E. H. Blum

National Labor Relations Board - Board Decisions

Jan 6, 1955

111 N.L.R.B. 110 (N.L.R.B. 1955)

110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. H. BLIIM AND MRS. E . H. BLIIM , EXECUTRIX FOR THE ESTATE OF
E. H. BLUM, D/B/A E. H. BLIIM and AMALGAMATED CLOTHING
WORKERS OF AMERICA, CIO. Case No. 15-CA-735. January 6,
1955
Decision and Order
On September 22, 1954, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a support-
ing brief.
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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
We agree with the Trial Examiner's conclusion that the Respond-
ent's refusal to honor our certification of the Charging Union as
majority representative of the employees here involved constitutes a
violation of Section 8 (a) (5) of the Act. The Respondent's defense
to the unfair labor practice allegation in this proceeding rests princi-
pally on the same contentions urged to the Board in the representa-
tion proceeding (Case No. 15-RC-1000) which culminated in certifi-
cation of the Union. It is now, as it was then, the Respondent's con-
tention that the Charging Union, in the course of the election ordered
by the Board in the representation proceeding, engaged in improper
conduct affecting the results of the election such as to invalidate the
results. The Board considered the Respondent's assertions in this
respect upon evaluation of the Regional Director's report after in-
vestigation of the Respondent's objections to the election. After con-
sidering the Regional Director's report and the Respondent's subse-
quent exceptions thereto, the Board determined that the objections did
not raise any material or substantial issues with respect to the election
and overruled the objections.' Thereafter, the Respondent filed a
motion for reconsideration, and the Board, after fully considering the
objections a second time, denied the Respondent's motion.
Consistent with well-established Board precedent, the Trial Exam-
iner properly rejected the Respondent's offer at the hearing in this
proceeding to prove its assertion of improper conduct by the Union
1 E H Blum, 108 NLRB 312.
111 NLRB No. 13.
E. H. BLUM Iii
in the election? Issues relating to the validity of a Board certifica-
tion resulting from a representation proceeding and decided in that
proceeding are not litigable anew in a subsequent complaint case?
The Trial Examiner 's ruling on the Respondent's offer of proof is
therefore affirmed.
In this case the rejected offer of proof contains, in the form of docu-
mentary evidence and testimony given under oath in direct and cross-
examination, the complete picture of the facts which, according to the
Respondent, required that the election be set aside. We have eval-
uated the Respondent's entire offer of proof and we find, upon full
appraisal thereof, that we correctly determined in the representation
proceeding that the Respondent's objections to the election do not
raise any substantial or material issues and have no merit.
The evidence adduced in this proceeding on the objections to the
election contains certain factual conflicts. However, in the considera-
tion of the evidence which follows we find it unnecessary to resolve
any credibility issues because the facts stated are based on the disputed
testimony of the Respondent's witnesses and even so do not give the
objections substance.
In support of its objections to the election the Respondent reiterates
these contentions : (1) The Union "interfered with, restrained and co-
erced [the Respondent's employees] in the exercise of their free choice
of bargaining representatives" from October 22,1953, to the time of the
election; (2) the Union actively electioneered in the vicinity of the elec-
tion in violation of the Board's election rules (a) by the presence of
union representatives on the sidewalk in front of the entrance to the
Respondent's plant and by their distribution of leaflets, (b) by the
appearance of 1 employee at the polling area with a union leaflet in her
hand, (c) by the Union's transportation of 1 voter to the polls, (d) by
a 2-minute conversation between a union representative and an em-
ployee just before the employee entered the Respondent's plant to
vote, and (e) by the statement of a union representative, while handling
a leaflet to an employee, "How do you stand, because all that's not with
use we are going to pop on their head."
