Cooper's Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1954

107 N.L.R.B. 979 (N.L.R.B. 1954)

COOPER'S INC., (of Georgia) 979
6. By restraining and coercing employees mthe exercise of the rights guaranteed in Section
7 of the Act, the Respondent Local 1423 has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
COOPER'S INC., ( of Georgia ) and UNITED TEXTILE WORKERS
OF AMERICA, AFL, Petitioner. Case No. 10-CA-1621.
January 28, 1954
DECISION AND ORDER
On August 21, 1953, Trial Examiner Bertram G. Edie issued
his Intermediate Report in the above-entitled proceeding, find-
ing that the Respondent had engaged in and was engaging in cer-
tain unfair labor practices, and recommending that it cease and
desist therefrom, and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent filed exceptions tothe Intermediate
Report.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds no prejudicial error was com-
mitted. The rulings are hereby affirmed.' The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner except as hereinafter discussed.2
We agree with the Trial Examiner that the Respondent's
acts and conversations constituted violations of Section 8 (a)
(1) of the Act. In so finding, we also agree with the Trial
Examiner that Waters was a supervisor within the meaning
of the Act and that the Respondent is responsible for her
behavior. However, for reasons set forth in Livingston Shirt, 3
recently issued, we do not find that the Respondent violated
Section 8 (a) (1) of the Act in failing to permit the Union to
reply to any speeches management expected to make on company
time and premises.
We also reject the Trial Examiner's conclusion that the
Respondent refused to bargain with the Union in violation of
the Act. Unlike the Trial Examiner, we find the record evidence
insufficient to support the necessary subsidiary finding that
'Without passing on the validity of the Trial Examiner's basis for finding that the United
Textile Workers of America, AFL, is a labor organization, we take judicial notice of that fact,
inasmuch as we have found in innumerable prior decisions that this Union is such a labor
organization within the meaning of the Act.
2 The Respondent's request for oral argument is hereby denied, because the record, excep-
tions, and briefs, in our opinion, adequately present the issues and positions of the parties.
3Livmgston Shirt Corporation, et al., 107 NLRB 400
107 NLRB No. 206.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union in fact represented a majority of the employees
when the request to bargain was made.
On the day the Union requested the Respondent to bargain,
there were 93 employees in the appropriate unit. At the
hearing, the General Counsel submitted 52 authorization cards
dated prior thereto. Of these, the Respondent admitted the
validity of 33 but questioned the validity of the remaining
19 cards, contending that these were not valid because not
properly authenticated. Of the cards in dispute, a finding
that 14 were validly executed is required to prove the Union's
majority.
The facts with (reference to the 19 cards may be stated
briefly.4 Of these 19, only 4 were allegedly signed by the
employees themselves, and the Respondent raised questions
even as to these.5 Of the remaining 15 cards signed by
organizers but allegedly at the request of and in the presence
of the employees, 6 cards were the subject of impeaching
testimony. In 3 instances the employees testified that they had
not authorized the signing of the cards.6 In another instance,
the organizer testified that the card was not signed in the
presence of the employee.' In still another instance, the
employee testified that she thought she was being asked to join
a social club.fi In the case of the sixth card, the person whose
name appeared as a witness was not present at the execution
of this card." The balance of the 15 cards, namely 9 cards,
were admittedly signed in the presence of the employees.10 Of
these cards, some were signed for the employees by persons
who testified that they had been authorized to sign for the
employees. However, in none of these 9 cases did the employee
herself testify as to whether she authorized anyone to sign
for her, and no adequate reason was advanced for the failure
of the employees to sign the cards personally.
The circumstances under which the cards were executed
give rise to a reasonable doubt regarding the intention of the
employees to be represented by the Union. Accordingly,
in view of the doubt cast upon the validity of the cards by
the irregularities and discrepancies discussed above, we find
4Only 7 out of the 19 employees whose cards were disputed testified.
