American Finishing Co.

National Labor Relations Board - Board Decisions

Jun 9, 1943

50 N.L.R.B. 313 (N.L.R.B. 1943)

In the Matter of AMERICAN FINISHING COMPANY and TEXTILE WORKERS
UNION OF AMERICA AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. 'R-5303.Decided June 9, 1943
Mr. J. E. McCadden, of Memphis, Tenn., for the Company.
Mr. H. G. B. King, of Chattanooga, Tenn., for the C. I. O. -
Mr. Joseph Jacobs, of-Atlanta, Ga., Mr. Elmer Estes, of Spartan-
burg, S. C., and Mr. R. 0. Ross, of Knoxville, Tenn., for the A. F. L.
Mr. Artlnurr Leff, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by Textile Workers Union of America,
affiliated with the Congress of Industrial Organizations, herein called
the C. I. 0., alleging that a question affecting commerce had arisen
concerning the representation of employees of American Finishing
Company, Memphis, Tennessee, herein called the Company, the Na-
tional Labor Relations Board provided for an appropriate hearing
upon due notice before J. Michael Early, Trial Examiner. Said hear-
ing was held at Memphis, Tennessee, on May 3, 4, and 6, 1943. The
Company, the C. I. O. and United Textile Workers of America, Local
Union No. 2560 affiliated with American Federation of Labor, herein
called the A. F. L., appeared, participated, and were afforded full
opportunity to be heard, to examine-amid cross-examine witnesses, and
to introduce evidence bearing on the issues.
At the hearing counsel for the A. F. L. 'moved to dismiss the peti-
tion, alleging that it had a valid subsisting contract with the Company
covering the employees in the unit alleged in the petition and that said
contract constituted a bar to this proceeding. For reasons hereinafter
stated, the motion of the A. F. L. is hereby granted.' The Trial Exam-
iner's rulings made at the hearing are free from prejudicial error and
'The A. F. L also moved to dismiss the petition on a number of additional grounds
which, in view of our decision herein, it is unnecessary to consider.
50 N.'L. R h, No. 45.
313
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are hereby affirmed. On May 22, 1943; the A. F. L. filed a brief which
the Board has considered.
Upon the entire record in the case, tlie'Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
American Finishing Company is a Tennessee corporation. The
Company is engaged in processing and finishing cotton piece goods
owned by others at its plant in Meinphis, Tennessee. Practically all
the piece goods ,owned by others are brought to the Company's plant
in Memphis, Tennessee, from points outside the State of Tennessee by
interstate commerce carriers. Practically all of the cotton piece goods
processed by the Company are shipped to points outside the State of
Tennessee by interstate commerce carriers. Practically all' of the raw
materials used by the Company in processing cotton piece goods are
shipped to, its plant in Memphis, Tennessee, from points outside the
State of Tennessee.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Textile Workers Union.of America, is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting to mem-
bership employees of the Company.
United Textile Workers of America, Local Union No. 2560, is a
labor organization 'affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
r
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
The A. F. L. has been representing employees of the Company,
under written collective bargaining contracts, continuously since 1937.
The first contract between the A. F. L. and the Company, containing
a maintenance of membership clause, was executed on July 1, 1937, for
a term of 1 year, and was thereafter renewed from year to year under
an automatic renewal provision until 1940.2 In April; 1940, a new
contract was negotiated for a term expiring on January 1, 1943. This
contract was substantially the same as the'earlier contract, except that
a closed-shop provision was substituted for the maintenance of mem-
bership provision, and except further that the automatic renewal
.clause was modified so as to make it operative if notice of intention-to
terminate was not given' at'least 6,months before the'expiration date.
'On March 7, 1942, the Company and the A. F. L. entered into ,their
12 The 'contracting labor organization in the first contract was Federal Labor Union
No 20674, the predecessor of United Textile Workers of America , Local Union No 2560.
AMERICAN FINISHING COMPANY 315
current contract which superseded the 1940 contract and is for a term
expiring January 1, 1944., The March 1942 contract retained thei
closed-shop provision, and also retained the 6-month automatic re-
newal clause. ' In September 1942, the Company and the A. F. L.
agreed to an upward revision of wage rates in the March 1940 contract
without otherwise affecting its provisions.,
On December 12, 1942, the C. I. O. wrote the Company stating that
it represented a substantial number of the latter's employees and re-
quested the" Company not to renew the contract entered into "about
April 1. 1940 .^ and expiring January 1, 1943.1" The Company
replied, advising the C. I. O. that the April 1, 1940,,contract• had been
superseded by the contract of March 7, 1942, and that the latter was not
due to expire until January 1, 1944. On February 8, 1943, the C. I. O.
notified the Company not to extend its current contract,or to enter
into a new agreement with any labor organization not certified by the
