Herron Yarn Mills, Inc.

HERRON YARN MILLS, INC. 629 Herron Yarn Mills, Inc. and United Furniture Workers of Amer- ica, AFL-CIO, Local 282. Case 26-CA-2360. August 23,1966 DECISION AND ORDER On June 13, 1966, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. 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 this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] 'In section (b) of the second full paragraph of the Trial Examiner's Decision, the words "inefficient in law" are corrected to read "insufficient in law." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed March 11, 1966, by United Furniture Workers of America, AFL-CIO, Local 282, herein the Union, against Herron Yarn Mills, Inc., herein the Respondent, the General Counsel issued complaint alleging Respondent vio- lated Section 8(a)(5) and (1) of the Act. The answer of Respondent denied certain allegations of the complaint and denied the commission of any unfair labor practices. In paragraph XIV of its answer Respondent asserted six affirmative defenses. This paragraph reads as follows: Respondent is informed and believes, and, therefore , alleges that United Furniture Workers of America, AFL-CIO, Local 282, was not on October 4, 1965, and is not now, a labor organization within the meaning of Section 2(5) of the Labor Management Relations Act of 1947, as amended, and that Respondent is not required under the law to bargain with said union for the following reasons: (a) It has failed to qualify to engage in business as a labor union in Shelby County, Tennessee, as required by Section 20-223 of the Code of Tennessee. (b) The constitution of the United Furniture Workers of America does not permit it or its local unions to organize or represent employees employed in the type of business in which Respondent is engaged. (c) One or more of the officers of the complaining union belong to the Communist Party and/or Communist front organizations so recognized and designated by the Attorney General of the United States and/or the House Un-American Activities Committee of the United States Congress. 160 NLRB No. 54. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) No request has been made by any officer of United Furniture Workers of America, AFL-CIO, Local 282, that Respondent recognize said union ,as the sole and exclusive bargaining agent for its employees and to bargain with it with respect to wages and working conditions. (e) The person holding himself out as a representative of Local 282 of the United Furniture Workers of America and seeking to bargain with Respondent is without authority to represent said union, is not a member of said union nor is he an officer or employee of the same. (f) The person seeking to represent Local 282 of the United Furniture Workers of America and bargain with Respondent is a Communist and/or a member of the Communist Party of the United States and/or a member of one or more Communist front organizations as designated by the Attorney General of the United States and the House Un-American Activities Com- mittee of the United States Congress and/or a Communist sympathizer. At the opening of the hearing counsel for the Charging Party moved to strike subparagraphs (a), (b), (c), (e), and (f) on the ground that the allegations con- tained therein were "Scandalous, impertinent, irrelevant and untrue." The Trial Examiner, John F. Funke, granted the motion as to (a), on the ground that the Labor-Management Relations Act, as amended, preempted State law on matters covered by the statute; as to (b), on the ground that it was inefficient in law; as to (c), on the ground that it was irrelevant to this proceeding; as to (e), I reserved decision; I and as to (f), the motion was granted on the ground that, if true, it was irrelevant to this proceeding. Upon the entire record in this case I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times material herein, incorporated in, or licensed to do busines in, the State of Tennessee and has an office and place of business located in Memphis, Tennessee, where it is engaged in the business of manufacturing yam. During the past 12 months, Respondent, in the course and conduct of its busi- ness operations processed, finished, sold, and shipped goods and products valued in excess of $50,000 from its Memphis, Tennessee, location, directly or indirectly, to points outside the State of Tennessee. During the past 12 months, Respondent, during the course and conduct of its business operations, purchased and received goods and products valued in excess of $50,000 at its Memphis, Tennessee , location, directly or indirectly, from points out- side the State of Tennessee. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES A. The facts 1. The background 1. On August 17, 1965, the Union filed a representation petition with the National Labor Relations Board for an election among the production and main- tenance employees of the Respondent. 2. On September 8, 1965, the Regional Director issued a Decision and Direction of Election following a hearing held August 30. 3. On October 4, 1965, an election was held at which 17 votes were cast for the Union, 16 against the Union, and 12 were challenged. 1 After the testimony of LeRoy Clark was concluded counsel for the Charging Party renewed his motion to strike subparagraph (e) and the motion was granted HERRON YARN MILLS, INC. 631 4. On November 18, 1965, the Regional Director issued a supplemental deci- sion on challenged ballots and on December 2, 1965, the Regional Director issued a revised tally of ballots showing 27 votes cast for the Union and 18 against.2 5. On December 8, 1965, the Acting Regional Director issued a certification of representation designating the Union as exclusive bargaining agent of the employees of Respondent in a unit defined as follows: All production and maintenance employees, shipping and receiving clerks and truckdrivers employed at the Employer's Memphis, Tennessee, plant, exclud- ing office clericals, guards, watchmen and supervisors as defined in the Act. 6. On May 23, 1966, in Civil No. 6-66-113 the District Judge for the United States District Court for the Western District of Tennessee issued an injunction prohibiting the Respondent from refusing to bargain with the Union. The proceed- ing in the district court was brought pursuant to Section 10(j) of the Act. 2. The dismissal and refusal On December 20, 1965, the Union through LeRoy Clark, wrote Respondent (General Counsel's Exhibit 3(a)) requesting bargaining negotiation. On December 21 Respondent replied (General Counsel's Exhibit 3(b)) stating the Union's letter had been referred to its attorney, R. L. Taylor. On December 23 Taylor replied in a letter (General