Pepperell Manufacturing Co.

PEPPERELL MFG. CO. 207 Pepperell Manufacturing Company and Textile Workers Union of America AFL-CIO, CLC. Case 10-CA-6819 June 28, 1967 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On May 9, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, finding that 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 Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its power in connection with this case to a three-member panel. The Board has considered the entire record in this case, including the record and decisions in Case 10-RC-6214, The Trial Examiner's Decision, and Respondent's exceptions, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that Pepperell Manufacturing Company, Lin- dale, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I I The address and telephone number for Region 10, appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read: 730 Peachtree Street , N.E., Room 701 , Atlanta, Geor- gia 30308 , Telephone 526-5741 - TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE The Representation Proceeding' CHARLES W. SCHNEIDER, Trial Examiner : Upon peti- tion for certification as collective-bargaining representa- tive filed by Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, the Regional Director for Region 10 of the Board on February 16, 1965, approved a Stipulation for Certification Upon Con- sent Election executed by Pepperell Manufacturing Com- pany, Lindale , Georgia, herein called the Respondent, and by the Union. The appropriate bargaining unit was stipulated to be the unit set out hereinafter. An election pursuant to the stipulation was held on March 5, 1965, which the Union lost. Upon objections to the conduct of the election filed by the Union, and after hearing thereon, and over the opposition of the Respond- ent, the election was set aside by the Board on June 13, 1966, and a second election directed.2 Pursuant thereto, a second election by secret ballot was conducted on Au- gust 4, 1966, under the direction and supervision of said Regional Director, in which election the Union received a majority of the valid votes cast. The Respondent filed timely objections to the election, in which it requested that the March 5, 1965, election be certified as ex- pressing the true wishes of the employees, or in the alter- native that the August 1966 election be set aside and a new election directed, and that in the event of dispute a hearing be held to resolve any substantial issues raised. On September 16, 1966, the Regional Director, after in- vestigation, issued a report on objections in which he found the Respondent's objections without merit, and recommended that they be overruled and that the Union be certified as bargaining representative of the employees involved. Thereafter the Respondent filed timely excep- tions to the Regional Director's report on objections. On January 4, 1967, the Board issued its Decision and Cer- tification of Representative in which it found no "suffi- cient warrant for setting aside the election." Accordingly, the Board adopted the Regional Director's report and certified the Union as the bargaining representative under the Act. The Complaint Case On January 13, 1967, the Union filed the unfair labor practice charge involved in the instant case, in which it al- leged that since on or about January 10, 1967, the Respondent had refused to bargain with the Union. On February 23, 1967, the General Counsel, by the Regional Director for Region 10, issued a complaint al- leging that the Respondent had committed unfair labor practices in violation of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer, the Respondent admits the following al- legations of the complaint: (1) jurisdictional, (2) the Union is a labor organization, and (3) the unit is ap- propriate. Respondent denies the allegations contained in paragraphs 7, 8, 9, 10, and 11 of the complaint wherein it is alleged that (1) the employees designated and selected the Union in the August 4, 1966, election as their bar- gaining representative, (2) the Board certified the Union, (3) the Union has been and is the representative of a majority of the employees in the appropriate unit, (4) the Union requested Respondent on or about January 10, 1967, to bargain collectively, and (5) the Respondent on or about that date and thereafter refused and continues to refuse to bargain collectively. Respondent further denied each and every allegation contained in paragraph 12 of the complaint, wherein it is alleged that Respondent com- mitted unfair labor practices. I Official notice is taken of the representation proceeding, Case 10-RC-6214 See Section 9(d) of the National Labor Relations Act 2 Pepperell Manufacturing Company, 159 NLRB 291. 166 NLRB No. 24 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its answer , Respondent further alleges that the Board improperly and unlawfully set aside the election of March 5, 1965, in which a majority of the employees voted against the Union, that it improperly conducted a second election, and that it failed to provide Respondent with a hearing based on its filing of timely objections to the second election. On March 21, 1967, counsel for the General Counsel filed a motion for summary judgment wherein he con- tends that the facts of the official record and other facts submitted with the motion establish the allegations of the complaint as a matter of law, and that therefore there is no necessity for a hearing. On March 24 , 1967, I issued an Order to Show Cause on the motion for summary judgment , in which the parties were directed to show cause on or before April 10, 1967, subsequently extended to April 24, as to whether or not the motion for summary judgment should be granted. The Respondent has filed a response to the motion. Ruling on Motion for Summary Judgment The Respondent opposes the General Counsel's mo- tion for summary judgment. The Respondent contends that the March 1965 election, which the Union lost, was erroneously set aside , and that the August 1966 election should have been nullified on the 'basis of the Respond- ent's objections , and that the certification is con- sequently invalid. Additionally the Respondent contends that it was improperly deprived of a hearing on its objec- tions to the August 1966 election, and urges that its answer to the complaint raises substantial and material is- sues of fact which cannot be resolved without a hearing. It has been seen that the questions as to the validity of the two elections , the merit of the Respondent 's conten- tions with respect to each, and whether the Union should be certified , were raised before and decided by the Board in the representation proceeding . It is thus clear that the Respondent seeks to relitigate those issues here. This the Respondent may not do before the Trial Ex- aminer. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.3 This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised.4 And that there are no such issues has been effec- tively decided by the Board. The Trial Examiner has no authority to review the Board's final dispositions of the representation issues or to question its conclusions made on the existing record. The Respondent is free, in exceptions to this Decision, to request the Board to reconsider the determinations in the representation case, and , in the event of an unfavorable final order by the Board the Respondent may request review of the determinations in an appropriate court of appeals. At this stage of the proceedings , however, absent newly discovered evidence, the Board's disposition of the ,3 Collins & Aikman Corporation , 160 NLRB 1750 , E-Z Davies Chevrolet, 161 N LRB 1380 ; Metropolitan Life Insurance Company, 163 NLRB 579. See Pittsburgh Plate Glass Company v . N L R B , 313 U.S. 146, 162. 4 0 K. Van and Storage, Inc., 127 NLRB 1537, enfd. 297 F 2d 74 (C A. 5) And see N.L.R.B . v. Air Control Products of St Petersburg, representation matters is the law of the case and binding on the Trial Examiner. No newly discovered or previ- ously unavailable evidence is offered by the Respondent. The refusal to bargain being established, as is hereinafter found, there are no issues litigable before a Trial Examiner , and therefore no matter requiring hear- ing. Accordingly, the General Counsel 's motion for sum- mary judgment is granted , and I hereby make the follow- ing further: FINDINGS I. THE BUSINESS OF THE RESPONDENT Respondent is a Massachusetts corporation with an of- fice and place of business in Lindale , Georgia, where it is engaged in the manufacture and sale of textile products. During the year ending February 23, 1967, a representa- tive period, Respondent sold and shipped products valued in excess of $50,000 from its plant at Lindale, Georgia, directly to customers located outside the State of Georgia. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All production and maintenance employees of the Respondent at its Lindale , Georgia, plant , including all plant clerical employees, but excluding all office clerical employees, professional employees, techni- cal employees , guards and supervisors as defined in the Act. On August 4, 1966, a majority of Respondent's em- ployees in the said unit selected the Union as their collec- tive-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for Region 10 of the National Labor Relations Board in Case l0-RC-6214. On January 4, 1967, the National Labor Relations Board, after consideration of Respondent's objections to the above-described election, certified the Union as the exclusive collective-bargaining agent of the employees in the said unit. At all times since on or about January 4, 1967, and continuously to the present, the Union has been the representative for the purpose of collective bargaining of the employees in the said unit, and, by virtue of Section 9(a) of the Act, has been and is now the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of Inc, 335 F.2d 245, 249 (C A 5 )• "If there is nothing to hear, then a hearing is a senseless and useless formality " Cf U S. Rubber Co. v. N.L R.B, 373 F 2d 602 (C.A. 5), where the court disagreed with the Board's conclusion that the objections raised no issues requiring hearing The court is authorized to reverse the Board's conclusions if it deems them incorrect. The Trial Examiner is not PEPPERELL MFG. CO. 209 pay, wages, hours of employment, and other terms and conditions of employment. Under date of January 10, 1967, James Shea, interna- tional representative of the Union, wrote to G. Howard Smith, general manager of the Respondent, requesting a meeting for the purpose of negotiations concerning the certified unit. There is no indication of any direct reply by the Respondent. However, on January 17, 1967, the Respondent posted a notice to employees on its bulletin board, in which it acknowledged receipt of the Union's letter but stated its intention to seek court review of the validity of the certification. By this action the Respondent failed and refused to bar- gain collectively with the Union in violation of Section 8(a)(5) of the Act and interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. In order to insure that the employees will be accorded the statutorily prescribed services of their selected bar- gaining agent for the period provided by law, it will be recommended that the effective period of the certification shall begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit.5 Upon the foregoing findings and conclusions and the entire record in the case, I recommend the following: maintained by it for 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 notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from receipt of this Decision, what steps it has taken to comply herewith.7 5 Mar-Jac Poultry Company, Inc, 136 NLRB 785, Commerce Com- pany dibla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A 5); Burnett Construction Co., 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C A. 10). 6 In 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 Ap- peals 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, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respon- dent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES ORDER A. The effective period of the certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. B. Pepperell Manufacturing Company, Lindale, Geor- gia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Textile Work- ers Union of America, AFL-CIO, CLC, as the exclu- sive collective-bargaining representative of the em- ployees in the following appropriate bargaining unit: All production and maintenance employees of the Respondent at its Lindale, Georgia, plant, including all plant clerical employees, but excluding all office clerical employees, professional employees, techni- cal employees, guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said ap- propriate unit as the exclusive collective-bargaining representative. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Textile Workers Union of America, AFL-CIO, CLC, as the ex- clusive representative of the employees in the appropriate unit described above, with respect to rates of pay, wages, hours of work, and other terms and conditions of employ- ment, and embody in a signed agreement any understand- ing reached. (b) Post at its Lindale, Georgia, plant, copies of the at- tached notice marked "Appendix."6 Copies of said notice, on forms to be furnished by the Regional Director for Region 10, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain collectively with Textile Workers Union of America, AFL-CIO, CLC, as the exclusive bargaining representative of the following employees: All production and maintenance employees at our Lindale, Georgia, plant, including all plant clerical employees, but excluding all office cleri- cal employees, professional employees, techni- cal employees, guards and supervisors as defined in the Act. WE WILL NOT interfere with the efforts of said Union to negotiate for or represent the employees in said appropriate unit as the exclusive collective-bar- gaining representative. WE WILL bargain collectively with the Union as the exclusive representative of the employees, and if an understanding is reached we will sign a contract with the Union. PEPPERELL MANUFACTURING COMPANY (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 provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree Seventh Building, 50 Seventh Street, N.E., Atlanta, Georgia 30323, Telephone 526-5741.