Cormier Hosiery Mill

National Labor Relations Board - Board Decisions

Jun 25, 1979

243 N.L.R.B. 19 (N.L.R.B. 1979)

()RMIER I()SIFRY MIll.
Cormier Hosiery Mill, Inc. and Central New lamp-
shire Dye, Inc. and International Ladies' Garment
Workers' Union AFL-CIO. Case I CA 13713
June 25. 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Upon a charge filed on October 6, 1977,' and an
amended charge filed on November 1, by Interna-
tional Ladies' Garment Workers' Union, AFL-CIO.
herein called the Union, and duly served on Cormier
Hosiery Mill, Inc., and Central New Hampshire Dye.
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 1, issued a complaint on
November 16, against Respondent, alleging that Re-
spondent had engaged in and was engaging in unfair
labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (I) and Section 2(6) and (7)
of the National Labor Relations Act, as amended.
Copies of the charge, complaint, and notice of hear-
ing before an administrative law judge were duly
served on the parties to this proceeding.
With respect to the unfair labor practices. the com-
plaint alleges in substance that on July 21, following a
Board election in Case I RC- 14710, the Union was
duly certified as the exclusive collective-bargaining
representative of Respondent's employees in the unit
found appropriate, 2 and that, commencing on or
about August 5, and at all times thereafter, Respon-
dent has refused, and continues to date to refuse, to
bargain collectively with the Union as the exclusive
bargaining representative, although the Union has re-
quested and is requesting it to do so. On November
28, Respondent filed its answer to the complaint, ad-
mitting in part and denying in part the allegations in
the complaint.
On December 23, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on January 4, 1978, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
I Unless otherwise indicated, all dates are in 1977.
2 Official notice is taken of the record in the representation proceeding,
Case I-RC-14710, as the term "record" is defined in Secs. 102.68 and
102.6 9(g) of the Board's Rules and Regulations. Series 8. as amended. See
LTV Electrorysrtems, Inc. 166 NLRB 938 11967), enfd. 388 F2d 683 (4th Cir
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969): nterOtpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967).
Follett Corp., 164 NLRB 378 1967), enfd. 397 F.2d 91 (7th Cir 1968): Sec.
9(d) of the NLRA. as amended.
On March 16. 1978. Respondent filed a motion to file supplemental cita-
tion of authority, asserting that the Board should consider Drug Package,
Inc. v. N.L.R.B., 570 F.2d 1340 (8th Cir. 1978). in deciding the instant case
We shall take official notice of the decision in that case.
not he ranted. Respondent thereafter iled an objec-
tion to the General Counsel's Motion for Summary
Judgment and a response to the Notice To Show
Cause.
As an affirmative defense. Respondent alleges in its
response that it is not obligated to bargain with the
Union because the results of the election in Case I
RC-14710 were invalid, based on Respondent's ob-
jections to the election alleging that statements made
by the Union prior to the election constituted misrep-
resentations under the Board's Hollywood Ceramics
rule. Respondent further asserts that the Board acted
improperly in applying the standards set forth in
Shopping Kart Food .Market, Inc.1. to the conduct in
this case inasmuch as the misrepresentations. the in-
vestigation. and the Regional Director's Report on
Objections all occurred before the Board issued Shop-
ping Kart. FinalI,. Respondent urges that, if Shopping
Kart standards are to be applied, the case should be
remanded for investigation to see whether the facts in
this case come within any of the Shopping Kart excep-
tions.
lipon the entire record in this proceeding. the
Board makes the following:
Ruling on the Motion for Summary Judgment
It is well settled that in the absence of newl dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised b Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence. However, we find that the
recent reformulation of the Board's policy concerning
election campaign misrepresentations, announced in
General Knit f California, Inc..6 constitutes a special
circumstance requiring the Board to reexamine the
decision in the representation proceeding.'
While the underlying representation case was de-
cided under Shopping Karlt, we find that it will effectu-
ate the purposes of the Act to apply General Knit in
this case, bearing in mind the need to balance any
Ho llHood (Ceramics Compans. Inc. 140 NLRB 221 (19621
4228 NLRB 1311 (1977).
See Pittsburgh Plate Glass Co v N.L.R B, 313 LI.S. 146. 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.6 9 1c)
239 NLRB 619 (1978).
'The Board's decision, reported at 230 NLRB 1052 (1977). declined to
adopt the recommendation of the Acting Regional Director for Region I.
and found the Union's campaign statements unobjectionahle under Shopping
Kart without declining whether they' would have constituted mlsrepresenta-
tions under Hols,w1ood Ceramics
243 NLRB No. 5
I)l'(IS(()NS NA I I)NAI I.AB()R RIA I ONS IO()A\RI)
harm to the Lni on against "the mischief o' producing
a result which is contralrv to a statutory design or to
legal and equitable principles."' Absent special cir-
cumstances, the Board has traditionally applied the
pronouncement of a new rule of' law to the case in
which it arose and to all pending cases.' We shall,
therefore. apply the rule expressed in (;cneral K'n to
the present case.
