Memphis Moldings, Inc.

MEMPHIS MOLDINGS, INC. 265 advance with respect to the issues involved, for we have indicated that we shall treat -a brief filed by 'a party as a motion for reconsid- eration of any issue disposed of adversely to that party. Finally, to insure that briefs will be considered before the results of any of the elections hereinafter directed are known, the Regional Director is hereby instructed to impound the ballots cast in all of the elections. [Text of Direction of Election omitted from publication.] Memphis Moldings, Inc. and District 50, United Mine Workers of America. Case No. 26-CA-1598. 'March 6, 1964 DECISION AND ORDER On December 11, 1963, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair, labor prac- tices within the meaning of the Act and recommending that it cease and desist therefrom and take certain affirmative action,, as set forth in the 'attached Trial Examiner's Decision. Thereafter, the Respond- ent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 The Recomended Order is hereby amended by substituting for the first paragraph therein the following paragraph: 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 Respondent, Memphis Moldings , Inc., its officers , agents, successors, and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case, Case No. 26-CA-1598 , was brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called 146 NLRB No. 3-0. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, on a charge filed on August 15, 1963, by District 50, United Mine Workers: of America, herein called the Union, against Memphis Moldings, Inc., herein called Respondent. On September 4, 1963, General Counsel issued n complaint against Respondent alleging a refusal to bargain since July 29, 1963, in violation of Section 8(a)(5) and (1) of the Act. On September 16, 1963, Respondent by answer denied the violation and stated affirmatively therein the same defenses it had raised in the prior representation proceeding, Memphis Moldings, Inc.; Case- No. 26-RC-1941. A hearing on the complaint and answer was held before Trial Examiner James F. Foley on September 24, 1963. General Counsel, Respondent, and Charging Party were represented at the hearing. The parties were afforded an opportunity to be heard, to make oral argument, and to file briefs. Respondent filed a brief after the close of the hearing. FINDINGS OR FACT 1. THE REPRESENTATION PROCEEDING In the representation proceeding, the Regional Director of the Twenty-sixth: Region issued on May 9, 1963, a Decision and Direction of Election. In his decision he found that the business of Respondent, a manufacturer of wood prod- ucts, met the statutory requirements for jurisdiction by the Board, and asserted jurisdiction without a determination as to whether Respondent's business met the Board's policy jurisdictional standards in view of Respondent's refusal to disclose the evidence peculiarly within its knowledge on which such a determination could be made. The Regional Director relied on the Board's decision in Seaboard Ware- house Terminals, Inc., 123 NLRB 378.1 The Regional Director also found, con- trary to Respondent's affirmative defense, that the Union was a labor organization within the meaning of the Act, and was qualified under the Act to represent Respondent's employees as collective-bargaining representative within the State of Tennessee notwithstanding the requirements of Section 20-223 of the Tennessee Code Annotated. He relied on the Board's decision in Mayfair Industries, In- corporated, 126 NLRB 223, and G. R. Ogletree, d/b/a Longhorn Sash and Door Company, 79 NLRB 1430, footnote 1.2 On May 14, 1963, Respondent by counsel filed with the Board a request for review pursuant to Section 102.67(b) of the Board's Rules and Regulations. The Board denied the request on May 29, 1963. An election was held in Respondent's plant on June 3, 1963, in which a majority of Respondent's employees in the appropriate unit selected the Union as collective-bargaining representative. Respondent on June 6, 1963, filed with the Regional Director objections to the conduct of the election. The objections were comprised of the same defenses stated above which the Regional Director disposed of in his decision of May 9, 1963. On June 14, 1963, the Regional Director in a Supplemental Decision and Certification of Representative held the objections to be lacking in merit, and certified the Union as exclusive bargaining representative of Respondent's employees in the unit found appropriate. On June 21, 1963, Respondent filed with the Board a request for review. It was denied by the Board on July 17, 1963, for the reason that it raised "no substantial issues warranting review." II. THE UNFAIR LABOR PRACTICES On June 17, 1963, the Union, by letter, requested Respondent to meet and negotiate a contract. Respondent, by counsel, replied in writing on June 20, 1963, that it intended to request a review of the Regional Director's Supplemental Decision and Direction of Election. As stated above, Respondent filed the request on June 21 and it was denied on July 17. On July 25, 1963, the Union by letter again asked Respondent to meet and negotiate a collective-bargaining contract. On July 29, 1963, the day Respondent received the Union's letter, it replied, by counsel, to the Union. It agreed to meet with the Union and bargain provided the Union fur- nished Respondent with a copy of its constitution, and a statement by its general counsel that