American Finishing Co.

National Labor Relations Board - Board Decisions

Aug 8, 1950

90 N.L.R.B. 1786 (N.L.R.B. 1950)

In the Matter of AMERICAN FINISHING COMPANY and MACIIINE
PRINTERS BENEFICIAL ASSOCIATION OF THE UNITED STATES
Case No. 32-CA-108.-Decided August 8, 1950
DECISION. AND ORDER
On April 27, 1950, Trial Examiner David F. Doyle issued his In- .
termediate Report in the above-entitled proceeding, finding that the
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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and briefs," and the
entire record in the case,2 and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, American Finishing Company,
Memphis, Tennessee, and its officers, agents, successors, and assigns,
shall :
' The Respondent filed no separate brief in support of its exceptions but relied upon the
brief which is filed in Case No. 32-RC-100, the representation proceeding which gave rise
to the certification of the Union as representative of the employees herein, and the memo-
randum brief which it filed with the Trial Examiner in the instant case. Both briefs have
been considered by the Board.
2 Pursuant to a stipulation of the parties, the Trial Examiner received in evidence the
entire record in Case No. 32-RC-100. This record, as well as the entire record in the
instant case , has been considered by the Board.
90 NLRB No. 237.
1786
AMERICAN FINISHING COMPANY 1787
1. Cease and desist from :
(a) Refusing to bargain collectively with the Machine Printers
Beneficial Association of the United States as the exclusive repre-
sentative of all machine printers and their apprentices employed at
the Respondent's Memphis, Tennessee, plant, excluding all other em-
ployees, guards, and supervisors as defined in the Act :
(b) In any manner interfering with the efforts of the Machine
Printers Beneficial Association of the United States to bargain collec-
tively with it in behalf of the employees in the aforesaid appropriate
unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Machine Printers
Association of the United States as the exclusive bargaining repre-
sentative of all the employees in the aforesaid appropriate unit witli
respect to wages, rates of pay, hours of employment, or other con-
ditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post at its plant in Memphis, Tennessee, copies of the notice.at-
tached to the Intermediate Report marked Appendix A.3 Copies of
said notice, to be furnished by the Regional Director for the Fifteenth
Region, shall, after being duly signed by the Respondent's repre-
sentative, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (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 the Fifteenth Region, in writ=
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith:
CHAIRMAN HERZOG, dissenting :
I dissent, believing the unit found in the representation case to have
been inappropriate, for, reasons set forth in my separate opinion there.
(86 NLRB 412.)
3 This notice, however, shall be and it hereby is amended by striking from the first para-
graph thereof the words "The Recommendations of a Trial Examiner" and substituting in
lieu thereof the words "Decision and Order." In the event that this Order is enforced by
a decree of a United States Court of Appeals, there shall be inserted before the words "A
Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing."
1788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Charles A. Kyle, for the General Counsel.
Messrs. Herbert Glazer and William W. Goodman, of Memphis, Tenn., for the
Respondent.
Ir. Eric W. Lindburgh, of Barrington, R. I., :for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on January 27, 1950, by Machine Printers Beneficial
Association of the United States, herein called he Union, the General Counsel of
the National Labor Relations Board, herein called the General Counsel and the
Board, respectively, by the Regional Director for the Fifteenth Region (New
Orleans, Louisiana), issued a complaint dated February 27, 1950, against Amer-
ican Finishing Company, Memphis, Tennessee, herein called the Respondent, al-
leging that the 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 National Labor Relations Act, as amended, 61 Stat.
i36, herein called .the Act:, Copies of the charge, complaint, and notice of hearing
thereon were duly served upon the Respondent and the Union.
