Royal Cotton Mill Co., Inc.

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fore set aside the election of December 4, 1953, and direct that a new election be conducted. [The Board set aside the election conducted on December 4, 1953.] [Text of Direction of Third Election omitted from publication.] ROYAL COTTON MILL COMPANY, INC. and TEXTILE WORKERS UNION of AMERICA, CIO. Case No. 11-CA-536. July 19,1954 Decision and Order On May 29, 1953, Trial Examiner Albert P. Wheatley issued his In- termediate Report in the above -entitled proceeding, finding that • the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report at- tached hereto. Thereafter, the Respondent filed exceptions to the In- termediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed . The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions , and rec- ommendations insofar as they are consistent with the findings and conclusions made below. During the term of an exclusive bargaining contract with the Union, the Respondent admittedly ceased to recognize the Union as the statutory representative and refused to bargain with the Union under the contract with respect to certain grievances . The Respond- ent would justify its action on the ground that certain events estab- lished that the Respondent was acting in good faith , and that no vio- lation of the Act may be found. We find no merit in that defense. The record shows that the Respondent was confronted with a rival representation claim by the AFL 1 which represented that the em- ployees of the Respondent voted to disaffiliate from the Union and to affiliate with the AFL. When this claim was relied upon by the Re- spondent in refusing to deal with the Union, the latter responded that although some of its members were "misled " into voting to secede at a "meeting" in May 1952, the members present at a meeting of the Union of August 2, 1952, voted unanimously to affirm their loyalty to the Union and requested it to process the grievances in question. ' United Textile R orkers of America , AFL, herein called AFL 109 NLRB No. 33. ROYAL COTTON MILL COMPANY, INC. 187 The Respondent nevertheless continued to refuse to deal with the Union unless it furnished additional proof that it represented a ma- jority of the Respondent's employees. The Union did not comply and filed the instant charge. In our opinion, the facts in this case fall short of measuring up to the standards which we require to establish a schism or defunctness, which would, in fact, create a question concerning representation, not- withstanding the existence of a current bargaining agreement.' Nor, apart from other possible considerations, do we believe that the AFL's unsupported claim of majority representation constituted, under the circumstances of this case, a reasonable basis for the Respondent to entertain a bona fide doubt as to the Union's representative status, which had been memorialized in a valid subsisting contract. Unde- niably, in May 1952, there had been, to some degree, an insurgent movement among the Respondent's employees to transfer their allegi- ance but, so far as the present record shows, this movement was abor- tive. More significantly, the facts appearing as of August 1952, es- tablished the utter lack of substance to the AFL claim. Thus, dur- ing the entire period of over 2 months between the AFL's claim and the Union's request for a grievance bargaining session, the AFL neither furnished the Respondent with evidence of its alleged ma- jority status nor filed with this Board a petition for certification. In the past, we have held that naked rival claims, unsupported by subsequent petitions or evidence of substance for a substantial period of time after the claims are made, do not relieve an employer of the statutory obligation to bargain with the established majority repre- sentative.3 We think that principle is here controlling. Finally, had there been any genuine concern over the alleged con- fusion resulting from the AFL's naked claim and the failure of the Union to furnish additional evidence to support its contractural rep- resentative status, we believe that the Respondent would have taken advantage of the Board's processes by filing a representation petition so as to prevent this long hiatus in collective bargaining' Instead, by refusing to deal with the Union on the ground of an alleged policy of neutrality, the Respondent elected to disrupt an established con- tractural relationship on the mere assertion of a rival naked claim.5 On all of the facts, therefore, we find that the Respondent did not have, and could not have had, a bona fide belief that the Union may have lost its majority status, or that the AFL's bare claim raised a 'Boyle-Midway, Inc , 97 NLRB 895 ; American Factors, Ltd, et al, 104 NLRB 199; Central Rufna, 105 NLRB 591 8 Square D Company, 105 NLRB 253 ; Universal Food Service, Inc., 104 NLRB 1; Spitzer Motor Sales, Inc, 102 NLRB 437 at 448-452 4 Toolcraft Corporation, 92 NLRB 655 at 656. 5 Unlike the Trial Examiner , we find it unnecessary to determine whether the Respondent's conduct constituted a termination of the existing contract or a violation of Section 8 (a) ( 5) under Section 8 (dl of the Act. