Feibus-Gordon of Charlotte, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1970

187 N.L.R.B. 316 (N.L.R.B. 1970)

316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Feibus-Gordon of Charlotte , Inc., and Local 28 , Retail,
Wholesale & Department Store Union , AFL-CIO.
Case I1-CA-4087
December 17, 1970
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On August 12, 1970, Trial Examiner Thomas S.
Wilson issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
affecting commerce and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions
to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Feibus-Gordon of Charlotte, Inc.,
Charlotte, North Carolina, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS S . WILSON, Trial Examiner : Upon a charge duly
filed on November 25, 1969 , by Local 28 , Retail , Wholesale
& Department Store Union , AFL-CIO, herein referred to
as the Union or Local 28 , the General Counsel of the
National Labor Relations Board , herein referred to as the
General Counsel' and the Board , respectively, by the
Regional Director for Region 11, Winston-Salem, North
I This term specifically includes the attorney appearing for the General
Counsel at the heanng
2 It seems to this Trial Examiner that if the Region considers a case
Carolina, issued its complaint dated January 30, 1970,
against Feibus-Gordon of Charlotte, Inc., hereinafter
referred to as the Respondent. The complaint alleged that
Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the
Labor-Management Relations Act, 1947, as amended,
herein referred to as the Act.
Respondent duly filed an answer and an amended answer
wherein all the allegations of the complaint were admitted
except the allegations therein that the Union was a labor
organization, that the Union had been since October 4,
1967 (when admittedly certified by the Regional Director),
and "is now" the exclusive bargaining representative of the
employees in the appropriate unit, and also the conclusion-
ary paragraphs alleging a violation of Section 8(a)(1) and
(5) of the Act.
Pursuant to notice a hearing thereon was held before me
in Charlotte, North Carolina, on April 28, 1970. All parties
appeared at the heanng, were represented by counsel or a
representative, and were afforded full opportunity to be
heard, to produce and cross-examine witnesses, and to
introduce evidence material and pertinent to the issues. At
the conclusion of the hearing oral argument was waived. A
brief was received from Respondent on June 4, 1970. No
brief was received from General Counsel.2
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
The complaint alleged, the answer admitted, and I
therefore find: Feibus-Gordon of Charlotte, Inc., is a North
Carolina corporation with a plant at Charlotte, North
Carolina, where it is engaged in the business of processing
and selling textile wastes and rags. During the past 12
months, which period is representative of all times material
herein, Respondent received raw materials valued in excess
of $50,000 at its Charlotte, North Carolina, plant directly
from points outside the State of North Carolina. During the
same period of time, Respondent processed, sold, and
shipped goods valued in excess of $50,000 directly to points
outside the State of North Carolina.
Accordingly, I find that Respondent is now, and has been
at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE UNION INVOLVED
Local 28, Retail , Wholesale & Department Store Union,
AFL-CIO, is a labor organization admitting to member-
ship employees of Respondent.
important enough to be tried it is important enough to be briefed for the
Trial Examiner Without a brief a case is only half tried
187 NLRB No. 38
FEIBUS-GORDON OF CHARLOTTE
III. THE UNFAIR LABOR PRACTICES
A. The Facts
On October 4, 1967, following a Board representation
election held on August 18, Local 28, Retail, Wholesale &
Department Store Union, AFL-CIO, was certified by the
Regional Director as the exclusive bargaining representa-
tive of all Respondent's employees in the following
appropriate unit:
All warehouse employees at the Company's Charlotte,
North Carolina, plant, including truckdrivers, but
excluding office clerical employees, guards, and super-
visors as defined in the Act.
On May 18, 1968, following a strike of the unit
employees, Respondent and Local 28 executed a collective-
bargaining agreement which was to be effective as of April
7, 1968, and by its terms to remain in full force and effect
until August 31, 1969, and thereafter from year to year
subject to at least 60 days' notice in writing prior to August
31, 1969, or any subsequent renewal date, of a desire by
either Respondent or Local 28 to modify or terminate the
agreement.
On June 27, 1969, Local 28 gave notice to Respondent by
letter of its desire to "meet for the purpose of negotiating a
contract renewal to replace the expiring contract."
By letter dated July 17, 1969, Respondent over the
signature of Nat H . Roberts , its vice president and general
manager , answered as follows:
I have your letter of June 27, 1969. I am advised that not
more than five of our sixteen to seventeen employees
are members of your union. Since it appears that your
union does not represent a majority of the employees in
the certified unit, the company declines to meet with
you for the purpose of modifying or renewing the
existing contract.