5 Employee McKinney allegedly signed her card but no proof was offered as to the validity
of her signature; Bell signed, but she testified that she thought she was compelled to sign to
hold her job; evidence as to who signed Miller's card was conflicting and no proof of her
signature was offered; Sapp denied his signature on the card introduced in evidence. However,
as to Sapp's card, it is clear from the evidence that his true signature appeared on the card.
6Employees Bragg, Williams, and Moatts denied that they had authorized anyone to sign
their names on the cards. The Trial Examiner did not credit their denials. However, even if
the validity of certain cards is admitted, we find that the evidence as a whole is insufficient to
warrant a finding that the Union represented a clear majority of the employees.
7 Employee Daley.
8 Employee Jeselnik.
9 Employee Collins.
10 Employees Hickman, Brinson, Nutter, Oglesby, Bradham, Forehand, Krulick, Chance, and
Lambert.
COOPERS'S INC., ( of Georgia) 981
that the cards do not, under the circumstances, establish that
the Union was the duly designated majority bargaining repre-
sentative.u As the General Counsel has failed to prove that
the Union was designated as the majority representative of
the employees in the appropriate unit when the request to
bargain was made, we find that the Respondent did not violate
Section 8 (a) (5) of the Act, and we shall dismiss the allegation
in the complaint alleging an unlawful refusal to bargain with
the Union.
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respond-
ent, Cooper ' s Inc ., ( of Georgia ), Millen, Georgia , its officers,
agents , successors , and assigns , shall:
1. Cease and desist from in any manner interfering with,
restraining , or coercing its employees in the exercise of their
rights to self-organization , to form labor organizations, to
join or assist United Textile Workers of America , AFL, or
any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in
concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or
all 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.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post at its plant in Millen , Georgia, copies of the
notice attached hereto and marked "Appendix A. " s Copies of
said notice , to be furnished by the Regional Director for the
Tenth Region , shall, after beingdulysignedbythe Respondent's
representative, be posted by the Respondent immediately upon
receipt thereof , and be maintained by it for sixty ( 60) con-
secutive 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.
(b) Notify the Regional Director for the Tenth Region in
writing, within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as
it alleges that the Respondent violated Section 8 ( a) (5) of
the Act, shall be, and it hereby is, dismissed.
"See Flint River Mills, 107 NLRB 472
12 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of
the National Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to join or assist United Textile Workers
of America, AFL, or any other labor organization, to
bargain collectively through representatives of their own
choosing and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , and to refrain from any or all of 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 in Section 8
(a) (3) of the Act.
All our employees are free to become or remain members
of any labor organization . We will not discriminate in regard
to hire or tenure of employment or any term or condition of
employment against any employee because of membership in
or activity on behalf of any such labor organization.
COOPER'S INC ., (of Georgia),
Employer.
Dated . ............... By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced , or covered by any
other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed on November 17, 1952, by United Textile Workers of America, AFL,
the General Counsel for the NationalLabor Relations Board, herein referred to as the General
Counsel, and the Board , respectively , by the Regional Director for the Tenth Region , Atlanta,
Georgia , issued his complaint , dated March 9, 1953 , against Cooper's Inc ., herein referred to
as the Respondent , alleging that it had engaged in and is engaging in unfair labor practices
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. 136, herein referred to as the Act. Copies of the charge,
complaint , and notice of hearing were duly filed and served upon the Respondent.
With respect to the unfair labor practices the complaint alleges in substance that the Re-
spondent through its officers on June22 , July20 , and July 22 , 1952 , interrogated its employees
concerning their union membership , activities , and desires ; and made threats by said officers
COOPER'S INC., (of Georgia) 983
to its employees to close the plant because of their union membership , activities , and desires;
and that through said officers on said mentioned dates, threatened its employees with dis-
charge or other reprisals because of their union membership , activities , and desires ; and that
on or about June 26 , 1952, and atvarious times thereafter the Union requested the Respondent
to bargain collectively in respect to rates of pay, wages, hours of employment , and other condi-
tions of employment with the Union as the exclusive representative of all employees in the unit;
and that the Respondent refused and has continued to refuse to bargain collectively with it.
