Gittlin Charlotte Bag Co.Download PDFNational Labor Relations Board - Board DecisionsAug 20, 195195 N.L.R.B. 1159 (N.L.R.B. 1951) Copy Citation GITTLIN CHARLOTTE BAG COMPANY 1159 GITTLIN BAG COMPANY, D/B/A GITTLIN CHARLOTTEI BAG COMPANY and AMERICAN FEDERATION OF LABOR. Case No. 34-CA-121. August 201 1951 Decision and Order On May 15, 1951, Trial Examiner Lloyd Buchanan, 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 be ordered to cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the charging Union filed a brief supporting the Intermediate Report. The' oard 1 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 In- termediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings,2 conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications. We agree with the Trial Examiner's conclusion that the Respondent refused to bargain with the Union in violation of Section 8 (a) (5) and 8 (a) (1) of the Act on andafterJuly 11; 1950 For a substantial period.of time, Jacobs, the union negotiator, had been engaged in attempts to bargain with Cohen, the Respondent's attorney. Cohen had plenary authority to negotiate, on behalf of the Respondelit, with the Union. Negotiations were prolonged for a period of more than a year and a half. Finally on June 8, 1950, at the last-meeting between the parties, Cohen assured Jacobs that if the latter made certain concessions in the contract, "that that was the only thing between them," and declared that in all other respects the agreement was definite and that his client, who had not personally appeared at any of the negotiations, would sign it. Jacobs acquiesced as to the proposed concessions and the meeting adjourned with the understanding that an agreement had been reached and that nothing remained to be done except formal execution of a contract. Thereafter Jacobs was unable to reach Cohen. Finally, in a letter -dated June 28,_ 1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in respect to this case to a three -member panel [ Members Houston, Reynolds, and Styles]. The Intermediate Report at one point inadvertently refers to 1950 as the year in which the election in Case No. 34-RC-112 was held and the Union was certified. This should be 1949. 95 NLRB No. 163. 1160 DECISIONS "OF NATIONAL LABOR RELATIONS BOARD 1950, Jacobs'advised Cohen of his intention to file unfair labor prac- tice ch'arges. Cohen then telephoned to Jacobs, requesting him-to defer such action and promising to get in touch with Gittlin in order to, have the latter sign the agreement. - On July 11, Jacobs was informed by Cohen that Gittlin had written to the` effect:: that he wanted to see if a more' equitable arrangement could be worked out and wanted to confer further with Cohen. The. letter made no reference to any particular clauses' that were objec- tionable, and offered no specific counterproposals. Jacobs then filed the charge herein. Some 4 months later a. letter was written to Jacobs on behalf of the Respondent which questioned the Union's majority status and suggested a payroll membership card check. The Re- spondent simultaneously filed an RM petition (34-RM-16) which. was administratively dismissed because of the pendency of the charge. Thus the Respondent extended plenary bargaining authority to his- attorney for more than a year and a half, only to withdraw such au- thority and disavow the agreement when an accord was finally reached, without any adequate explanation, counterproposals, or even suggestion of the areas in which real disagreement might exist. We are persuaded that at that point the Respondent' demonstrated an in-' tent to forestall bargaining and avoid coming to any agreement, and thereby refused to bargain in violation of the Act. Nor does it avail the Respondent that it questioned the Union's ma- jority and filed an RM petition about 4 months after its bad faith bargaining had resulted in a cessation of negotiations and after unfair labor practice charges had been filed. Raising the issue of the Union's majority under such circumstances cannot be regarded as having been done in good faith, and, in any event, has no bearing on the Respond- ent's earlier conduct. Moreover, any loss of the Union's majority which may have occurred after July 11, 1950, must be attributed to the Respondent's unlawful. refusal to bargain and.is no barrier to an order to bargain based on that refusal .3 Order Upon the entire record in the case and pursuant to Section 10. (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Gittlin Bag Com- pany d/b/a Gittlin Charlotte Bag Company, Charlotte, North Caro- lina, its officers, agents, successors, and assigns, shall : L Franks Brothers Company v. N. L. R. B., 321 U. S. 702. However, we see no justifica- tion in this case for departing from our usual remedial order in refusal to bargain cases and ordering , as the Union contends , that the Respondent reimburse the employees for any economic losses they may have sustained by not having obtained a collective bargaining agreement . See Weyerhaeuser Timber Company , 87 NLRB 672. ' GITTLIN CHARLOTTE -BAG COMPANY 1161 1. 