Utica & Mohawk Cotton Mills, Inc.

National Labor Relations Board - Board Decisions

Jul 12, 1943

51 N.L.R.B. 257 (N.L.R.B. 1943)

In the Matter of UTICA & MOHAWK COTTON MILLS, INC. and TEXTILE
WORKERS UNION OF AMERICA, C. I. O.
Case ' No. R-559.-July 12, 1943
Messrs. James F. Hubbell and Ralph T . Marshall , both of Utica,
N. Y., for the Company.
Mr. Jack Rubenstein , of New York City , and Mr . James Dundon, of
Utica , N. Y., for the CIO.
Rilyat, Walsh , Myers c Speiller , by Mr. John J. Walsh, of Utica,
N. Y., for the A. F. L.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Textile Workers Union of America,
C. I. 0., herein called the CIO, alleging that a question affecting com-
merce had arisen concerning the representation of employees of Utica
& Mohawk Cotton Mills, Inc., Utica, New York, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon clue notice before Francis V. Cole, Trial Ex-
aminer. Said hearing was held at Utica, New York, on June 11, 1943.
The Company, the CIO, and United Textile Workers of America,
Loomfixers Local No. 1442, A. F. of L., herein called the AFL, ap-
peared, participated, and were afforded full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. The AFL made a motion to dismiss the
petition herein on the grounds that the CIO did not represent a sub-
stantial number of employees in the unit which it claims as appro-
priate, contending that the petition is premature, and also involves A.
question already before the National War Labor Board. This motion
was referred to the Board by the Trial Examiner. For reasons ap-
pearing below, the motion is denied. The Trial Examiner's rulings
made at the hearing are free from prejudicial error and are hereby
affirmed. All parties were afforded opportunity to file briefs with the
Board.
51 N. L. R. B., No. 56.
257
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Utica & Mohawk Cotton Mills, Inc., a New York corporation, is,
engaged in the manufacture of sheets and pillow cases. For this pur-
pose it maintains two plants located in Utica, New York, with which
we are concerned herein. Between January 1 and December 31, 1942,.
the Company used at its Utica plants raw materials valued at approxi-
mately $3,85,0,000, of which approximately 100 percent was received
from points outside the State of New York. During the same period
the Company manufactured at its Utica plants finished products val-
ued at approximately $9,000,000, of which 38 percent represents ship-
ments made to points outside the State of New York. The Company
admits that it is engaged in commerce within the meaning of the Na-
tional Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Textile Workers Union of America is a labor organization affiliated
with the Congress of Industrial Organizations, admitting to member-
ship employees of the Company.
United Textile Workers of America, Loomfixers Local No. 1442, is.
a labor organization affiliated with the American Federation of Labor,,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company refuses to grant recognition to the CIO as the exclu-
sive bargaining representative of its employees engaged as loomfixers
on the ground that there is an existing contract, expiring August 15,
1943, between the Company and the AFL concerning these employees.
In view of the fact that this contract has only about 1 month to run,_
we are of the opinion and find that it is not a bar to a present determi-
nation of representatives.'
A statement of the Field Examiner introduced into evidence at the-
hearing indicates that the CIO represents a substantial number of em-
ployees in the unit hereinafter found appropriate .2
We find that a question affecting commerce has arisen concerning-
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
' Matter of Houde Engineering Corp, 36 N L R B 5S7 ; Matter of Chrysler Motors
Parts Corp , 38 N L R B 1379; Matter of Dain Mfg. Co ., 41 N L R. B. 1056.
z The Field Examiner reported that the CIO submitted 44 designation cards bearing-
apparently genuine original signatures , of which 34 contain the names of persons appear-
ing upon the Company ' s pay roll of May 15, 1943 . This pay roll contained the names of
88 persons within the appropriate unit
The AFL relies upon its contract with the Company to establish its interest therein..
UTICA & MOHAWK COTTON MILLS, IN C. 259
IV. THE APPROPRIATE UNIT
In substantial accordance with a stipulation of the parties we find
that all employees of the Company at its Utica plants engaged as
loomfixers, spare loomfixers, helpers and apprentices to loomfixers,
excluding office, clerical, and executive employees and any supervisory
employees with authority to hire, promote, discharge, discipline or
otherwise effect changes in the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Section 9 (b) of the
Act.,
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can, best be resolved by an election by secret ballot. The CIO
contends that eight employees of the Company who were formerly en-
gaged as loomfixers, but who were subsequently suspended from their
positions after they had dropped their membership in the AFL,4
should be permitted to vote in an election of loomfixers inasmuch as
they are employees of the Company who would ordinarily be em-
ployed as loomfixers. The AFL contends that these employees are
ineligible to vote in such an election since they are not engaged as
loomfixers at the present time. We agree with the contention of the
AFL. These employees were properly suspended from their positions
in accordance with a valid agreement existing between the Company
and the AFL, and the suspension is not violative of any of the rights
guaranteed to these employees under the provisions of the Act.5
We shall, therefore, direct that the employees of the Company eligi-
ble to vote in the election shall be those in the appropriate unit who
'This unit is substantially the seine as that provided for under the contract between
the Company and the AFL
4 These eight employees failed to pay their dues to the AFL after the contract between
the AFL and the Company had been executed , in February 1943, the AFL formed a trial
committee, and, after notifying these employees , suspended them from membership . There-
