Boaz Spinning Co., Inc.

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boaz Spinning Company , Inc. and Textile Workers Union of America, AFL-CIO, CLC. Case 10-CA-8116 June 18, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND JENKINS On March 5, 1970, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, in which he granted the General Coun- sel's Motion for Summary Judgment, found that the Respondent, Boaz Spinning Company, Inc., had en- gaged in certain unfair labor practices as alleged in the complaint, and recommended that it cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. Thereafter the Respondent filed excep- tions, with a brief, 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made in this case and finds that no preju- dicial error was committed. The rulings are hereby affirmed.' The Board has considered the Trial Ex- aminer's Decision, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified below. Remedy In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial year of certifi- cation as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotei, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett ' We adopt the Trial Examiner 's ruling on the General Counsel 's Motion for Summary Judgment , and find no merit in the Respondent's argument that it is entitled , as a right of due process , to a hearing in this case, and, similarly, was entitled to a hearing on its objections in the underlying representation case The evidence upon which the Board found that the Respondent had engaged in conduct necessitating the setting aside of the first election was documentary and not disputed, consisting of prepared speeches admitted to have been delivered by the Respondent to its em- ployees Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10). 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 orders that the Respondent, Boaz Spinning Com- pany, Inc., its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order. TRIAL EXAMINER'S DECISION HAROLD X. SUMMERS, Trial Exaiminer: This case arises on a Motion for Summary Judgment filed by the General Counsel of the National Labor Rela- tions Board (hereinafter called the General Counsel and the Board, respectively). The General Counsel had issued a complaint' al- leging that Boaz Spinning Company, Inc. (herein Respondent), had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The answer to the complaint ad- mitted some of its allegations, denied others, and pleaded affirmatively; in effect, it denied the com- mission of any unfair labor practices. On or about February 9, 1970, the General Counsel filed the Motion for Summary Judgment, to which was attached, inter alia , copies of certain documents which are part of the record in a Board representation case involving Respondent, Case 10-RC-75897. In support of the motion, the General Counsel contended that, on the pleadings herein viewed in the light of the representation proceeding, there were no issues of fact or law requiring a hearing herein and that a decision find- ing the violations as alleged in the complaint should be issued. Thereafter, I issued a telegraphic order requiring the disclosure of any material unresolved issues litigable before and requirin a hearing by a Trial Examiner, and Respondent filed its response in apt time. The Representation Proceeding2 In Case 10-RC-7587, pursuant to a Stipulation ' The complaint was issued on January 22, 1970 The unfair labor prac- tice charge initiating the proceeding was filed on January 12 ' Administrative or official notice is taken of the record in this related representation proceeding as the term "record" is defined in Sections 102 68 and 102 69(f) of the Board 's Rules (Rules and Regulations and Statements of Procedure , National Labor Relations Board , Series 8, as amended ) See LTV Electrosistems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969), lnterthpe Company, Division of Harris-lntertppe Corporation v Penello, 269 F Supp 573 (D C Va , 1967), lntert pe Com- pany v N L R B , 401 F 2d 41 (C A 4, 1968), Follett Corporation, et al, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the Na- tional Labor Relations Act 183 NLRB No. 70 BOAZ SPINNING COMPANY, INC. for Certification Upon Consent Election approved on November 21, 1968, the Board's Regional Director for Region 10 conducted an election by secret ballot among the employees in a stipulated appropriate bargaining unit to resolve a question concerning representation. The participating Union, Textile Workers Union of America, AFL-CIO, CLC (the Charging Party in the instant proceeding and herein called the Union), having failed to receive a majority of the votes cast, filed timely objections to the election. The Regional Director, in his Report on Objec- tions issued April 1, 1969, found that the Union's objections raised no material or substantial issues affecting the results of the election, and he recom- mended to the Board that they be overruled and that a certification of the results of the November 1968 election issue. The Union filed exceptions. On June 30, 1969, the Board' issued a Decision, Order, and Direction of Second Election' in which it dis- agreed in part with the Regional Director's findings and conclusions and rejected his recommendation as to the disposition of the matter. With specific reference to one (of the five) ground for objection, the Board found that, in two preelection speeches delivered to employees by Respondent's vice pre- sident of manufacturing and its president, respec- tively, Respondent (1) in effect narrowed their choice to having no union or engaging in a strike, thereby implying that union representation was fu- tile, (2) expressly announced that it was the fount of all present and future benefits, benefits which could not be improved by resort to collective bar- gaining, (3) communicated the message that the employees did not need a union to achieve what it would give them in any event, and (4) less-than- subtly suggested to them that they were better off without a 'union than with one. "In summary," said the Board, "the whole of the message to the em- ployees was to instill in them a fear of the adverse effects of collective bargaining, coupled with the admonition that the selection of the Petitioner as their bargaining agent was a complete excursion into futility." Having found merit in this ground for objection, the Board set aside the election. A second election was conducted on July 31, 1969, at which the Union received a majority of the votes cast. Respondent filed timely objections to this elec- tion, asserting that the Board s action in reversing the Regional Director's decision as to the first elec- ' Member Zagoria dissenting ' 177 NLRB 788 ° 179 NLRB 655, Member Zagoria dissented e Respondent urges that the Board did not address ifself to Respondent's alternative request that a hearing be held on the issue of the speeches It is clear , however, that the Board , in resolving the question , thereby deter- mined that there were no substantial and material factual issues requiring a hearing r Krieger-Ragsdale & Compan', Inc , 159 NLRB 490, enfd 379 F 2d 517 (C A 7), cert denied 389 US 1041, Macomb Potter, Company v N L R B , 376 F 2d 450 (C A 7), Howard Johnson Company, 164 NLRB 609 tion was violative of the Act and contrary to established judicial decisions and that, therefore, the second election, conducted within 12 months of a valid election covering the same bargaining unit, was