. With respect to objection (1), employee Tranchina testified she was
told by union member Nuccio, prior to Nuccio's discharge on October
29, 1953, "if I didn't sign the [union membership] card and it became
a union factory I wouldn't be able to work there unless I joined the
union." Plant Superintendent Gooch testified that, when he dis-
charged Nuccio on October 29, she said, "I did not threaten the em-
ployees, I only told them if they did not join the union they would
not be allowed to work here." Employee Hulette testified that within
24 hours before the election, held on November 20, 1953, he heard a
2 S. H. Kress and Company, 88 NLRB 292, enfd. 194 F. 2d 444 (C. A. 6).
a Pittsburgh Plate Glass Co. v. N. L R. B., 313 U S 146,161-162.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rumor from Dupuis, Rodobich,4 Tranchina, and Gonzalez, "That in
order to hold your job you would have to be a member of the union.""
About four' other witnesses testified that they heard a similar rumor
at one time or another before the election. We find, as did the
Regional Director, that any threats which Nuccio may have made prior
to her discharge on October 29 were too remote from the election held
on November 20 to have had any effect upon the results of the elec-
tion. This is so particularly in the light of the discharges, on October
29, of Nuccio and Braud, the two employees alleged to have made
threats.' As to the rumors, we find there is no need to decide whether
they were threats, because the Respondent did not allege any facts to
show that the rumormongers were other than rank-and-file employees
or unknown persons, whose actions are not attributable to the Union 7
With respect to objections (2) (a) and (b), the leaflet stated:
ONLY YOU
CAN HELP US
GET OUR JOBS BACK
VOTE YES !
(signed)
ETTA BRAUD MARY NUCCIO
The union representatives distributing the leaflets were approximately
75 feet from the voting area. We have held that union distribution of
noncoercive handbills at a distance of about 60 feet from a voting area
is no more than propagandizing and does not interfere with the con-
duct of an election.' Clearly the leaflet distributed by the Union in
this case had no coercive thrust.
As to objection 2 (c), we do not consider union transportation of a
single employee to a plant for the purpose of voting in a Board election
as interference with the election.9
With respect to objection (2) (d), we have held that conversation
between a union representative and an employee within a plant during
the course of an election does not interfere with the election where there
is no showing of coercive statements and the objecting party had
signed a Board form certifying the fairness of the election conduct.'°
In this case the employee involved testified that her conversation out-
side the plant consisted of no more than an exchange of greetings with
4 The Respondent stipulated that Dupuis and Rodobich were supervisors.
5 Tranchina, Moore, Gonzalez, and Bourret.
9 Ordinarily we would not look to the facts of the alleged threats which occurred prior
to October 29, 1953 ; we would instead reject the objection based thereon because the same
facts were the subject of a charge in Case No 15-CB-113 which the Regional Director
dismissed on November 11, 1953. Times Square Stores Corporation , 79 NLRB 361.
7 The Gruen Watch Company, 108 NLRB 610 ; cf. Diamond State Poultry Co., Inc., 107
NLRB 3.
8 Heggans, Inc , 106 NLRB 845.
9 Reidbord Bros. Co, 99 NLRB 127.
10 Emerson Electric Company , 106 NLRB 149.
E. H. BLti M 113
a couple of union representatives. Also, the Respondent executed a•
Board form certifying the fairness of the election conduct.
Finally, as to objection (2) (e), Magee, the employee to whom the
alleged threat was made, testified that the remark did not affect her-
vote and that, before the election, she repeated the statement to only
one other employee, Moore. Moore testified that when Magee repeated
the union representative's remark, she told Magee to think for herself.
In these circumstances, it is doubtful that the alleged remark consti-
tuted a threat, and, even if considered a threat, the statement was
clearly an isolated incident which had no material effect on the
employees in the election.
We accordingly find that the Respondent's objections have no merit
and do not warrant invalidation of the election or of our certification
of the Union.
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, E. H. Blum and Mrs. E. H.
Blum, Executrix for the Estate of E. H. Blum, d/b/a E. H. Blum,
New Orleans, Louisiana, her agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Clothing
Workers of America, CIO, as the exclusive representative of all pro-
duction and maintenance employees at the Employer's New Orleans,
Louisiana, plant, including shipping room employees, the mechanic,
machine operators, inspectors, pressers, the porter and janitor, and
nonsupervisory employees in the cutting room, but excluding office
clerical employees, executive and administrative employees, guards,
the cutting room supervisor, foreladies, and all other supervisors as
defined in the Act.