after, the AFL caused the Company to suspend them as loomfixers , in accordance with
the maintenance of membership provisions in the contract This action was approved by
the Executive Director of the Second Region of the National War Labor Board. An appeal
is now pending However, the Company later rehired these employees as production and
maintenance employees and they are at the present time so engaged by the Company.
S The contract between the Company and the AFL provided " all present loomfixers.
spare loomfixers , apprentice loomfixers and learner loomfixers . . . who are members of
Loomfixers Union #1442, and any that may become members, shall remain members of
Loomfixers Union #1442 for the duration of this contract . . . The management will
cooperate in keeping said members in good standing in such manner as it deems to be in
the best interest of all concerned."
The Board's holding in Matter of Rutland Coast Owners, Inc., 46 N. L R. B. 1040, is
not here applicable In that case the employees were members in good standing of the
contracting union and had signified their intentions to remain as such during the term
of the contract at the time the union caused the employer to suspend them. In the
instant case , the employees definitely indicated their desire to withdraw from the con-
tracting union, and were suspended therefrom after notice and formal action taken by
the Union
540612-44-vol 51-18
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were employed during the pay-roll period immediately preceding the
date of the Direction of Election herein , subject to the limitations and
additions set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DrECTED that , as part of the investigation to ascertain representa-\
tives for the purposes of collective bargaining with Utica & Mohawk
Cotton Mills, Inc., Utica, New York, an election by secret ballot shall
be conducted 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 Third Region, acting in this matter
as agent for the National Labor Relations Board, and subject to
Article III, Section 10, of said Rules and Regulations, among the
unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-
roll period 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, to de-
termine whether they desire to be represented by Textile Workers
Union - of America, affiliated with the Congress of Industrial Or-
ganizations, or by United Textile Workers of America, Loomfixers
Local No. 1442, affiliated with the American Federation of Labor, for
the purposes of collective bargaining or by neither.
In the Matter Of UTICA & MOHAWK COTTON MILLS, INC. and TEXTILE
WORKERS UNION OF AMERICA , C. I. 0,
Case No. R-5529
SUPPLEMENTAL DECISION
ORDER
AND
AMENDMENT TO DIRECTION OF ELECTION
August 5,1943
On July 12, 1943, the National Labor Relations Board, herein
called the Board, issued its Decision and Direction of Election in this
proceeding., In said Decision, we stated :
... the employees of the Company eligible to vote in the
election shall be those in the appropriate unit who were employed
during the pay-roll period immediately preceding the date of
the Direction of Election herein....
On July 23, 1943, Textile Workers Union of America, C. I. 0., herein
called the C. I. 0., duly filed a Petition for Reconsideration, or, in the
alternative for a Stay of the Election Pending the Determination of
the National War Labor Board, contending that eight persons, origi-
nally employed by the Company as loom fixers,2 but as of the date of
eligibility, employed in classifications not included within the appro-
priate unit, should be permitted to vote under challenge; or the election
should be postponed pending a determination by the Regional War
Labor Board as to the status of these employees.
According to the petition for reconsideration, the eight persons in
question were discharged on the erroneous assumption that they were
covered by a maintenance-of-membership agreement with another
union, whereas, in fact, they had ceased to be members of this union
1 51 N. L. R. B., No. 56.
2 The appropriate unit consists of all employees of the Company at its Utica plants en-'
gaged as loom fixers, spare loom fixers, helpers and apprentipes to loom fixers, excluding
office, clerical , and executive employees with authority to hire, promote , discharge, disci-
pline, or otherwise effect changes in the status of employees , or effectively recommend such
action. .
51 N. L. R. B., 56a.
261
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the tine of the execution of such agreement. Although a finding
to the contrary was made by an arbitrator, the petition urges that
since his finding is being reviewed by an agency *of the War Labor
Board, the employees in ,question should be treated as if they were
discharged employees who had filed charges, and therefore that they
be permitted to vote and their ballots impounded.
The difficulty with this theory is that no charges have been filed
on behalf of these employees, even though (if the facts recited may
be taken as true) they were dismissed from the loom fixers' unit in
violation of Section 8 (3) of the Act. Under the Act, this Board is
vested with exclusive power to remedy unfair labor practices. Since
these employees have not availed themselves of their recourse under
the Act, there is no basis for concluding that they have the rights of
persons claiming to be aggrieved by unfair labor practices. There-
fore no point will be served by staying the election previously ordered
in this proceeding pending determination of the proceeding before
the Regional War Labor Board, as requested by the C. I. O.
IT IS HEREBY ORDERED, that the aforesaid petition for reconsideration
of the Decision and Direction of Election be, and it hereby is, denied.
Since it appears that further time is necessary in which to conduct
the election, the Direction of Election is hereby amended by striking
therefrom the words "not later than thirty (30) days" and substitut-
ing therefor the words "not later than forty-five (45) days."
CHAIRMAN MmLIs took no part in the consideration of the above
Supplemental Decision, Order and Amendment to Direction of
Election.