'Cease and desist: from (a) Refusing to bargain collectively with American Federation of Labor as the exclusive representative of all, its employees in the ap- propriate unit with respect to rates of pay, wages, hours of employ- ment; or other conditions of employment. (b) In any manner interfer-ing with the efforts of American Fed- eration of Labor to bargain, collectively with the Respondent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with American Federation of Labor as the exclusive representative of the employees in the appro- priate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant in Charlotte, North Carolina, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the.. Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and -be main- tained by it for sixty,(60) consecutive days thereafter, in conspicuous places, including all places where notices to its employees, are cus- tomarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifth Region, in writing, within ten (10) days from the date of- this Order, what steps it has taken to comply herewith. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate- the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT in any manner interfere with the efforts of the AMERICAN FEDERATION OF LABOR to bargain collectively on behalf of our employees. WE WILL bargain upon request with AMERICAN FEDERATION OF LABOR as the exclusive representative of all employees in the bar- gaining unit described herein with respect to rates of pay, hours, of employment, or other conditions of employment, and embody in a 41n the event that this Order is "enforced by a decree of a United States Court of Appeals, there shall be. Inserted before the words, "A Decision and Order" the words , "A Decree of the United States Court of Appeals Enforcing." 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed agreement any understanding reached. The bargaining unit is : All production and maintenance employees in our plant in Charlotte; North Carolina, excluding office-workers,- fore- men, and all other supervisors. GITTLlN BAG COMPANY, D/B/A, GITTLIN CHARLOTTE BAG COMPANY, Employer. By ------------------------ --------------- (Representative ) ( Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on July 19, 1950, by American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Fifth Region (Baltimore, Maryland), issued a complaint dated February 7, 1951,. against Gittlin Bag Company, d/b/a Gittlin Charlotte Bag Company, herein called the Respondent,'alleging that the 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 National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. With respect to unfair labor practices, the complaint alleged in substance that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing,' since on or about January 19, 1950, to bargain with the Union as the representative of all employees in the bargaining unit theretofore determined by the Board to be appropriate. In its answer, the Respondent denied the allegations of the com- plaint with respect to unfair labor practices, and as a separate defense alleged that the Union did not represent a majority after April 5, 1950, that the Respond- ent bargained collectively until the Union filed unfair labor practice charges and broke off negotiations, that prior to issuance of the complaint herein the Union failed to submit evidence of continued majority status although afforded an op- portunity to do so, and that the Respondent petitioned the Board for an election, which petition was denied. Pursuant to notice, a hearing was held at Atlanta, Georgia, on April 19, 1951, before the undersigned Trial Examiner duly designated by the Chief Trial Examiner. General Counsel and the Respondent were represented by counsel, and the Union appeared by its representative. All parties were afforded full opportunity to be'heard, to examine and-"cross-examine witnesses, and to intro- duce evidence bearing upon the issues. The Respondent moved to dismiss the complaint at the conclusion of General Counsel's case-in-chief; the motion was denied. It was renewed at the close of the hearing ; decision was at that time reserved, and the motion is now disposed of in accordance with the conclusions and recommendations below. 'The General Counsel and his representative at the hearing are herein referred to as the General Counsel , and the National Labor Relations Board as the Board. GITTLIN CHARLOTTE BAG COMPANY 1163 General Counsel's motion at the conclusion of the hearing to conform names and dates in the pleadings to the proof was granted without objection. All of the parties were heard in oral argument at the close of the hearing. Pursuant to leave granted to all parties, a brief was thereafter filed by the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT It was stipulated that the Respondent, a New Jersey corporation, manufac- tures burlap bags and renovates cotton and burlap bags at its plant in Charlotte, North Carolina. During the 12 months immediately preceding the hearing, the Respondent purchased cotton and burlap bags valued at more than $50,000, approximately 80 percent of which was purchased and shipped to said plant from points outside the State of North Carolina. During the same period, the Respondent sold finished products valued at more than $50,000, approximately 80 percent of