(b) In any like or related manner interfering with, restraining, or
coercing the Respondent's employees in the exercise of their right to
self-organization, to form or join labor organizations, to bargain col-
lectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as author-
ized in 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) Upon request, bargain collectively with Amalgamated Clothing
Workers of America, CIO, as the exclusive representative of the Re-
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent 's employees in the appropriate unit described above,with.
respect to grievances , labor disputes , rates of pay, wages , hours of
employment , and other conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed
agreement.
(b) Post at the Respondent 's place of business at New Orleans,
Louisiana, copies of the notice attached hereto marked "Appendix." 11
Copies of said notice, to be furnished by the Regional Director for
the Fifteenth Region, shall, after being duly signed by the Respond-
ent's representative, be posted by the Respondent immediately upon
receipt thereof and maintained by the Respondent 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.
(c) Notify the Regional Director for the Fifteenth Region,
in writing, within ten (10) days from the date of this Order, as,to
the steps the Respondent has taken to comply herewith.
"In the event 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 , Enfoicing an Order."
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, I hereby notify my employees that :
I WILL NOT refuse to bargain collectively with Amalgamated
Clothing Workers of America, CIO, as the exclusive represent-
ative of all employees in the following bargaining unit :
All production and maintenance employees at my New Or-
leans, Louisiana, plant, including shipping room employees,
the mechanic, machine operators, inspectors, pressers, the
porter and janitor, and nonsupervisory employees in the cut-
ting room, but excluding office clerical employees, executive
and administrative employees, guards, the cutting room su-
pervisors, foreladies, and all other supervisors as defined in
the Act.
I WILL NOT in any like or related manner interfere with, restrain,
or coerce my employees in the exercise of their right to self-organ-
ization, to form or join labor organizations, to bargain collec-
tively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining
E. H. BLUM 115
or other mutual aid or protection, as guaranteed in Section 7 of
the Act, 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 in Section 8 (a) (3) of the Act.
I WILL, upon request, bargain collectively with Amalgamated
Clothing Workers of America, CIO, as the exclusive representa-
tive of all employees in the bargaining unit described above, with
respect to grievances, labor disputes, rates of pay, wages, hours
of employment, and other conditions of employment, and if an
understanding is reached, embody such understanding in a signed
agreement.
MRS. E. H. BLUM , EXECUTRIX FOR
THE ESTATE OF E. H. BLUM, D/B/A
E. H. BLUM,
Employer.
Dated---------- ------ By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for sixty (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 and first amended charge filed by Amalgamated Clothing Workers
of America , CIO, herein referred to as the Union, the General Counsel of the Na-
tional Labor Relations Board 1 by the Regional Director for the Fifteenth Region
(New Orleans , Louisiana ), on June 28 , 1954, issued a complaint against E. H. Blum
and Mrs. E. H. Blum , Executrix for the Estate of E. H. Blum, d /b/a E. H. Blum 2
alleging that the Respondent had engaged in and was engaging in unfair labor prac-
tices 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, 65 Stat . 601, herein
called the Act . Copies of the charges , complaint, and notice of hearing were served
upon the Respondent and the Union.
With respect to unfair labor practices the complaint alleges in substance that
from on or about April 29, 1954, the Respondent refused to bargain with the Union
as the duly designated collective-bargaining representative of employees of the
Respondent in an appropriate unit , in violation of the Act.
The Respondent , in an answer dated July 13, 1954, admits certain jurisdictional
allegations including the appropriateness of the unit as alleged in the complaint
but denies the commission of any unfair labor practices . The answer specifically
alleges that there is no obligation upon the Respondent to bargain collectively with
the Union because the Union was not freely selected by employees of the Respondent
but that they were interfered with, restrained , and coerced by the Union in their selec-
tion of a representative . The answer further alleges that the Respondent has been
deprived of due process by action of the Board in failing and refusing to grant a
hearing on certain objections to the Board -conducted election which resulted in a
'The term General Counsel as used herein includes the attorney representing the Gen-
eral Counsel at the hearing . The National Labor Relations Board is referred to as the
Board.
