Feibus-Gordon of Charlotte, Inc.

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Feibus-Gordon of Charlotte, Inc., and Local 28, Retail, Wholesale & Department Store Union, AFL-CIO. Case I1-CA-4087 December 17, 1970 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 12, 1970, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices affecting commerce and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, 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 Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Feibus-Gordon of Charlotte, Inc., Charlotte, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S . WILSON, Trial Examiner : Upon a charge duly filed on November 25, 1969, by Local 28 , Retail, Wholesale & Department Store Union , AFL-CIO, herein referred to as the Union or Local 28, the General Counsel of the National Labor Relations Board , herein referred to as the General Counsel' and the Board , respectively, by the Regional Director for Region 11, Winston-Salem, North I This term specifically includes the attorney appearing for the General Counsel at the heanng 2 It seems to this Trial Examiner that if the Region considers a case Carolina, issued its complaint dated January 30, 1970, against Feibus-Gordon of Charlotte, Inc., hereinafter referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed an answer and an amended answer wherein all the allegations of the complaint were admitted except the allegations therein that the Union was a labor organization, that the Union had been since October 4, 1967 (when admittedly certified by the Regional Director), and "is now" the exclusive bargaining representative of the employees in the appropriate unit, and also the conclusion- ary paragraphs alleging a violation of Section 8(a)(1) and (5) of the Act. Pursuant to notice a hearing thereon was held before me in Charlotte, North Carolina, on April 28, 1970. All parties appeared at the heanng, were represented by counsel or a representative, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived. A brief was received from Respondent on June 4, 1970. No brief was received from General Counsel.2 Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Feibus-Gordon of Charlotte, Inc., is a North Carolina corporation with a plant at Charlotte, North Carolina, where it is engaged in the business of processing and selling textile wastes and rags. During the past 12 months, which period is representative of all times material herein, Respondent received raw materials valued in excess of $50,000 at its Charlotte, North Carolina, plant directly from points outside the State of North Carolina. During the same period of time, Respondent processed, sold, and shipped goods valued in excess of $50,000 directly to points outside the State of North Carolina. Accordingly, I find that Respondent 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. II. THE UNION INVOLVED Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, is a labor organization admitting to member- ship employees of Respondent. important enough to be tried it is important enough to be briefed for the Trial Examiner Without a brief a case is only half tried 187 NLRB No. 38 FEIBUS-GORDON OF CHARLOTTE III. THE UNFAIR LABOR PRACTICES A. The Facts On October 4, 1967, following a Board representation election held on August 18, Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, was certified by the Regional Director as the exclusive bargaining representa- tive of all Respondent's employees in the following appropriate unit: All warehouse employees at the Company's Charlotte, North Carolina, plant, including truckdrivers, but excluding office clerical employees, guards, and super- visors as defined in the Act. On May 18, 1968, following a strike of the unit employees, Respondent and Local 28 executed a collective- bargaining agreement which was to be effective as of April 7, 1968, and by its terms to remain in full force and effect until August 31, 1969, and thereafter from year to year subject to at least 60 days' notice in writing prior to August 31, 1969, or any subsequent renewal date, of a desire by either Respondent or Local 28 to modify or terminate the agreement. On June 27, 1969, Local 28 gave notice to Respondent by letter of its desire to "meet for the purpose of negotiating a contract renewal to replace the expiring contract." By letter dated July 17, 1969, Respondent over the signature of Nat H . Roberts, its vice president and general manager, answered as follows: I have your letter of June 27, 1969. I am advised that not more than five of our sixteen to seventeen employees are members of your union. Since it appears that your union does not represent a majority of the employees in the certified unit, the company declines to meet with you for the purpose of modifying or renewing the existing contract. The Union renewed its request by letter dated July 29 reading as follows: As er [sic] are still certified by the National Labor Relations Board as the bargaining Agent for the employees of Feibus-Gordon of Charlotte, Inc, we again request that you set a time and place for a meeting to begin our negotiations for a contract renewal. After some desultory correspondence the parties finally met with the Federal Mediation Service on September 3, 1969. The meeting was attended by Roberts for the Respondent and by William A. Griffith, president of Local 28, Elliot L. Martin, a paid organizer for Local 28, and Irving Leibold. According to the testimony of Roberts, the only business transacted at this meeting was his inquiry as to the status and right of Leibold to attend. Still according to Roberts, Leibold answered that he was appearing as a consultant to Local 28, that he was then being paid by the National Council Distributive Workers Association, and that Local 28 was in the process of changing affiliation from the Retail Clerks Union to the Distributive Workers Union. At this point Roberts adjourned the meeting. Thereafter on November 5, 1969, and February 13, 1970, Local 28 renewed its request for a further meeting with Respondent to negotiate a renewal contract. 