Whiting & Davis Co.

National Labor Relations Board - Board Decisions

Dec 17, 1946

71 N.L.R.B. 1200 (N.L.R.B. 1946)

In the Matter of WHITING & DAVIS COMPANY, EMPLOYER and
INDEPENDENT JEWELRY WORKERS OF PLAINVILLE, PETITIONER
Case No. 1-R-3314.Decided December 17, 1946
Hinckley, Allen, Tillinghast cf; Wheeler, by Mr. Edward W. Lincoln,
of Providence, R. I., for the Employer.
Mr. I. 0. Goverman, of Boston, Mass., for the Petitioner.
Grant & Ango ff, by Mr. Frederick Cohen, of Boston, Mass., for the
Intervenor.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Attleboro,
Massachusetts, on November 19, 1946, before Robert E. Greene, hear-
ing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed. At the hearing,
the Intervenor moved to dismiss the petition. For reasons stated
in Section III, below, the motion is hereby denied.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Whiting & Davis Company is a Massachusetts corporation, engaged
at Plainville, Massachusetts, in the manufacture, sale, and distribu-
tion of mesh bags and costume jewelry. During the past several
years the Employer has been engaged on contracts for the United
States Army in connection with the war effort. At the present time,
it is finishing such old contracts and converting to peacetime opera-
tions. During the calendar year 1941, the last year of normal opera-
tions, the Employer purchased raw materials valued at approximately
$334,000, of which approximately 66 percent was purchased outside
the Commonwealth of Massachusetts. During the same period, the
Employer's sales exceeded $1,000,000 in value, approximately 95 per-
71 N L R B, No. 186.
1200
WHITING & DAVIS COMPANY 1201
cent of which was shipped outside the Commonwealth . It is esti-
mated, that during the calendar year 1947, purchases of raw materials
will approximate $368,000, of which about 66 percent will be purchased
outside the Commonwealth , and that sales will exceed $1,000,000 in
value, of which about 95 percent will be shipped outside the Common-
wealth.
The Employer admits, and we find, that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The petitioner is a labor organization , claiming to represent em-
ployees of the Employer.
United Steelworkers of America, herein called the Intervenor, is a
labor organization affiliated with the Congress of Industrial Organiza-
tions , claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING REPRESENTATION
On July 14, 1945, the Employer and the Intervenor entered into a
collective bargaining contract to remain in effect for 1 year. The
contract provided that it was to be automatically renewed from year
to year thereafter unless either party notified the other of a desire to
revise, modify or terminate, at least 30 days before the end of any
effective period. Such notice was given more than 30 days before July
14, 1946, and the contract therefore terminated on that date. Since
then, the Employer has not signed any other collective bargaining
agreements.
On August 8, 1946, a strike, apparently called by the Intervenor,
caused a total stoppage of work at the Employers plant.' Since that
date, the Employer has not hired any replacements and has not re-
sumed operat;ons.
On August 30, 1946, the Petitioner (which had been formed after
the expiration of the contract) informed the Employer by telegram
that it represented a majority of the employees here involved, and
demanded recognition as their sole bargaining agency . On the same
day, it filed the petition herein. The Employer took the position
that it could not recognize any labor organization as bargaining
representative of its employees until certified by the Board in an
appropriate unit.
At the hearing, the Intervenor sought the dismissal of the petition
on the grounds that a jurisdictional controversy was involved, that
Board action at this time would "interfere with the economic status''
I The Intervenoc ' s attorney stated at the hearing that "the present dispute has to do
with matteis arising from the contract of the contractual relationship of the parties
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employees now on strike, and that the petition is untimely,
since it was filed after the expiration of the contract. It argues that
the only proper time for the petition to have been filed would have
been during the last 30 days of the contract's existence . We do not
agree with any of the Intervenor's contentions. This proceeding does
not involve two unions owing allegiance to the same parent organiza-
tion; it is not, therefore, a jurisdictional dispute. Nor are we per-
suaded that Board action at this time would affect the economic status
of the workers. The investigation and certification of representatives
is not an adversary proceeding, but has for its object the determina-
