Postex Cotton Mills, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1947

73 N.L.R.B. 673 (N.L.R.B. 1947)

In the Matter Of POSTEX COTTON MILLS, INC., EMPLOYER and TExTILR-
WORBERS UNION OF AMERICA, CIO, PETITIONER
Case No. 16-R-2030.-Decided April 29, 1947
Mr..Joe S. Moss, of Post, Tex., for the Employer.
Mr. Wayne L. Dernoncourt, of New Orleans, La., for the Petitioner.
Mr. Lloyd S. Greenidge, of counsel to the Board.
DECISION
AND
CERTIFICATION OF REPRESENTATIVES
Upon a petition duly filed, the National Labor Relations Board on
December 5, 1946, conducted a prehearing election among employees
of the Employer in the alleged appropriate unit, to determine whether
or not they desired to be represented by the Petitioner for the purposes
of collective bargaining.
At the close of the election, a Tally of Ballots was furnished the
parties. The Tally shows that there were 184 votes counted, of which
117 were for, and 66 were against,, the Petitioner, with 1 ballot
challenged.'
Thereafter, a hearing was held at Post, Texas, on January 31, 1947,
before Glenn L. Moller, hearing officer. The hearing officer's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FAOT
I. THE BUSINESS OF THE EMPLOYER
Postex Cotton Mills, Inc., is a Texas corporation with its office
and plant at Post, Texas, where it is engaged in the manufacture
of sheets, pillow cases and handkerchiefs. The Employer annually
1 The Employer did not furnish a copy of its pay, roll before the election ; consequently,
the figure on the approximate number of eligible voters was not available at that time.
However, testimony at the hearing indicated that, gepording to the November 23, 1948
pay roll of the Employer, there were approximately 261 eligible voters.
73 N. L. R. B., No. 128.
673
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produces and sells finished products valued at more than $500,000,
of which in excess of 75 percent is shipped out of the State of
Texas.
We find that the Employer is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the Con-
gress of Industrial Organizations, claiming to represent employees
of the Employer.
III. TIIE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
bargaining representative of employees of the Employer.
We find that a question affecting commerce has arisen concern-
ing 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
The Petitioner seeks a unit of all production and maintenance
employees, including bleachery employees, watchmen and the truck
driver, but excluding office and clerical employees and all super-
visory employees. The Employer maintains that there should be
three separate bargaining units, one consisting of all piece work
employees, another of all hourly paid employees, and a third of all.
employees in the handkerchief unit.
The Employer's plant is a complete cotton mill, processing raw
cotton into cloth and then cutting and sewing the cloth into sheets,
pillow cases, and handkerchiefs. In every department there are em-
ployees who are paid on a piece work basis and employees who are
paid on a straight hourly basis. These employees work side by side,
utilize the same facilities, punch the same time clock, and are under
the same supervision. We fail to perceive any difference between
these groups sufficient to warrant the creation of a separate bar-
gaining unit for each. The difference in mode of payment does
not justify the creation of separate units.' We shall include both
groups of employees in the same unit.
The handkerchief unit 'is a part of the bleachery and' finishing
department. The employees in this unit are engaged in making
handkerchiefs from cloth supplied by customers. The. type ma-
chines used in the handkerchief unit to hem handkerchiefs are also
used in the finishing department to hem sheets and pillow cases.
z flatter of The Gr•iscor Rassefl Company, 70 N. L. R. B. 1299 , and cases cited therein.
POSTEX COTTON MILLS, INC. 675
When there is a shortage of material in the handkerchief unit, the
employees in this unit are traisferred to the finishing room to work
on sheets and pillow cases . It appears that the operations of the.
handkerchief unit are integrated with those of the bleachery and
finishing department to form a single composite whole. Accord-
ingly., we shall include the handkerchief unit in the production and
ni*intenance unit.
We • find. that all production and maintenance employees of the
Employer, including piece work and hourly paid employees,. em-
ployees in the handkerchief unit, bleachery employees, watchmen
,and the truck driver, but excluding office and clerical employees,
overseers, the master mechanic, second hands, and all other super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action, constitute a unit appropriate for
the purposes of collective bargaining within the, meaning of Section
9 (b) of the Act.
V. OBJECTIONS
At the hearing and in its brief, the Employer advanced , a number
of objections to the prehearing election which, for, convenience of -
treatment, may be grouped as follows :
(1) The circumstances under which the prehearing election was
called and held were prejudicial ;
(2) The prehearing election procedure is violative of the Act and
unconstitutional ;
(3) Even if the prehearing election procedure is constitutional, it
was improperly applied in this case because substantial issues were
presented within the meaning of Section 203.49 of the Board' s Rules
and, footnote 3 thereof ;
(4) The hearing should have been abated until United Textile
Workers of America, AFL, was made.a, party _ o- the. proceeding,
(5) The Petitioner received 117 votes out of a total of approxi-
mately 261 eligible voters. This is not a majority.
