Town and Country Manufacturing Co. of Texas, Inc.

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Town and Country Manufacturing Co. of Texas, Inc. and United Furniture Workers of America, AFL-CIO, Local 273. Case 1 1-CA-4126 August 18, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On May 12, 1970, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's motion for summary judgment on the ground that the pleadings submitted by the Respondent presented no issue of fact requiring a hearing and finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended. The Trial Examiner recommended that the Respon- dent cease and desist from such unfair labor prac- tices 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 and a supporting brief. 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 considered the Trial Examiner's Decision and the entire record in this case, includ- ing the exceptions and brief, 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 orders that the Respondent, Town and Country Manufacturing Co. of Texas, Inc., Sumter, South Carolina, 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 STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner: The case arises on a motion for summary judgment filed by counsel for General Counsel upon an admitted refusal by the Respondent to bargain with the cer- tified Charging Union, the Respondent contending that it was improperly denied a hearing on its ob- jections to the election in the related representation case, and that the certification of the Union is therefore invalid. The Representation Proceeding ' Upon petition filed under Section 9 (c) of the Na- tional Labor Relations Act (29 U.S.C.A. 159(c)) on May 2, 1969 , by United Furniture Workers of America, AFL-CIO, herein called the Union, a hearing was held before a Hearing Officer of the National Labor Relations Board on May 27, 1969. Upon such petition and hearing, the Regional Director for Region 11 of the Board , on July 10, 1969, issued a Decision and Direction of Election in an appropriate bargaining unit, described hereinafter, of the employees of Town and Country Manufacturing Co. of Texas, Inc., herein called the Respondent. Pursuant to the Decision and Direction of Elec- tion , an election by secret ballot was conducted on August 8 , 1969, under the supervision and direction of the Regional Director among the em- ployees in the appropriate unit to determine the question concerning representation . Immediately following the election the parties were served with copies of the tally of ballots which showed that of approximately 220 eligible voters 206 cast ballots, of which 107 were for and 90 against the Union. There were nine challenged ballots . On August 15, 1969, the Respondent filed timely objections to conduct affecting the results of the election alleg- ing, in sum , that the Union in its campaign engaged in coercive conduct in the nature of threats and racist propaganda which destroyed the conditions necessary for a free choice by the employees. On October 28, 1969 , the Regional Director is- sued a Supplemental Decision and Certification of Respesentative in which he stated that he had con- ducted an investigation of the objections, found that the objections raised no substantial or material issues with respect to the election, overruled the objections , and certified the Union as the represen- tative of the employees in the appropriate unit. As ' Administrative or official notice is taken of the record in the represen- tation proceeding, Case I I-RC-2922, as the term "record" is defined in Sec 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 Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4), Golden Age Beverage Company, 167 NLRB 151, enfd 415 F 2d 26 (C A 5), Intertype Co v Penello, 269 F Supp 573 (D C Va ), In- tertype Co v N L R B , 401 F 2d 41 (C A 4), Follett Corp, et al , 164 NLRB 378, enfd 397 F 2d 91 (C A 7), Sec 9(d) of the National Labor Relations Act 184 NLRB No. 111 TOWN AND COUNTRY MANUFACTURING CO. to the challenged ballots, the Regional Director stated that they were not sufficient in number to af- fect the results of the election. On November 12, 1969, the Respondent filed with the Board in Washington, D.C., a request for review of the Regional Director's Supplemental Decision and Certification of Representative. On January 8, 1970, the Board issued an order denying the Respondent 's request for review of the Regional Director's Supplemental Decision and Certification of Representative on the ground that it raised " no substantial issues warranting review." The Complaint Case On January 28, 1970, United Furniture Workers, AFL-CIO, Local 273, filed an unfair labor practice charge alleging , inter alia , that on or about August 22, 1969, the Respondent refused to bargain with the Union. On January 30, 1970, the General Counsel, by the Regional Director issued a complaint and notice of hearing alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union upon request, since on or about January 26, 1970. On February 9, 1970, the Respondent filed its answer to the complaint in which it admitted most of the material allegations of the complaint but de- nied the commission of unfair labor practices and the validity of the certification. Respondent further denied allegations in paragraph 6 of the complaint to the effect that Larry Pinchback and Richard Aaron were, respectively, vice president and su- perintendent of the Respondent and Respondent's agents and supervisors. Respondent asserted lack of knowledge as to whether the Union was a labor or- ganization within the meaning of Section 2(5) of the Act as alleged in paragraph 5 of the complaint. The answer admitted that since on or about Janua- ry 26, 1970, the Respondent has refused and con- tinues to refuse to meet with or bargain with the Union for the reasons that the Union did "not represent an uncoerced majority of the production and maintenance employees" and that "the certifi- cation has not yet been approved and ratified by any United States Court." On April 6, 1970, counsel for General Counsel filed a motion for summary judgment on the ground that the Respondent's answer did not raise any tria- ble issue. On April 7, 1970, I issued an order to show cause on General Counsel's motion for sum- mary judgment returnable April 21, 1970. On April 10, 1970, the Respondent filed an opposition to 2 Krieger-Ragsdale & Company, Inc , 159 NLRB 490, enfd 379 F 2d 517 (C.A 7), cert denied 389 U S 1041, N L R B v Macomb Pottery Com- pany, 376 F 2d 450 (C A 7) See Pittsburgh Plate Glass Co v N L R B , 313 U.S. 146, 162, NLRB Rules and Regulations, Sec. 