The Union renewed its request by letter dated July 29
reading as follows:
As er [sic] are still certified by the National Labor
Relations Board as the bargaining Agent for the
employees of Feibus-Gordon of Charlotte, Inc, we
again request that you set a time and place for a meeting
to begin our negotiations for a contract renewal.
After some desultory correspondence the parties finally
met with the Federal Mediation Service on September 3,
1969. The meeting was attended by Roberts for the
Respondent and by William A. Griffith, president of Local
28, Elliot L. Martin, a paid organizer for Local 28, and
Irving Leibold.
According to the testimony of Roberts, the only business
transacted at this meeting was his inquiry as to the status
and right of Leibold to attend. Still according to Roberts,
Leibold answered that he was appearing as a consultant to
Local 28, that he was then being paid by the National
Council Distributive Workers Association, and that Local
28 was in the process of changing affiliation from the Retail
Clerks Union to the Distributive Workers Union. At this
point Roberts adjourned the meeting.
Thereafter on November 5, 1969, and February 13, 1970,
Local 28 renewed its request for a further meeting with
Respondent to negotiate a renewal contract.
317
To this Roberts answered on February 26, 1970, as
follows:
I have your letter of February 13, 1970 suggestion [sic ] a
resumption of contract negotiations.
In previous correspondence I advised you that I was
informed that only five members of the bargaining unit
belonged to your union. I also advised that there had
been a considerable turnover in our employment since
the union was certified . I am sure you are aware of this
factor.
Even so, I met the representatives from your union on
September 3, 1969. At that meeting Mr. Lebold [sic]
advised that the local was in the process of disaffiliation
from the International. On November 25, 1969, Mr.
Martin filed an unfair labor practice charge against the
Company and at a later date a complaint was issued.
Indeed the case is scheduled for trial on March 31, 1970.
Since we continue to have serious doubt as to your
representative status , we decline to resume contract
negotiations.
B. Conclusions
As noted heretofore, Respondent 's answer admits all the
allegations of the complaint setting forth a typical refusal-
to-bargain case except for those alleging that Local 28 is a
labor organization and that Local 28 , after its certification
on October 4, 1967 , remained the representative of the
employees in the appropriate unit on and after August 31,
1969, the termination date of the collective -bargaining
agreement between the parties.
Hence the only defenses to a finding of a refusal to
bargain presented here are the questions of whether Local
28 is a labor organization and its continued representative
status on and after August 31 , 1969, the date the collective
agreement terminated between the parties.
Local 28 organized Respondent's employees in the
appropriate unit in 1967 , received votes of 22 out of 24
employees in that unit in a Board -conducted election, was
duly certified as the exclusive representative of those
employees , and, in fact , in May 1968 executed a collective-
bargaining agreement with the Respondent, covering the
wages , hours , and working conditions of those employees,
which remained in full force and effect by its own terms
until August 31, 1969 . In addition to this collective-
bargaining agreement with Respondent , Local 28 had and
has collective-bargaining agreements with three or four
other employers covering the wages , hours , and working
conditions of the employees of those employers . Obviously
under the definition of a labor organization contained in
Section 2(5) of the Act, Local 28 is, and is hereby found to
be, a labor organization.
Respondent's bnef presents the following arguments:
I. Respondent 's motion to dismiss on the ground
that it is improper under the labor act for a labor union
to enjoy a rebuttable presumption that it represents a
majority after expiration of the certification years
should have been granted.
Respondent's bnef acknowledges with appropriate
citation of cases by the Board and the courts, including the
Supreme Court, that Board and court law on the subject is
that , after certification, the Union enjoys an irrebuttable
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumption of majority representation for the certification
year and that such presumption of majority representation
continues after the expiration of a collective-bargaining
agreement as a rebuttable presumption.
Consequently, as a Trial Examiner of the Board bound
by Board and Supreme Court law, my ruling on Respon-
dent's motion was correct as a matter of law even though
Respondent may think that the law as so interpreted by the
Board and the courts is unfair to itself and employers in
general . This argument would be more appropriately made
to Congress while requesting a change in the law rather
than to the Board, or its Trial Examiner, who is interpreting
the statute as it now reads.
II. Respondent should not be found guilty of
Section 8(a)(1) and 8(a)(5) violations because Local 28
is not the labor organization that was certified on
October 4, 1967.
Respondent's brief premises this argument on the fact
that "the record indicates that Local 28 was at the time of
the hearing and had for some time previous been in the
process of disaffiliating from the International Union
(AFL-CIO) and has been considering affiliation with the
National Council of Distributive Workers of America (Tr.
