Genesco

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hobco Manufacturing Company, An Operating Divi- sion of Genesco and International Ladies' Garment Workers' Union, AFL-CIO. Case 10-CA-6986 Upon the entire record in this case, the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT November 27, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS Upon a charge filed by international Ladies' Gar- ment Workers' Union, AFL-CIO, herein called the Union, the General Counsel for the National Labor Relations Board , by the Regional Director for Re- gion 10 , issued a complaint dated June 30, 1967, against Hobco Manufacturing Company, an operat- ing division of Genesco, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge , complaint, and notice of hearing were duly served upon Respond- ent. The complaint alleges that on May 22, 1967, the Union was duly certified by the Board as the exclu- sive bargaining representative of Respondent's em- ployees in the unit found appropriate by the Board' and that since on or about June 2, 1967, and at all times thereafter, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative , although the Union has requested and is requesting it to do so. On July 21 , 1967, Respondent filed its answer denying the commission of the unfair labor prac- tices alleged , asserting that the election and union certification are invalid. On August 15, 1967, the General Counsel filed with the Board a Motion for Summary Judgment, asserting that there were no issues of fact or law requiring a hearing, and requesting the issuance of a Decision and Order finding the violations as al- leged in the complaint . Thereafter, on August 17, 1967, the Board issued an Order transferring proceeding to the Board and a Notice to Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted . Respondent thereafter filed a motion in opposition to the General Counsel's Motion for Summary Judgment,2 and the Union filed a motion in opposi- tion to the General Counsel 's motion. 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 powers in connection with this case to a three- member panel. 1 Decision on Review and Certification of Representative in Case 10-RC-6449,164 NLRB In its opposition to the Motion for Summary Judgment, Respondent contends that the complaint should be dismissed or that the Board should direct a hearing to resolve factual and legal issues. It ar- gues that: (1) it is entitled to hearing on an issue of union misrepresentation which it raised in its objec- tions to the election; and (2) it did not receive a full hearing on the issue of racial propaganda on which the Board had directed a hearing. The record before us establishes that on August 25, 1965, the Union filed a petition in Case 10-RC-6449, seeking to represent all production and maintenance employees employed at the Em- ployer's place of business at Hobson City, Alabama, excluding professional employees, technical employees, and office clerical employees. After a hearing, the Regional Director for Region 10 issued a Decision and Direction of Election on November 10, 1965, in which he found appropriate the following unit for bargaining: All production and maintenance employees of the Employer at its Hobson City, Alabama, plant, including the plant clerical employees and trainers, but excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. On December 22, 1965, pursuant to the direction, an election was held in which 60 votes were cast for the Union and 49 against. There was one challenged ballot. Thereafter, Respondent filed timely objections to the election. After an administrative investigation, the Re- gional Director, on February 18, 1966, issued his Supplemental Decision, Order, and Direction of Second Election, in which he found that Objection 1, to the extent it involved the Union's alleged reproduction of the Board's official ballot in the Union's handbill, and Objection 5, which involved the failure of the Union to identify itself as the spon- sor of certain campaign propaganda, each con- stituted grounds for setting aside the election. The Regional Director therefore sustained these objec- tions, ordered that the election conducted on December 22, 1965, be set aside, and directed that a second election be conducted. He further found that the remaining portions of Objection 1 and Ob- jections 2, 3, and 4 were without merit and over- ruled them. Thereafter, the Union filed a timely request for review of the Regional Director's Sup- plemental Decision with respect to Objection 1, to the extent it involved the alleged reproduction of a ' Respondent subsequently filed a corrected copy of its motion in op- position 168 NLRB No. 71 HOBCO MANUFACTURING COMPANY 509 ballot, and to Objection 5. The Employer filed a timely request for review of the Regional Director's finding that the alleged racial propaganda involved in Objection 2 did not constitute a basis for setting aside the election. On April 1, 1966, the Board granted the Peti- tioner's request for review and reserved considera- tion of the issues raised by the Employer's request for review. Upon grant of review, the Employer filed a brief. On May 31, 1966, the Board issued its Decision on Review and Order in which it overruled Objec- tions 1 and 5, found that Objection 2 raised substan- tial and material issues which could best be resolved by a hearing, and ordered that a hearing be held before a Trial Examiner for the purpose of tak- ing testimony to resolve the issues raised by Objec- tion 2 and the Employer's request for review of the Regional