The complaint was amended on motion of General Counsel, which was returnable at the hear-
ing after due notice to Respondent , and over the objection of its counsel , that paragraphs 6a, 6b,
and 6c be incorporated in the complaint , providing , in substance , that a written request had been
made by the Union to Respondent that it be permitted to reply to certain speeches made by Re-
spondent and that Respondent refused and continued to refuse to grant such permission and that
such refusal constituted a violation of Section 8 (a) (1) of the Act.
The Respondent filed its answer admitting the jurisdictional facts as alleged in paragraphs 1
and 2 of the complaint but denied that it had engaged in the unfair labor practices as alleged.
The allegations in paragraph 3 of the complaint were referred to by the pleader in the answer
of Respondent as follows:
2.
For want of sufficient information the allegation of paragraph 3 of said complaint is
neither admitted nor denied and strict proof of the same is demanded by this Respondent.
The Trial Examiner finds that the phraseology used by Respondent in paragraph 2 of its
answer is not in accord with the Rules for Civil Procedure for the District Courts of the
United States or those of the Board applicable thereto and do not constitute a denial of the
allegations in paragraph 3 of the complaint ; and for that reason the allegations contained in
said paragraph 3 are deemed to be admitted to be true and are so found by the Trial Exam-
iner. i No defenses were pleaded by the Respondent in its answer.
Pursuant to notice , a hearing was held at Millen , Georgia, on June 1, 2, 3, 1953 , before the
undersigned Trial Examiner who had been duly designated by the Chief Trial Examiner to
conduct said hearing . The General Counsel and the Respondent were each represented by
counsel. The Union was represented by its southern director . Full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence bearing upon the issues
were afforded all parties . The Trial Examiner granted a motion made by the General Counsel
to conform the pleadings to the proof as to names , dates , and other minor variances. The
motion was granted without objection . Counsel were granted 20 days from the date of the
hearing to file briefs . Time for filing was thereafter extended to June 30 , 1953 , by the Chief
Trial Examiner . Briefs were timely received from counsel for the respective parties and
have been duly considered.
Upon the entire record in the case including all exhibits received in evidence and from
his observation of the witnesses , the Trial Examiner makes the following:
i Board's Rules and Regulations:
Sec. 102.20. Answer to complaint ; time for filing ; contents ; allegations not denied
deemed admitted.-- The respondent shall . . . file an answer . ... Such answer shall
contain a short and simple statement of the facts which constitute the ground of defense.
The respondent shall specifically admit , deny , or explain each of the facts alleged in the
complaint, unless the respondent is without knowledge , in which case the respondent
shall so state , such statement operating as a denial. All allegations in the complaint, if
no answer is filed , or any allegation in the complaint not specifically denied or explained
in an answer filed, unless the respondent shall state in the answer that he is without
knowledge , shall be deemed to be admitted to be true and may be so found by the Board.
(Empp is supplied.)
F
Rules of Civil Procedure for the District Courts of the United States:
Rule 8. (b) Defenses ; Form of Denials . A party shall state in short and plain terms his
defenses to each claim asserted and shall admit or deny the averments upon which the
adverse party relies. If he is without knowledge or information sufficient to form a belief
as to the truth of an averment, he shall so state and this has the effect of a denial.
9 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized and existing by virtue of the laws of the State
of Georgia having its principal plant and place of business at Millen, Georgia , where it is
engaged in the manufacture and sale of men's underwear and related products . Respondent,
in the course and conduct of its business during the 12-month period ending January 1, 1953,
which period is representative of all times material herein , sold finished products valued
in excess of $ 25,000 , which were sold and shipped to points beyond the State of Georgia.
The Respondent admitted the jurisdictional facts as alleged in the complaint and the Trial
Examiner finds that it was and is engaged in interstate commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America , AFL, hereinafter referred to as the Union , is a labor
organization admitting to membership therein employees of the Respondent.!