11-15). Furthermore, Respondent received some indication
from the International that Local 28 and Mr. Leibold were
no longer associated and that Respondent should not have
any dealings with anyone in Local 28 (Tr. 34, 35). Because
of this, the Local was in substance, if not in form, different
from the certified bargaining representative of October 4,
1967."
Respondent's brief recognizes the law to be that
"Respondent's duty, of course, is to bargain with the
previously certified collective-bargaining representative.
Respondent recognizes that a mere change in affiliation
does not grant it the option to refuse to bargain."
Again Respondent's brief correctly states the law.
The facts show without contradiction that at the time of
the request to bargain and, indeed, at the time of the
hearing Local 28, the certified bargaining representative,
was still affiliated with Retail, Wholesale & Department
Store Union, AFL-CIO, just as it had been at the date of
the certification and at all times thereafter.
The fact that Local 28 may have been considering a move
to disaffiliate from one International union and possibly
affiliate with another International union is thus completely
immaterial to the instant case as pure speculation.
Respondent is, therefore, asking this Trial Examiner to
decide this case on a nonexistent state of facts. This
argument is therefore without merit.
The testimony of Roberts to the effect that he had been
told by a Frank Parker of Birmingham, Alabama,3 not to
have anything to do with Local 28, Griffith, or Leibold
because they had been "fired" by the Retail Clerks
International is, in the absence of said Frank Parker as a
witness to be subjected to cross-examination, evidence
which must be disregarded as pure hearsay. It is quite true
that Roberts could testify as to the telephone call between
himself and Frank Parker but the contents of Parker's
statements to Roberts remained hearsay in the absence of
Parker's subjecting himself to cross-examination as to his
knowledge of the facts reported by him to Roberts.
Even if Parker's report to Roberts proved to be true, it
still does not show a change in the identity of the certified
bargaining representative which in this case was Local 28.
III. The Respondent should not be found guilty of
an unfair labor practice in violation of Sections 8(a)(l)
and 8(a)(5) of the Act since Respondent had a good-
faith doubt, based upon objective considerations, that
Local 28 did not represent a majority of employees
within the appropriate unit.
In its brief Respondent based its claim of a "good-faith
doubt" of Local 28's majority status on three factors:
1. After Respondent promoted employee L. C. Melton
in June to the position of dock supervisor, Melton informed
Roberts in a conversation that only five employees were
attending union meetings.
2. The turnover in Respondent's employee complement
was such that only six employees who had voted in the
August 1967 election remained as employees.
3. Respondent had received a written communication
from Frank Parker (which was not produced at the hearing)
to the effect that Leibold had been discharged "by the
union," obviously the International Retail Clerks and not
Local 28, and that Respondent should not deal with anyone
from Local 28. Leibold confirmed on September 3, 1969,
that he was then employed by another union and that Local
28 was in the process of disaffiliating from the Retail
Clerks.
Respondent's brief says, "taken in cumulative effect these
[above] factors presented Respondent with reasonable
grounds for entertaining a good-faith doubt about majority
status." I cannot agree that the above factors, taken either
individually or cumulatively, create "a serious doubt on the
union's majority status."
Melton's statement to Roberts upon assuming his new
supervisory status at a "much higher" salary proves only
that Local 28, like most unions, was having trouble getting
members to attend meetings . It proves, as corroborated by
Melton's testimony at the hearing, nothing so far as the
actual membership of the Union is concerned or as to the
desires of the employees in the unit to be represented by
Local 28. Indeed the testimony of Roberts that no
employee in the appropriate unit had ever expressed
dissatisfaction with the representation of Local 28 clearly
rebuts the implication Respondent attempts to draw from
Melton's statement.
As Respondent's brief acknowledges, "Turnover without
more is not sufficient to rebutt [sic] the presumption of
continued majority status." But Respondent couples
turnover with Melton's statement and purports to find
"serious doubt" of majority status by forgetting to recall
that Roberts had heard no dissatisfaction with Local 28's
representation expressed by any member of the unit. The
lack of expressions of dissatisfaction by the unit employees
is stronger evidence by far than the turnover.
The fact that Local 28 may have been considering
disaffiliation from Retail Clerks proves nothing in regard to
the majority status of Local 28 which was, after all, the
3 According to Leibold , Frank Parker for I year has been the southern
area director of the Retail , Wholesale & Department Store Union
FEIBUS-GORDON OF CHARLOTTE
certified bargaining representative and, indeed, the only
party to the collective agreement with Respondent. Frank
Parker, as an International officer, appears here in the role
of an interloper. As noted heretofore, the change of
affiliation by Local 28 had not taken place and, even if it
had, would not have affected the majority status of Local
28 in any way. If the disaffiliation had in fact occurred, it
might even have strengthened the evidence as to the
majority status of Local 28 and the fact that it was Local 28
which was the certified bargaining representative and not
the Retail Clerks.