With respect to the unfair labor practices the complaint alleged, in substance,
that: (a) All machine printers designated by Respondent as assistant foremen,
and their apprentices, at the Respondent's Merr.phis, Tennessee, plant, excluding
all other employees, guards, and supervisors, a^ defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act; (2) at all times since November 3, 1949, the Union has
,been the exclusive representative of all employees in the above-described appro-
priate unit; (3) on January 10, 1950, and at all times thereafter, the Respondent
has refused to bargain collectively with the Union as the exclusive representative
of the employees in the aforesaid appropriate unit; and (4) by the foregoing
conduct Respondent has engaged in and is engaging in unfair labor practices
violative of Section 8 (a) (1) and (5) of the Act.
In its answer, duly filed herein, the Respondent admitted certain of the alle-
gations contained in the complaint but denied it had engaged in unfair labor
practices within the meaning of the Act.
Pursuant to notice, a hearing was held on March 14, 1950, at Memphis,
Tennessee , before David F. Doyle, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. At the hearing the General Counsel and the
Respondent were represented by counsel; the Union was represented by its
executive secretary. Full opportunity to be heard, to examine and cross- examine
witnesses , to introduce evidence bearing on the issues was accorded all parties.
At the close of the hearing the undersigned granted a motion by the General
Counsel to conform the pleadings to the proof a.s to dates and minor variations
and reserved ruling on the Respondent's motion to dismiss the complaint. The
notion is hereby denied. All the parties were afforded opportunity to present
oral argument at the close of the hearing and to file briefs and/or proposed
findings of fact and conclusions of law with the undersigned. Counsel for the
General Counsel and the Respondent presented oral argument at the close of
the 'hearing, and both later filed briefs with the undersigned. After the close
of the. hearing Counsel for the General Counsel made a motion, in which he was
joined by the Respondent, to correct certain er:ors in the transcript of record.
The Union made no objection to the proposed corrections. An order authorizing
AMERICAN FINISHING COMPANY 1789
and directing the specific corrections was granted by the undersigned on April
13, 1950.
Upon the entire record in the case and from his observations of the v tnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
. American Finishing Company is a Tennessee corporation having its principal
place of business at Memphis, Tennessee, where it is engaged in bleaching, dyeing,
finishing, printing, sanforizing, coating, and performing other related processes
upon cotton textiles. In the course and conduct of its business Respondestit•
annually purchases raw materials, including dyes and starches, of a value in
excess of $100,000. Seventy-five percent of this raw material is shipped to the
Respondent from points outside the State of Tennessee. Annually the Re-
spondent ships and delivers to its customers products of a value in excess of
$100,000. Of the products so shipped more than 50 percent is shipped outside.
the State of Tennessee. The Respondent has conceded, the Board has found,,
and the undersigned now finds, that the Respondent is engaged in interstate
commerce within the meaning of the Act'
II. THE LABOR ORGANIZATION INVOLVED
Machine Printers Beneficial Association of the United States is a labor organ-
ization admitting to membership employees of the Respondent.'
III. THE UNFAIR LABOR PRACTICES
A. Introduction: the representation proceeding
The sole issue in the instant proceeding is whether Respondent has refused
to bargain collectively with the Union and has thereby violated Section 8 (a) (1)
and (5) of the Act. Respondent admits in its answer that "it did not accept
the offers on or about January 10, 1950, and on or about January 20, 1950, of
the Machine Printers Beneficial Association of the United States to bargain
collectively." As will be seen below, Respondent asserts as a defense to its
refusal to bargain the contention that the unit as found by the Board in its
Decision and Direction of Election in Case No. 32-RC-100, American Finishing
Company and Machine Printers Beneficial Association of the United States, 86
NLRB 412, is not appropriate. A short review of the representation proceeding
will demonstrate that the contentions of the Respondent on the unit issile have
been heard and determined by the Board in that proceeding.
On November 17, 1948, the Union filed a petition requesting certification of
representatives for a wait of the Respondent's employees described as, "all ma-
chine printers including line foremen, and journeymen and apprentices em-
ployed in the printing department of the Employer," excluding clerical and office
employees, professional and technical employees, and all other employees and
supervisors as defined in the Act. Pursuant to notice a representation proceed-
1 This finding is based on the testimony, exhibits, and stipulations of the parties, and.the
Board's Decision and Direction of Election in American Finishing Co., 86 NLRB 412, Case
No. 32-RC-100, hereinafter referred to as the representation proceeding, and the pleadings,
stipulations, exhibits, and testimony in the instant case.
s To the same effect as footnote 1 above.