317 To this Roberts answered on February 26, 1970, as follows: I have your letter of February 13, 1970 suggestion [sic ] a resumption of contract negotiations. In previous correspondence I advised you that I was informed that only five members of the bargaining unit belonged to your union. I also advised that there had been a considerable turnover in our employment since the union was certified. I am sure you are aware of this factor. Even so, I met the representatives from your union on September 3, 1969. At that meeting Mr. Lebold [sic] advised that the local was in the process of disaffiliation from the International. On November 25, 1969, Mr. Martin filed an unfair labor practice charge against the Company and at a later date a complaint was issued. Indeed the case is scheduled for trial on March 31, 1970. Since we continue to have serious doubt as to your representative status, we decline to resume contract negotiations. B. Conclusions As noted heretofore, Respondent's answer admits all the allegations of the complaint setting forth a typical refusal- to-bargain case except for those alleging that Local 28 is a labor organization and that Local 28, after its certification on October 4, 1967, remained the representative of the employees in the appropriate unit on and after August 31, 1969, the termination date of the collective -bargaining agreement between the parties. Hence the only defenses to a finding of a refusal to bargain presented here are the questions of whether Local 28 is a labor organization and its continued representative status on and after August 31 , 1969, the date the collective agreement terminated between the parties. Local 28 organized Respondent's employees in the appropriate unit in 1967 , received votes of 22 out of 24 employees in that unit in a Board-conducted election, was duly certified as the exclusive representative of those employees, and, in fact, in May 1968 executed a collective- bargaining agreement with the Respondent, covering the wages, hours, and working conditions of those employees, which remained in full force and effect by its own terms until August 31, 1969 . In addition to this collective- bargaining agreement with Respondent , Local 28 had and has collective-bargaining agreements with three or four other employers covering the wages, hours, and working conditions of the employees of those employers . Obviously under the definition of a labor organization contained in Section 2(5) of the Act, Local 28 is, and is hereby found to be, a labor organization. Respondent's bnef presents the following arguments: I. Respondent's motion to dismiss on the ground that it is improper under the labor act for a labor union to enjoy a rebuttable presumption that it represents a majority after expiration of the certification years should have been granted. Respondent's bnef acknowledges with appropriate citation of cases by the Board and the courts, including the Supreme Court, that Board and court law on the subject is that, after certification, the Union enjoys an irrebuttable 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presumption of majority representation for the certification year and that such presumption of majority representation continues after the expiration of a collective-bargaining agreement as a rebuttable presumption. Consequently, as a Trial Examiner of the Board bound by Board and Supreme Court law, my ruling on Respon- dent's motion was correct as a matter of law even though Respondent may think that the law as so interpreted by the Board and the courts is unfair to itself and employers in general . This argument would be more appropriately made to Congress while requesting a change in the law rather than to the Board, or its Trial Examiner, who is interpreting the statute as it now reads. II. Respondent should not be found guilty of Section 8(a)(1) and 8(a)(5) violations because Local 28 is not the labor organization that was certified on October 4, 1967. Respondent's brief premises this argument on the fact that "the record indicates that Local 28 was at the time of the hearing and had for some time previous been in the process of disaffiliating from the International Union (AFL-CIO) and has been considering affiliation with the National Council of Distributive Workers of America (Tr. 11-15). Furthermore, Respondent received some indication from the International that Local 28 and Mr. Leibold were no longer associated and that Respondent should not have any dealings with anyone in Local 28 (Tr. 34, 35). Because of this, the Local was in substance, if not in form, different from the certified bargaining representative of October 4, 1967." Respondent's brief recognizes the law to be that "Respondent's duty, of course, is to bargain with the previously certified collective-bargaining representative. Respondent recognizes that a mere