Board. On April 6, 1943, shortly after the C. I. O. filed its petition_
in the instant, proceeding, the A. F. L., exercising its privilege under
the automatic renewal clause, served notice on the Company that it
was terminating the current contract on December 31, 1943.
It appears that,- although in its letter written to the Company on
December 12, 1942, the C. I. O. claimed to represent a majority of. the
Company's employees, the C. I. O. did not in fact commence its. or-
ganizational drive until February 1943. All of the C. I. O. member-
ship cards which were submitted to the Trial Examiner in support
of its claim to a substantial interest are dated between February
and April 1943.3 . There is no evidence that prior to December 12, 1942,
the C. I. O. ever asserted a claim to represent employees of the Com-
pany, or that prior to February 1943, except in 1937, it ever actively
attempted to organize employees of the Company .4
Upon the foregoing facts, the A. F. L. and the Company take the
position that their current contract expiring December 31, 1943, con-
stitutes an effective bar to a present determination of representatives,
and consequently urge that the petition should be dismissed.
In furtherance of the purposes of the Act to attain stabilized labor
conditions in industry through collective bargaining agreements, we
do not as a general rule proceed to an investigation and certification
of representatives in the face of an existing contract executed prior
to any representation claim by the petitioner, unless it appears that
the contract is for an undue duration and has already been in force
8 The pay -roll check showed that the C. I 0. held signed cards, bearing appearently gen.
nine signatures from 688 employees whose names appeared on the Company's May 5,
1943, pay roll containing 1,530 names.
The record indicates that the C. I. 0. conducted an organizational campaign in 1937
at. which time it secured an -undisclosed number, of members Although there'is some
evidence in the record indicating that in the intervening years the C. 'I 0. continued
to keep in contact with certain employees of the Company, the record indicates that the
C. 'I. 0. did not attempt any further large scale organizational activities' until 1943.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for a reasonable length of time, or is about to expire, or,other excep-
tional circumstances are shown.-, On the facts of this case, and in
the light of the prior contract between the parties, we do not consider
that the 'current contract between the. A. F. L. and the Company is
for an unreasonable term.6 More than 6• months remain before the
expiration of the current contract., The record fails to disclose the
presence of any other'special circumstances which we,have in the past,
recognized as an exception to our general rule.
Although the C. I. O. did not indicate the theory on which it was,.
claiming the right to an election at this time, it may be inferred that
the C. I. O.- was impelled to file its petition when it did in the belief
that it was necessary for it to take such action before the contract
renewed itself for an additional year under the 6-month automatic
renewal clause. At the time 'of the hearing, however, the automatic
renewal clause was no longer operative, since the A. F. L. had earlier
served notice upon the Company that it was terminating the contract
at the end of its present term. In view of the fact, that the issue
is no longer present in this case, it is unnecessary for us to determine
at this time whether we will entertain a petition filed shortly prior
to the operative date of an automatic renewal clause but long prior
to the expiration date of the contract.' - .
-.In our opinion the instant case presents no justification for a de-
parture from our usual policy. We therefore find that the present
contract between the Company and the A. F. L. expiring December 31,
1943, constitutes a bar to a determination of representatives at this
time. Accordingly, we shall dismiss the petition of the C. I. O. This
dismissal, however, shall not prejudice the right of the C. I. 0., upon
a'proper showing, to file a new petition, at a reasonable time before
the present expiration date of the contract.
ORDER
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation'.and certification .of representatives
of employees of" American Finishing Company, Memphis, Tennessee,
filed by Textile Workers Union of America, affiliated with the Con-
gress of Industrial Organizations, be, and it hereby is, dismissed.
5See Matter of Washington-Eller Co and Warehouse Distribution Workers Local 26,
1. L. W U -C 1 0 , 48 N L R B 354, and cases there cited
6 Cf Matter of Ovens-Illinois Pacific Coast Co. and International Longshoi cniei's and
Warehousemen's Union, Local 6, C.'I 0 , 36 N L R B 990
'By this conclusion, we do not mean to indicate, however, that we would consider a
6-month automatic renewal clause as not being unduly, long, or that we would consider
the failure of a petitioning union 'to give notice of'its representation claim prior to the
effective date of an automatic renewal clause as precluding a subsequent representation
clams, w here the effective date piecedes the expiration date of the contract by a period
greater than that usually recognized by trade union custom Cf Matter of'Mill B, Inc.
and Intonational iVoodrworhers of America, Local 116, C. 1. 0., 40 N L. R B. 346, 350