which was sold and shipped from the plant to points outside the State of North Carolina. The Board had previously assumed jurisdiction over the Respondent? It was admitted that the undersigned finds that the Respondent is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATION INVOLVED It was admitted and it is found that American Federation of Labor is a labor organization and admits to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES It was admitted that all production and maintenance employees at the Re- spondent's plant in Charlotte, excluding office workers, foremen, and all other supervisors, constitute an appropriate unit for collective bargaining, and that after an election conducted by the Board on April 4, 1950, the Board on April 12, 1950, certified the Union pursuant to Section 9 (a) of the Act as collective bargaining representative for all employees in the unit. There was further substantial agreement with respect to subsequent events, leaving-for resolution the ultiniate findings and conclusions. Mr. Joseph Jacobs, the Union's representative, first got in touch with Mr. I. T. Cohen, an attorney who at that time represented the Respondent, in June or July 1949. On Sep- tember 26, and before they had gotten together to negotiate a contract, Cohen notified Jacobs that the Respondent expected to close its business in January because of the changes in the wage-hour law ; Jacobs replied that the Union would not seek a contract under such circumstances. No finding will be based on these events; they are here adverted to only to explain the delay in negotia- tions and to lead up to events which transpired after January 18, 1950. Jacobs checked after the first of the year and found that operations were continuing. Not until March, was^.he able to reach Cohen, who, it appears, is very busy and whose business takes him throughout the country. An appoint- ment was made to meet on March 9, at which time Jacobs was to and did submit a proposed contract. In a section-by-section discussion, Jacobs and Cohen agreed on-various items without change and on changes with respect 2 Case No. 34-RC-112. 1164 DECISIONS' OF' NATIONAL LABOR RELATIONS BOARD to the others. At the conclusion of the session, Jacobs undertook to retype the memorandum as agreed upon and to submit it to Cohen, who was to try to obtain the Respondent's signature. The memorandum was within a short time prepared and forwarded to Cohen. After more than half a dozen communications, over the telephone 'niid in writing, between Jacobs and Cohen and attempts by Jacobs to communicate with him, Cohen on May 19 stated that his client was still talking of closing the plant, and that in any event he wanted several slight changes made in the proposed agreement. Cohen was to redraft and mail the instrument to Jacobs. The negotiators met again on June 8, and agreement was reached on the various changes proposed by the Respondent. Prior to his last concession, Jacobs was assured by Cohen that the item then under consideration was "the only thing between" them ; Cohen then declared that the agreement was definite, and represented that his client would sign it. Jacobs was thereafter again unable to reach Cohen, who left word for him that his principal, Mr. A. S. Gittlin, was out of the country. On June 28, Jacobs advised Cohen by letter of his intention to file unfair labor practice charges against the Respondent based on refusal to bargain. Two days later, over a telephone, Cohen urged Jacobs to defer action, said that it was only a matter of time, and promised to write to Gittlin and urge him to sign the agreement. On July 11, Jacobs was advised that Gittlin had written that there were many elements to digest in the proposed agreement, that he wanted to see if a more equitable arrangement could be- worked out, and that he wanted to confer further with Cohen. The charge herein was thereupon filed. Some 4 months later, a letter was written to Jacobs on behalf of the Respondent in which the Union's majority was questioned and in which it was suggested that the Union "present the membership records" for the purpose of a payroll check. Simul- taneously with this letter, the Respondent filed a petition with the Board for an election to determine representation.3 "A union's representative status is conclusively presumed for a reasonable period of time, customarily 1 year after certification, and indefinitely thereafter until such status in shown to have ceased."' In fact, bargaining collectively with the Union until charges were filed on July 19, 1950, without raising the question, the Respondent in.effect.has conceded the Union's majority status until that date 5 The issue is therefore .whether the Respondent refused to bargain in good faith; it was under legal obligation to do so at least until July 19. A later offer to bargain, conditioned on proof of majority, does not nullify or compensate for such a refusal. Furthermore, an unfair labor practice so com- mitted might itself reasonably result in loss of majority status. Therefore, whether the Union in fact thereafter represented a majority of the employees in the unit is immaterial ; the Respondent cannot take advantage of its violation, if such be found, to claim that the majority has been lost' During the course of the negotiations, the Union's representative made many concessions, first to achieve the tentative agreement which was submitted for Gitt- lin's approval, and then as it accepted all of his proposed changes and embodied them in the second document which was transmitted to him. It is well settled .that assent and sponsorship of proposals, followed by retraction after the other side expresses agreement, indicate lack of good faith' 8 34-RM-16. 