N. Sumergrade & Sons

National Labor Relations Board - Board Decisions

Aug 27, 1958

121 N.L.R.B. 667 (N.L.R.B. 1958)

N SUMEEGRADE & SONS 667
activity on behalf of United Textile Workers or any other labor organization
WE WILL NOT interrogate employees concerning their union views , member-
ship , and other activities or as to how they will vote in Labor Board elections
WE WILL NOT engage in surveillance of union meetings
WE WILL NOT assault or encourage assaults on employees or union organizers
engaging in union activities and we will not interfere with distribution of union
literature outside our plant gate
WE WILL NOT threaten to shut down our null or to fire employees if the
mill is organized by the Union
WE WILL NOT interfere with the right of employees to attend union meetings,
to receive union bulletins , to wear union buttons, or otherwise to engage in union
or organizational activities
WE WILL bargain collectively upon request with United Textile Workers of
America, AFL-CIO, as the exclusive representative of all employees in the
bargaining unit, with respect to rates of pay , wages, hours of employment, and
other conditions of employment , and if an understanding is reached , embody
such understanding in a signed agreement The bargaining unit is
All production and maintenance employees at our Aliceville mill , includ-
ing frequency checkers , laboratory assistants, and overseer clerks , but ex-
cluding assistant cashiers, payroll clerks, and all other office clerical em-
ployees, guards , the plant superintendent, the cashier , overseers , the master
mechanic, and all other supervisors as defined in the Act
WE WILL reinstate and make whole the ^ following employees for any loss
of pay suffered by them as a result of our discrimination against them James
A Clark, W Russell Bryant, George Newman , Berley L Howard, and James
Elton Gibson
All our employees are free to become or remain members of the above-named
Union or any other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the amended Act
DAN RIVER MILLS, INCORPORATED,
ALABAMA DIVISION,
Employer
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material. i
Bernard, Saul and Harry Sumergrade d/b/a N . Sumergrade &
Sons 1 and Greater New York Joint Board, Textile Workers
Union of America, AFL-CIO, Petitioner
Bernard, Saul and Harry Sumergrade d/b/a N. Sumergrade &
Sons i and Concepcion Rivera, Petitioner and United Textile
Workers of America , Local 229, AFL-CIO. Cases Nos 2-RC-
9241 and 2 RD-385 August 27, 1958
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On June 4, 19581 the Board issued a Decision and Order dismissing
the petitions filed in the above -entitled consolidated proceeding 2
Thereafter, on. June 19, 1958, the Petitioner in Case No 2-RC-9241
(hereinafter called the RC-Petitioner) and on June 25, 1958, the
i The Employer's name here appears as amended at the hearing
2 Not published
121 NLRB No 84
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner in. Case No 2-RD-385 (hereinafter called the Decertifica-
tion Petitioner), filed respective motions for reconsideration. On
July 10, 1958, the Intervenor filed a memorandum in opposition to the
motions for reconsideration
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning]
Upon reconsideration of the case, the briefs, motions and memo-
randum, and the entire record herein, the Board makes the following
findings
1 The Employer is engaged in commerce within the meaning of the
National Labor Relations Act
2 The labor organizations involved claim to represent employees
of the Employer The Decertification Petitioner, an employee of the
Employer, asserts that the Intervenor is no longer the bargaining
representative of the employees designated in the Decertification
Petitioner's petition 3 The Intervenor is the currently recognized
representative of the employees in the unit designated in the Decerti-
fication Petitioner's petition
3 The Employer and the Intervenor contend that their current
collective-bargaining contract, effective May 1, 1957, to May 1, 1960,
is a bar to this proceeding The Petitioners assert that the contract
is not a bar The Petitioners contend, among other things, that the
disputed agreement is, on its face, a "members-only" contract In
