Rosedale Knitting Co.

National Labor Relations Board - Board Decisions

Feb 10, 1940

20 N.L.R.B. 326 (N.L.R.B. 1940)

In the Matter of ROSEDALE KNITTING COMPANY and RosEDALE
EMPLOYEES ASSOCIATION and AMERICAN FEDERATION OF HOSIERY
WORKERS, PARTY TO THE CONTRACT
Case No. C-1401.-Decided February 10, 1940
Hosiery Manufacturing Industry-Interference , Restraint, and Coercion:
charges of , dismissed-Discrimination :' charges of not sustained ; preferential
contract and practices thereunder covered by proviso to Section 8 (3)-Com,
plaint : dismissed.
Mr. Geoffrey J. Conniff and Mr. Joseph F. Castiello, for the
Board. - -
Mr. Harry W. Lee and Mr. John B. Stevens, of Reading, Pa., for the
respondent.
Mr. Isadore Katz, of Philadelphia, Pa.,- for the - Federation. - - .
Mr. William M. Rutter, of Reading, Pa., for the Association.
Mr...Ray Johnson, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Rosedale Em-
ployees Association, herein called the Association, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Fourth Region (Philadelphia, Pennsylvania), issued its com-
plaint on September 21, 1939, against Rosedale Knitting Company,
Laureldale, Pennsylvania, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (3) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint and
notice of hearing thereon were duly served upon the respondent, the
Association, and American Federation of Hosiery Workers, party to
the contract, herein called the Federation.
In respect to the unfair labor practices, the complaint alleged in
substance (1) that on August 26, 1938, the respondent entered into
a written contract with the Federation under the terms of which
a preference was. afforded to members of the Federation in regard
20 N. L. R. B., No. 34.
-326
ROSEDALE KNITTING COMPANY 327
to the hire, tenure, terms, and conditions of employment; (2) that
at the time said contract was executed the Federation did not repre-
sent a majority of the respondent's employees in an appropriate
unit within the meaning of Section 9 (a) of the Act; (3) that the
respondent by observing and performing the terms of said contract
discriminated with respect to the hire, tenure, terms, and conditions
of 'employment of its'-employees, thereby encouraging membership
in the Federation and discouraging membership in the Association ;
and (4 ) that by the foregoing and by other acts the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. On September 29,
1939, the respondent filed an answer admitting that it had entered
into the contract of August 26, 1938, with the Federation, denying
any knowledge of whether the Federation represented a majority
of its employees in an appropriate unit at the time the contract was
executed, admitting that it had discriminated and was discriminating
in favor of members of the Federation in respect to the hire, tenure,
terms,; and - conditions,. of .employment, but denying that such dis-
crimina tian- constituted: a,viblation,of the Act.
Pursuant to notice, a hearing was held at Reading, Pennsylvania,
on October 2 and 3, 1939, before A. Bruce Hunt, the Trial Examiner
duly designated by the Board. At the beginning of the hearing,
the Federation filed an answer to the complaint denying the allega-
tions that it did not represent a majority of the respondent's em-
ployees in an appropriate unit at the time the contract was executed,
and that the respondent's discrimination in favor of members of
the Federation in respect to the hire, tenure, terms, and conditions
of employment constituted an unfair labor practice. All parties
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made several
rulings on motions and on objections to. the admission of evidence.
The Board'has reviewed the rulings of the Trial Examiner and finds
that no'prejudicial errors-were'c'ommitted. The rulings are hereby
affirmed.
On October 31, 1939, the Trial Examiner filed an Intermediate
Report , copies of which were duly served upon all parties. He found
that the Federation represented a majority of the respondent's em-
ployees in an appropriate unit at the time the contract was executed,
that the contract was valid within the meaning of the proviso of
Section 8 . (3) of the Act, and that consequently the respondent had
not engaged in unfair labor practices. He accordingly recommended
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the complaint be dismissed . On November 21, 1939, the Asso-
ciation filed exceptions to the Intermediate Report and on November
30,and December 1, 1939, respectively , the Association and the Fed-
eration filed briefs which have been considered by the Board.