1790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing was conducted before a bearing officer at Memphis, Tennessee, on January
20, 21, 22, and on March 24 and 25, 1949. A full opportunity was afforded all
parties to present evidence. At the hearing and in its brief addressed to the
Board, the Respondent assumed the position that certification should not be
granted to the Union for the following reasons : (1) That a collective bargaining
agreement between the Respondent and the Textile Workers Union of America,
CIO, was a bar to the petition; (2) that the proposed unit is inappropriate; (3)
that all of the employees in the proposed unit are supervisors as defined in the
Act; and (4) that it was prejudicial error for the hearing officer to exclude testi-
mony in reference to the drift and trend of tha textile industry away from the
New England and Atlantic States! -
On October 6, 1949, the Board issued its decision and direction of election in
the representation case finding, among other things, that "the machine printers
designated by the Employer as assistant foremen are an identifiable, skilled,
and homogeneous craft (or apprentice craft) group and constitute a unit appro-
priate for purposes of collective bargaining...."
On November 3, 1949, pursuant to the direction of election, an election by
secret ballot was conducted under the supervision of the Regional Director for
the Fifteenth Region. Of the eight voters eligible to vote in the election, all eight
voted in favor of the Union.
On November 7, 1949, the Respondent filed timely objections to the conduct of
election in conformity with the Board's Rules and Regulations. The grounds
for objection were that (1) all of the employees who voted in said election were
supervisors within the meaning of the National Labor Relations Act, (2) all of
said employees were not members of an appropriate unit or craft, and (3) all
the other grounds included in the record of the case.
On November 22, 1949, the Regional Director- of the Fifteenth Region issued
his report on election and objections to election, recommending that the Board
issue a certificate of representatives to the Union as the exclusive representative
of all the employees in the unit found appropriate by the Board.
On November 30, 1949, the Respondent filed with the Board exceptions to the
conclusions and recommendations of the Regional Director in regard to the
election, stating the grounds of exception as follows: (1) That all the employees
who voted in said election are 'supervisors within the meaning of the Act and
are not members of an appropriate unit or craft, and all of the other grounds
contained in the record of the case; (2) that James McNair, an employee in the
unit, was allowed to act as an observer for the Union despite the objection of
the Respondent that McNair was a supervisor within the meaning of the Act and
was therefore disqualified to act as an observe:-;4 and (3) that the vote of each
and every one of the eight employees who voted in said election was challenged
by the observer for the Respondent.
On January 5, 1950, the Board issued its supplemental decision and certifi-
cation of representatives in which it certified "that Machine Printers Beneficial
Association of the United States has been selected. by a majority of the journey-
men, machine printers and their apprentices, employed by American Finishing
Company at its Memphis, Tennessee, plant as their representative for the
purposes of collective bargaining. . . .
On January 18, 1950, the Respondent filed with the Board a petition to rehear
and correct the supplemental decision and certification of representatives on
3 The hearing officer excluded evidence on this poi:at at the hearing, to which the Re-
spondent took exception. The point was fully argued by Respondent in its brief to the
Board.
4 This exception is derivative from the first exception.
AMERICAN FINISHING COMPANY 1791
the ground; that the employees in the unit as defined, were, supervisors within
the meaning of the Act and that the supplemental decision and certification of
representatives should be corrected by the deletion of the word "journeymen"
in the description of the unit.
On February 7, 1950, the Board issued its order denying the petition and cor-
recting the supplemental decision and certification of representatives. This
order permitted the correction. petitioned for by deleting the word "journey-
men" from the description of the unit, and denied the petition for a rehearing.
From the above review it is seen that in each step of the representation case
the Respondent contested the Board's unit finding, urging that all the employees,
in the unit found by the Board, are supervisors within the meaning of the Act.