the alternative, the Petitioners argue that, if the contract is not, on
its face, a "members-only" contract, it cannot be a bar to this proceed-
ing because the parties thereto have not applied its provisions equally
to all the employees included thereunder and involved in this pro-
ceeding
The contract involved, and asserted as a bar herein, contains a
lawful union-shop clause Notwithstanding this union-security pro-
vision, about 40 out of the total of approximately 65 production sand
maintenance employees encompassed by the petitions filed in this
proceeding were not required to become members of the Intervenor
Indeed, the Intervenor did not seriously attempt to enforce the union-
security provisions of the contract equally as to all the employees
until after the petition in Case No 2-RD-385 was filed herein on
November 13, 1957, more than 6 months after the effective date of
the agreement
The disputed contract also provides that, for each employee covered
by the agreement, the Employer was to contribute $4 monthly to the
' The Intervenor moved to dismiss the petition in Case No 2-RD-385 for the asserted
reason that the Decertification Petitioner herein "is in reality a part of the proceedings
filed by the [RC Petitioner], namely, the RC Case" However, the Intervenor
has failed to show why such circumstances, even if true , warrant dismissal of the
decertification petition Accordingly, we hereby deny its motion
N. SUMERGRADE & SONS 669
Intervenor's welfare fund, thereby giving all employees various fringe
benefits, such as hospitalization and insurance. However, the
Employer has, in fact, made welfare fund contributions only for those
of its employees who were members of the Intervenor. For example,
in 1 month the Employer made the per capita contribution for only
122 employees, although the Intervenor and the Employer considered
188 employees eligible for the welfare fund benefits.4 The Employer
asserts that the Intervenor requested welfare-fund payments for all
employees, including nonmembers of the Intervenor, but that it made
payments only' for employees who were members of the Intervenor
upon the advice of counsel. However, the Intervenor made no attempt
to require the Employer to make welfare-fund payments for all
employees covered by the contract-either under the grievance and
arbitration provisions of their agreement or by any other means.
Indeed, it was not until after the decertification petition was filed in
this proceeding that the Intervenor submitted its first written notice
requesting the Employer to make welfare-fund payments for all
employees. At the time of the hearing herein, in early February
1958, welfare-fund payments were still not being made for all of the
employees covered by the contract. Moreover, at the hearings, the
Employer's intentions with respect to its welfare-fund payments for
all employees, including nonmembers of the Intervenor, remained
somewhat equivocal.
The record otherwise shows that about the end of 1957, the Inter-
venor negotiated a blanket $2 weekly pay increase for all of the
Employer's time workers and a $10, instead of $8, holiday pay scale
for all piece workers. However, the Intervenor's international rep-
resentative admitted that at the time of the hearing, months after
the increase was negotiated, less than all of the time workers covered
by the collective-bargaining contract had received the $2 increase,
and that some piece workers who were not members of the Intervenor
had received less than the $10 holiday pay rate since the Employer
had agreed to the increase.
Upon the above-detailed facts, and the record generally, the Board
now finds that the contract alleged as a bar herein "has not been
equally applied to all employees, and regardless of whether the con-
tract may purport [on its face] to cover all employees, as contended
by the Employer and the Intervenor, the Intervenor has never in fact
represented all the employees equally and without discrimination
between union and nonunion members." I Accordingly, the Board
' It is also noted that the Intervenor and the Employer excluded from welfare fund
consideration in that same mouth about 130 employees who were working on a Govern-
ment contract which took 9 months to complete.