change in affiliation does not grant it the option to refuse to bargain." Again Respondent's brief correctly states the law. The facts show without contradiction that at the time of the request to bargain and, indeed, at the time of the hearing Local 28, the certified bargaining representative, was still affiliated with Retail, Wholesale & Department Store Union, AFL-CIO, just as it had been at the date of the certification and at all times thereafter. The fact that Local 28 may have been considering a move to disaffiliate from one International union and possibly affiliate with another International union is thus completely immaterial to the instant case as pure speculation. Respondent is, therefore, asking this Trial Examiner to decide this case on a nonexistent state of facts. This argument is therefore without merit. The testimony of Roberts to the effect that he had been told by a Frank Parker of Birmingham, Alabama,3 not to have anything to do with Local 28, Griffith, or Leibold because they had been "fired" by the Retail Clerks International is, in the absence of said Frank Parker as a witness to be subjected to cross-examination, evidence which must be disregarded as pure hearsay. It is quite true that Roberts could testify as to the telephone call between himself and Frank Parker but the contents of Parker's statements to Roberts remained hearsay in the absence of Parker's subjecting himself to cross-examination as to his knowledge of the facts reported by him to Roberts. Even if Parker's report to Roberts proved to be true, it still does not show a change in the identity of the certified bargaining representative which in this case was Local 28. III. The Respondent should not be found guilty of an unfair labor practice in violation of Sections 8(a)(l) and 8(a)(5) of the Act since Respondent had a good- faith doubt, based upon objective considerations, that Local 28 did not represent a majority of employees within the appropriate unit. In its brief Respondent based its claim of a "good-faith doubt" of Local 28's majority status on three factors: 1. After Respondent promoted employee L. C. Melton in June to the position of dock supervisor, Melton informed Roberts in a conversation that only five employees were attending union meetings. 2. The turnover in Respondent's employee complement was such that only six employees who had voted in the August 1967 election remained as employees. 3. Respondent had received a written communication from Frank Parker (which was not produced at the hearing) to the effect that Leibold had been discharged "by the union," obviously the International Retail Clerks and not Local 28, and that Respondent should not deal with anyone from Local 28. Leibold confirmed on September 3, 1969, that he was then employed by another union and that Local 28 was in the process of disaffiliating from the Retail Clerks. Respondent's brief says, "taken in cumulative effect these [above] factors presented Respondent with reasonable grounds for entertaining a good-faith doubt about majority status." I cannot agree that the above factors, taken either individually or cumulatively, create "a serious doubt on the union's majority status." Melton's statement to Roberts upon assuming his new supervisory status at a "much higher" salary proves only that Local 28, like most unions, was having trouble getting members to attend meetings. It proves, as corroborated by Melton's testimony at the hearing, nothing so far as the actual membership of the Union is concerned or as to the desires of the employees in the unit to be represented by Local 28. Indeed the testimony of Roberts that no employee in the appropriate unit had ever expressed dissatisfaction with the representation of Local 28 clearly rebuts the implication Respondent attempts to draw from Melton's statement. As Respondent's brief acknowledges, "Turnover without more is not sufficient to rebutt [sic] the presumption of continued majority status." But Respondent couples turnover with Melton's statement and purports to find "serious doubt" of majority status by forgetting to recall that Roberts had heard no dissatisfaction with Local 28's representation expressed by any member of the unit. The lack of expressions of dissatisfaction by the unit employees is stronger evidence by far than the turnover. The fact that Local 28 may have been considering disaffiliation from Retail Clerks proves nothing in regard to the majority status of Local 28 which was, after all, the 3 According to Leibold, Frank Parker for I year has been the southern area director of the Retail, Wholesale & Department Store Union FEIBUS-GORDON OF CHARLOTTE certified bargaining representative and, indeed, the only party to the collective agreement with Respondent. Frank Parker, as an International officer, appears here in the role of an interloper. As noted heretofore, the change of affiliation by Local 28 had not taken place and, even if it had, would not have affected the majority status of Local 28 in any way. If the disaffiliation had in fact occurred, it might even have strengthened the evidence as to the majority status of Local 28 and the fact that it was Local 28 which was the certified bargaining representative and not the Retail Clerks. The evidence presented shows only that Respondent was engaging in wishful thinking-not that Respondent had a "good-faith" doubt based upon any substantial objective considerations. Respondent's final argument is as follows: IV. The defendant