Formfit-Rogers Co.

National Labor Relations Board - Board Decisions

Apr 10, 1967

163 N.L.R.B. 971 (N.L.R.B. 1967)

FORMFIT-ROGERS COMPANY 971
Employer in the cities of Kokomo and Peru, National Labor Relations Board has delegated its
Indiana, including sergeants, but excluding powers in connection with this case to a three-
office clerical employees, professional member panel.
employees, lieutenants, and supervisors as Upon the entire record in this case, the Board
defined in the Act, and all other employees. finds:
PINKERTON'S INC.
(Employer)
Dated By
(Representative) (Title)
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.
Employees may communicate directly with the
Board ' s Regional Office, Sixth Floor , ISTA Center,
150 West Market Street, Indianapolis , Indiana
46204 , Telephone MElrose 3-8921.
Formfit-Rogers Company and International
Ladies Garment Workers Union, AFL-CIO,
Petitioner. Case 38-RC-303.
April 10, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS BROWN, JENIINS, AND ZAGORIA
Pursuant to a Stipulation for Certification upon
Consent Election executed by the parties and
approved by the Regional Director for Region 13 on
December 2, 1966, an election by secret ballot was
conducted on December 21, 1966, under his
direction, among employees in the stipulated unit.
At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that,
of approximately 252 eligible voters, 243 cast ballots,
of which 98 were for the Petitioner, 135 were cast
against the Petitioner, and 10 ballots were
challenged. Thereafter, the Petitioner filed timely
objections to conduct affecting the results of the
election.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as
amended, the Regional Director conducted an
investigation and, on January 19, 1967, issued and
duly served upon the parties his report on
objections, in which he recommended that the
election be set aside and a new election directed.
Thereafter, the Employer filed timely exceptions to
the Regional Director's report.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
' The Employer also submitted with its exceptions copies of
correspondence between its attorneys and Board agents This
correspondence, which was concurrent with and prior to the
execution of the Stipulation for Consent Election, sets forth, inter
alia, the Employer's refusal to comply with the Excelsior rule and
the reasons therefor.
163 NLRB No. 130
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists
concerning the representation of the employees of
the Employer within the meaning of Section 9(c)(1)
and Section 2(6) and (7) of the Act.
4. We find, in accord with the agreement of the
parties, that the following employees at the
Employer' s Monmouth , Illinois, plant , constitute a
unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
All production and maintenance employees at
the Company's plant in Monmouth, Illinois,
including floorgirls, but excluding office clerical
employees, professional employees, guards,
cafeteria workers, and supervisors, as defined
in the Act.
5. The Regional Director in his report of
January 19, 1967, recommended that the election
held on December 21, 1966, be set aside and a new
election directed because the Employer had refused
to furnish a list of employees' names and addresses
as required pursuant to the rules established in
Excelsior Underwear Inc., 156 NLRB 1236. In its
exceptions, the Employer contends, in effect, that
the Excelsior rule is invalid as it exceeds the powers
conferred upon the Board by the National Labor
Relations Act. Respondent further contends that the
Employer notified the Board's Regional Office orally
and in writing prior to Employer's signing
Stipulation for Certification upon Consent Election:
(1) the Excelsior requirement was not considered by
the Employer as part of the stipulation; (2) it would
not furnish the Excelsior list; and (3) the Employer
would only enter in the stipulation with this
understanding. Accordingly, the Employer urges
that this notification effectively modified and revised
the stipulation and eliminated the Excelsior
requirement therefrom; thus, Employer contends
the Excelsior requirement was completely abrogated
and superseded by the Employer's revisions. In
addition, the Employer contends that, in view of its
written and oral statements as to its position
regarding the Excelsior rule, the duty then devolved
upon the Petitioner to refuse to execute the
stipulation and it was the duty of the Regional
The Regional Director, on February 20, 1967, issued a
Supplemental Report on Objections for the purpose of furnishing
to the Board copies of the preelection correspondence between
Board agents and the Employer so that the Board would be fully
apprised of the factual basis underlying the original report of
January 19, 1967
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director to refuse to approve it. Accordingly,
Employer argues that the Petitioner's execution and
the Regional Director's approval of the stipulation
amounted to acceptance of the Employer's
modifications and revisions, and they became bound
by it.
We find no merit in these contentions. As to the
validity of the rule, it is clear that "The control of
election proceedings and the determination of the
steps necessary to conduct that election fairly [are]
matters which Congress entrusted to the Board
alone."2
With respect to the Employer's other contentions,
the Board, in adopting the Excelsior rule, made no
exceptions as to the application of the rule except in
the case of an expedited election conducted
pursuant to Section 8(b)(7)(C). Nor did we provide for
a unilateral, or for that matter, atiy modification or
waiver of such rule. Moreover, such a policy could
only lead to confusion and delay in representation
proceedings. Accordingly, we find that the
Employer's exceptions raise no material or
substantial issue of fact or law which would warrant
reversal of the Regional Director's findings and
recommendations, which we hereby adopt.3
ORDER
It is hereby ordered that the election conducted
herein on December 21, 1966, be, and it hereby is,
set aside.
[Text of Direction of Second Election4 omitted
from publication.]
I N L R B v Waterman S S Corp , 309 U S 206, 226 See also
N L R.B v Shtrltngton Supermarkets, 224 F.2d 649, 651 (C A 4)
3 We find no merit in the Employer's further exceptions
wherein it contends that the Board's adoption of the Excelsior rule
was in violation of Section 139(c) of the Federal Reports Act This
latter act is concerned with the general gathering of
"information" by Federal agencies for sundry purposes and is
mapphcable to the Board's procedural requirements as to
elections (See N L R B v Waterman S.S Corp , supra )
4 An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 13 within 7 days after the
date of issuance of the notice of Second Election by the Regional
Director The Regional Director shall make the list available to all
parties to the election. No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc , supra
Strain Poultry Farms, Inc. and International
Union of District 50, United Mine Workers
of America. Cases 10-CA-6539 and 6685.
April 10, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND ZAGORIA
On December 9, 1966, Trial Examiner George A.
Downing issued his Decision 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 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, except as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
i In agreement with the Trial Examiner, we find ample record
evidence that the Respondent was prompted by antiunion
considerations in granting economic benefits to the unit
employees during the critical preelection period We therefore
adopt his ultimate conclusion that this conduct was violative of
Section 8(a)(1) of the Act N L R B v Exchange Parts Company,
375 U S 405 We do not, however, adopt his alternative reasoning
that, irrespective of the Respondent's motivation, Respondent
acted unlawfully in granting the benefit involved without first
discussing the matter with the Union The Respondent's statutory
obligation to bargain with the Union attached only after the Union
attained majority status The complaint does not allege, and the
record does not show, that the Union established its majority until
it won the election on August 18
In considering the violations based upon the Respondent's
broad no-solicitation and no-distribution rule, we are satisfied, as
was the Trial Examiner, that the Respondent's maintenance of
that rule at all times here relevant had an inhibiting effect on the
employees' exercise of their statutory rights Accordingly,
although the Respondent instituted the rule in 1964, some 2 years
before the advent of union activity, we agree with the Trial
Examiner that Respondent's continuing maintenance of the rule
in its present form is violative of Section 8(a)(1) and should be
enjoined Respondent's initial promulgation of the rule is, of
course, outside the scope of our inquiry, in view of Section 10(b) of
the Act, and we base no violation findings on such promulgation
163 NLRB No. 132