tion of the collective bargaining agent, if any, selected by the majority
of the employees in the appropriate unit. Finally, we have never yet
held that a contract which has terminated can constitute a bar to a
petition filed by a rival union because the petition was not filed at least
30 days before the termination date of the expired contract. Accord-
ingly, we find no merit in any of the arguments urged in support of the
Intervenor's motion to dismiss the petition.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Employer, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
In accordance with the agreement of the parties, we find that all
production and maintenance employees of the Employer, including
receiving and shipping department employees, watchmen, firemen, in-
spectors, handlers of material, and factory clerks, but excluding
guards, office workers in main and factory office, executives, 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
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot, subject to the
limitations and additions set forth in the Direction.
The Intervenor moved to suspend all action by the Board until
the strike now in progress has been ended. This motion was opposed
by the Petitioner and the Employer. The motion is hereby denied.
Under the circumstances of this case, we perceive no reason for deny-
ing an election at this time. There is no evidence that it was the
WHITING & DAVIS COMPANY 1203
Petitioner that called the strike, and the petition was filed approxi-
mately 3 weeks after it began.' We are persuaded that not only would
no useful purpose be served by further postponement of the resolution
of the existing controversy, but that withholding our election ma-
chinery would, on this record, encourage continued industrial strife.$
From August 8, 1946, the date of the commencement of the strike,
to the date of the hearing, the Employer's plant has not operated and
no new employees have been hired. At the hearing, all parties agreed
that, if an election is conducted, the pay roll for the period ending
August 3, 1946, should be used in determining eligibility to vote.
However, between August 3 and August 8, three new employees were
hired. We believe that these employees should also be permitted
to vote. Accordingly, we shall modify the agreement of the parties
and direct that all employees as of August 8, 1946, shall be eligible to
vote.
The above direction will be operative in the event that the Employer
has not resumed operations before the issuance of this Decision and
Direction of Election. Should the Employer have reopened its plant
and hired replacements for the strikers before this Decision is issued,
the customary eligibility date will be used in determining the right
of employees to vote.4
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Whiting & Davis Company,
Plainville, Massachusetts, an election by secret ballot shall be con-
ducted 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 First Region, acting in this matter as agent
for the National Labor Relations Board and subject to Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate
in Section IV, above, who were employed on August 8, 1946,5 includ-
ing employees who did not work on said date 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 reinstated prior
2 Cf Matter of National Silver Company, 71 N L. R. B 594.
8 The Chairman desires to incorporate , by reference , his separate , remarks in Section V
of the decision in Matter of Seneca Falls Machine Company, 71 N. L R. B 1106.
° Cf Matter of the Chase-Shawmut Company, 71 N. L. R. B. 610; Matter of Wicaco
Machine Corporation, 69 N L R B. 741.
1In the event that the Employer has resumed operations and replacements have been
hired before the issuance of this Direction, those eligible to vote shall be determined from
the pay roll for the period immediately preceding the date of this Direction, including both
employees on strike and their replacements , if any.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the date of the election, to determine whether they, desire to be
represented by Independent Jewelry `Yorkers of Plainville, or by
United Steelworkers of America, CIO, for the purposes of collective
bargaining, or by neither.
Mn. JOHN M. HOUSTON, concurring :
I desire the observations I made in the Seneca Falls Machine Com-
pany 6 case to form part of the record here.
MR. JAMES J. REYNOLDS, JR., dissenting :
For reasons stated in my dissenting opinion in Matter of Seneca
Falls Machine Company, Case No. 3-R-1358,7 I am constrained to
disagree with the direction of an election to be held during the current
strike of the employees here involved.
6 Matter of Seneca Falls Machine Company , 71 N L. R. B. 1106.
4 71 N. L. R. B. 1106.