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substantial question concerning representation.' By reason thereof we find, in agreement with the Trial Examiner, that the Respondent's refusal to bargain with the Union upon request constituted a viola- tion of Section 8 (a) (5) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Royal Cotton Mills Company, Inc., Wake Forest, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to recognize or to bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all production and maintenance employees at Respondent's Wake Forest, North Carolina, plant, including yardmen, the leadmen in the yard, watchmen, the overhauler, yarn sizer, section men, and factory clerical employees, but excluding office clerical employees, professional employees, and supervisors as defined in the Act. (b) Engaging in any like or related acts or conduct interfering with the efforts of the above-named Union to negotiate for or repre- sent the employees in the aforesaid unit as exclusive bargaining agent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, CIO, as the exclusive representative of all the employees in the appropriate unit. (b) Post at its plant in Wake Forest, North Carolina, copies of the notice attached hereto and marked "Appendix." ' Copies of such notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the Respondent's authorized representative be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Eleventh Region, in writ- ing, within ten (10) days from the date of this order, what steps the Respondent has taken to comply herewith. 6 Member Murdock, although agreeing with this finding , would also find that in any event, regardless of its belief, the Respondent was not warranted under these circum- stances in refusing to bargain with the Union. In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." ROYAL COTTON MILL COMPANY, INC. 189 Appendix NOTICE TO ALL EMPLOYEES Pursuant to a decision and order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT engage in any acts in any manner interfering with the efforts of Textile Workers Union of America, CIO, to negotiate for or represent the employees in the bargaining unit described below. WE WILL bargain collectively upon request with the above- named Union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, or other conditions of employment. The bargaining unit is: _ All production and maintenance employees at our Wake Forest, North Carolina, plant, including yardmen, the lead- man in the yard, watchmen, the overhauler, the yarn sizer, section men, and factory clerical employees, but excluding office clerical employees, professional employees, and super- visors as defined in the National Labor Relations Act, as amended. ROYAL COTTON MILL COOMPANY, INC., 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. Intermediate Report STATEMENT OF THE CASE Following a certification issued on September 29, 1950, Royal Cotton Mill Com- pany, Inc., herein called Respondent, and the Textile Workers Union of America, CIO, herein called the CIO, entered into a contract effective for 1 year from Jan- uary 22, 1952. On or about May 26, 1952, Respondent was notified by the United Textile Workers of America, AFL, herein called AFL, that it, and not the CIO, represented the employees involved herein and that it (the AFL) was seeking recognition. No further claims were made by the AFL and no proceedings under Section 9 of the National Labor Relations Act, as amended, herein called the Act, were instituted. About the middle of August 1952 Respondent refused to continue its recognition of the CIO. The only question in issue herein is, whether Respond- ent's refusal to continue to recognize the CIO violated Section 8 (a) (5) of the Act whether Respondent unlawfully refused to bargain).' FACTS Following an election by secret ballot, the CIO was certified, on September 29, 1950, as the exclusive representative of all production and maintenance employees' 1 At the hearing before the undersigned in Raleigh, North Carolina, on May 7, 1953, the issues were narrowed to this single issue. 2 There is no issue herein concerning unit. The parties agree that a unit appropriate for the purposes of collective bargaining consists of all production and maintenance em- 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the Wake Forest, North Carolina, plant of Respondent. Thereafter Respondent and the CIO executed a collective-bargaining contract effective for 1 year from Jan- uary 22, 1952. Between January and May 1952 representatives of the CIO and Respondent met on several occasions and discussed various matters, including griev- ances. Between about May 1, 1952, and August 12, 1952, there was little or no activity at Respondent's plant on behalf of the CIO. This record infers that on or about May 24, 1952, some of the employees in the unit heretofore described voted to withdraw from the CIO and to affiliate with the AFL. By letter dated May 26, 1952, the AFL advised Respondent: This is to inform you that your employees are members of this labor organ- ization [AFL] and have designated this union to represent them for the purpose of collective bargaining. This is to advise you that on May 24, 1952, your employees formerly affiliated with the Textile Workers Union of America, CIO, at a regularly constituted meeting voted to withdraw and disaffiliate with said union and to affiliate with the United Textile Workers of America, AFL. The overwhelming majority of your employees designated the UTWA-AFL as their collective bargaining agent. We hereby request an appointment for the purpose of securing recognition by you of the United Textile Workers of America, AFL, as the collective bargaining agent for your employees and for the further purpose of commencing negotia- tions for