it may legally do business in Shelby County, Tennessee, without qualifying under the provisions of Section 20-223 of Tennessee Code Annotated, and agreed that Respondent was not waiving its right to dispute and deny the legality of the representation hearing, the election, the Union's right to organize i See also N.L R.B. v. Holiday Hotel Management Co., Inc., 311 F. 2d 380 (C.A. 10). z See also United States Gypsum Company, 80 NLRB 779; Central Bus Lines, Inc., 88 NLRB '1223; Dalton Telephone Company, 82 NLRB 1001, 1002-1003; Hans J. Hvide, et al., d/b/a Port Everglades Towing Company, Ltd., et al., 134 NLRB 795. MEMPHIS MOLDINGS, INC. 267 employees in the woodworking industry, and the Union's right to engage in business in Shelby County, Tennessee, without first qualifying under the provisions of Sec- tion 20-223 of the Tennessee Code Annotated. The Union did not reply to Re- spondent's letter of July 29. As stated above,- it filed the refusal-to-bargain charge against Respondent with the Regional Director on August 15, 1963. The Regional Director issued the complaint alleging a refusal to bargain against Respondent on September 4, 1963. Defendant in its answer filed September 16, 1963, admitted that Respondent is a Tennessee corporation with its principal place of business in Memphis, Tennessee, engaged in the manufacturing of stairways and moldings. It is undisputed that these products are wood products. Respondent neither admitted nor denied the allega- tion in the complaint that during the 12 months preceding September 4, 1963, it received products with a value in excess of $50,000 directly or indirectly from points outside the State of Tennessee, and that during the same period .it manufactured, sold, and shipped products with a value in excess of $50,000 directly to points outside Tennessee or to enterprises within Tennessee which met the Board's estab- lished jurisdictional standards. Respondent denied the allegations that the Union was a labor organization within the meaning of the Act, that the Union had requested it to bargain, and that it had refused to bargain. Affirmatively, Respondent alleged that the Union was not empowered by its constitution to represent employees in the woodworking industry or to represent employees except through a local union. It also alleged that the Union was not qualified to do business as a representative of employees in Shelby County, Tennessee, as it had not appointed or registered a process agent as required by Section 20-223 of the Tennessee Code Annotated. On September 20, 1963, General Counsel subpenaed the president and general manager of Respondent to appear at the hearing on September 24, 1963, and bring' with them purchase and sales records for the period September 4, 1962, through 'September 4, 1963, or summaries showing the sales and purchases entered in those records. These officials did not respond to the subpenas on September 24, 1963. Respondent's counsel argued that they had 5 days within which to move to quash the subpenas. Counsel for General Counsel thereupon offered' in evidence the same secondary evidence that was received in evidence in the representation proceeding following the refusal of the same officials to respond to subpenas duces . tecum in that proceeding. These are freight waybills showing shipments of freight in inter- state commerce for which it prepaid the freight charges, and shipments' to Re-' spondent in interstate commerce for which it paid the freight charges. These waybills were received in evidence without objection as were three additional way- bills showing shipments, prepaid, by Respondent of its products in interstate com- merce in July, August, and September, 1963. General Counsel then offered in evidence the record in the representation proceeding. It was received without objection Respondent's defense consists of the identical defenses raised in the representation proceeding. They are set out affirmatively in Respondent's answer as stated above. No additional evidence was offered. Respondent contends that the absence of evidence of the dollar value of sales or purchases by Respondent in interstate com- merce precludes the Board from determining whether the Board has either statutory or policy jurisdiction and, therefore, from asserting jurisdiction. As stated above, Respondent followed the same procedure in this proceeding as in the representation proceeding to deny access to its records containing this evidence. In evidence in the representation proceeding is a certificate of noncompliance with Section 20-223 of the Tennessee Code Annotated signed by •th& clerk of the circuit court of Shelby County. In this proceeding there is in evidence a certificate of noncompliance signed by the clerk of the circuit court on September 24, 1963.3 M. ANALYSIS AND CONCLUSIONS I On the basis of the foregoing findings , I make the following analysis, findings,' and conclusions. ' It is undisputed that on June 17 and-July 25, 1963 , and thereafter, the Union has requested Respondent to recognize and bargain with it as the statutory ' bargaining` $ Respondent also contends that there is no showing that the Union has filed with the Secretary of Labor as required by Section 9(f) of the Act a copy of its constitution and bylaws and the reports described in Section 9(f). It therefore argues that the General Counsel was not authorized by Section 10(b) of the Act to Issue the complaint in this proceeding Respondent's counsel apparently