May, McEwen, Kaiser Co.

National Labor Relations Board - Board DecisionsMar 28, 1946

66 N.L.R.B. 1341 (N.L.R.B. 1946)

In the Matter Of MAY, MCEWEN, KAISER COMPANY-MAY FULL FASI3ION DIVISION and AMERICAN FEDERATION OF HOSIERY WORKERS, C. I. O. Case No. 5-R-21/7.--Decided March 28, 1946 Cooper, Sanders t Holt, by Messrs. Thomas D. Cooper and E. 7'. Sanders , of Burlington , N. C., and Brooks, McLendon , Brim & Ilolderness , by Mr. L. P. McLendon, of Greensboro , N. C., for the Company. Mr. H. G. B. King , of Chattanooga , Tenn ., and Mr . Raymond Adams, of Burlington , N. C., for the Union. Mr. Seymour Cohen, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by American Federation of Hosiery Workers, C. I. 0., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of May, McEwen, Kaiser Company-May Full Fashion Divi- sion, Burlington, North Carolina, herein called the Company, the National Labor Relations Board provided for an appropriate hear- ing upon due notice before Sidney J. Barban, Trial Examiner. The hearing was held at Burlington, North Carolina, on February 1, 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 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 afforded 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 May, McEwen, Kaiser Company is a North Carolina corporation with its principal office in Burlington, North Carolina, and with 66 N. L. R. B., No. 161. 1341 1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sales offices in New York City, Chicago, Illinois, and Los Angeles, California. The Company operates in Burlington, North Carolina, a number of plants engaged in knitting and finishing ladies' rayon and nylon stockings, including its May Full Fashion Division, with which we are here solely concerned. In this Division, the Company annually uses raw materials valued in excess of $250,000, of which at least 15 percent is shipped from points outside the State of North Carolina. Annual production by this Division of finished goods is valued in excess of $250,000, of which at least 50 percent is shipped to points outside the State of North Carolina. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED American Federation of Hosiery Workers is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of the production and main- tenance workers employed in its knitting plant until the Union has been certified by the Board in an appropriate unit. A statement of a Board agent, introduced into evidence at the hearing, indicates that the Union 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 employes of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Union seeks a unit composed of all production and mainte- nance workers employed by the Company in the knitting plant of its May Full Fashion Division, excluding office, clerical, and super- visory personnel, and also excluding watchmen, firemen, machine fixers, and machine shop employees. The Company makes no con- tention as to the scope of the unit, but desires the Board to consider the appropriateness of a unit composed of the production and main- tenance employees of both the knitting and finishing plants, which together make up the Company's May Full Fashion Division. Should i The Field Examiner reported that the Union submitted 180 authorization cards. There are approximately 464 employees in the unit petitioned for. MAY, McEWEN , KAISER COMPANY 1343 the Board , however, find that the employees of the knitting plant alone constitute an appropriate unit, the Company would agree to its composition as sought by the Union except that it would include the watchmen , firemen , and a utility worker whom the Union con- siders a clerical employee.2 The Company's May Full Fashion Division is composed of a knitting plant and a finishing plant. The plants are housed in two separate buildings located across the street from each other. In the knitting plant , raw materials consisting of rayons, cottons, and nylon are processed through various operations such as knitting, looping, seaming and inspecting, to be made into stockings. The stockings are then carted over to the finishing plant where they are dyed, packed, and shipped. But the finishing plant finishes stockings for other knitting plants operated by the Company and for so-called "commission" knitting mills. The knitting plant of the May Full Fashion Division provides only about 25 percent of the goods handled by the finishing plant. Laced stockings, which are originally made in the finishing plant, are carried over to the knitting plant for in- specting and mending and are then taken back to the finishing plant. Stockings sent in by other knitting plants for finishing are also fre- quently brought to the knitting plant here concerned to be put through a steam process called the Dunn System, and are then returned to the finishing plant. We deem it significant , however, that there is no interchange of employees between the knitting plant and the finishing plant, and each plant has its own supervisory staff. Moreover, separate produc- tion and cost accounting records are kept for the two plants, and separate pay rolls are kept for each department in each plant. We also note that average earnings of employees in the knitting plant are higher than those in the finishing plant because of the generally higher skills required . Seniority, furthermore, is on a departmental basis. The record indicates that the Union's organizing activities were at first directed to both the knitting and finishing plants. While these efforts met with some success in the knitting plant, the Union was completely unsuccessful insofar as the finishing plant is con- cerned .8 It has presently abandoned its organizing efforts in the finishing plant. â€¢ The Company acquiesces in the Union's contention that the machine fixers be excluded from the unit , admitting that there is no distinction between the fixers here involved and those excluded by the Board in Matter of Tower Hosier] Mills, Inc , 64 N L R. B. 1245 The Company also agrees to the exclusion of the machine shop employees in the event the Board establishes a knitting plant unit, inasmuch as these employees are on the finishing plant's pay roll and under the supervision of that plant's superintendent â€¢ The Union, throughout 3 months of organizing activity, was unable to obtain any members from among the employees of the