Pursuant to notice duly served upon - all parties , a hearing -was held
before the Board in Washington , D. C., on December 21, 1939, for
the purpose of oral argument. The Federation , and the Association
were represented by counsel and participated in the argument. The
respondent did not appear . The Board has considered the exceptions
to the Intermediate Report and , except as consistent with the findings
of fact, conclusions of law, and order hereinafter set forth , finds them
to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Rosedale Knitting Company , a ^Pennsylvan-ia coy+pox•atiou, . rnii}it, in
ing its principal plant and place of business at Laureldale , Pennsyl-
vania, is engaged in the manufacture , sale, and distribution of silk
and rayon full-fashioned hosiery. The principal raw materials used
by the respondent are silk, cotton , dyestuffs , rayon, boxes, cello-
phane, paper, and glue. During the year 1938 the respondent used
raw materials valued at $1,994,547, approximately 90 per cent of
which were shipped to tlie. respondent from points outside , the, Com-
monwealth of Pennsylvania.
During the year 1938 the respondent manufactured 899,695 dozen
pairs of stockings , valued at $4 ,591,423, approximately 90 per
cent of which were shipped to points outside the Commonwealth of
Pennsylvania.
It. THE ORGANIZATIONS INVOLVED
Rosedale Employees Association is an unaffiliated labor organiza-
tion admitting to its meml_erahip all production , employees of the
respondent, excluding office employees , clerical employees , managers,
executives , supervisory employees , maintenance employees , watchmen;
and laborers.
American Federation of Hosiery Workers is a labor - organization
affiliated with Textile Workers Union of America and with the Con-
gress of Industrial Organizations . It admits to its membership all
production employees of the respondent, excluding office employees,
clerical employees , managers , executives , supervisory employees,
maintenance employees , watchmen , and laborers.
ROSEDALE :KNITTING COMPANY
111. THE ALLEGED UNFAIR LABOR PRACTICES
329
On August -26, 1938, the respondent and the Federation entered
into a contract recognizing the Federation as the "sole collective bar-
gaining agency on behalf, of its members" and according to members
of the Federation certain preferences in regard to conditions of
e hp'ibymeut'
During the course of the hearing, the respondent stipulated that :
. since the execution of the contract on August 26, 1938,
it has on certain occasions refused to permit certain of its
employees the right to work on particular knitting machines
unless such employees became members of the American Feder-
ation , of Hosiery Workers.
... since the execution of this agreement on August 26, 1938,
it told certain of its employees who had been laid off in the
year 1937 that such employees could not work at the plant unless
they became members of the American Federation of Hosiery
Workers and . . . upon returning to work became members of
the American Federation of Hosiery Workers.
It is apparent from the record that the respondent thus granted
preferences to members of the Federation by observing and perform-
ing the terms and conditions of the above-described contract.
We have repeatedly, held that the requirement of membership in a
particular labor organization as a condition of employment consti-
tutes an unfair labor practice, within the meaning of Section 8 (1)
and (3) of the Act,2.unless the imposition and enforcement of the
I The pertinent paragraphs of :this contract are as follows :
It is hereby further agreed that all those employees who now are. and those em-
ployees who hereafter shall become , members of the Union [ Federation ], shall remain
members of the Union in good standing during the term of this agreement or any
renewal thereof , as a condition of continued employment by the Employer. . . .
The Employer 'agrees that such jobs or operations which now are, oe hereafter shall
be; oper;itedby.Union [ Federatioaa ],members,shall.remain Union jobs and shall at all
times during the term of this agreement, or any renewal ' thereof , be operated by
members of the Union in good standing... .
It is further agreed that as soon after the execution of this agreement as two-
thirds of the employees in any of the below named departments shall become meun-
bers of the Union [Federation ] that the Employer will employ in such department
none but members of the Union _ in good standing.. The departments shall be : a. The
knitting and knitting helpers department . b. The looping , seaming and greige examin-
iu9 department . c. The mending department . d. The topping department. e. The
finishing department . f. The boarders and boarders helpers department. g. The
winding department. . . .
