Merrimack Manufactoring Co.

National Labor Relations Board - Board Decisions

Oct 12, 1938

9 N.L.R.B. 173 (N.L.R.B. 1938)

In the Matter of MERRIMACK MANUFACTURING COMPANY and AMER-
ICAN FEDERATION OF LABOR
In the Matter of MERRIMACK MANUFACTURING COMPANY and TEXTILE
WORKERS ORGANIZING COMMITTEE
Oases Nos. R-1036 and R-1037, respectively.Decided October 10,
1938
Cotton Textile I'ndaustry-Investugat,oa of Representatives : controversy con-
cerning representation of employees : controversy concerning appropriate unit-
Employee Status: during temporary lay-off-Unit Appropriate for Collective
Bargaining : all production and maintenance employees , second hands, and
watchmen , excluding supervisory employees other than second hands-Election
Ordered-Certification of Re present atvves.
Mr. Berdon M. Bell, for the Board.
Mr. Borden Burr, of Birmingham, Ala.,-for the Company.
Mr. Sam E. Roper, of Birmingham, Ala., for the A. F. of L.
Mr. H. G. B. King, of Chattanooga, Tenn., for the T. W. O. C.
Miss Carolyn E. Aqqer, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 15, 1938, the American Federation of Labor acting in
behalf of its affiliate, Federal Local Union No. 20656, herein called
the A. F. of L., and on August 18, 1938, the Textile Workers Organ-
izing Committee, herein called the T. W. O. C., filed with the Re-
gional Director for the Tenth Region (Atlanta, Georgia) separate
petitions, each alleging that a question affecting commerce had arisen
concerning the representation of employees of Merrimack Manufac-
turing Company, Huntsville, Alabama, herein called the Company,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On September 2, 1938, 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 1, as amended,
9 N. L. R. B., No. 27
173
174 NATIONAL LABOR RELATION S BOARD
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice,
and, acting pursuant to Article III, Section 10 (c) (2), of said Rules
and Regulations, further ordered that the cases be consolidated for
the purposes of hearing.
On September 12, 1938, the Regional Director issued a notice of
hearing, copies of which were duly served upon the Company, the
A. F. of L., and the T. W. O. C. Pursuant to the notice, a hearing
was held on September 26 and 27, 1938, at Huntsville, Alabama, be-
fore L. Richard Insirilo, the Trial Examiner duly designated by the-
Board. The Board, the A. F. of L. and the T. W. O. C. NN ,ere repre-
sented by counsel and participated in the hearing. At the beginning
of the hearing, the Company appeared specially by counsel to con-
test the jurisdiction of the Board. It thereafter participated further
in the hearing after counsel for the Board stated that by such par-
ticipation the Company would not waive rights reserved by the .
special appearance. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues 'was afforded all parties.
At the hearing, the Company raised objection to the jurisdiction of
the Board. In support of the objection, the Company stated that
it had not operated its Huntsville mills since December 18, 1937;
that it might not operate such mills in the future; that it was not
engaged in interstate commerce or in any commerce; that there was
no reason for any collective bargaining between the Company and
its former employees; and that any action taken with respect to the
petitions would be premature and deprive the Company of its con-
stitutional rights. We find the objection to be without merit. Sec-
tion 9 (c) of the Act vests jurisdiction in the Board "whenever a
question affecting commerce. arises concerning the representation of
employees." The evidence discloses that' such a question has arisen
in the instant case. Shortly after the Company closed down its
mills, it continued negotiations previously undertaken with repre-
sentatives of persons who had worked in the mills and such negotia-
tions clearly showed that the Company expected to resume its opera-
tions. This indicates that at the time the Company closed its mills
it intended to reopen them at a future date and that it considered
the persons working for the Company at the time the mills were
closed down as persons temporarily laid off rather than as discharged.
Accordingly, these persons retained their status as employees. This
status is not affected by a possibility that the mills may not be
reopened. That a question has arisen concerning the representation
of these employees is clearly shown by the facts set forth in Section
III below. Furthermore, this question is one affecting commerce.
DECISIONS AND ORDERS 175
:Section 2 (7) of the Act states that the term "affecting commerce"
means "in commerce, or burdening or obstructing commerce or the
free flow of commerce, or having led or tending to lead to a labor
-dispute burdening or obstructing commerce or the free flow of com-
merce." As pointed out in Section I below, the Company has for
some time engaged in commerce among the several States. Although
the Company closed down its mills on December 18, 1937, it concedes
that the mills may be reopened. Under such circumstances, the,ques-,
tion' concerning representation which has arisen undoubtedly is one
"tending to lead to a labor dispute burdening or obstructing com-
merce or the free flow of commerce."
