Talladega Cotton Factory, Inc.

In the Matter of TALLADEGA COTTON FACTORY, INC., EMPLOYER and TEXTILE WORKERS UNION OF AMERICA, CIO, PETITIONER Case Alo. 10-RC-668.-Decided September 25, 1950 DECISION AND CERTIFICATION OF REPRESENTATIVES On August 25, 1949, pursuant to a "Stipulation for Certification upon Consent Election," an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Tenth Region, among the employees in the stipulated unit. Upon the completion of the election a tally of ballots was furnished the parties. The tally reveals that of the approximately 159 eligible voters, 153 cast ballots, of which 77 were for the Petitioner, 71 were against the Petitioner, 3 were void, and 2 were challenged. On September 1, 1949, the Employer filed objections to conduct af- fecting the results of the election. After an investigation, the Re- gional Director, on October 26, 1949, issued his, report on objec- tions, in which he recommended that the objections be overruled. On November 7, 1949, the Employer filed exceptions to the Regional Director's report on objections. On January 20, 1950, upon consideration of the Regional Director's report and the exceptions thereto, the Board issued and served on the parties an order in which it (1) remanded the matter to the Regional Director for a hearing, (2) directed the hearing officer to prepare and serve upon the parties a report containing findings of fact and rec- ommendations to the Board as to the disposition of the exceptions, and (3) granted the parties 10 days after service of the hearing officer's report to file exceptions thereto. Pursuant to notice, the hearing was held on March 28, 1950, before James W. Mackie, hearing officer. All parties appeared and partici- pated. The Employer thereafter filed a brief with the hearing officer. On May 25, 1950, the hearing officer issued his report, in which he found that the election was conducted in a free atmosphere and that the Employer's exceptions were without merit, and recommended that they be overruled. Thereafter, the Employer filed exceptions to the hearing officer's report and a supporting brief. The Board has reviewed the rulings made by the hearing officer and finds that no prejudicial error was committed. The rulings are 91 NLRB No. 81. 470 TALLADEGA COTTON FACTORY, INC. 471. hereby affirmed. The Board has considered the hearing officer's report, the exceptions thereto, the supporting brief, and the entire record in this case. For the reasons outlined below we agree with the hearing officer's ultimate finding that the Employer's objections do not raise material and substantial issues affecting the election. 1. At the outset of the hearing, the Employer moved to strike that part of the order of January 20, 1950, which directed the hearing officer to make findings of facts and recommendations to the Board. The hearing officer referred this motion to the Board. In support of the motion, the Employer contends that the Act forbids the making of findings of fact or recommendations by a hearing officer in a rep- resentation proceeding. The. Act, in Section 9 (c) (1), provides in part as follows : Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board .. . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting com- merce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot. . . . We do not believe the above limitation on reports by hearing officers to be applicable to the hearing conducted in this case. The prohibition appears quite clearly to be applicable only to the hearing normally conducted before an election is ordered. That hearing was waived by the parties to this case. The hearing on objections conducted here is a special proceeding where questions of credibility are often ex- tremely important. We do not believe, and the legislative history of the provision quoted above does not indicate, that Congress in- tended to deprive the Board of the assistance of the hearing officer in such a situation. Nor do our rules and regulations require any other result. The parties received ample notice of the procedure adopted by the Board in this case and none of them appear to have been preju- diced thereby. For the foregoing reasons, we deny the motion. 2. With respect to the hearing officer's finding that the election was conducted in a free atmosphere, the Employer's exceptions al- leged principally that two of its supervisors, Pilkington and Shiflett, coerced employees into voting for the Petitioner, and that it did not know of this coercion before the election. However, the evidence shows, as the hearing officer found, that the Employer did know 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the election that Pilkington and Shiflett were sympathetic toward the Petitioner and active on its behalf. The Employer, ad- mittedly having heard of Pilkington and Shiflett's prounion activi- ties, contends that it investigated by questioning the two supervisors, and believed their denials. The record does not show that such an investigation was made. It shows, as the hearing officer found, that the Employer was informed of the conduct of Pilkington and Shiflett and took no action to disavow it. Moreover, the record shows that the Employer's position with respect to the Union was amply demon- strated to the employees by the letters it sent them expressing its desire that they vote against the Union. If the Employer had been genuinely concerned with the employees' opportunity to express a free choice at the pending election, it could have taken appropriate steps to dissipate the alleged coercive effects of the conduct of its supervisors. Instead of trying to do so, however, the Employer chose to permit the election to be held and then, after discovering that the employees desired representation by the Peti- tioner, sought to set it aside. We do not consider it necessary to decide whether the statements and actions of Pilkington and Shiflett were so coercive as,' under other circumstances, to justify our setting the election aside. We are satisfied that the Employer, by reason of its knowledge and acquiescence, as set forth above, may not now invalidate the election because of the alleged misconduct of its own representatives.' As the tally shows that the Petitioner secured a majority of the valid votes cast in the election, we shall certify }t as the bargaining representative of the employees in the stipulated 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 production and maintenance employees of Talladega Cotton Factory, Inc., Talladega, Alabama, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act, as their representa- tive for the purposes of collective bargaining, and that pursuant to Section 9 (a) of the Act, the said Union is the exclusive representa- tive of all such employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. . I See E. I. DuPont de Nemours and Company, 81 NLRB 238 ; The Goodyear Tire & Rubber Company, 85 NLRB 135; Greater New York Broadcasting Company, 85 NLRB 414. Cf. Robbins Tire & Rubber Co ., Inc., 72 NLRB 157, and Parkchester Machine Corporation, 72 NLRB 1419 . It is the Employer 's knowledge before the election which distinguishes the present case from the Robbins and Parkchester cases.