Holeproof Hosiery Co.

National Labor Relations Board - Board Decisions

May 14, 1946

67 N.L.R.B. 1397 (N.L.R.B. 1946)

In the Matter Of HOLEPROOF HOSIERY CO . and INTERNATIONAL LADIES
GARMENT WORKERS UNION, A. F. OF L.
Case No. 10-R-1680.-Decided May 11,1946
Mr. Charles H. Eyster, of Decatur, Ala., and Mr. F. E. St. John, of
Gullman, Ala., for the Company.
Mr. Joseph, Jacobs, of Atlanta, Ga., and Mr. John S. Martin, of
Chattanooga, Tenn., for the A. F. of L.
Mr. James Zett, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Ladies Garment
Workers Union, A. F. of L., herein called the A. F. of L., alleging that
a question affecting commerce had arisen concerning the representa-
tion of employees of Holeproof Hosiery Co., Milwaukee, Wisconsin,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before John W.
Coddaire, Jr., Trial Examiner. The hearing was held at Cullman,
Alabama, on March 25, 1946. The Company and 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 Trial Examiner's rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
All parties were afforded opportunity to file briefs with the Board.
At the hearing the Company moved to dismiss the petition. For
reasons hereinafter indicated, the motion is denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Holeproof Hosiery Co. is a Wisconsin corporation engaged in the
manufacture and sale of hosiery and women's undergarments. It
maintains a principal office in Milwaukee, Wisconsin, branch sales
offices in New York City, Chicago, Illinois, and Los Angeles, Cali-
fornia, and plants and warehouses in the following cities : Milwaukee
67 N. L. R. B., No. 190.
1397
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and New London, Wisconsin ; Marietta, Georgia ; South Pittsburgh,
Tennessee ; and Cullman, Alabama. In 1945 the Company purchased
for use in all its operations raw materials valued in excess of $1,000,-
000, and for the same period the sales of its finished products also
exceeded $1,000,000.
In this proceeding, we are concerned only with the Company's plant
at Cullman , Alabama, which manufactures ladies undergarments.
Since February 18, 1946, the Cullman plant has maintained a weekly
production rate of approximately 400 dozen miscellaneous undergar-
ments. In addition the Company has completed undergarments which
were in process of being made when a shut-down occurred in November
1945. All raw materials used in the production of these garments were
shipped to the Cullman plant from points outside the State of Ala-
bama, and all the garments produced at the Cullman plant have been
shipped, or are destined to be shipped to points outside the State of
Alabama.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
International Ladies Garment Workers Union is a labor organiza-
tion, affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On November 23, 1945, the Company's personnel manager at its
Cullman, Alabama, plant declined to recognize the Union as the exclu-
sive bargaining representative of its Cullman, Alabama, employees on
the ground that the main office of the Company in Milwaukee, Wis-
consin, handled all such matters.'
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Union represents a substantial number of em-
ployees in the unit hereinafter found appropriate?
'The Company contends that its Cullman, Alabama , personnel manager was not a
"proper representative of the Company " authorized to consider a demand for recognition,
and therefore no such demand has ever been made upon it. This contention is entirely
without merit
2 The Field Examiner reported that the Union submitted 91 authorization cards bearing
the names of 71 employees listed on the Company 's pay roll of December 1, 1945, at which
time there were approximately 110 employees in the appropriate unit. The Field Examiner
further reported that 17 of these 91 cards checked against the Company's March 4 pay
roll which contained the names of 56 employees in the appropriate unit.
The Company objected to the Field Examiner ' s report , dated March 19, on the ground
that the showing of interest of the Union should not be based on cards dated before the
reopening of its plant on February 18, 1946 , nor on a pay -roll check of December 1 or
March 4 , but that the pay roll checked should have been that of the pay roll current at the
time of the Field Examiner 's investigation on March 19 . The contention has no merit.
The Field Examiner 's report adequately indicates that our administrative requirement of
substantial showing has been satisfied.
HOLEPROOF HOSIERY CO. 1399
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
We find, in accord with the agreement of the parties at the hearing,
that all production and maintenance employees at the Company's
Cullman, Alabama, plant, including cutters, folders, sewers, service
girls, repair girls, middle girls, inspectors,' operators, sackers, pressers
and stampers, helpers (in production department), folding instructor,
spreader, janitor, night watchman and fireman, but excluding the in-
structor in the making room, machinists, machinist helper, electrician,
carpenter, material checker, clerical employees, floorladies, foremen,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
The Company contends that an election at the present time would be
inappropriate because it is in the process of expanding its present com-
plement of 90 production and maintenance employees to 250-300.4
The Company commenced operations in Cullman, Alabama, in early
August 1945, but the scarcity of raw materials 5 and the necessity of
major construction repairs of its plant forced a temporary shut-down
on November 28, 1945, at which time it employed approximately 110
production and maintenance workers. The Company reopened the
plant on February 18, 1946, and on March 4, 1946, there were 56 em-
ployees in the appropriate unit. In the 3 weeks between March 4
and March 25, the date of the hearing, the Company had hired 34 addi-
tional employees. While the Company hopes to hire at the rate of
6 employees per day and double its complement within 60 to 90 days, it
does not anticipate attaining a full complement until at least Septem-
ber. Its rate of hiring will depend upon the availability of raw ma-
3 We make no specific disposition of the category of inspecting instructor, whom the
Union would include and the Company exclude . Although no one in this category is
presently in the employ of the Company, the Company anticipates filling this category
when it attains a full complement . This employee n'mittedly will perform no super-
visory functions, but will inspect garments and instruct the inspectors on standards of
quality and detection of imperfections.
4 The Union takes direct issue with this estimate and contends that the plant cannot
operate efficiently with a complement in excess of 150 employees . In view of our
determination herein, the maximum complement capable of absorption by the plant is
