Fuld & Hatch & Knitting Co.

National Labor Relations Board - Board Decisions

Apr 30, 1946

67 N.L.R.B. 1059 (N.L.R.B. 1946)

In the Matter of FULD & HATCH KNITTING COMPANY and TEXTILE
WORKERS UNION OF AMERICA, C. I. O.
Case No. - R--5880.Decided April 30,1946
Illch cC Poskanzer, by Mr. Avrom M. Jacobs, of Albany, N. Y., for
the Company.
Mr. Jack Rubenstein, of New York City, and Mr. Joseph C. Killian,
of Cohoes, N. Y., for the C. I. O.
Mr. Edward Spritzer, of Troy, N. Y., and Mr. Louis Stulberg, of
New York City, and Miss Stephanie Ukleja, of Cohoes, N. Y., for the
I. L. G. W. U.
Mr. Conrad A. Wickham,, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition filed by Textile Workers Union of America, C. I. 0.,
herein called the C. I. O., alleging that a question affecting commerce
had arisen concerning the representation of employees of Fuld & Hatch
Knitting Company, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before Richard J. Hickey, Trial Examiner. The hearing was held
at Cohoes, New York, on February 11, 1945. The Company, the
C. I. 0., and Local 168, International Ladies Garment Workers Union,
A. F. L., herein called the I. L. G. W. U., 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. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were af-
forded opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Fuld & Hatch Knitting Company, a New York corporation, has its
office and factories at Cohoes, New York, where it is engaged in
67 N. L. R. B., No. 133.
1059
1060 DECISIONS NATIONAL LABOR RELATIONS BOARD
the processing, manufacture, sale and distribution of yarns and knit
goods. It operates two plants called the Saratoga Street plant and the
Remsen Street plant, respectively. During the past year, the Company
purchased raw materials consisting of cotton and wool valued in
excess of $1,000,000, of which approximately 90 percent was shipped
into the State of New York from points outside the State. During
the sane period, the Company manufactured and processed finished
products valued in excess of $1,000,000, of which about 50 percent was
shipped outside the State of New York.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to member-
ship employees of the Company.
Local 168, International Ladies Garment Workers Union, affiliated
with the American Federation of Labor, is a labor organization ad-
mitting to membership employees of the Company.
III. THE QUESTION CONCERNING} REPRESENTATION
On May 1, 1941, the Board certified Local 2648, United Textile Work-
ers of America, A. F. L., herein called Local 2648, as the bargaining
representative of the production and maintenance employees in the
Saratoga Street plant 1 after deciding that a unit confined to that plant.
was appropriate on the basis of the extent of organization? Pursuant
to such certification, a contract between Local 2648 and the Company,
covering the employees in the Saratoga Street plant, was signed on
June 27, 1941.
Thereafter, as the result of a consent election conducted by the Board
among the employees in the Remsen Street plant, which Local 2648
won,' the Company and Local 2648, on October 3, 1941, extended the
coverage of the previous contract to the employees in the Remsen Street
plant.
On July 13, 1942, Local 2648 and the Company signed an addendum
which added a "maintenance of membership" clause to the previous
contracts. On July 1, 1943, the Company and Local 2648 executed a
renewal contract with slight modifications.
On April 15, 1944, prior to the expiration of the then current contract
between Local 2648 and the Company, the C. I. O. filed a petition as a
result of which the Board ordered an election on August 3, 1944 4 This
' See Matter of Fuld & Hatch Knitting Co., 31 N. L. R. B 530.
' See Matter of Fuld & Hatch Knitting Co , 30 N L. R. B. 1133.
a See Matter of Fuld & Hatch Knitting Co., 2-R-2373.
See Matter of Fuld & Hatch Knitting Co., 57 N. L. It. B. 890.
FULD & HATCH KNITTING COMPANY 1061
election resulted on September 11, 1944, in the certification of Local
2648, which thereupon entered into negotiations for a new contract with
the Company. The negotiations led to a number of disputed issues
concerning wage increases, vacations, premium pay, union security,
check-offs, and grievance procedure, which were submitted to the Na-
tional War Labor Board. Pending action by the National War Labor
Board, the Company and Local 2648, on September 12, 1944, entered
into an agreement containing their existing contract until the new
agreement was executed.
On December 1, 1944, Local 2648 petitioned the I. L. G. W. U. for a
charter which was subsequently granted.