finishing plant or to interest any of them in attending union meetings 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing facts, and in the absence of a history of collective bargaining among the employees of the May Full Fashion Division, we believe the employees of the Company's knitting plant alone may comprise a unit suitable for the purposes of collective bargaining. We perceive no valid reason why these employees should be denied the right to bargain collectively merely because the em- ployees of the finishing plant apparently do not desire a collective bargaining representative at this time. There remains for consideration disposition of the watchmen, fire- men, and utility worker. Watchmen: The Company employs two watchmen who are neither deputized nor armed. They guard both plants at night and during the day when the plants are not operating. Although they spend about 60 percent of their time in the knitting plant, they are carried on the finishing plant pay roll and are under the supervision of the superintendent of the finishing plant. We shall, therefore, exclude them. Firemen : The Company employs three firemen who work in the boiler room. This boiler room is located in the knitting plant build- ing but serves both plants. The firemen are carried on the finishing plant pay roll and are directly under the supervision of the finishing plant superintendent, although the knitting plant superintendent may give them instructions as to the temperature to be maintained in the knitting plant. We shall also exclude them. Utility worker: The Company employs one utility worker. She spends about 20 percent of her time in the office of the superintendent of the knitting plant, which is apart from the general clerical office. There she tabulates production figures for piece-rate workers and time slips for hourly workers. The remainder of her time she spends in the stockroom where she receives and checks in stockings and allocates them to various bins. She is on the knitting plant pay roll as an hourly-paid worker, and is under the immediate supervision of the knitting plant's day production foreman. Although the Union con- tends that she should be excluded as a clerical office worker who is close to management, the record shows that she performs no work in the superintendent's office of a secretarial or confidential nature Consequently, we shall include her.' Accordingly, we find that all production and maintenance workers employed by the Company in the knitting plant of its May Full Fashion Division, including the utility worker. but excluding watch- men, firemen, machine fixers, machine shop employees, office clerical employees, and all supervisory employees with authority to hire, pro- ' See Matter of Hudson Knittinq Mills . Inc , 56 N L R. $ 1250: Rev also Matter of Richmond Hosiery Mills, 62 N. L. R. 13 1481. 5 See Matter of The General Pireprooflnq Company, 58 N. L R 13 1609. MAY, McEWEN, KAISER COMPANY 1345 mote, 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 bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES The Company requests that those employees in the appropriate unit who are now in the armed forces of the United States be allowed to participate in the election by mail ballots, if necessary .6 The Union does not object to such use of mail ballots. We are of the opinion that the facts in the case do not substantially differ from those in Matter of South West Pennsylvania Pipe Lines .7 Accord- ingly, we shall provide for the mail balloting of employees in the armed forces who fall within the appropriate unit, subject to the conditions hereinafter mentioned. We shall direct that the question concerning representation be re- solved by an election by secret ballot among employees in the appro- priate unit who were employed during the pay-roll period immedi- ately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. The Regional Director shall mail ballots to employees within the appro- priate unit on military leave, provided one or more of the parties hereto, within seven (7) days after receipt of the Direction of Elec- tion, files with the Regional Director a list containing the names, most recent addresses, and work classifications of such employees. The Regional Director shall open and count the ballots cast by mail by employees on military leave, provided that such ballots must be re- turned to and received by the Regional Office within thirty (30) days from the date they were mailed to such employees by the Regional Di rector.8 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- "There are 21 knitting plant emplo }ees in the armed forces 7 64 N. L. R. B. 1384. 8 A free interchange between the interested pas ties of information on the addresses and work categories of the employees to be voted by mail will be necessary , in order to avoid challenges and post -election objections . Accordingly, the Board will make available to all interested parties any information of this nature furnished It by any other party In the event that the parties should send the absentee voters information or literature bearing directly or indirectly on the pending election, copies of all such documents should he simultaneously filed with the Regional Office for inspection by or transmittal to the other parties . However , acceptance of transmittal of such literature by the Board's office is not to be construed as conferring immunity on tie filing pal t^ in the event that objcc bons are later interposed concerning it, content The usual principles will apply 686572-46-86 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 May, McEwen, Kaiser Company-May Full Fashion Division, Burlington, North Carolina, an election by secret ballot shall be conducted as early as possible, but not later than forty-five (45) days from the date of this Direction, under the direction and supervision of the Regional Director for the Fifth 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 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 vacation or temporarily laid off, and including employees in the armed forces of the United States, but excluding those employees who may have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by American Federation of Hosiery Workers. C. I. 0., for the purposes of collective bargaining. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Election.