The evidence presented shows only that Respondent was
engaging in wishful thinking-not that Respondent had a
"good-faith" doubt based upon any substantial objective
considerations.
Respondent's final argument is as follows:
IV. The defendant should not be found guilty of a
Section 8(a)(1) and 8(a)(5) violation since Local 28 does
not in fact represent a majority of the employees in the
bargaining unit.
There is no evidence in this record to substantiate this
contention. There is, however, the Board and court
presumption of a continued majority. This presumption,
although rebuttable, has not here been rebutted.
The whole history of this case indicates wishful thinking
on the part of Respondent. Local 28 was certified over
objections of Respondent found by the Regional Director
to have been untenable. Thereafter a collective-bargaining
agreement was reached only after a strike. Then when the
renewal of that collective-bargaining agreement came up,
Respondent claimed a "good-faith doubt" based upon at
best tenuous circumstances and refused on the basis of that
so-called "good-faith doubt" to negotiate a renewal
preferring to rely on this tenuous good-faith doubt rather
than on a determination of the fact. The fact could have
been determined by the Respondent by filing a representa-
tion petition with the Board requiring a secret ballot
election which would have removed all doubt one way or
another. Respondent chose not to file such a petition,
obviously preferring to rely on a claim of "good-faith
doubt" rather than upon fact.
By filing such an RM petition the doubt about majority
status could have been removed in a matter of weeks
whereas by pursuing the present litigation route the
uncertainty may remain for years.
In labor relations especially such doubts should be
removed as promptly as possible. As it was Respondent
who claimed the good-faith doubt, it became incumbent
upon Respondent to resolve that doubt by filing an RM
petition with the Board.
Accordingly I must find that under the circumstances of
this case Respondent has failed and refused to bargain in
good faith with Local 28 as the exclusive bargaining
representative of all the employees in the appropriate unit
found above in violation of Section 8(a)(1) and (5) of the
Act.
4 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
319
The activities of Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act and restore the
status quo ante.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All warehouse employees at Respondent's Charlotte,
North Carolina, plant including truckdrivers, but excluding
office clerical employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid appropriate unit within the meaning of Section
9(b) of the Act.
5. By refusing on and after June 27, 1969, to bargain in
good faith with Local 28, Retail, Wholesale & Department
Store Union, AFL-CIO, as the exclusive bargaining
representative of the employees in the above-found
appropriate unit, Respondent has engaged in and is
engaging in unfair labor practices in violation of Section
8(a)(5) and (1) of the Act.
6. By interfering with, restraining, and coercing its
employees in the rights guaranteed them in Section 7 of the
Act, as found above, Respondent has interfered with,
restrained, and coerced its employees in violation of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER4
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, it
is hereby ordered that Feibus-Gordon of Charlotte, Inc.,
Charlotte, North Carolina, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Local 28 as the
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of Respondent's employees in the
appropriate unit which is:
All warehouse employees at Respondent's Char-
lotte, North Carolina, plant, including truckdri-
vers , but excluding office clencal employees,
guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request bargain collectively in good faith with
Local 28, Retail , Wholesale & Department Store Union,
AFL-CIO, as the exclusive representative of Respondent's
employees in the appropriate unit found above with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment and, if an understand-
ing is reached, embody same in a written signed agreement.
(b) Post at its Charlotte, North Carolina, plant copies of
the attached notice marked "Appendix."5 Copies of said
notice , on forms provided by the Regional Director for
Region 11 , after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 11, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith .6
IT IS FURTHER RECOMMENDED that, unless Respondent
notifies said Regional Director within 20 days from the
receipt hereof that it will take the action here ordered, the
Board issue an Order directing Respondent to take the
action here ordered.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively in good faith
with Local 28, Retail, Wholesale & Department Store
Union, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit below with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment , and, if an agreement is
reached, we will embody the same in a written signed
agreement. The appropriate unit is as follows:
All warehouse employees at Respondent's Char-
lotte, North Carolina, plant, including truckdn-
vers, but excluding office clencal employees,
guards, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist Local 28,
Retail, Wholesale & Department Store Union, AFL-CIO,
or any other labor organization of our employees' own
choosing, to engage in concerted activities for the purpose
of collective bargaining or mutual aid or protection, or to
refrain from any such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the Act, as
amended.
FEIBUS-GORDON OF
CHARLOTTE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1624
Wachovia Building, 301 North Main Street, Winston-
Salem, North Carolina 27101, Telephone 919-723-9211,
Extension 360.