Objection 1 The Petitioner filed its petition on October 3, 1946.
Shortly thereafter the Regional Director asked the Employer to agree
to a consent election. The latter refused. The Employer also re-
fused to furnish a pay-roll list, copies of any existing collective bar-
gaining agreements , and data as to commerce . It referred the Re-
gional Director's request for this information to its attorney. The
information was apparently never furnished before the hearing. On
October 29, 1946, the Regional Director requested the Employer's
attorney to agree to a consent election. Again, on November 9, the
Regional Director in a telegram to the attorney, asked the latter
to advise him what the Employer's position would be in this matter.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 25 , after some further correspondence, the attorney
replied stating that the Employer would not agree to a consent
election.
On November 27, the Regional Director sent letters and notices to
the Employer and to its attorney advising that a prehearing election
would be held on December 5, 1946. The attorney received his copies
of the letters and notices on the morning of November 30, 1946. He
immediately telephoned to the Employer's manager, Bailey, only to
learn that the latter had left town the day before and would be away
a week. The attorney then telephoned to the Regional Director at
his home to request a postponement of the election for a few days
until Bailey returned because there was no one at the plant to act
in Bailey's place. The Regional Director refused the request for a
delay but told the attorney that he would instruct the postmaster to
release to .the attorney the registered mail containing the notices of
election addressed to the Employer." Thereafter, and on the same
day, the attorney got in contact with Bailey by telephone to tell him
of the situation. On December 2, 1946, the attorney received a tele-
gram from the Regional Director stating that the postmaster had
been instructed to release the notices of the election to the attorney.
The` latter, however, made no attempt to secure the notices from the
post office. Rather, on the same day, the attorney filed a written pro-
test to the holding of the election stating, inter alia, that because of
the circumstances the Employer would not cooperate, would refuse to
post the election notices and would not appoint an observer.
As stencilled, the notices of election read that the election would
be held on "Wednesday, December 4, 1946." However, lines in ink
had been drawn through 'the word Wednesday and the number 4.
Over the 4 was written in ink the numeral 5. These changes had been
made by the Regional Director before sending them to the parties.'
The Petitioner 'posted some notices of the election in the plant but
these were quickly torn down. It also posted notices on the main
street-outside the:plant.
The election was held as scheduled on December 5 at the district
court house about three-quarters of a mile from the Employer's plant .5
The Employer refused to name an observer and none was present.
On the morning of the election, Board agents requested the Employer's
attorney to furnish a pay-roll list. The attorney refused. As a re-
sult, the agents conducting the election determined eligibility by ques-
tioning each voter and by requiring him to sign an affidavit setting
a During Bailey's absence no one is authorized to receipt for registered mail.
4 The notices also stated that the election would be held in the district courtroom.
Although the Employer contended that the election was carried on for a short period in
another room in the court house, no- evidence was presented to support its contention.
5 The Regional Director selected this site because he inferred from the Employer's pre -
vious conduct that the Employer would not consent to an election at its plant.
POSTEX COTTON MILLS, INC. 677
forth the title of his position and the nature and length of his
employment.
The Regional Director has broad discretion in deciding on the date
and the details of an election.6 Unless he acts arbitrarily or capri-
ciously, the Board will abide by his judgment on these matters. In
the present case, the Employer received notice of the pre-hearing elec-
tion 5 days before the date scheduled for holding the election. On
the same day, the Regional Director informed the Employer's attorney
that he would not postpone the election. The attorney in turn, im-
mediately thereafter, notified Bailey, the Employer' s general manager,
of the election and the Regional Director' s refusal to grant a post-
ponement. The Employer thus had ample time to participate fully in
the election. It could have recalled Bailey, who was then out of town,
or it could have designated another person to act in Bailey's place; it
refused to do either. The Regional Director requested the Employer
to appoint an observer; the Employer refused. The Regional Director
asked the Employer to supply a current pay roll for determining
eligibility to vote; the Employer refused. Although it knew that
notices of election were in the local post office awaiting withdrawal,
the Employer made no attempt to secure them. The record amply
demonstrates that it was the Employer's own refusal to cooperate
which is responsible for many of the difficulties which the Employer
now urges as grounds for setting aside the election.
As previously indicated, the notices of election were altered by the
Regional Director before sending them to the parties. There is no
evidence that any of the employees were misled by these changes.
Notwithstanding the difficulties created by the Employer' s refusal
to cooperate in the election, approximately 70 percent of the eligible
voters participated in the election. This is clearly a representative
vote and considerably in excess of the percentage which usually votes
in political elections.