The Employer agrees that in the employment of new help in the departments as set
forth in paragraph 5 [preceding paragraph ]. it will prefer members of the Union
[Federation ]. . . . Persons who have performed some work for the Employer since
January 1 , 193S, shall not be considered new help.
In the event that it ia'necessary ' to hire new - employees; the Union [ Federation] shall
furnish , ithin forty-eight hours from the time of the request a list of competent per-
sons available , from which the Employer shall have the right to select such persons
as it needs.
' See Matter of 11'illiarns Coal Company and United Mine Workers of America, District
No. 23. 11 N. L. R. B, .579, and cases therein cited.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
condition are excused by the proviso clause of Section 8 (3).3
Accordingly the relevant inquiry is whether the respondent., in carry-
ing out the terms and conditions of the contract with the Federation,
proceeded within the framework of immunity afforded by this
proviso clause.
The proviso of Section 8 (3) of the Act provides that :
nothing in this Act . . . shall "preclude an oinployer4rom
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as an
unfair labor practice) to require as a condition of employment
membership therein, if such labor organization is the represent-
ative of the employees as provided in Section 9 (a), in the
appropriate collective bargaining unit covered by such agreement
when made.
Section 9 (a) provides that:
Representatives designated or selected for the purposes of col-
lective bargaining by the majority of the employees in a unit
appropriate for such purposes, shall be the exclusive representa-
tive of all the employees in such unit for the purposes of col-
lective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
No contention is made that the Federation was established, main-
tained, or assisted by any action of the respondent defined in the Act
as or constituting thereunder an unfair labor practice. At the hear-
ing the parties stipulated, and we find, that on August 26, 1938, and
at all times material herein, all production employees of the-respond-
ent, excluding office employees, clerical employees, managers, execu-
tives, supervisory employees, maintenance employees, watchmen, and
laborers, constituted an appropriate bargaining unit within the mean-
ing of Section 9 (a) of the Act. The contract of August 26, 1938,
covered all the respondent's employees within the appropriate. col-
lective bargaining unit. The only issue in controversy, therefore, is
whether the Federation represented a majority of the employees in
the appropriate unit on August 26, 1938, the date on which the
contract was executed.' We advert to a consideration of the evidence
on this issue.
Matter of Ansley Radio Corporation and Local 1221 United Electrical & Radio Workers
of America, C. I. 0.; Matter of Ansley Radio Corporation and United Electrical & Radio
Workers of Anterica , 18 N. L . It. B. 1028 ; Matter of M. & J . Tracy, Inc. and Inland Boat-
onen's Union, 12 N. L . It. B. 916; Matter of United Fruit Company and International
Longshoremen and Warehousemen's Union, District #3, Local #901, affiliated with O. I. O.,
1.2 N. L. It. B. 404.
' We do not decide whether the provisions of the contract , the observance of which by
the respondent resulted in the acts of discrimination stipulated above , are provisions
requiring "as a condition of employment " membership in the Federation . The only issue
litigated by the parties was whether the Federation represented a majority of the re-
RO,EDALE KNITTING COMPANY 331
In August 1933, a strike was called at the respondent's plant and.
settled in the same month by an election conducted under the auspices
of the old National Labor Board. In that election, by a. vote of 1798
to 598, the employees selected the Federation as their collective bar-
gaining representative. Shortly thereafter the respondent and the
Federation entered into an agreement governing wages, hours, and
working conditions in the respondent's plant. Presumably this con-
tract covered only members of the Federation and, as described below,
represented the first stage of a history of collective bargaining by
the Federation to August 1938. The organizational and collective
bargaining history of the Association is not disclosed in the record.
There is no showing that it participated in the consent election of
August 1933, and, except for a contract which it negotiated with the
respondent several years prior to 1938, the terms of which are not in
evidence, the Association made no claim to represent employees of the
respondent until June 1938, when it filed with the Board a petition
for an investigation and certification of representatives.