In the instant proceeding all parties stipulated that the entire record in the
representation proceedings be admitted in evidence, and under the stipulation
was received in evidence by the undersigned.
B. The refusal to bargain
1. The appropriate unit
The complaint alleges that all machine printers designated by Respondent as
assistant foremen and their apprentices in the Respondent's Memphis, Tennessee,
plant, excluding all other 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. This is the unit found by the Board
to be appropriate in the representation proceeding, and for which the Board on
January 5, 1950, certified the Union as exclusive bargaining representative.
Respondent in the instant proceeding raises again the identical contention
that the unit established by the Board is inappropriate because the employees
within the unit are supervisors within the meaning of the Act. The position
of the Respondent is that the determination of the Board in the representation
proceeding is "so obviously wrong and incorrect that it should be considered
as an arbitrary decision."
The Respondent bases this contention entirely on the evidence adduced in the
representation proceeding. The undersigned has reviewed the evidence in that
proceeding, and is not persuaded that the Respondent received an arbitrary or
capricious determination from the Board. The hearing in the representation
case, consumed 5 days, and 674 transcript pages. Evidence was adduced on all
material elements of the unit question. All 8 employees in the unit testified,
as did 3 shift foremen. Witnesses for the Company were its president, vice
president, and superintendent of printing. Because of the keen interest of the
parties and the vigor of their counsel, the hearing appears to have been con-
ducted in an unusually intensive and thorough manner. Certainly the Board
had ample testimony on all the issues in the case, and its decision is based on
substantial evidence.
The undersigned can find nothing arbitrary or capricious in the Board's
decision and direction of election. It is true the decision was rendered by a
divided Board,' but this fact alone cannot be the basis for terming the decision
arbitrary or capricious. Examination of the decision discloses that careful con-
sideration was given to the Respondent's contentions, as espoused by the minority.
However, the majority rejected these contentions for very sound reasons which
are stated in the decision.
q Members Houston, Reynolds , and Murdock composed the majority . Chairman Herzog
and Member Gray; separately, dissented in part.
1792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief, counsel for the Respondent relies heavily on*.the `deci's'ion of the
circuit court of appeals, in Ohio Power Company v. N. L. R. B., 176 F. 2d 385
(C. A. 6), certiorari denied, 338 U. S. 899. E[e points out that in that case the
court held that a person who "responsibly directs" other employees without having
other supervisory authority is a supervisor within the meaning of the Act, and
he contends that the assistant foremen here involved, are clearly supervisors
when their duties and authority are considered in the light of that decision.
Counsel for Respondent further contends that the undersigned has the author-
ity under Section 7 (b) 8 of,the Administrative Procedure Act, and Section 102.45
of the Rules and Regulations of the Board to find that the employees in question
are supervisors under the Act, and/or that the unit is not appropriate, contrary
to the prior determination of the Board in the representation proceeding.
The undersigned does not agree with either of these contentions.
Comparison of the facts in the Ohio Power Company case, supra, with the
facts in the instant case; demonstrates that the two cases are clearly distinguish-
able. In the Ohio Power Company case there was no question but that the con-
trol operators (the employees in issue) had been authorized in fact to direct other
employees. In that case the Board and the Court were concerned primarily with
the scope of authority, which had been delegated by the company. The decision
in the case is firmly based on the scope of the control operator's authority. This
is seen from the testimony in the case, quoted by the Court in its decision. The
quoted testimony is as follows :
Q. And it is necessary for him to make ,decisions on the spot?
A. Particularly when there are emergencies, but in a routine way as to
various adjustments.
Q. But he has to do those things on his own initiative?
A. He makes those decisions on his own initiative.
Q. And the decisions which he makes are such as to control the operation
of the entire unit?
A. That is correct.
Q. And thereby they control the entire output of the plant as it is now
constituted?
A. That is correct.
Later in the decision the court points out t:aat in the years 1947-1948 when
emergencies arose because of frozen coal that the control operators actually used
the authority to "responsibly direct" the operations of the entire plant and of all
needed employees.