Director's Supplemental Decision, Order, and Direction of Second Election. Pursuant to the Board's Order, a hearing was held on July 19, 20, and 21, 1966, before Trial Ex- aminer David S. Davidson. All parties participated and were given full opportunity to examine and cross-examine witnesses and to introduce evidence bearing on the issues. On November 28, 1966, the Trial Examiner issued and duly served upon the parties his report on objections wherein he recom- mended that the Employer's Objection 2 be over- ruled and that the Union be certified as the bargain- ing representatives of the employees in the unit found appropriate. Thereafter, the Employer filed exceptions and a supporting brief, and the Peti- tioner filed a brief in support of the Trial Ex- aminer's report on objections. In its Decision on Review and Certification of Representative, dated May 22, 1967, the Board adopted the Trial Examiner's findings, conclusions, and recommendations. It held that the Union's elec- tion propaganda was designed not to inflame racial hatred but to encourage racial economic betterment through concerted activity and therefore was not a ground for setting aside the election. It therefore overruled Respondent's Objection 2 to the election, and certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. On May 24, 1967, the Union requested that Respondent bargain with it. The Respondent refused and, on June 8, 1967, the Union filed the charge upon which these proceedings are based. In its Opposition to the General Counsel's Mo- tion for Summary Judgment, Respondent contends that it did not receive a fair hearing as to its Objec- tion 2. It asserts that the Regional Director in his Supplemental Decision dated February 18, 1966, had assumed, arguendo, the facts as alleged by Respondent, holding only that the Board's past holdings did not furnish a basis to set aside the elec- tion as a matter of law; that, thereafter, when the Board directed a hearing before a Trial Examiner on Objection 2, and the Trial Examiner thereafter found the facts substantially as alleged by the Em- ployer, the Board was bound to set aside the elec- tion, else no purpose was served by the hearing. We find this argument without merit. Respond- ent's Objection 2 raised both factual and legal issues which the Board felt could best be resolved by a full hearing. Respondent had a full hearing on both, after which the Trial Examiner filed his report on objections. The Board considered the Trial Ex- aminer's report on objections, the Employer's ex- ceptions thereto, and its brief, the Union's brief, and the entire record in the case, and adopted the factual and legal findings of the Trial Examiner. The Board had prejudged neither. Respondent in its opposition to the General Counsel's motion seeks but to relitigate the legal issue fully litigated and laid to rest in the representa- tion proceeding. We therefore reject Respondent's request for a further hearing on Objection 2. In its motion in opposition, Respondent asserts that it was entitled to a hearing on Objection 5 because the Board, in overruling this objection, re- lied on facts which it is prepared to refute. In its Decision on Review and Order, issued May 31, 1966, the Board found that the Union's distribu- tion of an unsigned card was not a basis for setting aside the election because the contents of the card were not objectionable, the card was openly dis- tributed by union representatives, and Respondent had time before the election to answer the union propaganda. Respondent asserts that it will show at a hearing that others than union representatives circulated the card so that the Union's identity was unknown and that it was unaware of the card contents until after the election. We find no matters requiring a hearing on this issue. We have again examined the contents of the card and find that, however identified, its message - that Respondent was interested in its own self-interest rather than that of its employees - is the kind of electoral propaganda which employees are capable of evaluating and is not a reason for setting aside the election.3 We find that Respondent has not proffered any further facts requiring modification of our conclusion with respect to Objection 5. As all material issues have been previously de- cided by the Board, are admitted by Respondent's answer to the complaint, or stand admitted by the failure of Respondent to controvert the averments ' Houston Shell and Concrete Division, 118 NLRB 1511, 1513-15; Elm City Broadcasting Corporation, 116 NLRB 1670, 1674; Mason Can Company, 115 NLRB 1408, 1409-10. We also observe that an employee, reading the wording on the card, could hardly assume that Respondent , rather than the Union, was dis- tributing antiemployer propaganda. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the General Counsel's motion, there are no mat- ters requiring a further hearing before a Trial Ex- aminer. Accordingly, the General Counsel's Mo- tion for Summary Judgment is granted. On the basis of the record before it, the Board makes the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Alabama corporation, main- taining a plant at Hobson City, Alabama, where it is engaged in the manufacture and distribution of ladies' acetate panties. During the past year, which period is representative of all times material herein, Respondent purchased and received goods valued in excess of $50 ,000 at its Hobson City , Alabama, plant, directly from points located outside the State of Alabama. Respondent admits, and we find , that Respond- ent is, 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. II. THE LABOR ORGANIZATION INVOLVED International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. in said unit and the Union continues to be such representative. B. The Request to Bargain and Respondent's Refusal On or about May 24, 1967, and at all times thereafter, the Union requested Respondent to bar- gain collectively with it as the exclusive collective- bargaining representative of all the employees in the above-described unit. Since June 2, 1967, and con- tinuing to date, Respondent has refused and con- tinues to refuse to bargain collectively with the Union as the exclusive collective-bargaining representative of all employees in said unit. Accordingly, we find that the Union was duly certified by the Board as the collective-bargaining representative of the employees of Respondent in the appropriate unit described above in the Board's certification, and that the Union at all times since May 24, 1967, has been and now is the exclusive bargaining representative of all the employees in the aforesaid unit, within the meaning of Section 9(a) of the Act. We further find that Respondent has, since June 2, 1967, refused to bargain collectively with the Union as the exclusive bargaining representa- tive of its employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees at Respondent's Hob- son City, Alabama, place of business constitute a unit appropriate for collective bargaining within the meaning of the Act: All production and maintenance employees, in- cluding the plant clerical employees and trainers, but excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On December 22, 1965, a majority of the em- ployees of Respondent in said unit, in a secret elec- tion conducted under the supervision of the Re- gional Director for Region 10, designated the Union as their representative for the purpose of col- lective bargaining with Respondent, and on May 22, 1967, the Board certified the Union as the col- lective-bargaining representative of the employees 4 The Union filed a motion in opposition to the General Counsel's Mo- tion for Summary Judgment. It contends that the Board should order a monetary remedy to make the employees whole for losses they may have suffered as a result of Respondent 's unlawful refusal to bargain, and it IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The acts of Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, inti- mate, 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. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bar- gain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement.4 CONCLUSIONS OF LAW 1. Hobco Manufacturing Company, An Operat- ing Division of Genesco, Hobson City, Alabama, requests a hearing on this issue. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases in- volving violations of Section 8(a)(5) We therefore deny the Union's mo- tion HOBCO MANUFACTURING COMPANY 511 is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Ladies' Garment Workers' Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Respondent's Hobson City, Alabama, plant, includ- ing the plant clerical employees and trainers, but ex- cluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since May 22, 1967, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 2, 1967, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and has thereby en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Hobco Manufacturing Co., an Operating Division of Genesco, Hobson City, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages, hours, and other terms and conditions of em- ployment, with International Ladies' Garment Workers' Union, AFL-CIO, as the exclusive bar- gaining representative of its employees in the fol- lowing appropriate unit: All production and maintenance employees at the Employer's Hobson City, Alabama, plant, including the plant clerical employees and trainers, but excluding office clerical em- ployees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization, as the exclusive representative of all employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and if an un- derstanding is reached, embody such understanding in a signed agreement. (b) Post at its Hobson City, Alabama, place of business, copies of the attached notice marked "Appendix."5 Copies of said notice, on forms pro- vided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. S In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order " 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, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with International Ladies' Garment Workers' Union, AFL-CIO , as the exclusive represent- ative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request , bargain with the above-named Union as the exclusive represent- ative of all our employees in the bargaining unit described below with respect to rates of pay, wages , hours, and other terms and condi- tions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed at our Hobson City, Alabama, plant, including plant cleri- cal employees and trainers, but excluding office clerical employees , professional em- ployees, guards, and supervisors as defined in the Act. 512 Dated DECISIONS OF NATIONAL LABOR RELATIONS BOARD HOBCO MANUFACTUR- ING COMPANY, AN OPERATING DIVISION OF GENESCO (Employer) By (Representative) (Title) This notice must remain posted for 60 consecu- tive 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, 730 Peachtree St. NE, Room 701, Atlanta, Georgia 30308, Telephone 526-5760.