Considering all the circumstances, we conclude that neither the
Regional Director's refusal to postpone the election nor the circum-
stances under which the election was held affords a basis for setting
aside the election.
Objection 0: As we have held in previous decisions ,7 there is nothing
invalid or unconstitutional in the pre-election procedure which is
6 See Matter of Fedders Manufacturing Company , 7 N. L. R. B. 817 ; Matter of The Cudahy
Packing Company, 27 N. L. R. B. 108; Matter of Albers Super Markets, Inc ., 61 N..L. R. B.
1101; Matter of Bird Machine Company, 67 N. L . R. B. 1246.
a Matter of E. R. Squibb d Sons, 67 N. L. R. B. 557 ; Matter of Wood Embly Brass Co., 70
N. L. It. B . 1318 ; Matter of Fred W. Mears Heel Company, 71 N. L . R. B. 18 ; Matter of
Sa4znt d Salant, Inc., 71 N . L. R. B. 661.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designed to facilitate the determination of the question concerning
representation.8
Objection 3: The substantial issues to which the Employer alludes
relate to the existence of an alleged collective bargaining agreement
.between the United Textile Workers of America, AFL, herein called
the United, and the Employer's predecessor, and to the determina-
tion of an appropriate unit or units.9
On February 12, 1943, the Board certified the United as the bar-
gaining.seiSreselitatlVe of the employees of the. present -Employer's
predecessor. The United and the Employer's predecessor allegedly
entered into a collective bargaining agreement sometime in 1943.10
On December 2,. 1943, the present Employer purchased the business.
Assuming, arguendo, that such an agreement exists, the record reveals
that the Employer has never bargained with the United nor recognized
the 1943 agreement; that the United has not handled any grievances
of the employees; and, that the United has made no demands upon
the Employer in respect to said agreement. For all practical pur-
poses, therefore, the United has ceased to function as the collective
bargaining representative of the Employer's employees. In view of
the above stated facts, it appears that the 1943 agreement with the
United presents no substantial issue- within the .meaning of Section
203.49 of the Board's Rules. Neither does the unit question present
such an issue. Consequently, the Regional Director did not abuse
his discretion in conducting a prehearing election. In any event, the
Employer has not been prejudiced inasmuch as it was afforded a full
opportunity in the subsequent hearing to explore any disputed issue 11
Objection 4: The United was not included on the ballot nor was
it apprised of the hearing. The reasons for this were discussed under
Objections 1 and 3, supra. United did not have sufficient interest
either to be placed on the ballot or to be notified of the hearing.
Objection .5: _ There is no merit in, this contention. As the Board
and the courts have repeatedly held 712 so long as the vote is represen-
tative, a "majority" means a majority of the valid votes cast and not
a. majority of those eligible to vote. In the instant case, approxi-
mately 70 percent of the eligible voters participated in the election.
This is a representative vote. Of the valid votes cast, a majority was
8 Cf. Inland Empire District Council, Lumber and Sawmill Workers Union, et. al. v.
Millis, at at., 325 U . S. 697.
The issues raised with respect to the appropriate unit are considered under Section
IV, supra.
10 This agreement was not introduced in evidence at the bearing . The Employer's man-
ager testified that he had seen the agreement but did not know where it was at the time of
the hearing. There is no evidence as to its duration.
11 See Matter of The Borden Company, 69 N. L . R. B. 947.
12 See , e. g., Matter of Harry Manaster it Bro. and United Packers, Inc., 61 N. L. R. B.
1373 ; Matter of Semi-Steel Casting Co., 66 N . L. R. B. 713, enf'd 160 F . ( 2d) 388 (C. C. A.
8) ; Matter of The Standard Lime it Stone Co., 57 N . L. R. B. 227 , enf'd 149 F. (2d) 435
(C. C. A. 4)..
POSTEX COTTON MILLS, IN C. 679
for the Petitioner. Consequently, the Petitioner was selected by a
majority of the employees in the unit herein found appropriate.- -
We find that the objections of the Employer are without merit.
They are hereby overruled. _
VI. THE DETERMINATION OF REPRESENTATIVES
The results of the election held before the hearing show that the
Petitioner has secured a majority of the valid votes cast and that the
challenged ballot is insufficient to affect the results of the election.
Accordingly, we shall certify the Petitioner as the collective bargain-
ing representative of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVES
IT IS HEREBY CERTIFIED that Textile Workers Union of America,
CIO, has been designated and selected by a majority of the employees
in the unit described in Section IV, above, as their- representative for
the purposes of collective bargaining and that, pursuant to Section 9
(a) of the Act, the said organization is the exclusive representative
of all such employees for the purposes of collective bargaining with
respect to rates of pay, wages, hours of employment, and- other con-
ditions of employment.
Mn: JoHN M. HouSTON took no part in the consideration of the
above Decision and Certification of Representatives.