should not be found guilty of a Section 8(a)(1) and 8(a)(5) violation since Local 28 does not in fact represent a majority of the employees in the bargaining unit. There is no evidence in this record to substantiate this contention. There is, however, the Board and court presumption of a continued majority. This presumption, although rebuttable, has not here been rebutted. The whole history of this case indicates wishful thinking on the part of Respondent. Local 28 was certified over objections of Respondent found by the Regional Director to have been untenable. Thereafter a collective-bargaining agreement was reached only after a strike. Then when the renewal of that collective-bargaining agreement came up, Respondent claimed a "good-faith doubt" based upon at best tenuous circumstances and refused on the basis of that so-called "good-faith doubt" to negotiate a renewal preferring to rely on this tenuous good-faith doubt rather than on a determination of the fact. The fact could have been determined by the Respondent by filing a representa- tion petition with the Board requiring a secret ballot election which would have removed all doubt one way or another. Respondent chose not to file such a petition, obviously preferring to rely on a claim of "good-faith doubt" rather than upon fact. By filing such an RM petition the doubt about majority status could have been removed in a matter of weeks whereas by pursuing the present litigation route the uncertainty may remain for years. In labor relations especially such doubts should be removed as promptly as possible. As it was Respondent who claimed the good-faith doubt, it became incumbent upon Respondent to resolve that doubt by filing an RM petition with the Board. Accordingly I must find that under the circumstances of this case Respondent has failed and refused to bargain in good faith with Local 28 as the exclusive bargaining representative of all the employees in the appropriate unit found above in violation of Section 8(a)(1) and (5) of the Act. 4 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 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 319 The activities of Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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 certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act and restore the status quo ante. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All warehouse employees at Respondent's Charlotte, North Carolina, plant including truckdrivers, but excluding office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(b) of the Act. 5. By refusing on and after June 27, 1969, to bargain in good faith with Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive bargaining representative of the employees in the above-found appropriate unit, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 6. By interfering with, restraining, and coercing its employees in the rights guaranteed them in Section 7 of the Act, as found above, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER4 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is hereby ordered that Feibus-Gordon of Charlotte, Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Local 28 as the 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. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of Respondent's employees in the appropriate unit which is: All warehouse employees at Respondent's Char- lotte, North Carolina, plant, including truckdri- vers, but excluding office clencal employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request bargain collectively in good faith with Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive representative of Respondent's employees in the appropriate unit found above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understand- ing is reached, embody same in a written signed agreement. (b) Post at its Charlotte, North Carolina, plant copies of the attached notice marked "Appendix."5 Copies of said notice, on forms provided by the Regional Director for Region 11 , after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where 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 11, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .6 IT IS FURTHER RECOMMENDED that, unless Respondent notifies said Regional Director within 20 days from the receipt hereof that it will take the action here ordered, the Board issue an Order directing Respondent to take the action here ordered. 5 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." 6 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 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, upon request, bargain collectively in good faith with Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, as the exclusive representative of the employees in the appropriate unit below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, we will embody the same in a written signed agreement. The appropriate unit is as follows: All warehouse employees at Respondent's Char- lotte, North Carolina, plant, including truckdn- vers, but excluding office clencal employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Local 28, Retail, Wholesale & Department Store Union, AFL-CIO, or any other labor organization of our employees' own choosing, to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. FEIBUS-GORDON OF CHARLOTTE, 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance 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, Extension 360.