0 At all times here relevant operations of the firm known as E . H. Blum were under the
direction and control of Mrs. E. H. Blum and she is referred to herein as the Respondent.
344056-55-vol. 111-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification of the Union as collective -bargaining representative and its subsequent
request of the Respondent to engage in collective -bargaining negotiations.
Pursuant to notice, a hearing was held at New Orleans, Louisiana, before a duly
designated Trial Examiner. All parties were represented at the hearing and were
afforded full opportunity to be heard and to examine and to cross-examine wit-
nesses. At the conclusion of the presentation of evidence the Respondent moved to
dismiss the complaint on the merits. Decision was reserved on this motion and it
is disposed of by the findings and conclusions contained in this report. Opportunity
was then afforded for oral argument. No further argument was presented other
than during the presentation of the aforesaid motion of the Respondent. The Gen-
eral Counsel moved to conform the pleadings to the proof as to formal matters.
This motion was granted as to all pleadings without objection. Opportunity was also
afforded for the filing of briefs and/or proposed findings of fact or conclusions of
law or both. Counsel stated on the record that none would be filed and none were
received.
Upon the entire record, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
E. H. Blum, an individual proprietorship owned and operated until his death on
June 19, 1953, by E. H. Blum and since that date operated by his widow, Mrs. E. H.
Blum, as executrix of the estate of E. H. Blum, has its principal office and place of
business in New Orleans, Louisiana, where it is engaged in the manufacture of men's
and boys' slacks and trousers. During the year 1953, which period is representative
of all times material herein, the said Respondent purchased raw materials consisting
principally of cut goods, thread, buttons, zippers, waistbands, needles, and related
materials valued in excess of $100,000, approximately 80 percent of which was pur-
chased from points outside the State of Louisiana. During the same period, of Re-
spondent's sales of finished products totaling in excess of $150,000, more than
$60,000 in value was shipped in interstate commerce to points outside the State of
Louisiana.
The Trial Examiner finds that at all times here relevant the Respondent has been
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Amalgamated Clothing Workers of America, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of the Act.
III1 . THE UNFAIR LABOR PRACTICES
A. The sequence of events
The instant case stems from a proceeding instituted by the Union in which it
sought certification as collective-bargaining representative of employees in the Re-
spondent's plant. The original petition was filed with the Board on August 14, 1953
(Case No. 15-RC-1000).3 On October 16, 1953, the Board issued its Decision and
Direction of Election (not reported in printed volumes of Board Decisions and
Orders) in which it directed that an election should be conducted among employees
in the following unit found appropriate in order to determine whether employees in
that unit wished to be represented for purposes of collective bargaining by the Union:
All production and maintenance employees at the employer's New Orleans, Louisi-
ana, plant, including shipping room employees, the mechanic, machine operators,
inspectors, pressers, the porter and janitor, and nonsupervisory employees in the cut-
ting room, but excluding office clerical employees, executive and administrative em-
ployees, guards, the cutting room supervisor, foreladies, and all other supervisors as
defined in the Act. The election was conducted on November 20, 1953, at the Re-
spondent's plant between the hours of 8 a. in. and 9:30 a. in. The official tally of
ballots shows that out of approximately 59 eligible voters 34 votes were cast for the
Union, 17 against it, and 9 ballots were challenged.
3 The original petition was filed by the New Orleans Joint Board of the Union. At the
hearing, the petition and other formal papers were amended to show the International
Union and not the New Orleans Joint Board as the Petitioner.
E. H. BLUM 117
The tally contains the printed statement, "The undersigned acted as authorized
observers in the counting and tabulating of ballots indicated above. We hereby
certify that the counting and tabulating were fairly and accurately done, that the
secrecy of the ballots was maintained, and that the results were as indicated above.
We also acknowledge service of this tally." This statement was signed by Mrs. E. H.
Blum and a representative of the Union. There also is in evidence a certification on
conduct of election signed by representatives of the Respondent and the Union certi-
fying that the balloting was fairly conducted, that all eligible voters were given an
opportunity to vote in secret, and that the ballot box was protected.
