Genesco, Inc.

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Genesco, Inc. and Boot and Shoe Workers' Union, AFL-CIO. Case 26-CA-2346. November 17, 1966 DECISION AND ORDER On August 8, 1966, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that the .Respondent had engaged in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support of its exceptions. 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 [Members Fanning, Brown, and Jenkins]. The Board has considered the Trial Examiner's Decision, the excep- tions and brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board 'adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Representation Proceeding Pursuant to a Decision and Direction of Election issued by the Regional Director for the National Labor Relations Board for Region 26 in Case 26-RC-2404,' an election by secret ballot was conducted under the supervision of said Regional Director on August 5, 1965 , in an appropriate bargaining unit of employees of Genesco, Inc., the Respondent. In this election Boot and Shoe Workers' Union, AFL-CIO, the Union, received a majority of the ballots cast. On August 10, 1965, the Respondent filed timely objections to the election, based on asserted conduct by union representatives affecting the result of the election. On October 1, 1965, the Acting Regional Director issued a Supplemental Decision and Certification of Representative in which he stated that pursuant to Section 102.69 of the Board's Rules and Regulations , Series 8, as amended, he had caused an investigation of the objections to be made, during which all parties were afforded an opportunity to submit evidence bearing on the issues . In this Decision the Acting Regional Director considered and discussed evidence submitted , found it insufficient to affect the result of the election , and certified the Union as the bargaining repre- sentative of the employees in the appropriate unit. On October 25, 1965, the Respondent, pursuant to Section 102.69 and 102.67 of the Board's Rules and Regulations, filed with the Board in Washington, D.C. a Request for Review of the Acting Regional Director 's Supplemental Decision and Certification of Representative. In this request the Respondent asserted inter alia, that the Acting Regional Director had erred in his factual and legal conclusions, had failed to consider evidence proffered by the Respondent, and had failed to 3 Official notice is taken of the representation proceeding. See Section 9(d) of the Na- tion Labor Relations Act. 161 NLRB No. 98. GENESCO, INC. 1131 direct a hearing on substantial and material factual issues.2 The Respondent requested that the Board review the Acting Regional Director's Decision, vacate the Certification of Representative, and direct that a new election be conducted, or in the alternative, that the Board direct that a hearing be held in order that the evidence allegedly overlooked by the Acting Regional Director might be adequately considered, and resolve the issues. On January 10, 1966, the Board issued an order denying the Respondent's Request for Review, stating that the request "raises no substantial issues warranting review." Under Board Rule 102.67(f) this denial constituted an affirmance of the Acting Regional Director's action and precludes relitigation of any such issues in any related unfair labor practice proceedings. The instant case is so related.3 The Unfair Labor Practice Proceeding On March 25, 1966, upon a charge of unfair labor practices filed by the Union on March 9, 1966, the General Counsel caused a complaint, amended on June 16, 1966, to be issued alleging that the Respondent had committed unfair labor prac- tices in violation of Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union on request. In due course the Respondent filed its answer to the complaint and subsequently to the amendment of the complaint. In its answer the Respondent admitted certain allegations of the complaint and denied others. In its answer the Respondent denied the commission of unfair labor practices. It further denied that the Union had been designated and selected as (and denied that it was in fact) the bargaining representative of the employees in the appropri- ate unit within the meaning of the Act. The Respondent also denied the allegations of the complaint to the effect that the Union had requested the Respondent to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and denied that the Respondent had refused the request. However the answer admitted that the election was held on or about August 5, 1965, that the Union received a majority of the ballots counted, that the Acting Regional Director certified the Union as the exclusive bargaining representative, and that the Respondent's request for review was denied by the Board. The answer further admitted that on or about February 4, 1966, the Union "requested contract negotiations," and that on or about February 11, 1966, the Respondent refused that request. In addition the Respondent admitted the jurisdictional allegations of the com- plaint and the appropriateness of the bargaining unit. As an