The National War Labor Board issued its order on August 22,1945.
On September 4, 1945, the C. I. O. wrote the Company a letter re-
questing recognition and also requesting that it start contract nego-
tiations. The Company refused the C. I. O.'s request in view of its
contract with Local 2648. On September 13, 1945, the Company
entered into a contract effective until December 31, 1946, with the
I. L. G. W. U. as the accredited successor to Local 2648.
While it is true that in some cases we have declined to proceed
to a determination of representatives in the presence of a dispute
before the National War Labor Board, we did so because we were of
the opinion that to order an election in those cases might unfairly
deprive a newly certified or recognized representative of a reasonable
opportunity to obtain the benefits of the exclusive representation,
inasmuch as its initial bargaining efforts, following recognition or
certification, had proved fruitless primarily as a result of unavoidable
delays caused by its voluntary resort to the proceedings of the National
War Labor Board .5
It is clear that we are not here confronted with such a factual situa-
tion. For several years Local 2648 has been the exclusive bargaining
representative of the production and maintenance employees of the
Company. During that period it has obtained through the collective
bargaining process many substantial benefits for itself and its member-
ship. In these circumstances, we believe that the policies of the Act
can best be effectuated by providing the employees herein with the
opportunity to express their present representation desires in an elec-
tion by secret ballot .6
In view of our dissenting colleague's opinion, one further observa-
tion seems to be appropriate. The Allis Chalmers doctrine is one
which this Board has applied in limited instances, because its opera-
tion tends to postpone an expression of the current wishes of the major-
ity of the employees in a bargaining unit. Its justification is that a
° See Matter of Allis-Chalmers Manufacturing Co., 50 N . L. R B. 306
See Matter of Allis-Chalmers Manufacturing Co., 64 N . L. R. B. 750; Matter of
MacClatchie Manufacturing Company, 53 N. L. R. B. 1268.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining organization which has for the first time been certified by
the Board pursuant to an election should have a reasonable oppor-
tunity to display its prowess to the employees by negotiating a collec-
tive agreement; it should not be penalized by any delay in the bargain-
ing process resulting from the wartime necessity of securing adjudi-
cation of the matters in dispute from another agency of Government;
viz, the War Labor Board.
In this case, however, the intervening I. L. G. W. U. was never
certified by the Board. The situation upon which the rule was
premised, therefore, is not present in this case. While it appears
probable that the majority of the employees concerned voluntarily
chose to leave the United Textile Workers and affiliate with the
I. L. G. W. U. in 1944, there is no reason why they should not be given
the same opportunity, in 1946, to select the petitioning Organization,,
if they so desire?
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates the C. I. 0. represents a substantial number of employees
in the unit hereinafter found appropriate."
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
In accordance with an agreement of the parties at the hearing, we
find that all production and maintenance employees in both the Sara-
toga and Remsen Street plants of the Company, including shipping
employees, firemen and watchmen, but excluding salesmen, office and
clerical employees, executives, foremen, foreladies, and all other super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action,9 constitute a unit appropriate for the
'The language of the dissenting opinion might seem to indicate that our colleague
regards the intervening union, the I L. G W U , as being the same for all purposes as the
United Textile Workers. Even if this hypothesis were correct, there would be no ground
for invoking the "Allis Chalmers doctrine," since the United Textile Workers was the
bargaining agent for these employees for several years prior to the War Labor Board
proceeding. We see no reason to depart from the reasoning of the second Allis Chalmers
case, 64 N. L. R B 750, decided November 8, 1945, particularly in view of its recent date.
8 The Field Examiner reported that C I 0 submitted 321 application cards ; that the
names on 117 of the cards appeared on the Company's pay roll of September 22, 1945; that
58 cards were dated September-October 1945; and that 59 cards were dated July 1943-
July 1944. Inasmuch as Local 2648 had and I L, G. W. U. has a maintenance of member-
ship contract, we reject the I. L G. W. U. contention that the showing thus made is
Insufficient to warrant this proceeding. See Matter of National Container Corporation, 62
N L R B. 48. The I. L. G. W. U. relies upon its contract to show its interest in the
proceeding
9In accordance with the agreement of the parties, we shall include Yvonne Miller in the
unit and exclude David Fuld from the unit for the same reasons expressed in the Matter
of Fuld & Hatch Knitting Co., 57 N. L. R. B. 896.