The record in the representation case, here involved, presents a far different
picture. Here, there is a very serious question, as to whether certain authority
was ever in fact delegated or conferred. The testimony of company officials re-
veals that at various times the assistant foremen were instructed verbally, or by
written memorandum, that they had duties and powers of a supervisory nature.
However, some of the men appeared to accept these as mere gestures, which did
not in fact confer the power or authority upon them. Thus, the record reveals
several of these reminders on different occasions. However, at the hearing in
the representation case, some of the men testified that they were still doubtful, or
still did not know whether the ostensibly delegated authority, had in fact been
delegated, or whether the delegation of authority was an empty gesture made by
the company for its own ulterior purposes. . Thus in the instant case, there were
two questions : (1) Was certain authority, in ]`act,, delegated to these assistant
"Rules and Regulations of the Board do not contain a section numbered 102.45; Re-'
spondent evidently means Section 203.45.
. AMERICAN FINISHING COMPANY 1793
foremen, and ( 2) if authority was delegated , was it supervisory in scope?
These questions and, the Board 's determination of them are expressed in the
Board's decision as follows :
The alleged delegation of authority to the assistant foreman by the Em-
ployer in August 1948 , to take any action necessary to obtain the required
quality and quantity of work, did no more than to confer upon the machine
printers that authority generally possessed by a skilled craftsman over his
apprentices, helpers, machines, and tools. We find that such an affirmation
of an existing duty falls short of conferring upon these employees the powers
of a - supervisor . The memorandum of November 27, 1.948, and the con-
ferences of January 26, 1948, did, however, purport expressly to place the
assistant foremen in the status of supervisors . However, we note that the
memorandum of November 27 followed by '10 days the filing of the petition
in this case on November 17, 1948. And the conference on January 26, 1949,
occurred 2 days after the hearing was commenced and prior to its con-
summation on march 24, 1949. The timing of these alleged affirmations of
supervisory authority upon the employees herein sought by the Petitioner
compels us to scrutinize closely all of the surrounding factors in determin-
ing whether such, authority was, in fact, granted to these employees. [Em-
phasis supplied.]
Machine printers in the textile printing industry are not normally vested
with the powers of a supervisor . Obviously , as pointed out in the dissent,
the Employer is under no obligation to operate his business in accordance
with the prevailing industry practice. However, it is pertinent to note that
the machinery , the materials , and the printing process are exactly the same
as generally are employed in the industry. Only in respect to supervision
does the Employer allegedly deviate from the.industry practice.
The record further discloses that, if the machine printers are supervisors,
the ratio of supervisory to non-supervisory employees in the printing depart-
ment is one to three, while the ratio of supervisory to nonsupervisory em-
ployees in the other plant departments is one to seven. Not only is the
ratio in the printing department higher than in the other plant departments,
but is higher than that prevailing in the textile printing industry. As we
have previously stated , the ratio of supervisory to nonsupervisory employees
is a factor which , although not determinative , must be considered.
Finally, we do not think that the assistant foremen have exer-
cised supervisory authority to the extent that they would have if
they, in fact , possessed such authority . It is true , as our dissenting
colleague points out , that if these employees are actually supervisors, the
fact that they have not exercised supervisory, authority does not destroy
their supervisory status. However, we think that where an issue is as
close as it is in this case , considerable weight must be given to the extent
to which the alleged powers have been used . Admittedly there have been
isolated instances in which some of these employees have engaged in activity
indicative of a supervisor . However, sporadic and infrequent exercise of
supervisory authority , as in the instant case,' does not in itself confer
' The record reveals that one machine printer discharged an employee on his crew
for smoking in violation of the company rules (although he later took the employee
back ) another assistant foreman recommended that his brother -in-law be hired,
which recommendation was given effect ; some of the assistant foremen considered
that they had the authority to discharge members of their crews ; an employee was
903847-51-vol. 90-114
1794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisory'status.B We find that the supervision exercised by the assistant
foremen over the "backhelp" is that normally exercised by a skilled crafts-
man over his helpers and not that of a supervisor over an employee.10 We
conclude, therefore, that assistant foremen are employees within the mean-
ing of the Act. [Emphasis supplied.]