On November 21, 1953, counsel for the Respondent filed with the Board certain
objections to the election. Two general grounds were alleged. First, that employees
were interfered with, restrained, and coerced by certain actions of the Union which
had been made the subject of unfair labor practice charges filed by the Respondent
against the Union on November 3, 1953. Secondly, it was alleged that the Union
had electioneered in the vicinity of the election while the election was taking place
in violation of the Board's Rules.
An investigation of the objections was conducted by the Regional Director for the
Fifteenth Region who, on February 1, 1954, issued a detailed report on objections
in which he recommended that the objections be overruled and that an appropriate
certification be issued.
On February 10, 1954, counsel for the Respondent filed exceptions to report on
objections.
On April 20, 1954, the Board issued a Supplemental Decision and Certification of
Representatives in which it stated:
We have considered the objections to the elections (sic), the Regional Direc-
tor's report, and the Employer's exceptions thereto. In agreement with the
Regional Director, we find that the objections raise no substantial or material
issues with respect to the conduct of the election and we overrule them.
Because the tally of ballots shows that the Petitioner received a majority of
the valid votes cast, we shall certify the Petitioner as the bargaining representa-
tive of the employees in the appropriate unit .4
On April 26, 1954, the Respondent filed a "Motion for Reconsideration" in which
counsel alleged that the Respondent had no opportunity to participate in any investi-
gation other than to make routine suggestions as to possible witnesses, that she had
had no opportunity to confront, examine, and cross-examine witnesses or to produce
any evidence in her own behalf which might tend to impeach or contradict the find-
ings of the Regional Director; and that without a hearing the investigation of the
objections and the ruling regarding the exceptions was totally ex parte and a depriva-
tion of a proper hearing in violation of the requirements of due process. Reconsid-
eration was requested and also the ordering of a hearing on the exceptions previously
filed. On May 14, 1954, the motion for reconsideration was denied ". . . for the
reason that it presents no issues which were not previously considered by the Board."
After the issuance of the certification attempts were made by the Union to enter
into collective-bargaining negotiations with the Respondent. On April 28, 1954,
Nathan Kazin, manager of the New Orleans Joint Board of the Union, sent a letter
to the Respondent calling attention to the certification and requesting an early date
at which representatives and a negotiating committee could meet with the Respondent
in order to negotiate a collective-bargaining agreement. He further stated that he
was attaching for consideration by the Respondent a draft copy of contract proposals.
The draft contract did not have the name of the employer inserted and referred to
the Amalgamated Clothing Workers of America as the "Union."
On May 10, 1954, Kazin sent a further letter to Respondent in which he declared
that he had not received any reply to the letter of April 28 and he therefore proposed
to set a date for a meeting for collective-bargaining negotiations. He set the date as
May 19 at the offices of the New Orleans Joint Board.
On May 11, 1954, the Respondent wrote Kazin that her motion for reconsideration
was still pending and that she would give her response to his letter when the Board
issued its decision.
On May 18, 1954, after the Board's decision denying the motion for reconsidera-
tion, Kazin again wrote the Respondent suggesting the date of May 26 for a meet-
ing. However, on May 19, 1954, the Respondent wrote Kazin the following letter:
We have just received an order of the National Labor Relations Board deny-
ing our motion for reconsideration in Case No. 15-RC-1000. Thus, it appears
that we have as yet been unable to obtain a hearing on the validity of the elec-
108 NLRB 312.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of last November . Since we sincerely believe that that election was not a
reflection of the employees ' free choice we, therefore , decline to bargain with
you as the representative of our employees.
The Union then instituted the present proceeding by filing its charge on June 10,
1954.
B. Contentions of the parties ; conclusions
1. The appropriate unit ; the refusal to bargain
The complaint alleges as an appropriate unit of employees of the Respondent the
unit found by the Board in the prior representation case. This allegation is admitted
in the answer.