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 Air Control Products of St Petersburg, Inc , 335 F 2d 245, 249 (C A 921 General Counsel's motion for summary judgment. On April 15, 1970, counsel for the General Counsel filed a response to Respondent's opposition. No submissions have been received from any other par- ty. Ruling on Motion for Summary Judgment In its opposition to the motion of General Coun- sel for summary judgment the Respondent urges that the General Counsel's motion should be denied for the following reasons: (1) that in order to pro- vide either the Board or the circuit court with an adequate record upon which to make the deter- mination as to whether or not material and substan- tial factual issues exist that require hearing on the Respondent's objections to the election held in Case I1-RC-2922, which objections would also serve as a defense for the refusal-to-bargain charge in the instant case, the Respondent should be al- lowed to proceed to a hearing, where it may present offers of proof; (2) that the case raises material and substantial issues of fact which require that the Respondent be given a hearing as a matter of right. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, not to permit litigation before a Trial Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding.2 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.3 Respondent does not claim to present any newly discovered or previously unavailable evidence or special circumstances, and the Board has determined that no substantial and material is- sues have been raised by the objections. At this stage of the proceeding, the Board's determination is therefore the law of the case. There thus being no unresolved issues requiring an evidential hearing the motion of General Coun- sel for summary judgment is granted and I hereby make the following further: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Town and Country Manufacturing Co. of Texas, Inc., is, and at all times material herein has been, a Texas corporation engaged in the manufacture of mobile homes at its plant in Sumter, South 5) "If there is nothing to hear, then a hearing is a senseless and useless for- mality "See also NLRB v Bata Shoe Co , 377 F 2d 821, 826 (C A 4), cert deny 389 U S 917 " there is no requirement, constitutional or otherwise , that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carolina, said plant being the only one involved in these proceedings. Respondent, during the past 12 months, a representative period, manufactured, sold, and shipped from its Sumter, South Carolina, plant, to points directly outside the State of South Carolina, goods valued in excess of $50,000. Respondent is now, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Furniture Workers of America, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act.4 III. THE UNFAIR LABOR PRACTICES The following employees of Respondent con- stitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees in- cluding draftsmen and the line inspector at the Employer's Sumter, South Carolina, plant, ex- cluding office clerical employees, salesmen, truckdrivers, servicemen, dispatcher and assistant dispatcher, professional decorator, guards and supervisors as defined in the Act. On October 28, 1969, the Union was certified as the exclusive collective-bargaining representative of the employees in the appropriate unit for the pur- poses of collective bargaining , and by virtue of Sec- tion 9(a) of the Act is the exclusive representative of all the employees in the said unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. At all times since on or about January 26, 1970, though requested by the Union to bargain, the Respondent has refused to bargain collectively with the Union as such representative. By thus refusing to bargain collectively Respon- dent has engaged in unfair labor practices in viola- tion of Section 8(a)(5) of the Act and has inter- fered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For the purpose of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respon- dent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit.5 B. Town and Country Maunfacturing Co. of Texas, Inc., its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Furniture Workers of America, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the following appropriate bargaining unit: All production and maintenance employees in- cluding draftsmen and the line inspector at the Employer's Sumter, South Carolina, plant, ex- cluding office clerical employees, salesmen, truckdrivers, servicemen, dispatcher and assistant dispatcher, professional decorator, guards and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as such exclu- sive 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 United Furniture Workers of America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Sumter, South Carolina, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be main- tained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily 4 In the representation case the Union was described as a labor organi- zation in the Decision and Direction of Election No issue appears to have been raised in that respect No request for review on the basis of the Union's status as a labor organization was filed. The matter is there- fore not open to dispute here S The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Company, Inc, 136 NLRB 785, Commerce Company dlbla Lamar Hotel, 140 NLRB 226, 229, enfd . 328 F 2d 600 (C A. 5), cert denied 379 U S 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A. 10). 6 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, recommendations, 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. 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 " TOWN AND COUNTRY MANUFACTURING CO. posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 11, 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 11, in writing, within 10 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 WE WILL NOT refuse to bargain collectively with United Furniture Workers of America, AFL-CIO, as the exclusive collective -bargain- ing representative of all the employees in the following appropriate unit: All production and maintenance em- ployees including draftsmen and the line inspector at our Sumter, South Carolina, plant, excluding office clerical employees, salesmen, truckdrivers, servicemen, dispatcher and assistant dispatcher, 923 professional decorator, guards and super- visors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective-bargaining representa- tive. WE WILL bargain collectively with the Union as the exclusive collective-bargaining represen- tative of the employees in the appropriate unit and, if an understanding is reached, we will sign a contract with the Union. TOWN AND COUNTRY MANUUFACTURING CO. OF- TEXAS, 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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211.