an agreement. We hereby request that you are not to deal with or bargain with the Textile Workers Union of America, CIO. The members of Local #1238 are no longer members of TWUA-CIO, therefore no reason exists for further bargaining with TWUA-CIO. Very truly yours, By letter dated June 2, 1952, Respondent advised the AFL: We have received your letter of May 26 in which you request that we meet with and recognize you as the collective bargaining agent of our employees. We, of course, are party to a contract with the Textile Workers Union of America, CIO in which we recognize that Union as "the exclusive representa- tive" of our employees. In view of such contract, on the one hand, and your assertion, that you now represent our employees, on the other hand, we are not certain as to just whom it is our legal duty to recognize and deal with. Under the circumstances it would seem that the proper position for us to take is that further bargaining dealings shall be held in a state of suspense until there is some authoritative determination as to what our duties are. Very truly yours, The only contact between Respondent and the AFL consists of the correspondence quoted above. There is no evidence of any activity on behalf of the AFL and Respondent's witnesses testified there was no activity, at Respondent's plant, on behalf of any union during the summer of 1952. No petition, other than the one filed in Case No. 34-RC-206 in 1950, under Section 9 of the Act has been filed. By letter dated August 12, 1952, the CIO advised Respondent that there were several instances of unsettled grievances and requested Respondent to meet con- cerning these matters. Respondent informed the CIO of the correspondence between Respondent and the AFL, requested proof of majority representation, and refused to continue to recognize the CIO as the bargaining agent for its employees 3 absent such proof. Conclusions Once employees have designated their bargaining representative in accordance with the Act, recognition of that representative is not a matter which an employer may or may not grant when and as he chooses. A duty to bargain with such a duly designated representative has been imposed upon him by the Act. The Act also provides the methods whereby such a duty may be dissolved and in the absence of circumstances giving rise to "good faith" doubts an employer may not decide for ployees at Respondent's Wake Forest, North Carolina, plant, including yardmen, the lead- man in the yard, watchmen, the overhauler, the yarn sizer, section men, and factory clerical employees, but excluding office clerical employees, professional employees, and supervisors as defined in the Act Also see Royal Cotton Mall Company, Case No. 34-RC-206 (not reported in printed volumes of Board Decisions and Orders) 3 There is no issue herein as to whether the grievances were proper subjects for collec- tive bargaining. ROYAL COTTON MILL COMPANY, INC. 191 itself whether the union has lost its bargaining status, and deciding that it has, refuse to deal with it further. Although certification of a bargaining representative by the Board is not intended to create a permanent relationship without regard to new situations that may develop, there must be a reasonable measure of stability to the relationship so established, as it is one of the objectives of the Act to stabilize as well as improve industrial relations. Accordingly, it is now well settled that a union's representative status established by Board certification is conclusively presumed for a reasonable period of time, customarily 1 year after certification, and indefinitely thereafter until such status is shown to have ceased. Also, to encourage a reasonable stability in existing bargaining relationships , the Board has followed a general administrative policy of not affording employees a new opportunity for a redetermination of representatives while the employees concerned are covered by a collective-bargaining agreement which is not approaching expiration. This "contract bar" rule is not without excep- tions. However, had a petition under Section 9 of the Act been filed, which is not the case herein, the Board, in all probability, would have determined, in the light of the facts described above, that the conflicting claims to representation of the two labor organizations involved were not sufficient to warrant a finding that there was a question concerning representation and not sufficient to warrant an election to resolve the dispute.' As noted above, during the term of a valid collective-bargaining contract, Re- spondent, in reliance upon the events described above, refused to recognize or bargain with the contracting union (the CIO) and thereby terminated the contract. There can be no question that the action of the AFL did not, in fact or in law, terminate the contract. Nevertheless, Respondent, in complete disregard of its terms, unequivocally indicated that it would no longer abide by the provisions of the agreement. It appears that matters involving the enforcement of contracts should be left to the usual processes of the law and not to the National Labor Relations Board. Nevertheless, an employer's refusal to abide by the terms of a contract is a pertinent fact to be examined and appraised in determining whether there is manifest less than wholehearted cooperation with the union and an infringement upon the rights guar- anteed by the Act. It is not open to dispute that a negotiated contract is the desired goal of collective