During the course of the hearing, the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the 't'rial Examiner
and finds that no prejudicial errors were made. The rulings are hereby
affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TILE BUSINESS OF THE COMPANY
The-Company was incorporated under the laws of the State of
Massachusetts in 1822 and is licensed to do business in Alabama. It
is engaged in the manufacture and sale of cotton cloth. The Com-
pany's principal office is located in Boston, Massachusetts, and it owns
mills in Lowell, Massachusetts, and Huntsville, Alabama. Only the
Huntsville mills are here involved.
The'principal raw material used by the Company in the Huntsville
mills when they are in operation is cotton. The cotton is purchased
by the Boston office of the Company through brokers, some of whom
have Boston representatives from-whom the purchases are made. A
large percentage of the cotton comes from Alabama, although some
of it is sent into Alabama from Tennessee and Texas. Ninety per cent
of the machinery employed in the Huntsville mills is obtained from
outside the State of Alabama.
During the year 1937 the Company produced at its Huntsville mills
about eight million pounds of cloth of which approximately 90 per
cent were shipped out of the State of Alabama. The sale of the
finished product was handled by the Company's Boston office.
On December 18, 1937, the Company closed down its Huntsville
mills and they had not been reopened at the time of the hearing.
Subsequent to December 18, 1937, the Company sold 158,000 pounds
of cloth produced at the Huntsville mills, such cloth representing
stock on hand at the time the mills were closed.
176 NATIONAL LABOR RELATIONS BO.AItll
II. THE ORGANIZATIONS INVOLVED
Federal Local Union No. 20656 is a labor organization affiliated with
the American Federation of Labor, admitting to its membership all
employees of the Company engaged in production and maintenance
work in the mills and excluding supervisory employees who have
authority to hire and discharge.
The Textile Workers Organizing Committee is a labor organiza-
tion affiliated with the Committee for Industrial Organization. It
admits to its membership all employees of the Company engaged in
production and maintenance work in' the mills and excludes super-
visory employees who have authority to hire and discharge.
III. THE QUESTION CONCERNING REPRESENTATION
In June 1937, the A. F. of L. and the T. W. O. C. each requested
the Company to bargain with it and were informed that the Com-
pany was willing to bargain collectively with any union which the
Board might certify as bargaining representative of. the employees.
Thereafter, on July 29, 1937, an informal consent election was held-
under the supervision of the Regional Director of the Board for the-
Tenth Region. The T. W. O. C. received a large majority of the
ballots cast in the election. The Company and the T. W. O. C. there-
upon entered into negotiations which were still being conducted at
the time the Company closed its mills on December 18, 1937. The
negotiations continued for a time thereafter and a tentative agreement
was reached. However, in June 1938 , the Company informed the
T. W. O. C. that the A. F. of L. also claimed to represent a majority
of the employees. The Company subsequently informed the Regional
Director that it was willing to negotiate with any organization which
the Board might certify.
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
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE APPROPRIATE UNIT
The A. F. of L. and the T. W. O. C. contend that the appropriate
unit consists of all the production and maintenance employees of the
DECISIONS AND ORDERS 177
Company, including watchmen and second hands, but excluding
supervisory employees. The Company states that the second hands
are supervisory employees and contends that such employees and the
watchmen should be excluded from the unit.
The parties stipulated that the second hands have no power to
hire or discharge employees; have authority to give orders and expect
them to be obeyed; may recommend that employees be discharged;
and have the duty of instructing apprentices and -learners. The
second hands' duties were stated by one witness to consist of carrying
out "orders given him by the-overseer, placing the workers, and seeing
that the work is done.
The parties agreed that the watchmen watch for fires, prevent
persons from being improperly on the premises and from committing
unlawful acts, make regular rounds to check up on these matters,
and at times fire the boilers and switch the electric current off and on.
The watchmen receive approximately the same rate of pay as the
production and maintenance employees.
Although the second hands apparently perform some supervisory
functions, we are of the opinion that such employees and also the
watchmen may appropriately be included in the same unit with the
general production and maintenance employees, where, as in the
instant case, the only labor organizations involved relative to the
bargaining unit desire that they be included in such unit. We shall,
therefore, include the second hands and watchmen within the unit.
We find that all the production and maintenance employees, second
hands, and watchmen, but excluding supervisory employees other
than second hands, constitute a unit appropriate for the purposes of
collective bargaining and 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
At the hearing the T. W. 0. C. introduced cards signed by 957
employees designating it as their bargaining representative and the
A. F. of L. introduced designation cards signed by 553 employees. A
majority of the A. F. of L. cards were signed between May 1 and
June 15, 1938; the T. W. 0. C. cards were signed between June 15
and September 1938. The cards of both organizations were subse-
quently withdrawn and lists of names made up from the cards were
substituted. The T. W. 0. C. and the A. F. of L. agreed, the Com-
pany not objecting, that the pay roll of December 18, 1937 (the last
pay roll of the Company prior to the date on which it closed down
its mills), was a fair representation of employment in the mills and
that the cards submitted by them "reflect names of employees who.
