workers, plant protection employees, chemists, engineers, technical
employees, and police or watchmen, constitute a unit appropriate
for the purposes of collective bargaining. We further find that said
unit will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has arisen
can best be resolved by an election by secret ballot. As indicated
above, the Independent will not appear on the ballot.e
The Union requests that the Board determine whether employees
of the Company selected for military service are eligible to vote by
absentee ballot. Such employees will be permitted so to vote.
At the hearing one representative of the Union indicated that, any
date selected to determine eligibility to vote was satisfactory.
Another representative of the Union, however, indicated that he
would not agree to any date later than the date of the hearing, for
fear that -the Company might hire new employees between the date
of the hearing and the election.' Counsel for the Company stated
that there was no substantial difference in the number of employees
on the pay roll from time to time and suggested that the most recent
pay roll be selected to determine eligibility. We shall follow our
usual procedure and direct that those eligible to participate in the
election shall be the employees in the appropriate unit who were
! The Janitors are in the cafeteria department , and apparently all except one are hourly
paid employees.
'The leading men, red bands, and green bands are supervisory employees . See Matter
of American Enka_ Corporation and Textile Workers Union No. 22129, American Federation
of Labor, 27 N: L. R. B. 1057.
The checker bands are clerical employees who work in the plant.
e The "Factory Workers Committees," likewise, will not appear on the ballot. See
supra footnote 1, and N. L. R. B. v. Falk Corporation, 308 U. S. 453, rev'g 196 F. (2d>
454 (C. C. A 7),-and enf'g Matter of The Falk Corporation and Amalgamated Association
of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R . B. 654.
'428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by the Company during the pay-roll period immediately
preceding our Direction of Election , including employees who did not
work during such pay-roll period because they were ill , on vacation,
or absent because selected for military service, and employees who
were then or have since been temporarily laid off , but excluding those
who have since quit or been discharged for cause.
Upon the basis of the above findings ' of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of American Enka Corporation, Enka, North
Carolina, within the meaning of Section 9 (c) and Section 2 (6)
.and (7) of the Act.
2. All hourly paid employees of the. Company, in the chemical,
spool and pot spinning , vacuum wash and cake bleach, twisting, reel-
ing, bleach , waste bleach , skein drying and spool cleaning, coning and
spool winding, sorting and skein packing, cone inspection and pack-
ing, spinnerette , sewing and filter candle, pump testing, textile labora-
tory, pilot plant, salvage , shipping, work shops, electricians , carpen-
ters, painters and builders , glass blowers, instrument makers, spool
lacquering , yard, power and air conditioning, village, cafeteria and
cloak rooms, and storehouse departments , including one salaried
janitor , but excluding clerical and supervisory employees, such as
foremen , leading men , and assistant foremen, inspectors , red bands
and green bands, checker bands and timekeepers , and excluding all
salaried employees such as office workers, plant protection employees,
-chemists , engineers , technical employees , and police or watchmen, con-
stitute a unit appropriate for the purposes of collective bargaining,
`within the meaning of Section 9 (b) of the Act. -
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 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby, -
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with American Enka Corporation,' Enka, North Carolina, 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 I Fifth
i
AMERICAN ENKA CORPORATION 429
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all hourly paid employees of American Enka
Corporation, Enka, North Carolina, in the chemical, spool and pot
spinning, vacuuin' wash and cake bleach, twisting, reeling, bleach,
waste bleach, skein drying and spool cleaning, coning and spool wind-
ing, sorting and skein packing, cone inspection and packing, spin-
nerette, sewing and filter candle, pump testing, textile laboratory,
pilot' plant, salvage, shipping, work shops, electricians, carpenters,
painters and builders, glass blowers, instrument makers, spool lac-
quering, yard, power and air conditioning, village, cafeteria and
cloak rooms, and storehouse departments, who were employed by the
'Company during the pay-roll period immediately preceding the date
of this Direction, including one salaried janitor, employees who did
not work during such pay-roll period because they were ill, on
vacation, or absent because selected for military service, and em-
ployees who were then or have since been temporarily laid off, but
excluding clerical and supervisory employees, such as foremen, leading
men and assistant foremen, inspectors, red bands and green bands,
checker bands and-timekeepers, and excluding all salaried employees
such as office workers, plant protection employees, chemists, engineers,
technical employees, and police or watchmen, and employees who have
since quit or been discharged for cause, to determine whether or not
they desire to be represented by Textile Workers Union No. 22129,
American Federation of Labor, for the purposes of collective
bargaining.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Decision and Direction of Election.