5 Cargo Packers, Incorporated, 109 NLRB 1184, 1185.
670 DECISIONS OF NATIONAL _uABOR RELATIONS BOARD
finds upon reconsideration, that the contract cannot serve as a bar to
this proceeding 6
In the circumstances, we find that a question affecting commerce
exists concerning the representation of employees of the Employer
within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of
the Act We shall, therefore, vacate the Decision and Order issued
herein on June 4,1958
4 The two petitions initially filed in this proceeding covered only
the employees working at the Employer's plant located in New York
City The Employer and the Intervenor contend that a unit of
employees limited to the New York City plant is inappropriate and
that the only appropriate unit of the Employer's employees is one co-
extensive with the Employer's two plants The evidence adduced at
the hearing on this unit question supports the Intervenor and the
Employer About 1951 the Employer and the Intervenor started bar-
gaining on a multiplant basis for the employees then working at the
extant New York City plant and at another plant located in Bronx,
New York In 1955 the Employer moved the Bronx, New York,
operation to its present site in Jersey City, New Jersey A majority
of the employees then working at the Bronx plant continued working
for the Employer at the Jersey City plant Since the one plant was
relocated in 1955, the Intervenor and the Employer have continued
to bargain for the employees working in New York City and Jersey
City on a multiplant basis The record also shows that all of the
Employer's general bookkeeping, administrative; and payroll records
are prepared and handled at the main Jersey City office There is
some employee interchange between the New York and Jersey City
plants Finally, in the event of large seasonal workloads at one plant,
part of the excess work is sent to the other plant for completion
After the close of the hearing, and "in the light of the evidence in
the record"-such as that recited herein-both Petitioners "concluded
that the Employer's and the Intervenor's two-plant unit contention
is correct " Both Petitioners filed motions requesting that their
respective petitions be amended "so that a two-plant unit shall be
deemed its principal unit contention, and its original one-plant unit
request shall be deemed an alternative unit contention "
Upon the record and the current positions of the parties, we find
that the only appropriate unit herein is one that includes, the em-
ployees at both the Employer's Jersey City and New York City
plants Although such appropriate unit is broader than that initially
covered by the Petitioners' respective petitions, we shall direct an
6 IM We therefore have not reconsidered the remaining grounds advanced by the
Petitioners in support of their assertion that the disputed contract is not a bar
V LAROSA & SONS, INC 671
election because both Petitioners have showings of interest in the
broader unit sufficient to warrant an election 7
We therefore find that the following employees of the Employer
constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9,(b) of the Act -
All production and maintenance employees, including the platform
employees, sewing machine operators and piece workers at the Em-
ployer's New York, New York, and Jersey City, New Jersey, plants,
but excluding office clerical employees, sales help, guards, executives,
and supervisors within,the meaning of the Act s
[The Board vacated the Decision and Order dated June 4,1958 ]
[Text of Direction of Election omitted from publication ]
7 The direction of election herein for the two plant unit renders moot the appeal by the
International Union of the RC-Petitioner from the Regional Director's dismissal of the
petition seeking an election in the identical unit in Case No 2-RC-9347 (formerly Case
No 22-RC-165) Accordingly, we hereby sustain the Regional Director's dismissal of
the petition in Case No 2-RC-9347, and we also deny the RC-p'etitioner's request to
consolidate the petition in Case No 2-RC-9347 with the petition in Case No 2-RC-9241
in this proceeding.
8 The composition of the unit is substantially as agreed upon by the parties
V. LaRosa & Sons, Inc. and Local 492, American Bakery & Con-
fectionery Workers International Union , AFL-CIO, Petitioner.
Case No 4-RC-3569 August 27, 1958
SUPPLEMENTAL DECISION AND CERTIFICATION OF
REPRESENTATIVES
Pursuant to a Decision and Direction of Election 1 issued on May
27, 1958, an election by secret ballot was conducted on June 19, 1958,
under the direction and supervision of the Regional Director for the
Fourth Region of the National Labor Relations Board among the em-
ployees in the unit found appropriate by the Board Following the
election, the parties were furnished a tally of ballots which showed
that 76 valid ballots were cast of which 40 were cast for Local 492,
Bakery & Confectionery Workers International Union of America,
the Intervenor, and 35 were cast for Petitioner One ballot was cast
against the participating labor organizations and there were no void
or challenged ballots
On June 24, 1958, the Petitioner filed a timely objection to the elec-
tion and conduct affecting the results of the election alleging as
follows
The employees eligible to vote were precluded from exercising a
free choice because the official Board Ballot listed the Petitioner
1 Not published
121 NLRB No 81