discharged by the superintendent of printing as a result of an assistant foreman's
recitation of events to the superintendent of printing ; and another employee was
discharged when an assistant foreman told the muperintendent of printing that either
the employee would "have to go" or that he, the assistant foreman, would quit.
s Matter of Todd Shipyards Corporation, 80 NLRB 382, Matter of U. S. Gypsum
Company, 79 NLRB 1059; Matter of General Motors Corporation, 78 NLRB 72. .
U The record discloses that the assistant foremen consider that they are in charge
of the machines and responsible for the men under them. They direct and instruct
the machine crew in their duties; and the latter must take orders and instructions
from them.
10 Matter of General Steel Tank Co., 81 NLRB 1345.
Member Gray, in his opinion dissenting in part, plainly states the issue that
distinguishes the instant case from Ohio Power Company, supra. He writes as
follows :
"The majority implies -that the timing of the above confirmations of super-
visory authority casts suspicion upon the Employer's motive. However, the
issue is not the Employer's motive, but whether the Employer did, in fact, dele-
gate this authority to these individuals. I will assume, arguendo, that the Em-
ployer's actions were motivated by a desire or. its part to avoid any obligation
it may have to bargain with the Petitioner if These individuals were not super-
visors. There is nothing in the amended Act, and I am aware of no prior Board
decisions, that prohibits an employer from doing just that." [Emphasis sup-
plied.]
"The majority found that the Employer, while professing to confer super-
visory authority upon. these employees, did not in fact do so. They rely upon
the following factors to support their conclusion that the Employer did not mean
what it said: (1) A contrary practice prevailing in the industry; (2) the high
ratio of supervisory to non-supervisory employees; (3) the infrequent exercise
of supervisory authority by these employees; and (4) the existence of the relation-
ship of a skilled craftsman to his helper." [Emphasis supplied.]
Because of this clear distinction between the two cases, the undersigned does
not agree with the Respondent that the instant case is controlled by the decision
in Ohio Power Company, supra.
Nor does the undersigned agree with Responlent's contention that the under-
signed has authority, by virtue of Section 7 (b) (8) of the Administrative Proce-
dure Act, and Section 1.02.45 of the Rules and Regulations of the Board, to find
that the employees in question are supervisors, and/or that the unit is not
appropriate contrary to the prior decision of the Board in the representation
proceeding.
At the hearing in the instant case Respondent failed to proffer new evidence,
or evidence unavailable at the time of the representation case, or evidence tending
to show that a change had occurred in the fac.;s underlying the decision of the
Board as to unit, from the time of the decision, to the date of the instant hearing.
In fact, the testimony in the instant hearing was to the effect that no change of
circumstances had occurred as to the unit within the time stated. The only new
matter is in the form of another memorandum from the company to the assistant
foremen which "reminds" them that they are directly responsible for their ma-
chine, along with the men in their crews and the quality and quantity of the work
A'MER'ICAN F'IN'ISHING COMPANY 1795
turned out. Such proof raises no new issue not previously submitted to and
considered by the Board prior to its certification of the Union as the exclusive
representative of Respondent's employees in the appropriate unit.
It has long been the policy of the Board not to permit a respondent to relitigate,
in a subsequent unfair labor practice proceeding involving charges of a refusal
to bargain with a certified representative, the issues decided in a prior representa-
tion proceeding. In the absence of new evidence, or evidence of a change in the
facts surrounding a prior unit determination, or the presentation of evidence un-
available to the respondent in the prior representation proceeding, the Board has
uniformly refused to redetermine these issues in an unfair labor practice
proceeding.'