In these circumstances. and considering our lind-
ings of fact as set l'orth iftlo. we slill deny the Mo-
tion for Su nmary Judgment.
On the basis of the entire record, the Board makes
the following:
I:INI)IN(iS ()I A( I
I. It IILSINIESS (11 RI SP()NI)I-N I
Respondent is a New Hampshire corporation en-
gaged in the manufacture. sale, and distribution of
hosiery and textile products from its principal office
and place of( business at 114 Lexington Street ()'Shea
Industrial Park, Laconia, New lampshire. At all
times material herein. Respondent has caused large
quantities of hosiery and textile products maiinutc-
tured by it to be purchased and transported in inter-
state commerce from and through various States of
the United States other than the State of New lanlp-
shire. Respondent annually receives at its aconia
plant goods valued in excess o' $50,000 directly from
points located outside the State of' New Hampshire.
Respondent annually ships from its I.aconia plant
goods valued in excess of $50,000 directly to points
located outside the State of New l lampshire.
We find, on the basis of the foregoing that Respon-
dent is, 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, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. 1111 I.ABOR O)R(iANIZ.AIIHON INVOi( inl)
International Ladies' Garment Workers' Union,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
Seurities and Exihange (rmmssion . (herner (rprat.ll 332 I1 S.
194. 203 (1947) Iailure to a;pply General Kni in this proceeding would he
contrary to he "statutor) design." inasmuch ais the primar reason Ikrr an-
dotting the Shopping Karl rule and returning t Holhsv )ad ( eranli ,, as our
conclusion hat the Shping Karl rule was inadequate to prolert emploee
free choice
'See, e.g.. Thomas, E. Gates & Sons. Inc-. 229 NL RB 705 (19771 lapplying
Shropping h(lr): II & . Bnh ( ,, 188 NlRB 720 (1971) (applbing he
pnnciples ol The .aidlaw (Corporrarn. 171 NRB 1366 (1968)). enid. 456
F.2d 357 (2d (ir. 1972)1: Dela.k Metal urniur. (ormpantv, 121 NI.RB 995.
1006 (1958): Pacisi ( sxl.s 4 sotriaron ,I PulI ailnd Paper Mmnilrul(rureri, 121
NIRB 990. 994 (958). (C Exslelior IUndreniarl Inc, 156 NI RB 1236. In. 5
1196).
111. 111, tI NI AIR R IA()RM II( :S
A. 7 R'.eSennito Pe'cding
I. The unit
lhle htllowling employees of Responliicnt constitute
a unit appropriate ior collective-bargaining purposes
within the meaning o Section 9(h) ol' the Act:
All production and Iaintcnance e lilo ccs of
Respondent employed at its I.aconia. New
I lampshire, plant, exclusive of oflice clercial em-
ployees professional employees, IBM room em-
ployees, leadmen. floorladies. guards and till su-
pervisors as defined in Section 2(11) of the Act.
2. The certification
On or about October 27 and 28, 1976. a ma jorit of'
the employees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of the
Regional [)irector ftbr Region I. designated the Union
as their representative for the purpose of' collective
bargaining with Respondent. hereafter, timely ob-
jections to the conduct of' the election were filed b
Respondent, and the Regional l)irector caused an in-
vestigation of those objections to be conducted.
As is more fully set frth in the attached portion of
the Acting Regional Director's Report on Objections
and ('hallenged Ballots omitted from publication]. a
central campaign issue prior to the election was Re-
spondent's financial condition. The Union had
claimed repeatedly that Respondent's claims of poor
financial condition were lfalse and had promised that
"bef'ore ou go to an election, each and every one of
you will know the truth." The Union had distributed
copies of certain financial records, and had inter-
preted them as indicating that Respondent was finan-
cially sound and could afford raises: in response. Re-
spondent had asserted that other records indicated
that it was losing money. The Union had also pub-
licly requested that it be allowed to have its account-
ants analyze Respondent's financial records. Finally.
the Union addressed a letter to Odilon Cormier. Re-
spondent's president, which stated, in relevant part:
Y()t (I.AIM A AID [I:INAN( IAI] SIAII MINI. I)() Y)t
SII()H I llS HAI) SI AIIMINI HlF( AL SI: SINS S IS BAID
)R I)) Y snow tills BAID SAIiLMtNl Hl ('AtSl O)
( )RMIIR ()F (ORMIIiR IIO()SIFRY Ml. IN . Nl W IIAMP-
SIlRI I ()ANI:) O()I)Y ('ORMIFR OF ( ORNMIl R FABRI( IN
NEW YR()RK (11 $2,000.I0X)????'??