affirmative defense the answer asserted that the certification of the Union is "invalid and void in that the Board erroneously failed to uphold the Respondent's -objections to the election upon which the certification is based." On July 1, 1966, counsel for the General Counsel filed a motion for judgment on the pleadings on the ground that the admissions contained in the answer, in the light of the representation proceeding, establish the allegations of the complaint, and that no hearing is therefore necessary. The motion further requested that a decision issue by a trial examiner with appropriate findings, conclusions, and recom- mendations. Upon this motion an order to show cause was issued by Trial Exam- iner Charles W. Schneider returnable July 21, 1966, subsequently extended to July 27 at the request of the Respondent. On July 27 the Respondent filed its opposition to the motion for judgment on the pleadings, and on July 29, 1966, filed an amendment thereto containing matter which had been omitted from the original opposition by inadvertence. E The Board's Rules and Regulations, Section 102 69 (c), give the Regional Director dis- cretion to dispose of objections to an election on the basis of an administrative investiga- tion or to hold a hearing before a Hearing Officer if it appears to the Regional Director that substantial and material factual issues exist which cannot be otherwise resolved. No such hearing appears to have been held here. The record before the Trial Examiner does not indicate that the Respondent requested the Regional Director to hold one. 8Rule 102.67(f) states: Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigatiog any such issues in any related sub- sequent unfair labor practice proceeding. 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruling on the Motion for Judgment on the Pleadings The Respondent opposes the General Counsel's motion for judgment on the pleadings on ,the following grounds: (1) That the General Counsel seeks in his motion for judgment on the pleadings to establish material facts which are in dis- pute but which are not part of the pleadings or in evidence. (2) The Respondent's second ground is that it was arbitrarily deprived of a hearing in the representation .case, and that the Regional Director and the Board failed to consider certain of the evidence which the Respondent submitted in support of its objections; and -therefore denial of a hearing at the present stage of proceedings would deprive the Respondent of due process of law. (3) The Respondent states that at a hearing it would offer-in addition to the evidence previously described in its request for review-further evidence in support of its objections. The Respondent does not assert that the additional evidence is newly discovered or previously unavailable. (4) That the facts found by the Acting Regional Director in his Supplemental Decision precluded a:reasoned choice by the employees, and require that the election be set aside and the certification vacated. It is apparent from the foregoing facts that the Respondent seeks to relitigate here issues raised and decided in the representation proceeding; specifically it wishes to try before me the correctness of'the Regional Director's action in dismissing its objections to the election and in certifying the Union, and the Board' s action in affirming the Regional Director's determinations. This it may not do. In the absence of newly discovered or previously unavailable evidence, issues which were or could have been raised in a representation case may not be reliti- gated in a related unfair labor practice proceeding.4 We have seen that Board Rule •102.67(f) specifically forbids relitigation of representation issues denied review by the Board. The Board has said: It is the policy of the Board not to allow a party to relitigate in a complaint proceeding such as this one the legal effect of matters which the party has already litigated and the Board has decided in a prior representation proceeding.5 As has been.seen, there- is no assertion by the Respondent to the effect that the evidence: which it' will seek to adduce at a hearing in the unfair labor practice proceeding is newly discovered ` or previously unavailable. There is therefore no basis under the Board's Rules, its decisions, and its specific determination here, for a hearing on the issues decided in the representation proceeding. The Respondent retains the right to question before the Board and the courts the correctness of the determinations of the Regional Director and of the Board as to the merit of the Respondent's objections or of the Respondent's right to hearing thereon. These are not, however, matters within the. authority of a Trial Examiner. The Board's dis- position of the issues constitutes,-at this stage of the proceeding, the law of the case, and is binding on me. The only remaining questions then, are whether there are genuine issues of material fact .with respect to whether the Union made a request to bargain follow- ing the certification and whether the Respondent refused the request. If there are