overlooked the repeal of Section 9(f) of the Act by the Labor-Management Reporting and Disclosure Act of 1959. , 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of its employees. Respondent has refused and still refuses such. requests. Admitting its refusal to meet with the Union and negotiate, Respondent asserts that there is no evidence that the Board had or has jurisdiction to entertain the representation or the unfair labor practice proceeding, that the Union is not a labor organization, and that the Union is not qualified to act as a collective- bargaining representative under the Act for failure to appoint a process agent and register him with the circuit court at Shelby County, Tennessee, pursuant to Section 20-223 of the Tennessee Code Annotated. Respondent thus presents nothing here which was not considered and resolved in the aforementioned representation case. The Board has jurisdiction, and the Union is a labor organization and is qualified to act as collective-bargaining representative notwithstanding Section 20-223 of the Tennessee Code Annotated. The certifica- tion issued by the Board is in full force and effect and has been since June 14, 1963. By refusing to honor,such certification, Respondent has violated and is violating Section 8 (a) (5) and (1) of the Act 4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with Respondent's business operations described in section I, above, 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 thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Board has jurisdiction over these proceedings. 3. District 50, United Mine Workers, is a labor organization within the meaning of the Act. - 4. All production and maintenance employees at the. Respondent's Memphis, Tennessee, plant, including truckdrivers, but excluding office clerical employees, guards, and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since June 14, 1963, the Union has been and continues to be the exclusive bargaining representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on and after July 29, 1963, to bargain collectively with the Union as the exclusive representative of its employees in the aforementioned unit, Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (5) of the Act. 7. By the refusal to bargain collectively, Respondent has interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Memphis Moldings, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and-desist from: ' (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other conditions of employment with District 50, United Mine * Olson Rug Company, 120 NLRB 366; The Mountain States Telephone and Telegraph Company, 136 NLRB 1612; Northwestern Publishing Company, 144 NLRB 1069; Man.nsng, Maxwell A Moore, Incorporated, 143 NLRB 5, enfd. 324 F. 2d 857 (C.A. 5) ; Section 102.67, Board's Rules and Regulations, Series 8, as amended. - Nothing has- been presented to indicate that the Board upon reexamination of legal issues would change the resolutions of such issues it made In the representation proceeding. American Broadcasting Com- pany, etc., 134 NLRB 1458. MEMPHIS MOLDINGS, INC. 269 Workers, of America, as the exclusive representative of all production and mainte- nance employees of its Memphis, Tennessee, plant, including truckdrivers, but excluding office clerical employees, guards, and supervisors as defined in the Act. (b) Engaging in any like or related conduct interfering with the efforts of Dis- trict 50, United Mine Workers of America, to negotiate for and represent the em- ployees in the above appropriate unit as their exclusive bargaining agent. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Upon request, bargain collectively with District 50, United Mine Workers of America, as the exclusive representative of all employees in the above appropriate unit, with respect to rates of pay, wages, hours ofemployment, and other condi- tions of employment, and, if an understanding is, reached, embody such under- standing in a signed agreement. (b) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by Respondent's representa- tive, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify the said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply therewith.6 It is further recommended that unless on or before 20 days from the receipt of this Trial Examiner's Decision and Recommended Order the Respondent notifies the said Regional Director, in writing, that it will comply with the foregoing Recom- mended Order, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 5If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of the United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order." In the event that this Recommended Order is adopted by the Board, paragraph 2(c) thereof shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Libor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively upon request with District 50, United Mine Workers of America, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Memphis, Tennessee, plant, including truckdrivers, but excluding clerical employees, guards, and supervisors as defined in the Act. MEMPHIS MOLDINGS, INC., Employer. Dated------------------- By-----------------=------r------------------ (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate, directly with the Board's Regional Office, 746 Federal Office Building, 167 North, Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any questions concerning this notice or compliance with its provisions.