The letter ended by asking that Cormier "please now
tell the people the truth." Copies of the letter were
distributed to employees less than 24 hours before the
election, and the letter was posted in the plant on the
day of' the election. There was evidence that its con-
2,
(()RMIIER i()SIIlR MIII. 1.
tents were urther emnphasized by one o' tile t l nio's
agents 1 ho. according to one witness. shouted to e C11-
ployees as the) left the plant the day beflore the lec-
tion: ()dy ( ormier stole $2 million o' Voulr money
and put it in New York."
The Acting Regional )irector concluded that the
Union's references to a $2 million loan to ('ormier
Fabric, a whollI owned marketing subsidiary of Re-
spondent. constituted a misrepresentation. le found
that the tra nsaction referred to was an account receiv-
able of $1.908,)0( lor fabric knitted bh Respondent
and sold bhv the New York subsidiary. Hle ound that.
by distorting both the nature and the amount of the
transaction, the Union made it unlikely that Respon-
dent could identifv the transaction and respond to the
misrepresentation prior to the election. lie also noted
that, inasmuch as the misrepresentation occurred less
than 24 hours before the election. Respondent could
not have held a meeting to explain the error.' and
therefore could not have effectively refuted the attack
on the credibility of its representatives. For these rea-
sons, the Acting Regional Director recommended
that the election he set aside, under standards set
forth in Hollv/wood Cramics, supra.
The Union excepted to this recommendation, and
Respondent filed a reply to the exceptions and a sup-
porting brief. Thereafter, the Board announced its
opinion in Shopping Kart, spra. and subsequently.
based on that case, overruled the objections to the
election and certified the Union on July 21. 1977. Re-
spondent's motion for reconsideration was denied.
B. The Requesi To Bargain and Reslpondent'v Rc/itsal
Commencing on or about August I. 1977. and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about August 5, 1977. and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
For the reasons set forth in the portion of the Act-
ing Regional Director's Report on Ohbjections and
Challenged Ballots, attached hereto as an Appendix,
we find that the Union's last-minute campaign state-
ments constituted substantial misrepresentations
made at a time when there was no opportunit for an
effective reply, and therefore conclude that those
statements so interfered with the conduct of a free
and fair election as to warrant setting aside that elec-
Citing, inter a/ia. Pecr/es P/lvuO ( ordipani., 1()7 N RB 427 (1154
tion. I' Aecordingl . as thle certification of' the L nion
as collective-hbargaining representative 1for the unit
tound appropriate was based upon an invalid elec-
tion. we shall revoke the certification, set aside the
election. and direct that a second election shall be
held at a time to he determined hb tile Regional Di-
rector for Region 1. In iew ofl our decision herein. we
shall dismiss the collmplaint.
ORI)lR
'Pursuant t Section 10(c) of the National abor
Relations Act, as amended, the National I abor Rela-
tions Board herebh orders that the complaint he. and
it hereh\b is, dismissed in its entirety.
I I IS t IIIt IILR O()RI I) that the election in Case
K( 14710 he set aside and that the certification is-
sued in that case he. and it herebh is, revoked.
II IS I R III I-R ()RI)TRI I) tha t the proceeding s in
Case I RC 14710 be. and the herehby are, remanded
to the Regional Director for Region I for further ac-
tion in accordance with this Decision.
[Di)rection of Second Election omitted Irom publi-
cation.]' 2
M MINBER PINt I . dissenting:
For the reasons set orth in m: dissenting opinions
in General Knitl and Blikan-lr l 'h/r.t , I ;believe that
the Shopping Kharl decision"s was properly applied in
the underling representation proceeding so as to
overrule the Employer's misrepresentation objections
and certitfy the Petitioner."' I would therefore grant
the General Counsel's Motion for Summary Judg-
ment and issue a bargaining order.
In contrast. the Board's decision today vacates the
Union's certification and dismisses the complaint.
marking the third time that such drastic and extraor-
dinarN action has been taken by the General Knit ma-
jorityv. In Mour additional cases, misrepresentation
( ,renra/ ,,. supral: tit/!s/ d (c,,train. pra
While t is unfortunate that the ntersal between the elcotion herein and
the final res.olutln of the L nion's status has been delayed bh) procedures
before the Board. we re constrained to note that the dela) is largels due to
the necesst lfor Respondent. through a technical refusal to bargain. to chal-
lenge the certiticatlin lf the I nn tollowing an election in whlth employee
free cholce was seriousl3 compromlsed hIs the llon', misleading campaign
statements. Hiad the principles of H4 ll Hxd (C(ruan. l been applied in the
first instance. there might well hase been a alid second eleclion in which the
emplorees could hase epressed their true sentiments concernilng the nion.