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
The Union commenced a campaign in June 1952 to organize the employees of Respondent
and to be designated as their sole bargaining representative . A meeting of the employees
was arranged by the Union and was held on June 19, 1952, at Magnolia Springs . Union appli-
cation cards for membership were executed by a majority of the employees, dated June 19,
20, 21, 23 . Besides the execution of the applications for membership or cards the applicants
were required to pay the sum of $ 2.50 as a membership fee. On June 21 , A. K. Bell the
superintendent of the Respondent phoned Robert F. Cooper, the president who was then at
the Detroit plant of an affiliated company , and informed him of the attempt being made by
employees to organize the Millen plant employees . Cooper returned at once and was present
at the plant on the 23rd.
Superintendent Bell's Speech
Bell addressed the assembled employees of the Respondent at the plant on the 23rd on
company time . In the course of his talk he stated as follows;
Frankly, it upsets our judgment of human nature to know that anyone of you feel that
we haven't treated you fairly . We regret to find that a few people think they can dis-
organize a plant , but apparently some of you are trying to do it.
We cannot possibly live together if we do not have each other's confidence, and
apparently we don't have yours . The right and normal thing to do is to come out in
the open and discuss things , rather than wait until I have left town and be underhanded
about it. Honestly , I am very disappointed . With this short comment, you have two
choices - -
You will note that the power is shut down . I would suggest that you take a 15 minute
recess to talk the matter over among yourselves . And then, those of you who like working
with us, delegate someone to go over and turn the power on, and those who feel they
had rather work elsewhere , stop by the office on your way out, and you will be told
when your pay check will be ready.
The Trial Examiner finds that the above talk delivered by the superintendent of a plant
to a captured audience of employees on a Monday following the first union meeting which
had been held on the preceding Thursday night, and which was followed by a drive for union
membership on the intervening Friday and Saturday , encroaches on the rights of the employees
set forth in Section 7 of the Act . In the above statement there is threat of reprisal and
2Judicial and official notice of the fact is taken by the Trial Examiner together with the
nondenial or admission of paragraph 3 of the complaint.
COOPER'S INC., (of Georgia) 985
promise of benefit. The wording , "You will note that the power is shut down ," of the superin-
tendent conveys the threat and insinuates that the power will remain off and the plant will be
closed if the Union should not be renounced by the employees; and further that those not in
agreement were thereby informed to find other employment.
The Trial Examiner finds that the statement , contrary to the Respondent 's theory, falls
within the exception to the remarks based on the right of free speech which is to be found
in Section 8 (c) of the Act.
The Trial Examiner finds that the talk made by the superintendent to the assembled
employees was an unfair labor practice on the part of Respondent and constitutes a violation
of Sections 7 and 8 (a) (1) of the Act.
On July 17, the Union requested Respondent by letter "... that if you or any representative
of your company makes a speech to employees on company time and property , immediately
preceding the NLRB election , the UTWA-AFL is entitled to talk to the Cooper 's workers under
the same conditions . One of our members , who works for Cooper 's Incorporated (of Georgia),
will be prepared to speak each time that a company representative speaks."
The Trial Examiner credits the testimony of Cooper to the effect that the letter was not
acknowledged by the Respondent . That a request was orally made to him by two employees to
allow a union representative to speak at the club after he had addressed the employees and
which request, was refused . Under these circumstances the Trial Examiner finds that the
Respondent violated the provisions of 8 (a ) (1) of the Act , especially as the speech made
by Cooper on July 21 is herein found to have been made in violation of Section 8 (a) (1) of
the Act.
General Manager Cooper 's Speech
On July 21 , 1952, the day preceding the scheduled Board election , Robert F. Cooper,
the president of the Respondent , addressed a meeting of the employees . The meeting was
held at the plant on company time. The employees had been previously informed that Cooper
would address them and that they would be dismissed after the meeting and could if they so
desired attend a (question and answer ) gathering of the employees and management to be held
at Walter Harrison 's Club a short distance out of town . At the meeting Cooper made the
following speech:
Well, it looks as though this is it . Tomorrow, we decide whether we like our jobs
under present conditions --whether we have unity or not --whether we have pleasant
and friendly relationships or not. You vote tomorrow . What are you voting for? You
are voting to decide whether you would rather have somebody from New York , Chicago,
or maybe Atlanta , tell you and the Company what your problems are--of which they know
very little , or--you are voting to show that you can handle your own lives without help
from someone you have never seen , and who has no interest in you as an individual.