However, the Respondent contends that she cannot be held to have refused to bar-
gain with the Union because a condition precedent to such a finding does not exist;
namely, a prior request by the certified collective -bargaining representative to the
Respondent to enter into collective -bargaining negotiations . The Respondent points
out that the certified collective -bargaining representative is the Amalgamated Cloth-
ing Workers of America , CIO. She further points to the admitted fact that after
the certification all correspondence received by the Respondent relating to collective-
bargaining negotiations was signed by Nathan Kazin as manager of the New Orleans
Joint Board of the Union and was sent on stationery of the New Orleans Joint Board.
The constitution of the Union contains detailed provisions concerning joint boards
(articles VII and VIII ). The general executive board ( composed of the national
officers of the Union ) has authority to organize two or more local unions located in
the same city or area into a joint board . This board is made up of delegates elected
by each affiliated local union. The joint boards , it is provided , "shall organize,
coordinate and supervise the activities of their affiliated local unions ." Provision
is made for the election of officers of joint boards and their adoption of appropriate
bylaws.
Nathan Kazin testified in detail as to his connection with the national organization
and the New Orleans Joint Board. He is a national representative of the Union and
receives his compensation from national headquarters . He also was assigned to the
position of manager of the New Orleans Joint Board by a national officer of the
Union . His duties in the New Orleans area are to administer the affairs of the Joint
Board and the locals affiliated with it and in addition to assist other locals in the
area not affiliated with the Joint Board . He testified that he was specifically au-
thorized by the national vice president of the Union to write the Respondent and
request negotiations for a contract and that it was pursuant to that authority that he
sent letters to the Respondent requesting a meeting. He used stationery of the New
Orleans Joint Board and signed his name as manager but testified that it was his cus-
tom to use this stationery for all correspondence and that he considered the author-
ity to negotiate a contract with the respondent was given to him in his capacity as
national representative and that the New Orleans Joint Board itself did not have
authority to negotiate such a contract.
The New Orleans Joint Board has no formal document of organization but oper-
ates under the constitution of the national organization . It does have its own
bank account, its own officers , and a business agent.
The Respondent , while conceding that she never raised any question as to Kazin's
authority or that of the New Orleans Joint Board and admitting , as her letter of
May 19 , 1954 , shows, that the refusal to bargain was based on her asserted inability
to obtain a hearing on the validity of the representation election , still maintains that
the burden of proof was on the General Counsel to establish that a demand for col-
lective bargaining was made by the certified Union and that that burden has not been
carried . She maintains that demand was made by the Joint Board as a separate
entity and not by the Amalgamated Clothing Workers of America , the certified
collective -bargaining representative.
The Trial Examiner does not agree with the contention . It is clear that the Union
had designated an agent to represent it in the negotiation of a collective -bargaining
contract with Respondent . In- fact that was the only way in which it could have
acted . It was logical for it to designate as a representative its chief employee in the
New Orleans area. Actually Kazin held two positions in the union organization.
There was no, bar to the Union 's designating him in his capacity as a national rep-
resentative or as manager of the New Orleans Joint Board or both. The New Or-
leans Joint Board was not a stranger to the union organization . Its affiliation was
clearly shown on the letterhead which Kazin used in his letters to the Respondent.
Any question that might exist with respect to the party for whom Kazin was acting
was certainly cleared up by the contract he submitted to the Respondent which
E. H. BLUM 119,
named the Union as the party to the contract together with the Employer. The
Trial Examiner therefore concludes that a proper demand for collective bargaining
was made upon the Respondent and that this demand was rejected in the Respond-
ent's letter of May 19, 1954.
2. The majority status of the Union; the validity of the representation election
In the answer to the complaint it is specifically alleged that the Respondent was
not obligated to bargain with the Union because it was not freely selected by the
employes but that, on the other hand, the Union interfered with , restrained, and
coerced the employees in their selection and designation of the collective -bargaining
representative . It is further alleged that the failure and refusal to grant Respondent
a formal hearing on the objections to the election filed by the Respondent was a
deprivation of due process. Counsel for the Respondent contended at the hearing
that the failure to grant a formal hearing on the objections to the election constituted
a deprivation of due process. He argued that these objections raised substantial
and material issues and that the Respondent should not have had to rely solely on
reports by Board agents to the Board on the objections but should have had an
opportunity to present witnesses and to examine and cross-examine witnesses in a
formal hearing . The General Counsel contends , in substance , that all evidence sub-
mitted by the Respondent in support of its objections to the election was considered
carefully by the Board , in addition there was an independent investigation by Board
representatives of the objections , and there was no denial of due process in the instant
case by the refusal to order a formal hearing.