Accordingly the undersigned finds pursuant to the Board's previous determina-
tion, and as alleged in the complaint, that all machine printers designated by
Respondent as assistant foremen and their apprentices at the Respondent's Mem-
phis, Tennessee, plant, excluding all other employees, guards, and supervisors as
defined in the Act constitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
2. Representation by the Union of a majority in the appropriate unit
As stated more at length above, the Union won the election conducted on
November 3, 1949, and was certified by the Board as collective bargaining rep-
resentative of the employees in the aforesaid appropriate unit on January 5, 1950.
The undersigned finds that on and after January 5, 1.950, the Union was the
duly designated bargaining representative of the employees in the aforesaid
appropriate unit and pursuant to Section 9 (a) of the Act the Union was on
January 5, 1950, and still is, the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
Proof of the unfair labor practices alleged in the complaint was contained
in an exchange of letters which were introduced in evidence pursuant to a
stipulation of the parties, as follows:
(1) On January 10, 1950, the Union, by its secretary, requested that a time
be set for a conference for the purpose of instituting collective bargaining
for the employees of the Respondent in the unit. The Union expressed
a willingness to meet at any time or place convenient to the Respondent.
' Clark Shoe Company and United Shoe Workers of America, C. I. 0., 88 NLRB 989.
The decision reads :
The Respondent takes the position that the Trial Examiner cannot hold himself
bound by the Board's findings in the prior representation case; that it is entitled to an
"independent determination" by the Trial Examiner of the issues decided in the R
case ; and that under Section 7 (b) (8) of the Administrative Procedure Act, the Trial
Examiner should make such a determination because he is authorized to "make decisions
or recommend decisions ." We agree with the Trial Examiner that unless there is
evidence which was newly discovered or unavailable to the Respondent at the time of
the representation hearing, it cannot be permitted to relitigate in the instant proceeding
the question of majority or the appropriate unit. . . . Nor do we find anything in the
Administrative Procedure Act which supports the Respondent's position.
N. L. it. B. v. Worcester Woolen Mills Corp., 170 F. 2d 13 (C. A. 1), cert. denied 336 U. S.
903; Pittsburgh Plate Glass Co. v. N. L. it. B., 313 U. S. 146; Allis-Chalmers Manufacturing
Co. v. N. L. R. B., 162 F. 2d.435 (C. A. 7) ; N. L. R. B. v. West Kentucky Coal Company, 152
F. 2d 198 (C. A. 6), cert. denied 328 U. S. 866; N. L. it. B. v. Anwelt Shoe Manufacturing
Co., 93 F. 2d 367 (C. A. 1)
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) On February 14, 1950, (after the Board had corrected the Supple-
mental Decision and Certification of Representatives, as set forth above)
the Union, by its secretary, again requested a time be set for a conference
for the purpose of instituting collective bargaining on behalf of the employees
represented by the Union.
(3) On February 16, 1950, the Respondent, by William W. Goodman, its
treasurer, refused to bargain with the Union in the following words, "Solely
in order to make it possible to have said courts review said October 6, 1949,
decision of the National Labor Relations Board, as supplemented on January
5 and February 7, 1950. American Finishing Company refuses to bargain
with the Machine Printers Beneficial Association of the United States at this
time."
In his statement of the Respondent's position at the close of the hearing, counsel
for the Respondent said, "that the refusal of the American Finishing Company
to bargain with the Machine Printers Beneficial Association of the United States
is not done with any idea of vindictiveness or any disregard for the Union, but
the only purpose is to get a review by this Trial Examiner at this hearing and
probably also by the Board and, if necessary, by the courts."
The above letters reveal, Respondent admits in its answer and by its statement
in open court, and the undersigned finds that on or about January 10, 1950, and
at all times thereafter Respondent has refused and is refusing to bargain col-
lectively with the Union as the exclusive representative of its employees in an
appropriate unit, and has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of'Respondent described in'Section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor d'.sputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
it will be recommended that the Respondent cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the Act.
Having also found that the Union represented .and now represents a majority of
the employees in the appropriate unit and that the Respondent has refused to
bargain collectively with it, the undersigned will recommend that the Respondent,
upon request bargain collectively with the Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. The Machine Printers Beneficial Association of the United States is a labor
organization within the meaning of Section 2 (5) of the Act.
