The Red Wing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1943

51 N.L.R.B. 1402 (N.L.R.B. 1943)

In the Matter of THE RED WING COMPANY, INC. and LOCAL 266, INTER-
NATIONAL BROTHERHOOD OF FIREMEN AND OILERS , AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Case No. B-5732 .-Decided August 17, 1943
Messrs . L. F. Long and T. L. O 'Neil, of Fredonia , N. Y., for the
Company.
Messrs . George Kaltenbach and James Fadale, of Fredonia, N: Y.,
and Mr. Charles R. Miller, of Buffalo , N. Y., for the Firemen.
Miss Muriel J. Levor , of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Local 266, International Brotherhood of
Firemen and Oilers, Affiliated with the American Federation of La-
bor, herein called the Firemen, alleging that a question affecting com-
merce had arisen concerning the representation of employees of The
Red Wing Company, Inc., Fredonia, New York, herein called the
Company, the National Labor Relations Board provided for an ap-
propriate hearing upon due notice before Francis V. Cole, Trial Exam-
iner. Said hearing was held at Dunkirk, New York, on July 19,
1943. The Company and the Firemen appeared, participated, and
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues.
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Red Wing Company, Inc., a Maine corporation authorized to
do business in the State of New York, is engaged in the business of
51 N. L. R. B., No. 223.
1402
THE RED WING COMPANY, INC. 1403
canning and processing foods. It operates a plant for this purpose
at Fredonia, New York, where it used raw materials valued at ap-
proximately $700,000 during the year ending June 30, 1942, of, which
about 20 percent was shipped from points outside the State of New
York. During the same period the Company manufactured at the
Fredonia plant finished products valued at approximately $1,750,000,
of which about 50-percent was shipped to points outside the State of
New York.
For the purposes of this proceeding the Company concedes that it
is engaged in commerce within the meaning. of the National Labor
Relations Act.
II. THE ORGANIZATION INVOLVED
Local 266, International Brotherhood of Firemen and Oilers, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
By letter, dated March 30, 1943, the Firemen requested the Com-
pany to confer with it for collective bargaining purposes. At a con-
ference held April 10, 1943, pursuant to that request, the Company
refused to negotiate with the Firemen on the ground that it had an
agreement with Local 22577, affiliated with the American Federation
of Labor, herein called the Local, recognizing it as the sole bargaining
representative of the Company's production employees. The Com-
pany indicated at a further conference held on or about June 8, 1943,
a position which it maintained at the, hearing,'that it concedes that
the Firemen presented the Company with evidence indicating that it
represents a majority of its employees, and that the Company has no
objection to the Firemen representing its employees, but that in view
of the existence of the afore-mentioned contract, the Firemen are
bound by it until its expiration date.
The contract to which the Company thus adverted was executed
by the Company and the Local on March 5, 1942, and was by its terms
of 1 year's duration, commencing on its effective date, February 9,
1942, and it contained an 'automatic renewal clause in the absence of
30 days' notice of a desire to, terminate. Such notice was never given.
The evidence is not clear regarding the functioning or non-func-
tioning of grievance machinery under the contract. However, no
meetings of the Local were held from June 1942 until a special meet-
ing was held in February 1943 concerning the Local's inactivity. It
appears that after June 19, 1942, no per capita tax was paid by the
Local to the American Federation of Labor, its parent organization,
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the A. F. of L., and that an official of the A. F. of L.
informed the officers of the Local that it would be suspended and ad-
vised them "to organize." Another special meeting was held in
March 1943 at which the Firemen was organized.' Thereafter, by 9r-
rangement the Local surrendered its funds, and records to the A. F.
of L. and its charter was turned in. In addition, an A. F. of L.
official advised the Company by letter dated June 1, 1943, that the
A. F. of L. was severing its relations with the Company's employees.
The foregoing facts raise a substantial question as to the continued
functioning of the Local at the time, January 10, 1943, when the auto-
matic renewal clause would have operated pursuant to the contract.
Moreover, the Local has been dissolved, and the Company's employees
have transferred their allegiance to the Firelnen.2 Upon the record
in the case it is clear that whether or not the Company's, employees
are bound until February 9, 1944, by the terms of the contract with
the Local, they are entitled to select a new bargaining agent at this
time if they so desire .3 Accordingly, we find that the contract is not
a bar to a present determination of representatives.
A statement of the Field Examiner, introduced into evidence at
the hearing, indicates that the Firemen represents a substantial num-
ber of employees in the unit hereinafter found appropriate .4
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.
IV. THE APPROPRIATE UNIT
In substantial accordance with the agreement of the parties, we
find that all hourly paid production and maintenance employees of
the Company's Fredonia plant, excluding clerical, office and seasonal
employees, superintendents, foremen, and any other supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees or effectively recom-
mend such action, constitute a unit appropriate 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 among the em-
1 Officers were , elected and a resolution passed, applying for a charter which was subse-
quently received.
2 The Company concedes that the Firemen represents a majority of its employees.
3 Matter of Hueneme Wharf & Warehouse Company, 39 N. L. R B. 636
* The Field Examiner reported that the Firemen submitted 69 designations and a petition
with 84 signatures, which , together contain 88 apparently genuine original signatures,
corresponding with an equal number of names on the Company 's pay roll of May 8, 1943,
containing 112 names.
THE RED WING COMPANY, INC. 1405
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion 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 Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended , it is hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with The Red
Wing Company, Inc., Fredonia, 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 sub-
ject to Article III, Section 10, of said Rules and Regulations, among
the employees in 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 dur-
ing said pay-roll period because they were ill or on vacation or tem-
porarily 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 determine whether or not they desire to be represented by
local 266, International Brotherhood of Firemen and Oilers , Affiliated
with the American Federation of Labor , for the purposes of collective
bargaining.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Direction of Election.