bargaining. Such a contract is a serious achievement and successful labor relations and the attainment of the purposes of the Act requires that such a contract not be lightly cast aside. Congress, this Board, and the courts have indicated the sanctity of collective-bargaining contracts is to be maintained . (See Section 8 (d) of the Act,5 N. L. R. B v. Sands Mfg. Co., 306 U. S. 332, and N. L. R. B. v. Rockaway News Supply Company, Inc., 345 U. S. 71.)6 The cases mentioned above establish that employees may not repudiate an existing contract by refusing to work in accord- ance with its terms. To permit management but not labor to cast aside such con- tracts would make a farce of the whole theory and practice of collective bargaining. The burden of observing the terms of a collective-bargaining contract falls equally on the shoulders of both labor and management. In the light of the foregoing the undersigned is not convinced that the bargaining relationship between Respondent and the CIO, because of the events described above, had become a matter of such confusion that the relationship between them no longer promoted stability in industrial relations and is not convinced that Respondent, in terminating its bargaining relations with the CIO was acting in good faith. In the opinion of the undersigned, Respondent's conduct failed to meet the standard of 4 Voluminous and well established, though still evolving in the light of changing indus- trial practices, decisional law has resulted from the Board's resolution of the conflict be- tween a reasonable permanence to the relationship created by a contract and the exercise of employees of their full freedom of designation of representatives of their own choosing- has resulted from "contract-bar" cases-and these principles have been recognized by the courts and applied.in complaint cases. (See N. L. R B v. Geraldine Novelty Co., Inc., 173 F 2d 14 (C A 2).) 5 Section 8 (d) provides, in so far as it is pertinent herein, "That where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless . . [unless the party desiring such termination or modi- fication follows a prescribed procedure, which Respondent herein did not follow]." 6 See also John W Bolton d Sons, Inc, 91 NLRB 989, holding it is a violation of Section 8 (a) (5) of the Act to modify an existing contract without compliance with the procedural provisions of Section. 8 (d) of the Act. 192 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD good-faith bargaining required by Section 8 (d) of the Act and constituted a refusal to bargain in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. ULTIMATE FINDINGS AND CONCLUSIONS In view of the foregoing, and upon consideration of the entire record, the under- signed finds and concludes that: (1) Royal Cotton Mill Company, Inc., is engaged in commerce within the mean- ing of the Act.7 (2) Textile Workers Union of America, CIO, is a labor organization within the meaning of the Act. (3) The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All production and maintenance employees at Respondent's Wake Forest, North Carolina, plant, including yardmen, the leadman in the yard, watchmen, the overhauler, the yarn sizer, section men, and factory clerical employees, but excluding office clerical employees, professional employees, and supervisors as defined in the Act. (4) On September 21, 1950, a majority of the employees in the aforementioned unit designated the CIO as their representative for the purpose of collective bar- gaining and on that date and at all times material herein the CIO has been the exclusive bargaining representative of all the employees in the aforementioned appropriate unit. (5) On or about August 12, 1952, and at all times thereafter, Respondent unlaw- fully refused and has continued to refuse to bargain 'collectively with the CIO as the representative of the employees in the unit heretofore found appropriate. (6) By the aforesaid refusal to bargain Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (a) (5) and (1) Section 2 (6) and (7) of the Act. (7) The aforesaid unfair labor practices occurring in connection with the opera- tions of Respondent's business, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Since it has been found that Respondent has engaged in unfair labor practices, it will be recommended that Respondent take the action hereinafter specified in order to effectuate the policies of the Act. [Recommendations omitted from publication.] 7 Respondent engages in the manufacture, sales, and distribution of textile yarns and related products. Its principal place of business is located at Wake Forest, North Caro- lina, and in the course and conduct of its operations Respondent causes equipment, supplies, and raw materials, of a value of more than $500,000 annually, and finished products, of a value of more than $25,000 annually, to be transported and delivered in interstate commerce. SHIRLINGTON SUPERMARKET, INC., AND ITS SUBSIDIARIES, SHIRLEY FOOD STORE No. 1, INC., SHIRLEY FOOD STORE No. 2, INC., SHIRLEY FOOD STORE No. 5, INC., SHIRLEY FOOD STORE No. 6, INC., AND WEST- MONT SUPERMARKET, INC., and LOCAL 1501, RETAIL CLERKS INTER- NATIONAL ASSOCIATION, AFL. Case No. 5-CA-775. July 19, 1954 Order Denying Motion for Reconsideration On April 29, 1954, the Board issued its Decision and Order herein,' in which it found that the first representation election among the Respondent's employees was validly set aside, and consequently that 3108 NLRB 579. 109 NLRB No. 57.