immaterial.
5 Occasioned in part by a fire partially destroying a leased building in which the Company
maintained its cutting and storage rooms.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terials and labor, and the speed with which it can set up machinery and
production lines In addition, one-half of the main floor of the plant is
blocked off for purposes of repairs and construction which will not be
completed for at least 60 days.' Until this construction is completed,
the Company will not be in a position to set up any appreciable number
of machines and production lines, because a substantial portion of the
space of the main floor is being utilized for "cutting" and storage, both
of which will be moved to the basement after machinery, now in the
basement, is set up on the main floor. In view of all these circumstances
we are of the opinion that there is not a reasonable likelihood that the
Company will double its complement within the near future. Although
the Company does not now have it full complement, it is producing
completed garments, is performing all the operations involved in such
production, and its present employees represent a fair cross-section of
those who will ultimately be employed.
In the light of all these circumstances, we are of the opinion that an
election at the present time is appropriate. We shall, however, en-
tertain a new representation petition affecting the employees involved
herein within a period less than 1 year, but not sooner than 6 months
from the date of any certification that we may issue in the instant
proceedings, upon proof (1) that the number of employees in the
appropriate unit is more than double the number of employees eligible
to vote in the election hereinafter directed; and (2 ) that the peti-
tioning labor organization represents a substantial number of em-
ployees in the expanded unit .8
The Union requests the Board to depart from its usual practice con-
cerning eligibility and permit employees in the appropriate unit to
vote, who were employed by the Company on November 28, 1945, and
who have not since been rehired. The Company contends that all its
employees were discharged when the plant was shut down and unless
they are now on the pay roll, they lack sufficient interest to be eligible
to vote in the election.
On December 11, 1945, following the shut-down, a letter was sent to
all November 28 employees, reciting that the Company was forced to
stop operations "for an indefinite period of time,"' that there was no
hope of an early resumption of work, and that all employees should
call for their final pay checks." At the time of the shut-down no
seniority list was drawn up, nor was there any agreement that the
6 Since the reopening date, the Company had added only one production line engaging
the services of 16 girls.
' The plant originally was a combination mule barn and potato room requiring major
reconstruction including a new roof, heating facilities , ventilation , offices, rest rooms,
lockers, and the like , in order to become suitable for the Company 's purposes.
8Matter of Aluminum Company of America, 52 N. L . R. B. 1040; Matter of Westing-
house Electric & Manufacturing Co., 38 N. L. R B. 404.
9 Attached to this letter but not introduced into evidence was an Alabama Separation
Notice , apparently required in applying for unemployment compensation.
HOLEPROOF HOSIERY CO. 1401
Company would rehire the employees upon reopening the plant.lo
Although a large proportion of the laid-off employees have been re-
called ,ll the Company's personnel manager testified that the possibility
of the others being recalled is contingent upon their suitability for
particular jobs and other conditions 12 Since reopening its plant, the
Company has hired 15 employees who had not worked for it previously.
The dispute centers around a list of 35 individuals 13 who, the Union
contends, were on the November 28 pay roll and had not been rehired
shortly before the hearing. The record does not indicate that all em-
ployees on that list are within the appropriate unit or are available for
work. At least some on the list have unsuccessfully applied for work
with the Company.
In view of all these circumstances, we are of the opinion that the
employees of November 28, who have not been recalled, do not have
a substantial expectancy of reemployment, and are ineligible to vote
in the election.-' Should, however, any in this group be rehired prior
to the date of election, their previous termination shall be considered
temporary, and they shall be eligible to vote in the electionl6
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the employ-
ees in the appropriate unit who were employed during the pay-roll
period immediately preceding the date of the Direction of Election
herein, 115 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
10 A union representative testified that after the shut -down, the Company ' s personnel
manager and production manager expressed an intention to rehire the employees of the
Company, who were on the November 28 pay roll . No such admission was made by the
Company's witness
"The Company asserts that it bad offered to rehire 85 percent of the group of 110
employees of the Company who worked before the shut-down, and that not all of those
who were recalled accepted the offer.
is The Company contends that a new production manager has installed a new system of
production which eliminates some of the operations in effect at the time of the shut-down.
13 The Company 's personnel manager testified that about 14 of these had been offered
employment after the list was drawn up by the Union . The Union did not contradict this
assertion.
14 Matter of Rockford Metal Products Company, 66 N. L R. B. 538.
16 Matter of The Whitcomb Locomotive Company , 60 N L R. B 1160.
16 In addition to its contention concerning the November 28 employees , the Union argues
that eligibility to vote should be determined as of the pay -roll period immediately pre-
ceeding the hearing, whereas the Company would select a date not more than 10 days
before the election. We see no reason to vary our customary practice of directing an elec-
tion among the employees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Holeproof Hosiery
Co., Milwaukee, Wisconsin, at its Cullman, Alabama, plant, an elec-
tion 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 Tenth
Region, acting in this matter as agent for the National Labor Rela-
tions Board, and subject to Article III, Sections 10 and 11, of said
Rules and Regulations, among employees in the unit found appropri-
ate 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 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 those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, to determine whether or not
they desire to be represented by International Ladies Garment Work-
ers Union, A. F. of L., for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Election.