You have heard a lot of talk --Right now you'd probably rather be at your job than
listening to me . But I think it 's only fair that you thoroughly understand what this whole
thing means . You have been given a lot of promises by the union organizers . Most of
them are false, and I 'd be only too happy to tell you why . If you will ask me , I'll tell you.
Wouldn't you rather come to Mr. Bell and myself with your problems , than to go to
Mr. Jacobs , or Mr. Dubinsky , who you have never seen , and who don 't know you? I'll
tell you one thing . Any question you ask of me or the Company will have a straight
answer. It will be honest. I know there are lots of questions in your minds . Let's get
together and discuss them . I think a question and answer game is fun. Up to now, we've
been talking about your welfare , which is of the most importance . Now, let 's look at
the people you do business with --the people you live with.
Why did the City of Millen ask Cooper to have a plant here . They wanted additional
income for their citizens . They wanted to help you. That's why Millen invited Coopers
to their city.
So we plunged, we took an old beat up warehouse and remodeled it. It wasn 't easy.
All you have to do is look next door to have a faint idea of what we started with. We
have plans on the drawing board for further expansion here in Millen . They are shelved
at the present time , because of this outside , foreign move to have somebody other than
ourselves work with you. You must realize that we won't put the investment that we
presently have , and the planned future investment for somebody else to use . It just
isn't in the cards.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These good citizens of Millen who have helped you from time to time, don't want these
outsiders. None of us are so smart that we can't take advice. Advice from those we
respect. Why not ask the person whose judgment you most respect, what he thinks then
follow it.
I realize it isn't fair to the majority of you to take the attitude I have because of what
a few of you are trying to, but we need 10016 cooperation if we are to make a real
success. We cannot have dissention.
Tomorrow you vote--We want you all to vote--This is a Democracy, not a Red state.
You vote the way your conscience guides you.[ Emphasis supplied.]
As hereinbefore found that the talk made by Bell to the employees constituted an unfair
labor practice, likewise, the speech of Cooper above set forth does not receive immunity
under Section 8 (c) of the Act for the reason that it contains threats of reprisal and promises
of benefits.
Summarizing the objectionable matter contained in the foregoing speech the following
extracts which the Trial Examiner finds objectionable are the following: "We have plans
on the drawing board for further expansion here in Millen. They are shelved at the present
time, because of this outside foreign move to have somebody other than ourselves work with
you"; and "Tomorrow we decide whether we like our jobs under present conditions--whether
we have unity or not--whether we have pleasant and friendly relationships or not."
The Trial Examiner finds that the said speech of Cooper to the employees on the day
preceding the election constituted an unfair labor practice on the part of the Respondent
under the provisions of Sections 7 and 8 (a) (1) of the Act.
The Trial Examiner credits the testimony of Jewell Purvis as to the acts and conversa-
tions of Thelma Waters and Bell. In substance Purvis was supposed to train to be a super-
visor. Waters directed her to assign work to employees and would require work to be redone
if it was not done properly. Waters would assign girls to various jobs and machines. Purvis
was questioned and testified credibly as follows:
. . . she [Waters] wanted me to take those two lines and train for supervisor. Well,
Mr. Bell sent for me to go in the office and I went and when I went in the office, he
talked to me and I said -I will come out of the Union, and he said, "No, don't come
out, pretend you are in it, but be out and go to the meetings and come back and tell
us everybody that was there and everything that was said.
I told him that I could not do that, because I didn't want to see the girls lose their jobs;
I said, I will not do that, and I would just not do that anyway, I would not spy on the girls.
Q. I see; did you have any conversation with Thelma Waters immediately following
the union meeting on the next day or two?