FULD & HATCH KNITTING COMPANY 1063
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 Rela-
tions 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 Fuld & Hatch
Knitting Company, Cohoes, New York, 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 super-
vision of the Regional Director for the Second 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 employees 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 said pay-roll period because they were ill or on va-
cation 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 those employees who have since quit or been dis-
ch arged 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 Textile Workers Union of America, C. I. 0., or by Local 168, Inter-
national Ladies Garment Workers Union, A. F. L., for the purposes
of collective bargaining, or by neither.
MR. JOHN M. HOUSTON, dissenting :
After a careful examination of the meaning of our certifying func-
tion and its implementation in our administrative rules and substan-
tive law, I am convinced that the petition in this case should be dis-
missed. It is apparent that the Board's certification of a labor organ-
ization as exclusive representative of employees in an appropriate unit
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
endows that organization with particular stature as against rival
claims and unjustified refusals to bargain. We have held on many
occasions that our certification entitles the organization so certified
to a year of undisturbed bargaining with an employer, and it is clear
that the year has been deemed to run from the date of the certification.
During such time the Board has rejected claims advanced by rival
organizations attempting to secure representation rights in derogation
of the outstanding certification, and as a corollary the Board has
invoked the sanction of Section 8 (5) against employers who refuse
to bargain during that period with the certified organization. I think
it entirely clear therefore that the fact of certification per se is of con-
trolling significance in determining the propriety of adverse represen-
tation claims.
The period of vitality of the certificate was extended in appropriate
cases during the war. If it were shown that a labor organization
which had been certified was prompt to submit a dispute concerning
its initial bargaining program after certification to a governmental
agency for determination, then the Board considered that any delay
encountered by the organization in obtaining the normal gains of its
status, created decisive equities in favor of prolonging the life of
the certificate. This doctrine was enunciated first in the Allis-Chalm-
ers case.10 In the case before us the intervening union 11 was certified
on September 11, 1944. It promptly engaged in an effort to secure
a contract with the Company. Disputes arose over substantial clauses
in the proposed agreement. These were promptly submitted to the
War Labor Board. That agency issued its final directive determining
the dispute on August 22, 1945. Promptly thereafter on September
12, 1945, the intervenor and the Company executed the contract urged
by them in this case as a bar. This recital indicates definitively that
the intervenor may justly urge its equities for an extension of the life
of its certificate so that it may be afforded an opportunity to enjoy
the benefits delayed by action of the Government agency called upon
to settle the dispute.
The majority of the Board, however, has determined that an elec-
tion should be directed on the petition filed approximately 8 days
before the execution of the contract. Its rationale appears to be that
the intervening union received a previous certification, that is, before
September 11, 1944, and is, consequently, not a newly certified union.
1D 50 N L it. B. 306 ; see also Matter of Taylor Forge h Pipe Works, 68 N. L. It. B. 1376.
I use this term as designating the successor organization . In view of the bona fide
succession of the I L. G. W. U. to the United, the former organization , for all purposes
relevant here, is in the Identical position of the United as if there had been no succession,
and it is to be treated as the same union. See Matter of American Woolen Company,
61 N. L. it. B. 1045 ; also Matter of Waigreen Company, 44 N. L. it. B. 1200, 1212, in which
the Board stated :
"What the Board certified in the representation case was not a name but a Union."
FULD & HATCH KNITTING COMPANY 1065
It is reasoned therefore that the intervenor has had ample opportunity
to demonstrate its effectiveness to the employees it represents and that
therefore those employees should no longer be denied an opportunity
to select, if they wish, a new bargaining representative. The fallacy,
as I see it, in this reasoning, lies in its disregard of the efficacy of
our certifying function, for my colleagues' decision has the effect
of rendering meaningless the intervenor's certification of September
11, 1944. Certainly on that date the intervenor by virtue of its certi-
fication had demonstrated that it was entitled to at least a year of
undisturbed bargaining with the Company. That year having been
prolonged by the interposition of the War Labor Board's delay, the
intervenor is properly before us for an extension. To hold now that
the fact of a previous certification is entitled to controlling significance
in delimiting the right of the intervenor to bargain, dilutes a basic rule
of protection invoked by this Board almost invariably in cases of this
type 12
" Although I participated in the later Addis-Chalmers decision , reported in 64 N. L. R. B.
750, and alluded to by my colleagues , I wish to resolve any inconsistencies between that
decision and my position here in favor of the latter.