Counsel's Exhibit 3(c)) which reads: Your letter of December 20, 1965, addressed to Herron Yam Mills, Inc., has been turned over to the undersigned for reply. It is not believed at this time that Local 282 of the United Furniture Work- ers of America is qualified to engage in business as a labor union in Shelby County, Tennessee, in that it has not qualified under the provisions of Section 20-223 of Tennessee Code Annotated and because of the restrictions in its by-laws and the constitution and by-laws of the United Furniture Workers of America confining its activities to the organizing of employees in the furniture industry. If you will initiate action to qualify under Section 20-223 of the Tennessee Code and to amend your by-laws and the constitution and by-laws of United Furniture Workers of America to permit you to organize employees in indus- tries other than the furniture industry we will be pleased to attempt to nego- tiate a contract with you. We will certainly want an affidavit that none of the officers of Local 282 are in any way affiliated with the Communist Party before commencing these negotiations. The information which you requested of Herron Yarn Mills in your letter of December 20 will be furnished you when the above listed pre-requisites have been accomplished by your union. On January 17, 1966, the Union replied (General Counsel's Exhibit 3(d)) reject- ing the condition precedent to bargaining set forth in Taylor's letter and again requesting a meeting. On January 18 Respondent, through Taylor, wrote Clark (General Counsel's Exhibit 3(e)) demanding to know if Clark was or had been a member of the Com- munist Party. On January 25 the Union replied (General Counsel's Exhibit 3(f)) stating the question was irrelevant and made a third demand for a meeting with Respondent. No reply to this letter was received. 3. The testimony of LeRoy Clark LeRoy Clark testified that he was an International representative of the United Fur- niture Workers Union and that he was a member of and represented Local 282. Clark then identified the documents set forth, supra, as General Counsel's Exhibits 3(a) through 3(f). ' No exceptions were taken nor were any objections or requests for review filed to any of these proceedings. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Conclusions I find that the unit set forth in the Regional Director's certification of represent- ative, supra, is appropriate for the purposes of collective bargaining. I find that LeRoy Clark at all times material herein was the duly authorized representative of the Union for the purpose of engaging in collective-bargaining negotiations with Respondent, and I further find that the correspondence between Clark, as representative of the Union, and Taylor, as representative of Respondent, conclusively establishes that Respondent refused to bargain with the Union after its certification as exclusive bargaining representative of Respondent's employees in said unit. By so refusing Respondent has violated Section 8(a)(5) and (1) of the Act. IV. THE REMEDY Having found Respondent has engaged in and is engaging 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. Upon the foregoing findings and conclusions and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. By refusing to bargain in good faith with the Union as the exclusive bargain- ing representative of the employees in the unit found appropriate Respondent has violated Section 8(a) (5) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, it is recommended that Herron Yarn Mills, Inc., its successors, officers, agents, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with United Furniture Workers of America, AFL-CIO, Local 282, as exclusive bargaining representative of its employees in the unit found appropriate herein. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with the above-named Union as exclusive representative of all employees in the unit found appropriate herein with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody any understanding reached in a signed agreement. (b) Post at its plant in Memphis, Tennessee, copies of the attached notice marked "Appendix." 3 Copies of said notice to be furnished by the Regional Direc- tor for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained 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 be sure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision and Order, what steps the Respondent has taken to com- ply herewith 4 3In the event that 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the worts "a Decision and Order" * In the event that this Recommended Order is adopted by the Board this provision shall be modified to read • "Notify the Regional Director for Region 26, in writing, is ithin 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." PERLIN PACKING COMPANY APPENDIX 633 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain, upon request, with United Furniture Workers of America, AFL-CIO, Local 282, as the exclusive bargaining representative of our employ- ees in the appropriate bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and we will embody any understanding reached in a signed agreement . The appro- priate bargaining unit is: All production and maintenance employees , shipping and receiving clerks, and truckdrivers employed at the Employer's Memphis, Tennessee , plant, excluding office clericals, guards, watchmen , and supervisors as defined in the Act. HERRON YARN MILLS, INC., Employer. Dated------------------- By------------------------------------------- (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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, 746 Fed- eral Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Perlin Packing Company, Inc. and Local Union No. 822, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ; Local Union No. 305, affiliated with Amalgamated Meat Cutters and Butcher Work- men of North America, AFL-CIO, Petitioners. Case 5-RC- 5334. August 23, 1966 DECISION AND DIRECTION Pursuant to a, Stipulation for Certification Upon Consent Election approved on October 18, 1965, a secret-ballot election was conducted under the supervision of the Regional Director for Region 5 on November 10 and 11, 1965. A tally of the ballots showed that of approximately 85 eligible voters, 39 cast ballots for, and 39 against, the Petitioners, 1 cast a challenged ballot, and 1 cast a void ballot. The challenged ballot was sufficient to affect the results of the elec- tion. Thereafter, the -Petitioners filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation of the challenge and the objections, and on Janu- ary 21, 1966, issued and duly served on the parties his report on 160 NLRB No. 49.