2. All machine printers designated by Respondent as assistant foremen and
their apprentices at Respondent's Memphis, Tennessee, plant; excluding all other
employees, guards, and supervisors as defined by the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
AMERICAN FINISHING COMPANY 1797
3. The Machine Printers Beneficial Association of the United States was on
January 5 , 1950, and at all times thereafter, has been and is, the exclusive repre-
sentative of all the employees in the aforesaid unit for the- purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on January 10, 1950, and at all times thereafter to bargain
collectively with the Machine Printers Beneficial Association of the United States
as the exclusive representative of'all'its -employees in the aforesaid appropriate
unit, the Respondent has engaged in and ' is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act, as amended.
5. By the aforesaid refusal to bargain, the Respondent has interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act , and has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( a) (1) of the Act , as amended.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, the undersigned recommends that the Respondent,
American Finishing Company, and its officers , agents, `successors , and assigns
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with the Machine Printers Beneficial
Association of the United States as the exclusive representative of all machine
printers and their apprentices employed at the Respondent 's Memphis , Tennessee,
plant, excluding all other employees , guards, and supervisors as defined in
the Act ;
(b) In any manner interfering with the efforts of the Machine Printers Bene-
ficial Association of the United States to bargain collectively with it in behalf of
the employees in the aforesaid appropriate unit.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with the Machine Printers Beneficial
Association of the United States as the exclusive bargaining representative of
all the employees in the aforesaid appropriate unit with respect to wages, rates
of pay, hours of employment , or other conditions of employment , and if an under-
standing is reached , embody such understanding in a signed agreement ;
(b) Post at its plant in Memphis , Tennessee , copies of the notice attached
hereto, marked Appendix A. Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region , shall , after being duly signed by
the Respondent 's representative , be posted by the Respondent immediately upon
receipt thereof and maintained by it for. a period of sixty ( 60) consecutive
days thereafter in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or covered by any
other material; and
(c) Notify the Regional Director for the Fifteenth Region in writing within
twenty ( 20) days from the date of receipt of this Intermediate Report and Rec-
ommended Order what steps the Respondent has taken to comply herewith.
It is further recommended- that, unless on or before twenty ( 20) days from
the date of receipt of this Intermediate Report and Recommended Order the
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent notifies said Regional Director in writing that it will comply with
the foregoing recommendations, the National Labor Relations Board issue an
order requiring the Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of
a brief in support of the Intermediate Report and Recommended Order. Imme-
diately upon the filing of such statement of exceptions and/or -briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions of
the record relied upon and, shall be legibly printed or mimeographed, and
if mimeographed shall be double spaced. Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203.85. As further provided in said Section 203.46 should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the afore-
said Rules and Regulations, the findings, conclusions, recommendations, and
recommended order herein contained shall; as provided in Section 203.48 of said
Rules and Regulations, be adopted by the Board and become its findings, con-
clusions, and order, and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington, D. C., this 27th day of April 1950.
DAVID F.. DOYLE,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify oar employees that :
WE WILL BARGAIN collectively upon request with MACHINE PRINTERS BENE-
FICIAL ASSOCIATION OF THE UNITED STATES, as the exclusive representative of
.all employees in the bargaining unit described herein with respect to wages,
rates of pay, hours of employment, or other terms or conditions of employ-
ment and, if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All machine printers designated by the Employer as assistant foremen
and their apprentices at the Employer's Memphis, Tennessee, plant,
excluding all other employees, guards, and supervisors.
AMERICAN FINISHING COMPANY 1799
WE WILL NOT in any manner interfere with the efforts of the above-named
union to bargain collectively with us, or refuse to bargain with said union
as the exclusive representative of the employees in the bargaining unit set
forth above.
Dated --------------- -----------
AMERICAN FINISHING COMPANY,
(Employer)
By ------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered, defaced, or covered by any other material.