A. Well, I did on Monday, and she said "they had a list of all the names that joined
the Union and they were going to send the list of names to every plant in the South,
and nobody will hire the girls that joined the Union "
A. When I went to the plant on Wednesday and started on my job she said, "You wait
here" and I did, and she came back and she said, "We waited all day Tuesday for you to
tell me who was at the union meeting," and she said, "You didn't" and said, "We can't
have a union girl over the other girls," and she put me off in a corner by myself.
Q. Did you have any conversations with Mrs. Waters at any time in which the plant's
continuing or closing was mentioned?
A. Yes, sir.
Q. What were those conversations?
A. She said, "If the Union went in the plant would close."
COOPER'S INC., (of Georgia) 987
A. She told me that almost daily.
The witness: She hired me; I don't know if she fired anybody, but she hired me.
Trial Examiner Eadie: You do know that she hired you; how do you know any other
circumstances whether she hired anybody?
The witness: I would see her hire girls and see her put them to work.
The testimony of Purvis was not denied by any other witness and neither Bell nor Waters
was called by the Respondent as a witness in refutation of it.
Robert F. Cooper testified credibly as follows:
Q. Now, Mr. Cooper, when Mrs. Waters would make a recommendation to you with
reference to the employing of a certain employee where you had a vacancy, you of course,
gave greater weight to her recommendation and what she said than you did to just any
rank-and-file employee that came along and suggested some one?
A. When you say "you" you mean the Company or me personally?
Q. Well, whoever was in charge, the Company's policy, would not her recommendation
be given more weight?
A. Than who else?
Q. Any rank-and-file employee9
A. Yes.
The Trial Examiner finds that Waters is a supervisory employee within the meaning of the
Act, and that there is a preponderance of the substantial evidence that the rights of the
employees as set forth in Section 7 of the Act were violated by the supervisory employees,
Bell and Waters. Their acts and conversations with Purvis constituted unfair labor practices
on the part of the Respondent in violation of Section 7 and 8 (a) (1) of the Act.
B. The refusal to bargain
The Union commenced its campaign to organize the employees of the Respondent on
Thursday evening June 19, 1952. At that time a meeting was held and a number of employees
signed the applications or cards for membership. Certain of the employees continued solic-
iting membership in the Union on the20th, 21st, and 22nd. Employees were solicited throughout
the town. It was a determined drive. The cards or applications for membership in the Union
were signed or otherwise executed on or before June 23.
Bell ascertained that the union drive for membership was taking place and called Cooper
at Detroit on Saturday, June 21. Cooper left the plant that same day. On June 26 the Union
wrote Respondent as follows:
June 26, 1952
Coopers, Inc.
Millen, Georgia
Gentlemen:-
The United Textile Workers of America, AFL, has been designated as the collective
bargaining agent by the overwhelming majority of your employees in Millen, in the
production and maintenance department excluding clerical workers, professionals,
guards and supervisory officials as defined by the National Labor Relations Act.
We are asking that the United Textile Workers of America, AFL, be recognized as
the collective bargaining agent for and on behalf of these workers in this unit.
Representatives of our Union, together with a committee of employees from the plant,
are prepared to meet with you for the purpose of negotiating an agreement covering
wages, hours and conditions of work, at such time as may be mutually satisfactory.
Please advise this office or Mr. Jones Armstrong, or Mr. Johnnie Brown, who are
at the Millen Hotel in Millen, when we might arrange such meeting. Your prompt attention
is anticipated.
Sincerely yours,
Joseph Jacobs. Southern
Director United Textile
Workers of America, AFL
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's answer to the above communication follows:
Mr. Joseph Jacobs
United Textile Workers Union
of America
160 Central Avenue, S. W.
Atlanta, Georgia
June 27, 1952
Re: Cooper 's Inc.-Millen , Georgia
Dear Sir:
Receipt is acknowledged of your letter of June 26th addressed to Cooper's Inc. in
Millen, Georgia, stating that the United Textile Workers of America represented a
majority of the employees in that plant.
The matter has been referred to me and I have full authority to act for management.
We do not recognize that your Union represents a majority of the employees in this
plant, and, therefore, must refuse at this time to meet with you for the purpose of
collective bargaining.
Yours very truly,
Weeks and Candler
By: John Wesley Weeks
Attorney for Cooper's Inc.