In.March 1937 the Federation conducted another.strike among. the
respondent's employees which effected a shut-down of the respondent's
plant. On March 25, 1937,'in settlement of the strike, the Federation
and the respondent concluded an agreement recognizing the Federa-
tion as the exclusive representative of its members and granting to
members of the Federation a preference in regard to hire. The pref-
erential clause of this contract provides that, "In the employment of
new help the Employer agrees to prefer members of the Union, pro-
vided that all things are equal in the opinion of the Employer, of
which-, it shall be the sole judge." This contract was ratified by
unanimous vote of some 2000 of the respondent's employees who
attended a mass meeting called by the Federation.
The contract of March 25, 1937, was to be effective until July 1, 1938,
and automatically renewable thereafter unless notice was given by
either party of an intention to terminate. Prior to July 1, 1938, one
of the parties gave notice of an intention to terminate the contract.
Upon the expiration'of the contract, the respondent and the Federation
immediately commenced negotiations which culminated in the con-
tract of August 26, 1938. Several months thereafter the Association
requested bargaining recognition from the respondent and on No-
vember 26, 1938, after having withdrawn the petition filed in June
spondent 's employees in the appropriate unit on August 26, 1938. That the provisions
of the contract were otherwise covered by the terms of the proviso of Section 8 (3) of
the Act was assumed by counsel for the Board and the parties . Cf. Matter of Ansley Radio
Corporation and Local 1221 United Electrical & Radio Workers of America , C. I. 0.; Matter
of Ansley Radio Corporation and United Electrical & Radio Workers of A+nerica , 18 N. L.
R. B. 1028; Matter of Williams Coal Company and United Mine Workers of America, District
No. 23, 11 N. L. R. B. 579 , 614-615.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
193S, filed another petition with the Board for an investigation and
certification of representatives.'
The parties stipulated that on August 26, 1938, there were 2383
employees in the appropriate unit. Pursuant to a subpoena cruces
teourm, the Federation produced at the hearing the card index file it
maintains for members who are employees of the respondent. Ac-
cording to the testimony of the secretary and treasurer of the Federa-
tion, the cards indicated membership by dates when applic'atioiis,for.
membership were received. The Federation refused to permit the
introduction of the cards in evidence and refused to permit counsel for
the Association to examine them. Without objection by any of the
parties, however, counsel for the Board was permitted to examine the
cards and to announce the result of his examination. He reported
that according to the cards the Federation had it membership of 1573
of the respondent's employees: that 1345 had joined in 1933 and the
balance from 1933 to August 1938.
During the hearing counsel for the Association offered in evidence
as exhibits a letter dated December 20, 1938, from the Regional Di-
rector together with an analysis of Association membership cards
which had -been, submitted to the Regional Director in support of-the
Association's petition for an investigation and certification of repre-
sentatives. The Regional Director therein advised the Association
that the analysis did not warrant a formal investigation of representa=
tives and suggested that the Association procure additional proof of
representation as of that date. The analysis of the Regional Director
showed that of some 1198 signed cards submitted, an overwhelming
majority were signed prior to 1935 and almost half in 1933 aiid'1934.
The Trial Examiner rejected these exhibits and we affirm his ruling.
As explained below, his ruling did.not constitute prejudicial' error.
Although the Association alleged -in its brief that it has available
further evidence of membership;-.it made no effort to introduce such
evidence at the hearing.
In protesting the, Trial. Exainiuer's.:rejection-of the,Regiona.l.,Di-
rector's analysis of its membership cards, the Association contends
that the membership cards of the Federation described above, for the
most part, similarly show dates of membership applications for a
majority of the employees as far back as 1933. Under the circum-
stances, however, we find no merit in this contention. It is undisputed
that the Federation represented a majority of the employees in 1933,
and in the light of subsequent events, there is evidence that such
majority representation continued. The strike called by the Federa-
tion in 1937 was supported by the-employees in sufficient numbersr-to,
require a complete cessation of production operations. The preferen-
5 This petition is now pending before the Board.
ROSEDALE KNITTING COMPANY 333
tial hiring contract obtained by the Federation from the respondent
in 1937 was ratified by an overwhelming majority of the employees.