such, hearing is required. The Respondent is apparently of the view that the record establishes genuine issues as to those matters. In my judgment there are not. The complaint alleges in part in paragraph 17 that: Commencing on or about February 4, 1966 and continuing to date, the Union has requested and is requesting, Respondent to bargain collectively ... as the exclusive collective bargaining representative of all employees [in the appropri- ate unit]. In paragraph 18 the complaint alleges in part that: Commencing on or about February 11, 1966 and at all times thereafter, Respondent did refuse, and continues to refuse, to bargain collectively with the Union . . . as the exclusive collective bargaining representative of all the employees [in the appropriate unit]. As we have seen, the Respondent in its answer denied paragraphs 17 and 18 of the complaint, admitting however, that "on or about February 4, 1966, the Union Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146; Macomb Pottery Company, 157 NLRB 1616. 5 Producers, Inc., 133 NLRB 701, 704. GENESCO, INC. 1133 requested contract negotiations," and that "on or about February 11, 1966, it has refused the Union's request. . . ." To his motion for judgment on the pleadings counsel for the General Counsel attached, as Exhibits A and B, copies of what purport to be two letters, one dated February 4, 1966, from the Union to the Respondent, in which the Union requests the Respondent to meet relative to commencing contract negotiations; the other a reply thereto by the Respondent dated February 11, 1966, asserting the invalidity of the certification and denying the Union's request "until the federal courts have reviewed the certification." In its opposition to the motion for judgment the Respond- ent objects to these letters on the ground that the General Counsel is thereby seeking to establish material facts which are in dispute, but which are not part of the plead- ings and not in evidence. In its opposition to the General Counsel's motion for judgment the Respondent inter aria reiterates its denials of paragraphs 17 and 18 of the complaint, asserts that the facts as to the demand and refusal of collective bargaining in an appropriate unit are "still in dispute." As to its admissions in the answer concerning demand and refusal, the Respondent refers to them as "limited" and urges that they, ... are not sufficient in law to support a refusal to bargain charge, as there is no admission of a valid certification, no admission of demand for collective bargaining in the appropriate unit by the Charging Party and no admission of a refusal to honor a demand for collective bargaining in the appropriate unit. The first question is the interpretation of the Respondent's position. The quotation from its answer given above seems to suggest that the sole basis for the Respond- ent's denial of the demand and refusal allegations of the complaint is that there is no valid appropriate unit, and there therefore can be no valid demand or refusal. If this is the extent of the Respondent's position with respect to that issue, the finding previously made herein to the effect that the validity of the certification may not be challenged before a Trial Examiner, disposes of the matter. However, if the Respondent's attack is on broader grounds, namely, that the words or language used by the Union do not amount to a demand to bargain, that contention likewise lacks merit. The contents of the letters are consistent with, indeed corroborate, the Respond- ent's admissions. The Respondent has not attacked the genuineness of the letters. There is therefore no substantial nontechnical basis for the Respondent's objec- tions to the letters. In any event, with or without the letters, the issue in this posture is the same- whether a request for contract negotiations is a demand to bargain . I find that it is. No particular form of words is required to establish a demand to bargain. It is sufficient if the language or conduct employed, exppressly or by implication, con- veys with reasonable clarity a request by a bargaining representative to meet with the employer concerning bargaining negotiations or conditions of employment within the bargaining unit. As was said by the circuit court in Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914: the request to bargain [need not] be in haec verba, so long as there was one by clear implication. The Labor-Management Relations Act "is not a statute of frauds or an act prescribing the formalities of conveyancing. No seal or writing is required by its terms. Nor is any special formula or form of words." See also Van De Kamp's Holland Dutch Bakers, Inc., 56 NLRB 694, 707, 711, enfd. 152 F.2d 818, 154 F.2d 828 (C.A. 9). It is consequently found that the Respondent' s admissions of fact establish the demand to bargain and the Respondent's refusal. There are thus no genuine issues of material fact requiring an evidential hearing, and summary judgment is in order. The General Counsel's motion for judgment on the pleadings is therefore granted. On the basis of the record and the admitted facts, I hereby make the following further: FINDINGS OF FACT 1. JURISDICTION Respondent Genesco, Inc. is a Tennessee corporation with a place of business in luka, Mississippi, the only location involved herein, where it is engaged in the manufacture of shoes. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the past 12 months, Respondent , in the course and conduct of its busi- ness operations , purchased and received at its luka, Mississippi „ plant, materials and products valued in excess of $50,000 'directly from points located outside the State of Mississippi, and during the same period , sold and shipped from its Iuka, Mississippi, plant, products , valued in excess of $50,000 directly to points outside the State of Mississippi. Repondent 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 Boot and Shoe Workers' Union, AFL-CIO is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. HI. THE UNFAIR LABOR PRACTICES All production and maintenance employees at the Respondent 's Iuka plant, including principal standards clerks, standard clerks, watchmen , special utility oper-' ators, quality control observers, but excluding office clerical employees , guards, and supervisors as defined in the Act constitute an appropriate unit of Respondent's employees for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. At all times since August 5, 1965, the Union has been the exclusive representa- tive for the purposes of collective bargaining of all the employees in the appro- priate unit. On or about February 4, 1965, the Union requested the Respondent to meet with the Union for the purpose of collective bargaining within the appropriate unit. On or about February 11, 1965 , the Respondent refused to meet with the Union for the purpose of collective bargaining, and continues to refuse. By the foregoing conduct the Respondent interfered with , restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and refused to bargain collectively, thereby engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2 (6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices , it will be recommended that the Respondent be ordered by the Board to cease and desist therefrom, to bargain collectively with the Union as the exclusive bargaining rep- resentative of the employees in the appropriate unit , and take other remedial action hereinafter described in, order to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions , and upon the entire record in the case, I recommend that the Board issue the following: ORDER Genesco, Inc., its officers , agents, successors; and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit. (b) In any' like or related manner interfering with, restraining , or coercing employees in the exercise .of rights guaranteed- by Section 7 of the Act. 2. Take the following affirmative action, In order to effectuate the policies of the Act: (a) Upon request bargain collectively with Boot and Shoe "Workers' Union, AFL-CIO, and if an understanding is reached embody such understanding in a written and signed agreement. (b) Post at its place of business in Iuka, Mississippi , copies of the attached notice marked "Appendix." Copies of said notice, to be furnished by the Regional Director for Region 26 (Memphis , Tennessee), after being duly signed by the Respondent's authorized representative , shall be posted by the Respondent imme- diately upon receipt thereof and maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are SCHNEIDER MILLS, INC. 1135 customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by.any other material .6 (c) Notify the Regional Director for the Region 26, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith? 6In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "a 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 similar appropriate modification shall be made. 7 In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify said Regional Director, in writing, within 10• days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX 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 NOT refuse to bargain collectively with Boot and Shoe Workers' Union, AFL-CIO as the exclusive bargaining representative of all employees in the bargaining unit described below. WE WILL, upon request, bargain collectively with Boot and Shoe Workers' Union, AFL-CIO as the exclusive collective-bargaining representative of all employees in the said bargaining unit. The bargaining unit is: All production and maintenance employees at the Iuka, Mississippi plant, including principal standards clerks, standard clerks, watchmen , special utility operators, quality control observers, but excluding office clerical employees, guards, and supervisors as defined in the National Labor Relations Act. GENESCO, 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. Schneider Mills, Inc. and Jimmy and Josh, Inc. and Textile Work- ers Union of America , AFL-CIO. Cures 11-CA-2909,2921, and 2937. November 17, 1966 DECISION AND ORDER On August 1, 1966, Trial Examiner George J. Bott issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the General 161 NLRB No. 106.