178 NATIONAL LABOR RELATIONS BOARD
are-on the pay-roll list of December 18, 1937." - Since this pay roll
contains 1,226 names , it is apparent that there is substantial duplica-
tion between the cards of the two organizations and that in any event
neither organization has on the basis of unduplicated cards presented
evidence of designation by more than a narrow maj ority . of the. em-
ployees of the Company . In the circumstances of this case, we find
that the question which has arisen concerning the representation of
employees of the Company can best be resolved by the holding of an
election by secret ballot.
Those persons within the appropriate unit who were employed by
the Company during the pay-roll period ending December 18, 1937,
shall be eligible to vote in the election . Both labor organizations
agreed that such pay-roll period was a representative one for the
purposes of any election which the Board might direct. The Com-
pany raised no objection to determination of eligibility to vote upon
the basis of such pay -roll period.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS or LAW
1. A question affecting commerce has arisen concerning the rep-
resentation of employees of Merrimack Manufacturing Company,
Huntsville, Alabama, within the meaning of Section 9 (c) and Sec-
tion 2 (6) and (7) of the National Labor Relations Act.
2. All the production and maintenance employees, second hands,
and watchmen, of Merrimack Manufacturing Company, excluding
supervisory employees other than second hands , constitute a -unit
appropriate for the purposes ' of collective bargaining within the
meaning of Section 9 (b) of the National Labor Relations 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 Rela-
tions Act, 49 Stat. 449, and pursuant to' Article - III, Section 8; of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as a part of the investigation authorized by
the Board to ascertain representatives for the purposes of col-
lective bargaining With Merrimack Manufacturing Company, Hunts-
ville,- Alabama, an election by secret ballot shall be conducted
within fifteen (15) 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-
DECISIONS AND ORDERS 179
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all the production and maintenance employees,
second hands, and watchmen, who were employed by Merrimack
Manufacturing Company, Huntsville, Alabama, during the pay-roll
period ending December 18, 1937, excluding supervisory employees
other than second hands, to determine whether they desire to be
represented by Textile Workers Organizing Committee, affiliated
with the Committee for Industrial Organization, or by Federal Local
Union No. 20656, affiliated with the American Federation of Labor,
for the purposes of collective bargaining, or by neither.
MR. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Decision and Direction of Election.
[SAME TITLE
CERTIFICATION OF REPRESENTATIVES
November 10, 1938
On October 12, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceedings. The Direction of Election provided that
an election by secret ballot be held among the production and main-
tenance employees, second hands, and watchmen, who were employed
by Merrimack Manufacturing Company, Huntsville, Alabama, dur-
ing the pay-roll period ending December 18, 1937, excluding super-
visory employees other than second hands, to determine whether they
desired to be represented by the Textile Workers Organizing Com-
mittee, affiliated with the Committee for Industrial Organization, or
by Federal Local. Union No. 20656, affiliated with the American Fed-
eration of Labor, for the purpose of collective bargaining, or by
neither.
Pursuant to the Direction of Election, an election by secret ballot
was conducted under the direction and supervision of Charles N.
Feidelson, the Regional Director for the Tenth Region (Atlanta,
Georgia) on October 24, 1938. Full opportunity was accorded to
all the parties to this investigation to participate in the conduct of
the secret ballot and to make challenges.
On October 27, 1938, the Regional Director, acting pursuant to
Article III, Section 9, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, issued and duly served upon the
parties an Intermediate Report on the results and conduct of the
election. No exceptions or objections to the Intermediate Report
have been filed by any of the parties.
134068-39-vol ix-13
180 NATIONAL LABOR RELATIONS BOARD
As to the balloting and its results, the Regional Director reported
as follows :
Number eligible------------------------------------------ 1,212
Total ballots cast--------------------------------------- 1,078
Total number of ballots cast for Textile Workers Organizing
Committee--------------------------------------------- 670
Total number of ballots cast for Federal Local Union No.
20656-------------------------------------------------- 400
Total number of ballots cast for neither-------------------- 6
Total number of challenged ballots------------------------ 2
Total number of void ballots------------------------------ 0
Total number of blank ballots----------------------------- 0
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, 49 Stat. 449, and pursuant to Article III, Sections 8 and 9,
of National Labor Relations Board Rules and Regulations-Series 1,
as amended,
IT IS HEREBY CERTIFIED that Textile Workers Organizing Commit-
tee, affiliated with the Committee for Industrial Organization, has
been selected by a majority of the production and maintenance em-
ployees, second hands, and watchmen of Merrimack Manufacturing
Company, Huntsville, Alabama, excluding supervisory employees
other than second hands, as their representative for the purposes of
collective bargaining, and that, pursuant to Section 9 (a) of the Act,
Textile Workers Organizing Committee, affiliated with the Commit-
tee for Industrial Organization, is the exclusive representative of all
such employees for the purposes of collective bargaining in respect
rates of pay, wages, hours of employment, and other conditions
of employment.
Mr. DONALD WAKEFIELD SMITH took no part in the consideration
of the above Certification of Representatives.
9 N. L. R . B., No. 27a.