It is therefore apparent that as late as 1937 over a majority of the
respondent's employees desired to be represented for purposes of col-
lective bargaining :by the Federation, regardless of the number of
employees who were at that time members of the Federation., There
is-no evidence that the Federation's strength was less in 1938 when the
contract was in effect revised, than it was in 1'937. o
While the analysis by Board counsel of the membership records of
the Federation would not, standing alone, prove that the Federation
represented a majority of the employees in 1938, it nevertheless tends
to support the more convincing proof, alluded to above, of the con-
tinuing status of the Federation as the representative of a majority
of the employees. The analysis of membership cards of the Associa-
tion, under the circumstances, neither shows that the Association rep-
resented a majority of the respondent's employees on August 26, 1938,
nor controverts the evidence of majority representation as of that date
as shown by the Federation.' Other evidence of the Association's
activity in the plant and its collective bargaining history with the
respondent is too tenuous either to support the membership claim of
the Association or to cast doubt upon the status of the Federation s
On the basis of all the evidence we find that the Federation repre-
sented a majoriy of the respondent's employees in the appropriate
unit on August 26, 1938,9 and that therefore the respondent has not
. $ See Matter. of National Motor Rearing Company and International Union, United
Automobile Workers of.America, Local No. 76, 5 N. L. R. B. 409; Matter of Denver 2411to-
mobile>Dealer8 Association, a Corporation, et at. and Capitol Autaii dtive Lodge No. 606,
International Association of Machinists, 10 N. L. R. B. .117.3; Matter of Luckenbach Steam-
ship Company. Inc.,. et at. and Gatemen, Watchmen and Miscellaneous Waterfront Workers
Union, Local 38-124; International Longshoremen's Association, 2 N. L. R. B. 181 ; Matter
of Chicago Apparatus Company and. Federation of Architects, Engineers, Chemists and
Technicians, Local 107, 12 N. L. R. B. .1002; Matter of The Serrick Corporation and Inter-
national Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621.
7 The contract provides that the respondent upon the delivery of signed authorizations
shall, . . . deduct from the wages or earnings of such Union members, who have
executed and delivered such written authorizations,' on each pay-day, the amount payable
by each employee to the Union. . .
The Association contends that the fact that dues were deducted from the wages of only
258 employees for the first full pay-roll period following the execution of the contract
-.show that, the Federation did not represent a majority on August 2G, 1938. As noted
above, dues were to 'be-deducted `oiily"frdmethe'wages-of »those;-,employees for-whom
signed authorization cards were delivered. Therefore, the fact that dues were deducted
from the wages of only 258 employees does not necessarily show that the Federation
did not represent a majority.
It should be noted that during the weeks of negotiation between the respondent and
the Federation, prior to the execution of the contract of August 26. 1938, the Association
at no time requested recognition from the respondent as the representative of any of its
employees.
The contract with the Federation is effective until August 31, 1941. We make no
finding with respect to the representation of the respondent's employees at the present
time, nor do we pass upon the effect of this contract on the pending petition of the
Association.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unlawfully discriminated against its employees and has not inter-
fered with, restrained, or coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.'°
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. The operations of the respondent occur in commerce within the
meaning of Section 2 (6) of the Act.
2. Rosedale Employees Association and American Federation of
Hosiery Workers affiliated with the Textile Workers Union of Amer-
ica and with the Congress of Industrial Organizations, are labor or-
ganizations within the meaning of Section 2 (5) of the Act.
3. The respondent has not discriminated in regard to hire, tenure,
terms, or conditions of employment of its employees, within the
meaning of Section 8 (3) of the Act.
4. The respondent has not interfered with, restrained, or coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act, within the meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations.
Act, the National Labor Relations Board hereby orders that the com-
plaint against the respondent, Rosedale Knitting Company, Laurel-
dale, Pennsylvania, be, and it hereby is, dismissed.
10 Matter of M. d J. Tracy, Inc. and Inland Boatmen's Union, 12 N. L. R. B-916;
Matter of United Fruit Company and International Longshoremen's and Warehousemen's
Union, District .#3. Local #901, affiliated with the C. I. 0., 12 N. L. R. B. 404.