Representation proceedings are conducted pursuant to Section 9 (c) of the Act
which provides that where an appropriate petition has been filed "the Board shall
investigate such petition and if it has reasonable cause to believe that a question of
representation affecting commerce exists shall provide for an appropriate hearing upon
due notice. . . . If the Board finds upon the record of such hearing that such a
question of representation exists, it shall direct an election by secret ballot and
shall certify the results thereof."
A representation proceeding is "not technical . It is an investigation , essentially in-
formal, not adversary ." Inland Empire Council v. Millis , 325 U. S. 697, 706. "The
preliminary investigation and the hearing in the representation proceeding are not
contentious litigation but investigation ." N. L. R. B . v. Botany Worsted Mills, 133
F. 2d 876, 882 (C. A. 3). See also , Foreman d Clark, Inc. v. N. L. R. B., 215 F.
2d 396 (C. A. 9).
Section 102 . 61 of the Board 's Rules and Regulations prescribes election procedure
in representation cases. It sets forth procedure for the filing of objections to an
election , investigation and report on objections , and exceptions to such a report. It
is further provided that "if it appears to the Board that such exceptions do not
raise substantial and material issues with respect to the conduct or results of the
election, the Board may decide the matter forthwith upon the record, or may make
other disposition of the case ." It has been held that there is no right as a matter
of law to a formal hearing on objections and the party filing objections may be
requested to submit prima facie evidence in affidavit form of persons having first-
hand knowledge of matters raised by the objections . N. L. R. B. v. Huntsville Mfg.
Co, 203 F. 2d 430, 433 (C. A. 5). A ruling by the Board that certain objections
do not raise substantial or material issues is reviewable in later court proceedings.i
The evidence establishes that the Respondent was given full opportunity to present
objections to the election and evidence in support of these objections . Actually, a
substantial portion of the objections related to material presented by the Respondent
in support of charges filed against the Union in Case No. 15-CB-1 13. In the course
of the investigation of the charges, the Respondent submitted affidavits , and letters
from her counsel . An investigation of the objections was made by the Regional
Director for the Fifteenth Region and a field investigator interviewed counsel for
the Respondent , Mrs. Blum, and employees at the plant. A detailed report on the
objections was filed by the Regional Director and this report, together with the Re-
spondent 's exceptions to it, were considered by the Board before it issued its Supple-
mental Decision and Certification of Representatives . Respondent 's motion for
reconsideration was subsequently denied.
The Respondent contends that there was a denial of due process because a formal
hearing on the objections to the election was refused . The tally of ballots and the
5N L R B. v Huntsville Mfg Co, supra ; N L R. B. v. Vulcan Furniture Hfg Corp.,
214 P. 2d 369 (C. A. 5) ; N. L. R B. v. Trunity Steel Co., 214 F. 2d 120 (C. A.
5) ; N. L. R. B. v. West Texas Utilities Co., 214 F. 2d 732 (C. A. 5).
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification on conduct of election were signed by the Respondent and her repre-
sentatives . Under these circumstances , it was the responsibility of the Respondent,
as the objecting party, to come forward with evidence warranting a formal hearing.
Some evidence was presented , all of which was considered in the report. At the
hearing herein , the Respondent made a detailed offer of proof in support of the posi-
tion that the election should be set aside. Yet the Respondent did not contend
that the witnesses whose testimony she wished to incorporate into the record were
not available at the time when the investigation of the objections was taking place.