improper and contrary to law. The Regional Director, in his report of August 18, 1969, found the objections to be without merit and recom- mended that they be overruled; and, in view of the results of the second election, he recommended that the Union be certified as the exclusive bargain- ing representative of the employees in the stipu- lated bargaining unit. Respondent filed exceptions to the Regional Director's report. In an extended discussion of the contents, meaning, and legal effect of the speeches given before the first election, it asked that the Board reconsider and reverse its decision setting aside that election and that it certify the results of that election. The Board, in a Supplemental Deci- sion and Certification of Representatives issued November 20, 1969,5 adopted the Regional Director's findings and recommendations and cer- tified the Union as the involved employees' representative. Ruling on the Motion Respondent here opposes the General Counsel's Motion for Summary Judgment on the grounds that the Board (I) acted erroneously in setting aside the election of December 19, 1968, on the basis of the delivery of speeches in question, and (2), in any event, should not have determined the issue without a hearing. Consequently-the argument runs-the election of July 31, 1969, was invalid, presumably because it was conducted in violation of Section 9(c)(3) of the Act. These grounds and this argument are precisely those which Respondent presented to the Board in Case 10-RC-7587 and which the Board disposed of in its Decision, Order, and Direction of Second Election therein.' It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Ex- aminer in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding. This policy is applicable even though no formal hearing on objec- tions has been provided by the Board; such a hear- ing is not a matter of right unless substantial and material issues are raised.' Respondent here does 801, Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Company v N L R B, 313 U S 146, 162 (1941), NLRB Rules and Regulations , Sections 102 67(f) and 102 69(c) ' O K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74 (C A 5) See N L R B v Air Control Products of St Petersburg, Inc , 335 F 2d 245, 249 (C A 5) "If there is nothing to hear, then a hearing is a senseless and useless formality " See also N L R B v Bata Shoe Compam, Inc , 377 F 2d 821, 826 (C.A 4), cert denied 389 U S 917 " there is no require- ment, constitutional or otherwise , that there be a hearing in the absence of substantial and material issues crucial to the determination of whether NLRB election results are to be accepted for the purposes of certification " 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not claim to present any newly discovered or previ- ously unavailable evidence, nor does it claim to be raising . any genuine and substantial fact issue not previously passed on by the Board. There are no unresolved matters requiring an evidentiary hearing. Consequently, the General Counsel's Motion for Summary Judgment is granted. On the basis of the record, I make the following: Findings and Conclusions Respondent is, and has been at all times material herein, an Alabama corporation, with its place of business located at Guntersville, Alabama, where it is engaged in the manufacture and sale of textile products. During the calendar year preceding the issuance of the instant complaint, which period is representative of all times material herein, it sold and shipped finished products valued at in excess of $50,000 directly to customers outside the State of Alabama. Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. The following employees constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Respondent's plant at Guntersville, Alabama, but excluding office clerical em- ployees, professional employees, guards, and supervisors within the meaning of the Act. On July 31, 1969, in an election conducted under the supervision of the Regional Director for Region 10, a majority of the employees in the bargaining unit described above designated and selected the Union as their representative for the purpose of collective bargaining with Respondent with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment; and, on November 20, 1969, the Board certified the Union as the exclusive collective-bargaining representative of all the employees in the bargaining unit. At all times since November 20, 1969, the Union has been, and is, the representative of the majority of the employees in the bargaining unit, and, by virtue of Section 9(a) of the Act, the exclusive represen- tative of them all. On or about December 5, 1969, and at all times thereafter, the Union requested Respondent to bar- gain collectively with the Union as the exclusive representative of all the employees in the bargain- 9 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes ing unit with respect to their rates of pay, wages, hours of employment, and other terms and condi- tions of employment; but on or about January 6, 1970, and at all times thereafter, Respondent refused, and continues to refuse, the Union's request. Respondent's refusal to bargain collectively with the Union, as described above, constitutes unfair labor practices within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in this case and pursuant to Sec- tion 10(c) of the Act, I hereby recommend that the Board issue the following: ORDERS Boaz Spinning Company, Inc., of Guntersville, Alabama, its ocers, agents, successors, and as- signs , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Textile Workers Union of America, AFL-CIO, CLC, as the exclusive collective-bargaining representative of those in a bargaining unit consisting of the produc- tion and maintenance employees at its Guntersville, Alabama, plant, but excluding office clerical em- ployees, professional employees, guards and super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Upon request, bargain collectively with said labor organization as the exclusive bargaining representative of the employees in the above- described bargaining unit. (b) Post at its Guntersville, Alabama, plant copies of the attached notice marked "Appen- dix." 10 Copies of said notice, on forms provided by the Regional Director for Region 10 of the Board, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where 10 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " BOAZ SPINNING notices to employees are customarily posted. Reasonable steps shall be taken by 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 the receipt of this Decision!' what steps have been taken to comply herewith." " 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 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effecuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL upon request, bargain collectively with Textile Workers Union of America, AFL-CIO, CLC, as the exclusive bargaining representative of the nonsupervisory produc- COMPANY, INC. 611 tion and maintenance employees in our Gun- tersville, Alabama, plant. WE WILL NOT, by refusing to do this or by any similar conduct, interfere with, restrain, or coerce our employees in the exercise of their rights to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining representative chosen by themselves, to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. BOAZ SPINNING COMPANY, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404-526-5760. 427-258 O-LT - 74 - 40