The above communications exhaust all the evidence produced at the hearing and which is
in the record relative to bargaining or to the refusal to bargain on behalf of the parties.
On July 11 the parties consented to an election which was held on July 22 and in which
the Union failed to receive a majority of the votes cast thereat. The result showed a vote
of 28 for the Union while there were 58 votes opposed. On July 28, 1952, objections were
filed by the Union to conduct of the Respondent affecting the results of the election. On
November 5, 1952, the Acting Director of the Tenth Region directed that the election be
set aside and that a new election be conducted. On November 17, 1952, the charge herein
was filed by the Union with the Board. On March 5, 1953, the Union withdrew its petition
for an election.
The Trial Examiner finds that the Union on June 26, 1952, when it requested the Respondent
to bargain, was authorized by and represented a majority of the employees of Respondent.
Some of the cards or applications were signed personally by the employees. Others were signed
in their presence and at their request by employees whom they designated while still others
were signed in their absence at their request. However, in each instance the application for
membership was accompanied by a payment of $ 2.50.
The Trial Examiner credits the testimony of Dorothy Hendley and Myrtle McKinney in
their recital of the facts and circumstances surrounding the execution of the cards of appli-
cations of the employees for membership in the Union and discredits the testimony of Miss
Peggy Bragg, Kathleen Moatts, Annie Ruth Williams, and Kelly Sapp for the reason that in
their testimony given to refute the testimony in the General Counsel's case, they swore
falsely concerning the execution of their applications or cards. When their memories were
refreshed by affidavits previously made by each of them, that fact became apparent. In the
case of Kelly Sapp he denied the execution of the application, for the reason, as given by
him, that the signature affixed thereto was not made by him. In the course of his exam-
ination as a witness he wrote his name several times on an exhibit that was received in
evidence. An examination and comparison of the signatures affixed to these exhibits convinces
the Trial Examiner that Kelly Sapp signed and executed the application card in question.
The Trial Examiner finds by a fair preponderance of the substantial and reliable evidence
that on the 26th day of June 1952, when the Union demanded of Respondent that it be recog-
nized as the collective-bargaining agent for the employees as described in its letter of that
date, it had been designated as such by a majority of its employees in an appropriate unit;
and that Respondent's refusal to bargain constituted a violation of Section 8 (a) (5) of the Act
on and after June 27, 1952.
COOPERS' INC., (of Georgia) 989
By its letter of June 27, 1952, the Respondent questioned the Union's claim of majority
representation. The issue arises as to whether or not the Respondent was acting in good
faith, or otherwise, if it sought to gain time in order to undermine the Union's majority
status.
The evidence shows that almost immediately after the start of the Union's organizational
campaign the Respondent engaged in various acts of interference, restraint, and coercion,
as found above, and that such conduct on the Respondent's part continued up and until the
date of the election.
These findings, and particularly the speech of General Manager Cooper on July 21, con-
clusively show, in the Trial Examiner's opinion, that the Respondent questioned the Union's
majority and refused to bargain on June 27 in order to gain time to undermine the union
strength.
In Cuffman Lumber Company, inc., 82 NLRB 296, the Board held as follows:
As we have previously held "an employer may in good faith insist on a Board election
as proof of the union's majority," but it"unlawfully refuses to bargain if its insistence on
such an election is motivated, not by any bona fide doubt as to the union's majority
but rather by a rejection of the collective bargaining principle or by a desire to gain
time within which to undermine the union." On the record in this case we find no con-
vincing evidence to support the Respondent's defense that its refusal to bargain was
justified by the good faith of its doubt of the Union's majority....
Again in Joy Silk Mills, Inc., 85 NLRB 1263, the Board held that the Employer's insistence
that the Union prove its majortiy in a National Labor Relations Board election as a condition
precedent to recognition, constituted refusal to bargain in good faith where the Employer's
purpose was to gain time within which to undermine the Union's support.