The sote in the election conducted in 1977 was not. in our opinion. an
accurate reflection if the wishes of ain uncoerced mnaJorit? of emplhs ees. and
the unwise certification of Ihe 'nlon based on that election necessitated the
subsequent proceedings which he, regrettably. delased the holding ,of a
,ahd election which might result in an appropriate certification
1 E titsr ltootnote nited rom publication
(eneral Ati , ( .il/.ro In . 239 Nl .R B 6 19 1978)
4 Bla(A in.-i hcr ( hemc../ [vtl, in Si rn//m' ('r iratlon.r 29 NR B
637 119781
' Shoppng Aari Filood 'IearA. 1,, 228 NlRB 1311 (1977)
I230 NlRB 1052 11977)
i The ,Ih¢r I-t, , vix'~ ir Nal llIl..l ( U,,tli I } iliung drhtst'i h; Sha/iotn
Nursig bmOe. 241 NRB No. 9 (1979). and Bl., Aian hl.r. mupro
21
DEC[)(ISIONS O() NAI IONAL L.ABOR Rl.AI IONS BOARDI
objections filed by employers have been either sus-
tained or remanded for further investigation or hear-
ing.'8 On the basis of the majority's own decisions, it
is thus clear, only months after General Knit was de-
cided, that Board application of the Hollywood Ce-
ramics rule' 9 does indeed delay and frustrate collec-
tive bargaining, as I have long maintained.
In this case, the employees voted for union repre-
sentation more than 2 years ago. The Union was cer-
tified 9 months later and 5 more months elapsed be-
fore the refusal-to-bargain case was initiated and
transferred to the Board for decision. Now the em-
ployees are back to square one. While they wait once
again for this case to wind its way down the corridors
of Board procedure, they will, of course, have the
comfort of the majority's observation that "i]n gen-
eral . . . it seems that the problems of delay [under
Hollywood Ceramics] has been greatly exaggerated." 0
MEMBER MURPHY, dissenting:
This is another example of the inordinate delay
caused by the Board majority's insistence on follow-
ing an outdated and outmoded rule--Hollywood Ce-
ramics.l' The Board here is again denying employees
their right to be represented by the collective-bargain-
ing agent of their choice. Although the Union won
the election here, the Board is directing that it be
rerun.
Contrary to my colleagues in the majority---and
obviously-I would grant the General Counsel's Mo-
tion for Summary Judgment in this case. As stated in
my dissent in General Knit of California, Inc.,22 I ad-
' Fontaine Truck Equipment Co., 241 NLRB No. 164 (1979); San Fran-
cisco Hosts. Inc., 241 NLRB No. 53 (1979): Jamak, Inc.. 239 NLRB 1274
(1979): General Knit, supra.
t" Hollywood Ceramics Company. Inc, 140 N 1 R B 221 (1962).
x General Knit, supra, at 624.
21 140 NLRB 221 (1962).
2l 239 NLRB 619.
here to the principles set tforth in my concurring opin-
ion in Shopping Kurt Food Market, Inc.,2 and I be-
lieve that the Board properly relied upon Shopping
Kart in certifying the Union in Case I RC-14710.
Accordingly, I find Respondent's present refusal to
bargain with the Union to be unlawful.
Additionally, although I concurred with the major-
ity in Blackman-Uhler Chemical Division -Snallov
Corporation,24 I did so purely on the ground that
Shopping Karl should not be applied retroactively.
There, when the original representation proceeding
and the later summary judgment case were decided,
the test of preelection misrepresentations as objec-
tionable conduct was that set frth in Hollywood Ce-
ramic.s CompanY Inc.. and I was of the opinion that
under those particular circumstances, the same test
should remain applicable in that case. In the instant
case, however, as noted above, the Board applied
Shopping Karl in the representation case; that same
standard should be applied in this case, which is
merely an outgrowth of that proceeding. Thus, my
position here is consistent with the one I took in
Blacklman-Uhler, albeit the results are dissimilar.
I wholeheartedly agree with Member Penello that
the majority decision here exemplifies the problems of
undue delay caused by the majority's insistence on
returning to the Hollywood Ceramics rule, and, thus, I
fully endorse the comments made by Member Penello
in the last paragraph of his dissent herein. I simply
would add that the majority's adamance in making
General Knit retroactive to representation cases de-
cided under Shopping Kart exhibits a slavish adher-
ence to a point of view whose rigid application is
achieved at the expense of the employees and the very
collective-bargaining process which this Agency is en-
trusted to further and safeguard.
23228 NLRB 1311.
24 239 NLRB 637.
22