4 United States Gypsum Company, 90 NLRB 964; Dorsey Trailers, Inc., 80 NLRB 478. " Dorsey Trailers, Inc., supra. G 'West Temas Utilities Company , Inc., 85 NLRB 1396. +Franklin Hosiery Mills, Inc., 83 NLRB 276. . GITTLIN CHARLOTTE BAG COMPANY 1165 Jacobs stated his own satisfaction that Cohen had himself proceeded in good faith. As the latter declared, he had ironed out the various questions as far as he understood his client's problems. In fact, he had gone further in transmitting the client's own understanding and wishes and obtaining the Union' s agreement. But the attitude of his client, as, manifested by Gittlin, was clearly different. The latter was prepared to let Cohen negotiate a outrance. In the letter referred to on July 11, Gittlin referred only to a "more equitable arrangement" ; he did not point. out any specific objections to the agreement which he had previously endorsed. His expressed desire to confer further with Cohen is also enlightening : Even at that late date he would see, not Jacobs, who was negotiating for and com- mitting the Union, but Cohen, to whom Gittlin himself had denied authority to bind the Respondent and with whom he was playing fast and loose. To play ducks and drakes with the bargaining process is to make game of the Act. The Respondent's bad faith is clearly established as in existence on July 11, 1950, when Gittlin's statement was transmitted to Jacobs. It is found that since that date the Respondent has wrongfully refused to. bargain with the Union as exclusive representative of all employees in the unit described above. Under the circumstances, it is unnecessary to consider the question whether the frequent unavailability of the Respondent's apparently sole officer with authority to bind it and of its negotiating representative, with the consequent delay at each step in the negotiations indicated lack of good faith. The Respondent's contention to the contrary notwithstanding, the filing of ..charges did not relieve it of its obligation to bargain.' As for the RM petition;° that could not erase the effect of prior unfair labor practices, and it was dis- missed. Nor does such petition indicate that the Respondent had bargained in good faith.'0 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III. above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation, to trade;'traffic, and comterce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union thereby interfering with, restraining, and coercing its employees. It will therefore be recommended that the Respondent cease and desist therefrom and from any like or related conduct, and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. 8 Atlanta Broadcasting Company, 90 NLRB 808. ° Footnote 3, supra. 10 The undersigned rejected the Respondent's exhibit offered to show that of 80 present employees , only 41 were employed when the election was held in April 1949 . "There is no certainty .. . that the employees hired . . . were not union adherents or that formerly antiunion employees had not changed their attitude toward the Union." (West Fork Cut Glass Company, 90 NLRB 944.) .1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at the Respondent's plant in Charlotte, North Carolina, excluding office workers, foremen, and all other super- visors, 'constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 3. American Federation of Labor was, on April 4, 1949, .and. at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with American Federation of Labor as the exclusive bargaining representative of the employees.in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal to bargain, thereby interfering with, restraining, and coercing its employees in the exercise-of rights guaranteed in SectionK7 of ;the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CHARBONNEAU PACKING CORPORATION and FRUIT AND VEGETABLE PACKERS AND WAREHOUSEMEN'S UNION, LOCAL UNION No. 760 , INTER- NATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS , WAREHOUSE- MEN AND HELPERS OF AMERICA, AFL. Case No. 19-CA-279. August 00, 1951 Decision and Order On April 16, 1951, Trial-Examiner Charles L.'Ferguson,'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 copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that those allegations of the complaint be dismissed. Thereafter, the Respondent filed exceptions-. to the Intermediate Report -arid a brief in support of its exceptions. The Board' has reviewed the rulings made by the Trial Examiner ' Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated Its powers in connection with this case to a three -member panel [ Chairman Herzog and Members Houston and Reynolds]. 95 NLRB No. 157. Copy with citationCopy as parenthetical citation