Likewise in Everett Van Kleeck and Company, Inc., 88 NLRB 138, the Board held that
a petition initiated and signed by employees in which an election was requested does not
prevent a finding of refusal to bargain where the Employer created an antiunion atmosphere
by making coercive statements after refusing the Union's request for recognition and demanding
an election.
In the case of Safeway Stores, Inc., 99 NLRB 48, the Board held:
2. We find, in agreement with the Trial Examiner, that as August 26, 1950, and at all
times thereafter, the Union was the duly designated collective bargaining agent of the
Respondent's employees in an appropriate unit, and that on and after September 8, 1950,
the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) of the
Act. That the Union may have lost its numerical majority after the Respondent's refusal
to bargain, does not preclude issuing the bargaining order recommended by the Trial
Examiner. We have consistently held, with judicial approval, that an unlawful refusal
to bargain by an employer can best be remedied by requiring bargaining with the estab-
lished representatives of the employees, upon request, even though it may no longer
retain its majority status. [Citing Frank Bros. Co. v. N. L R. B., 321 U S. 702;
N. L. R. B. v. P. Lorillard Co., 314 U. S. 512; Metropolitan Life Insurance Company,
91 NLRB 473; Joy Silk Mills, Inc., 85 NLRB 1263]3
In view of these facts and circumstances and the authorities herein cited the Trial Examiner
cannot avoid the conclusion that the Respondent did not act in good faith in rejecting the offer
to bargain made by the umon.
Respondent in Its Brief Raises the Question of Compliance with
Section 9 ( f), (g), and (h) of the Act by the Union
There is no question raised by the pleadings that the Union has not been at all material
times mentioned therein in full compliance with the provisions of the Act. Respondent argues
in its brief that it is the affirmative duty of the General Counsel to plead and prove the fact
of compliance. The Trial Examiner finds that the Board has had this same argument advanced
3To the same effect see Poultry Enterprises , 102 NLRB 211.
337593 0 - 55 - 64
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in many cases and has insistently found that compliance with this section is a matter of
administrative determination and is not litigable by the parties.4
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection with
operations of the Company 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
disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, the Trial Examiner will
recommend that Respondent cease and desist therefrom and take the following affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent Cooper's Inc., (of Georgia) is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. United Textile Workers of America, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act.
3. By interfering with, interrogating, restraining, and coercing its employees in the
exercise of 'the rights guaranteed in Section 7 of the Act, the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. All production and maintenance employees of Respondent's Millen, Georgia, plant,
but excluding all office and clerical employees, professional employees, guards, and super-
visors 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.
5. By refusing to recognize and bargain with the United Textile Workers of America, AFL,
as the collective-bargaining agent of employees in the above appropriate unit, the Respondent
engaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act.
6. The aforesaid labor practices of the Respondent are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act. .
[Recommendations omitted from publication.]
4Sunbeam Corporation, 89 NLRB 469; Wiltse d/b/a Ann Arbor Press, 85 NLRB 58, 188 F.
2d 917 (C. A. 6), cert. denied 342 U.S. 859; Law & Son, 192 F. 2d 236 (C. A. 9); Greensboro
Coco Cola Bottling Co., 180 F. 2d (C. A. 4); Vulcan Forging Co., 168 F. 2d 926 (C. A. 6);
L F. Sales Co., 188 F. 2d 931 (C. A. 6); Boston and Lockport Block Co., 98 NLRB 686; Joseph
J. Michalik, 201 F. 2d 48 (C. A. 6); Chicago Rawhide Mfg. Co., 105 NLRB 727.
PEPSI-COLA BUFFALO BOTTLING CORPORATION, Peti-
tioner. and BEVERAGE WORKERS LOCAL 1195 OF INTER-
NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L. and BEVERAGE WORKERS LOCAL 195 OF INTER-
NATIONAL UNION OF BREWERY, FLOUR, CEREAL, SOFT
DRINK & DISTILLERY WORKERS OF AMERICA, CIO and
INTERNATIONAL UNION OF UNITED BREWERY, FLOUR,
CEREAL, SOFT DRINK & DISTILLERY WORKERS OF
AMERICA, CIO
107 NLRB No. 192.