She could have obtained evidence from all of them to document her claims . In fact,
she did submit affidavits executed by two of them . The Trial Examiner , under these
circumstances , sustained an objection to the offer of evidence which could have been
presented in the representation case .6
The record in this case shows that detailed consideration was given by the Re-
gional Director , in his report , to all the objections urged by the Respondent. It is
clear that a careful investigation was made of the objections , which investigation in-
cluded not only a study of material submitted by the Respondent , but also independent
interviews with employees in the unit and others who might have knowledge of ma-
terial facts. The Board , after study of the report and the exceptions , came to the
conclusion that no substantial and material issues had been raised . The Trial Exam-
iner denies the motion made by the Respondent at the conclusion of the hearing to
dismiss the complaint because it had been deprived of due process by the failure to
grant a hearing on objections it maintains were substantial and material . It is fur-
ther found that the Union was the duly designated collective -bargaining representa-
tive of a majority of the Respondent 's employees in an appropriate unit. The refusal
to bargain with it was violative of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above , occurring in con-
nection with the operations of the 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 disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that she cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that the Respondent in violation of the Act failed and refused
to bargain collectively with the Union as the duly designated collective -bargaining
representative of her employees in an appropriate unit. It will be recommended that
the Respondent cease and desist from such activities and on request bargain collec-
tively with the Union.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Respondent , E. H. Blum and Mrs. E. H. Blum , executrix for the estate of
E. H. Blum , d/b/a E. H. Blum , is engaged in commerce within the meaning of
Section 2 (6) and ( 7) of the Act.
2. Amalgamated Clothing Workers of America , CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees at the Respondent's New Orleans,
Louisiana , plant including shipping room employees , the mechanic , machine opera-
tors, inspectors , pressers , the porter and janitor , and nonsupervisory employees in
the cutting room, but excluding office clerical employees, executive and administra-
tive employees , guards, the cutting room supervisor, foreladies , and all other super-
visors as defined in the Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9 (b) of the Act.
4. The aforementioned Union was at all times material and now is the exclusive
representative of the employees in said unit for the purposes of collective bargaining
within the meaning of Section 9 ( a) of the Act.
0 Poinsett Lumber and Manufacturing Company, 109 NLRB 1079 ; Esquire, Inc., 109
NLRB 530; The Baker and Taylor Co ., 109 NLRB 245 , Superior Sleeprite Corporation, 109
NLRB 322.
PLASTIC AGE COMPANY 121
5. By refusing on May 19, 1954, and at all times thereafter to bargain collec-
tively with the Union as the exclusive representative of her employees in the appro-
priate unit , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
6. By said refusal to bargain the Respondent has interfered with, restrained, and
coerced her employees in the exercise of the rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
PLASTIC AGE COMPANY, PLASTIC AGE REINFORCED PRODUCTS, INC., PLAS-
TIC AGE AIRCRAFT CORPORATION, AND PLASTIC AGE SALES, INC. and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No.
727, FOR LOCAL LODGE 758. Case No. 21-CA-182,0. January 6,1955
Decision and Order
On July 21, 1954, Trial Examiner William E. Spencer issued his
Intermediate 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 Intermediate
Report attached hereto. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed in that respect. Thereafter, the Respondent, General Counsel,
and the Union filed exceptions to the Intermediate Report together
with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report,' the exceptions and briefs, and the entire record in the
case and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner.
The Intermediate Report contains certain minor misstatements of fact which do not
materially affect the correctness of the Trial Examiner's conclusions. They are as fol-
lows : (a) The second meeting of the Plastic Age Employees Association was held on
October 17 rather than, as the record shows, on October 20; (b) Lane stated that "Mr.
Kramer" rather than "Mr. Harper" had satisfactorily answered a certain question at the
second meeting of the Association ; (c) Lane, prior to the second meeting, had advised
Kramer to have nothing to do with the Association whereas Lane merely advised Kramer
not to permit the Association to have any further meetings on company time or premises;
(d) the Union demanded a 2-year contract from the date of its certification whereas the
record shows that the Union demanded a 2-year contract but did not specify its proposed
effective date.
2 Without necessarily endorsing all the Trial Examiner's rationale as to the elements of
"domination," we agree that Respondent's support to the Association here did not consti-
tute domination of that organization.
111 NLRB No. 18.